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People v. Clark





APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding. MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The prosecution appeals from the order of the trial court which discharged the defendant under the provisions of section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(b)). Such an order is appealable. People v. Petropoulos (1966), 34 Ill.2d 179, 214 N.E.2d 765.

This court has heretofore granted leave to supplement the record. That order was found to be granted improvidently, and such matter has not been considered on review.

A statement of chronology is required. On October 26, 1978, defendant, a State trooper, was indicted upon three counts of perjury and three counts of official misconduct. On October 27 defendant was released on his own recognizance and oral demand for a speedy trial was made. The record shows that the State's Attorney waived written demand.

The record shows motions and orders for discovery by each party. The scope and content of the motions and orders are not shown in the record. It appears that the prosecution produced several volumes of police reports and other material in discovery. The issue was keyed to delay in transcribing certain grand jury proceedings.

On March 26, 1979, the State's Attorney filed a motion for continuance alleging that a transcript of the grand jury testimony had been requested on October 26, 1978; that the contract reporter had not furnished the transcript; that inquiry had been made on March 1, 1979, but that the transcript had not been transcribed and that the prosecution could not proceed to trial until the transcript had been prepared. The motion was supported by an affidavit of an assistant state's attorney who had requested the transcript.

On March 30, the motion with arguments of counsel was heard and the case continued for 60 days as provided in section 103-5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(c)). This section provides in substance that if the court determines that the State has exercised due diligence to obtain evidence material to the case, and that there are reasonable grounds to believe such evidence may be obtained, the trial court may grant an application extending the term for a speedy trial by an additional 60 days.

On April 5, 1979, defendant filed a motion for discharge under section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(b)) alleging the sequence of events and that 160 days had expired since the date of demand for speedy trial, and since the date of the order granting a continuance.

On April 11, testimony upon the latter motion was heard from the assistant state's attorney, the contract reporter, and the stenographer for the State's Attorney who inquired concerning the transcript on March 1. The testimony supports a conclusion that the reporter did not promptly report the grand jury proceedings because she confused the order for the transcript with her instructions concerning the proceedings in a case being heard by the grand jury contemporaneously. A response to discovery shows that the report of grand jury testimony which apparently was not available on April 11 was supplied to defendant on April 12.

On April 25, the trial court discharged defendant. His memorandum was filed setting forth that the issues were whether the prosecution exercised due diligence and whether the grand jury transcript constituted material evidence within the statute. From the evidence, the trial court concluded that the contract reporter had failed to comprehend the instructions concerning the transcript. He did not find that there had been a failure of prosecutorial diligence. See People v. Griffin (1978), 58 Ill. App.3d 644, 374 N.E.2d 1031.

The trial court determined, however, that the grand jury proceedings did not constitute material evidence and for that reason discharged the defendant. The court's rationale was that the prosecution could not use the transcript to impeach the witnesses which it called at trial. The defendant had appeared before the grand jury and testified. The court reasoned, however, that the transcript could be used only to impeach the defendant or to prosecute him for perjury if he testified at trial, but that the use of the transcript could not be material if defendant did not testify.

• 1 The prosecution argues that it relied upon the order of the trial court granting the continuance, and that if the continuance had been denied steps could have been taken to procure a special jury setting prior to the expiration of the statutory term. It is not unreasonable to conclude that there was reliance upon the order granting continuance in the light of the fact that the record shows that the matter had been argued by counsel and that the court thereafter granted the continuance.

• 2 The State argues that the transcript of defendant's testimony contained admissions that are material to the issues upon the charges of perjury, that is, that the defendant stated the matters detailed in the complaint for search warrant to an assistant state's attorney; that defendant read the complaint prepared by that individual before signing it, and that that complaint correctly set forth the facts stated to the assistant state's attorney by defendant. Such admissions are relevant and material upon the issues in the prosecution, and we conclude that the trial court erred in that, as a matter of law, the transcript of grand jury proceedings was not material as evidence.

Defendant cites People v. Sharos (1974), 24 Ill. App.3d 265, 320 N.E.2d 351. There, the actual issue was whether the statutory period of 160 days should commence with the date of demand for speedy trial made following a preliminary hearing, or from the date of the subsequent indictment and arraignment. When Sharos was called for trial, discovery had not been completed and defendant sought a continuance. The reviewing court held that such continuance was not a delay chargeable to defendant. Here, defendant argues from such premise that if the transcript had been presented on March 30 in discovery, defendant would have had to request a continuance to prepare for trial; that such delay would not have been chargeable to defendant, and that thereafter defendant would be entitled to discharge upon the expiration of the term.

In the context of preparation for trial, the argued conclusion is not necessarily correct. In People v. Elder (1979), 73 Ill. App.3d 192, 391 N.E.2d 403, the prosecution failed to supply discovery until the day on which jury selection began. It was held that there was no error in denying defendant's motion for continuance because such facts did not demonstrate, as a matter of law, that there was no adequate opportunity to prepare the defense. Here, as in Elder, the defendant had been supplied with voluminous discovery and the names of the witnesses before the grand jury had been endorsed in the indictment. Defendant's use of this transcript would be for impeachment of the prosecution witnesses called to testify. This transcript was of some 129 pages and there was a period of four or five days to ...

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