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People v. Boyd

OPINION FILED SEPTEMBER 11, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WALTER L. BOYD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS J. MAHON, Judge, presiding.

MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 9, 1980.

At the conclusion of a jury trial in the circuit court of Cook County, defendant, Walter Boyd, was convicted of three counts of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1) and three counts of attempt armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2). He was sentenced to three concurrent prison terms of 100 to 300 years for the murders and three concurrent prison terms of 3 to 15 years for the attempt robbery convictions.

On appeal, defendant contends: (1) he was denied his constitutional right to a speedy trial; (2) the introduction of an inculpatory hearsay statement deprived him of his constitutional right to confrontation; (3) the trial court erred in ruling that defendant's statements to the police were voluntary and therefore admissible; (4) the trial court erred in admitting into evidence the photographs of the victims; (5) his guilt was not proven beyond a reasonable doubt; (6) the trial court erred in admitting into evidence the weapons found at the scene of the crime; (7) the trial court erred in refusing to admit defendant's testimony about statements made to him by a person who later died; (8) reversible error occurred when the prosecutor cross-examined defendant about pretrial plea bargaining; (9) the trial court erred in unduly restricting the direct examination of a defense witness; (10) reversible error occurred when the prosecutor improperly argued to the jury that defendant was a drug addict; (11) reversible error occurred during closing argument when the prosecutor referred to the grand jury proceedings; (12) the trial court improperly restricted defendant's closing argument; (13) the trial court abused its discretion by refusing the juror's request for transcripts of testimony; and (14) the sentences imposed by the trial court were excessive.

We affirm.

Defendant was convicted of the murder and attempt robbery of three members of the Thomas family: Tyrone and Virginia, the parents; and Michelle, their seven- or eight-year-old daughter. The Thomas' five-month-old baby girl, present at the scene of the slayings, was not harmed.

THE STATE'S CASE-IN-CHIEF

At trial, *fn1 the State's first witness, Larry DePerry, testified that he was an acquaintance of defendant and Tyrone Thomas. On June 29, 1976, after 10 p.m., DePerry went to Tyrone's home to purchase narcotics. Tyrone asked him to go to the store, and DePerry agreed because Tyrone promised "to tighten up the package," which DePerry explained meant Tyrone would give DePerry more drugs.

As DePerry left the Thomas home, he saw defendant standing on the street curb, next to a yellow car. Defendant appeared to be talking with someone who was seated in the car. DePerry nodded to defendant in recognition and noted that defendant wore light colored clothing. Approximately five minutes later, DePerry returned to the Thomas residence. The yellow car was parked in the same location. He did not see the defendant, but he did see a man walking south. DePerry did not recognize this man; he could not see the man's face because he was wearing a hat which covered his eyes. DePerry asserted he was sure this man was not the defendant.

DePerry continued to walk toward Tyrone's house and, when he arrived at the back door, he rang the bell, but no one answered. He waited 10 to 15 minutes, and then went to a phone booth and telephoned Tyrone, but no one answered the telephone. He returned to Tyrone's home and, not gaining entry, he left. Approximately one or two hours later, DePerry returned again to Tyrone's residence. He first rang the bell at the back door and then went to the front door. DePerry rang the bell and looked through the front glass. After discovering the burglar gates were open, he pushed the door open and saw Tyrone's body lying on the floor. As DePerry continued to push the door open, he saw Virginia and Michelle. Their bodies were on the floor and were stained with blood.

At trial, DePerry identified several photographs of the victims as accurately depicting the victims as he had seen them. DePerry also testified that Tyrone's house had burglar gates across the back and front doors and burglar bars all over the house. DePerry also stated that a person would have to be a good friend of Tyrone to get into the house via the front door.

The State's next witness, police officer Chester Zubrzycki, testified that on the morning of June 30, 1976, he and his partner went to the location of the Tyrone Thomas home. In the hallway, they discovered the body of a man covered with blood. The man's throat had been cut; a cord had been tied around his neck. In the living room, the police officers found the bodies of a woman and a young girl. Both bodies were covered with blood. The young girl's throat had been cut. The police officers also found an infant, who was alive. A dead German Shepherd dog was lying on the floor. Officer Zubrzycki identified several color photographs which depicted the bodies of the victims. The bodies were covered with blood.

Police officer Raymond Peterson testified to the removal of the man's body to the morgue. He also identified a color photograph of the bodies of the woman, the little girl, and the dog. Police officer William Sherlock, a mobile unit technician, asserted that he examined for physical evidence, the bodies of the victims and the scene. The evidence he recovered included a revolver found near Tyrone's body, a pair of scissors found under Virginia's body, a knife discovered partially under Tyrone's body, another knife located on the hallway floor, and another revolver discovered in the front room on the floor under the baby's crib.

Sherlock further stated that samples of blood were obtained from inside the apartment and the front porch. Samples of the victim's clothing were sent to the crime laboratory. Another officer found a blue jacket in a nearby vacant lot. According to Sherlock, the jacket appeared to have bloodstains on it. Sherlock checked all the windows and doors and observed that all were barred and intact. He also identified as an accurate depiction, a photograph of the knife found on the floor near the bathroom and another photograph of the wound in Tyrone's back.

Police officer Richard Binkus testified that on the night of the incident he examined a trail of blood outside the Tyrone Thomas home. The trail consisted of clusters of six to ten drops of blood. Each of the drops was approximately two to three feet apart. In a northerly direction, Binkus followed the trail from the house and then west through a vacant lot to the alley between Wentworth and Wells Streets. The trail continued south through the alley for a few feet and then stopped. Binkus proceeded south in the alley at 45th Street, and found the trail again. Binkus followed the trail into a weeded area in the back of a house at 45th and Wells Streets. There Binkus found a blood-stained light blue jacket. The trail continued southwest and stopped at 45th Street.

Police officer Joseph Pikowski testified that on June 30, 1976, he examined the area around 4442 South Wentworth. He found a blood-stained carving knife between two garages located behind 4423 South Wentworth, approximately six feet from the alley which runs between Wells and Wentworth Streets.

Police officer Patrick McNulty testified that on July 2, 1976, he removed a piece of a living room throw rug and sent it to the crime laboratory. The parties then stipulated that a technician took a blood sample from defendant and determined that he had Type O blood.

Sergeant Donald Smith of the firearms identification unit testified he examined a gun and bullet recovered from the scene of the slayings but he could not make a positive identification because the bullet was mutilated. He also examined a .38-caliber bullet and determined that it had not been fired from the .38-caliber gun recovered at the scene.

A Chicago police department micro-analyst, George Speyrene, testified that he analyzed the blood of the three victims. Both Tyrone and Michelle had Type AB blood; Virginia had Type A blood. Speyrene further stated that the scissors and the knives found in the house and the carving knife found near the alley were stained with Type AB blood. No blood was found on the orange rug sample, but the blue jacket discovered near Tyrone's residence contained orange fibers morphologically similar to the fibers from the carpet sample.

Speyrene further stated that the collar, right sleeve, left panel and back of the blue jacket were stained with Type O blood. Speyrene further discovered Type AB blood on the jacket's left front panel, front sleeve, and right sleeve. He examined other items but none of these contained Type O blood. The porch outside Tyrone's home was stained with Type B blood. Speyrene asserted that none of the victims had Type O blood.

Dr. Robert Stein testified he removed a small caliber bullet from the head of the dead dog found at the scene of the slayings. Dr. Tai An examined the bodies of the victims. Two bullet wounds were found in Virginia's body; one bullet was found at the base of the nose, and the other was found in the left occipital area of the skull. The cause of her death was a bullet laceration in the brain. Dr. An further stated that the examination of Tyrone's body revealed that a large slash wound on his neck, three stab wounds on his back and three stab wounds on the left side of his head with scalp lacerations in the same area. Dr. An determined that Tyrone died from the slash wound to the neck which lacerated the carotid artery and the jugular vein. Dr. An also noted that blood could have flowed from the lacerations and cuts he found on Tyrone's head.

Dr. An further asserted that Michelle's neck sustained a large slash wound, her left eyelid revealed multiple contusions, and her left thumb contained cutting wounds. Dr. An determined that Michelle died of head wounds and a slash wound to her neck which lacerated the major branch of the left jugular vein, and larynx. The wounds of Tyrone and Michelle might have been caused by the use of the knife near Tyrone's body and the knife found in the alley.

On cross-examination, Dr. An admitted he could not determine that either knife had actually caused the wounds to the bodies of Tyrone and Michelle. Dr. An also indicated that he had found morphine in the bile of both Tyrone and Virginia. He also informed the jury that heroin produces morphine in the bile.

Police officer John Furmanek testified that on July 7, 1976, at 9:15 a.m., he and his partner, Edward Gallagher, were working in civilian clothes when the defendant and his brother, Alvin, entered the police station. Lieutenant Hensley also was present. In the presence of these police officers and defendant's brother, Furmanek advised defendant of his constitutional rights, and then at approximately 10 a.m. he talked with defendant.

Furmanek related the substance of the 20-minute conversation with defendant. Defendant told him that on the night of the crimes, he went to the front door of the Tyrone Thomas house. Suddenly and without warning, two men pushed him into the house. One man pointed a gun at Tyrone's head and made defendant kneel near the sofa. The other man had a scuffle with Virginia. Someone said, "I want my money," and then someone said, "I'll tighten up with money." Virginia then entered the room with the second man and during the scuffle, a gun fell to the floor. Defendant picked it up and tried to fire a shot, but the gun misfired. A scuffle ensued. Defendant ran out of the house to 45th Street. He noticed he was bleeding. His coat was stained with blood, and he discarded the coat. His hand was bleeding and he wrapped it in his shirt. After riding a bus for two hours, he decided to go to Miami, Florida. He then went to the West Side of Chicago, obtained some clothes, and then took a bus to Miami. He did not notify anyone, and he was not worried because he thought the "dudes" knew Tyrone. Defendant said he did not know the men who had accosted him in front of Tyrone's home. Furmanek also stated that defendant said he had wanted to get away, "something about someone knowing about Walter doing drugs." Defendant said he learned of the killings on July 2, 1976.

After defendant gave this statement, Furmanek received a call regarding a witness who wanted to talk about a triple slaying he had witnessed. Furmanek went to the Civic Center and, after obtaining Oliver Holiday's release, brought Holiday back to the police station.

Furmanek further testified that after his conversation with defendant, defendant was placed in an interview room and remained there from noon to 3 p.m. At 3 p.m., the police took defendant to another station where he remained with Investigators Rochowicz, Bulger, and Strong.

On cross-examination, Furmanek asserted he did not know how long Oliver Holiday had remained at the police station, who had talked with him, or whether Holiday had made any written statements. Holiday was released from police custody, but Furmanek did not know why Holiday was not arrested after defendant gave a second statement which inculpated Holiday.

Police investigator Rochowicz testified that in the late afternoon on July 7, 1976, he had a conversation with Investigators Strong and Bulger, and with police officers Hensley, Gallagher, and Furmanek. After this conversation, at approximately 5 p.m. or 5:30 p.m., he talked with defendant. Rochowicz and defendant were alone during this conversation. After Rochowicz advised defendant of his rights, defendant gave him a statement.

Rochowicz related the substance of defendant's statement. Defendant went to the Tyrone Thomas house to purchase narcotics. Defendant passed two men who were standing on the street and, as he knocked on the front door, and as he gained entry, the two men pushed him through the door. The men had guns and they first made Tyrone kneel on the living room floor and then tied him with electrical cord. As Virginia ran to the kitchen, one of the men grabbed her, and as they struggled, he dropped the gun. Defendant then picked up the gun, pointed it at the man, and pulled the trigger twice. The gun misfired. The man also had a knife and, during the scuffle, defendant grabbed the knife and cut his hand. He then ran out of the house and proceeded north on Wentworth and west through a gangway. He discarded his jacket because it was full of blood.

Rochowicz further testified that at approximately 6 p.m. Rochowicz talked privately with Holiday. At 6:20 p.m., Rochowicz returned to defendant's interview room. Only he and defendant were present. Rochowicz told defendant what Holiday had said to him. Rochowicz testified Holiday told him that on the night of the incident, defendant went to Holiday's apartment. Holiday said defendant's hand was wrapped with a shirt and Holiday asked defendant what had happened.

The trial court overruled defendant's objection to Rochowicz's testimony as to what Holiday said defendant had said. Rochowicz continued testifying. Rochowicz asserted Holiday told him that defendant had said he had killed two people and had done something he really did not want to do. Rochowicz stated that Holiday said to the defendant, "Well, what can I do * * *?" Holiday told Rochowicz that he told defendant to get out of town. Holiday also told Rochowicz that defendant then said to Holiday, "I'll contact you later."

Rochowicz further testified that after he told defendant what Holiday had said to him, defendant responded that he would tell Rochowicz "what really happened." Rochowicz then related the substance of defendant's conversation. Defendant, Holiday, and two other persons drove a white car to the Tyrone Thomas house to "rip him off," which defendant explained was a robbery. Only defendant and Holiday left the car. After they gained entry and began talking with Tyrone, Tyrone felt something was wrong. Tyrone shouted to Virginia, and Holiday struck Tyrone with a gun. After Tyrone fell to the floor, they used an electrical cord to tie Tyrone. Holiday grabbed Virginia as she came out of the kitchen and forced her back into the kitchen.

Rochowicz further stated defendant told him that as Holiday returned from the kitchen, Holiday told defendant he had everything the Thomases had. At that time, defendant noticed Virginia was bleeding from the head. She attacked defendant with a butcher knife. Defendant grabbed the knife and yelled, "This is too much for me. I am leaving." He left the apartment and went north on Wentworth and west through a gangway. He discarded his bloodstained jacket. He saw Holiday and the other two persons pull up in the car. Defendant joined them, and they went to Holiday's apartment. Holiday gave defendant $100 and told him to get out of town.

Rochowicz testified that between six and eight hours after taking defendant's statement, he typed some notes relating to the conversation. After reading the notes, he prepared the police reports containing all the information he had received during his investigation. He did not keep his original notes.

Several color photographs and weapons found at the crime scene were introduced into evidence over defendant's objections. The State rested. The court denied defendant's motion for a directed verdict. The court granted the State's motion in limine seeking to prevent defendant from introducing statements made by Holiday to defendant during telephone conversations. Defendant objected to the motion and the ruling.

THE DEFENSE

Defendant testified he met Tyrone Thomas in 1974, and he later hired Tyrone to work the night shift at a service station which defendant operated. Tyrone and defendant became good friends. Defendant frequented the Tyrone Thomas residence and knew Virginia and Michelle. He also sometimes walked in the park with Tyrone and Tyrone's dog. When defendant learned that Tyrone was a drug dealer, Tyrone's employment was terminated by mutual agreement. Defendant asserted he never used narcotic drugs.

In late 1970 or early 1971, defendant met Holiday. Although they conversed, they did not socialize. After speaking with Holiday on June 27, 1976, defendant called Tyrone and told him he knew someone who wanted to purchase $100 worth of heroin. Holiday and defendant went to Tyrone's house. Holiday gave defendant $100, and defendant went inside Tyrone's home and purchased the heroin. Defendant had told Holiday to remain outside because Tyrone did not like to meet people.

Defendant further stated that on June 29, 1976, at 12 p.m., Holiday telephoned defendant. Defendant then called Tyrone and complained that the drugs purchased for Holiday were "Fried Dormin." Tyrone told defendant he would supply fresh drugs or return the money. In the evening, defendant joined Holiday and two other persons who were riding in a white car. They parked nearby the Tyrone Thomas residence. Holiday insisted that he join defendant, and he went with defendant to the Tyrone Thomas home.

Defendant further testified that as he and Holiday walked towards the Thomas residence, he saw Larry DePerry and nodded in recognition. After they arrived at Tyrone's residence, defendant rang the bell. When Tyrone looked out the window, defendant stepped back under the street light so that Tyrone could see him. Tyrone unlocked the gate and the door. Defendant went inside the apartment. Holiday remained on the porch.

Suddenly, defendant heard Tyrone say, "What is this?" Tyrone called out to Virginia. Defendant saw Holiday. Holiday had a gun and he hit Tyrone in the head two or three times. Holiday then pushed Tyrone towards the defendant and Tyrone fell against defendant's chest. Defendant asserted that prior to this time, he had no knowledge that Tyrone had a gun. Defendant never considered robbing Tyrone. Defendant yelled to Holiday, "What are you doing?" and Holiday responded that he had come for his money.

At this point, Virginia entered the room. She had a gun, and Holiday told her to drop the gun or Tyrone would die. Virginia dropped the gun. Holiday told Tyrone to lie on the floor. Holiday then pulled the telephone cord out of the wall, gave the cord to defendant and ordered him to tie Tyrone's hands. Holiday told Virginia to get him "everything they had." Virginia went into the bedroom. As defendant tied Tyrone with the cord, he tried to convince him that he had nothing to do with the robbery. Defendant did not tie a knot in the cord he placed around Tyrone's hands.

Defendant further testified that throughout the robbery Holiday had a gun in his hand and he never let defendant move outside of his sight. After Virginia handed something to Holiday, she went towards defendant. She had a knife and, as she swung it at him, defendant grabbed the blade and said to her, "Can't you see, I don't have nothing to do with this?" Defendant then ran to the porch. As he jumped over the porch railing, he heard a gunshot. He ran north, away from the car, and then ran west through a vacant lot to the alley. He proceeded south through the alley. As he ran, he removed his jacket and threw it into the lot at the end of the alley. He wrapped his bleeding hand in his shirt. He did not have a knife.

Defendant stated that later he tried to telephone both Holiday and Tyrone, but he could not get a response from either person. He decided to buy a ticket to Miami Beach and remain there until he could "straighten out" the matter. He first went to his brother's apartment on the west side of Chicago and obtained some clothes. He then took a bus to Florida and stopped in Daytona Beach, Florida. He called Holiday, who assured him the gunshot he had heard was nothing. Holiday told defendant to get in touch with him when he returned to Chicago.

After defendant returned to Chicago, he met with his brothers Robert and Alvin. They told defendant the police and the Blackstone Rangers were looking for him. They also advised defendant to surrender to the police to obtain protection. Alvin took defendant to a hotel where he remained for a few days. On July 7, 1976, defendant, accompanied by his brothers Alvin and Nathaniel, walked into a police station.

Defendant further asserted that Officer Furmanek then took defendant and his brothers into a room. After Furmanek advised defendant of his rights, he asked defendant to tell him about the incident. Defendant admitted he told Furmanek an untrue story. Between 11:30 a.m. and 12 p.m., several of the police took defendant upstairs and they began talking about the Blackstone Rangers.

Defendant testified the police asked whether he knew that Mickey Cogwell, the leader of the Blackstone Rangers, a street gang, had been calling the police station. The police expressed the view that defendant should be "turned over" to the Rangers. Defendant remained handcuffed in the room for three hours; he was not given any food. Sometime after 3 p.m., the police transported him to another location. He was handcuffed to the radiator and was not given any food until 7 p.m. that evening.

The defendant denied making a statement to Investigator Rochowicz in which he admitted planning and participating in a robbery. Defendant stated he did not plan to rob the Tyrone Thomas family, nor did he kill them. On cross-examination defendant admitted he had never called the police, although he had heard a gun fire and knew Larry DePerry had observed him at the scene. Defendant also acknowledged that while he was in Florida, he telephoned only Holiday, not Tyrone.

Defendant also stated that he was frightened of the Blackstone Rangers, but he did not ask the police for help. He also asserted that on the night of the incident, he did not see Michelle, the baby, or the dog in the apartment.

Police officer Thomas Brankin was called as a defense witness. The State objected to the officer's testimony. During a voir dire examination, outside the jury's presence, Brankin testified he had been assigned to investigate the death of Oliver Holiday on July 29, 1976. Brankin admitted that no police officer requested a determination of Holiday's blood type. At the Holiday inquest, Brankin testified that Holiday's death normally would have been a routine drug overdose matter but that it was not routine because Holiday was a witness to a murder.

Brankin testified before the jury that he had investigated Holiday's death and had been informed that Holiday was a witness to a triple murder of the Tyrone Thomas family. Brankin also asserted he had no personal knowledge whether Holiday's blood type had been determined.

The defense also called Dr. An as a witness. He stated that on July 30, 1976, he examined Holiday's body and, in his opinion, the cause of death was habitual use of morphine. Although Dr. An drew a blood sample from Holiday's body, he did not submit the sample for testing because he was not asked to do any crime laboratory bloodwork in conjunction with the Holiday autopsy.

Defendant's brother, Alvin, also testified as a defense witness. He related that the police had been looking for defendant, and they told him that the Blackstone Rangers wanted to kill the defendant because he had killed Tyrone, who was a drug dealer for the gang. Alvin saw defendant on July 3, 1976, and communicated this information to him. On July 7, 1976, he accompanied defendant to the police station and remained with defendant while defendant told the police the false version of the incident. Earlier, defendant had told Alvin the same story, and Alvin did not know the story was untrue.

Three character witnesses also testified to defendant's reputation in the community as a peaceful and law-abiding citizen. The defense rested.

THE STATE'S REBUTTAL

In rebuttal, Assistant State's Attorney Gary Griffith testified that on July 7, 1976, at 7 p.m., he talked with defendant in the presence of Investigator Rochowicz. Defendant told him that on the night of the incident, defendant, Holiday, and another person named Ben, went to the Tyrone Thomas home to rob Tyrone. When Griffith asked defendant who set it up, defendant told him they did. Defendant was picked up in a white car, and the group parked the car south of the Tyrone Thomas residence.

Griffith further stated that defendant told him he and Holiday then walked to the door of the apartment. Defendant knocked; Holiday hid from view. After Tyrone answered the door, Holiday ran up the stairs and hit Tyrone in the head. He and defendant then took Tyrone into the living room and tied him with a telephone cord. Holiday struck Tyrone with a gun and then took Virginia into the bedroom. When Holiday and Virginia returned, Virginia's head was bleeding and Holiday said, "I've got all they have." Virginia then lunged with a carving knife at defendant. Defendant struggled to obtain the knife and cut himself as he pulled it away from her. Defendant became frightened, ran out the door, and as he ran north, he heard a gunshot. Later, defendant met Holiday and received his $100 share.

On cross-examination, Griffith asserted that while he was questioning defendant, defendant told him he had set up the robbery. Upon further questioning, Griffith admitted that the police report which he had prepared reported, "I [Griffith] stated that he had set it up to rob Tyrone Thomas."

The State then rested; defendant's motion for a directed verdict was denied. After closing arguments, the jury was instructed. Approximately 3 1/2 hours after the jury retired to deliberate, the trial judge received three requests for transcripts of trial testimony: two of the requests were for defendant's testimony; one request was for all the testimony. After discussion with counsel, the court advised the jury, in writing, that they must base their verdicts on the testimony they heard, the stipulations, and the exhibits received in evidence. The jury returned guilty verdicts.

Defendant was subsequently sentenced to three prison terms of 100 to 300 years for the murders and three prison terms of 3 to 15 years for the attempt robberies, all terms to run concurrently.

Defendant appeals his convictions.

OPINION

I

• 1 Defendant first contends the trial court erred in denying his motion for discharge. With respect to offenses committed prior to March 1, 1977, the four term act (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(a), (d), (f)) provides in pertinent part:

"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody * * *.

Every person not tried in accordance with subsections (a), * * * of this Section shall be discharged from custody * * *.

Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period * * * and on the day of expiration of the delay the said period shall continue at the point at which it was suspended. * * *"

In accordance with the statute, where a defendant, by his own actions, causes a delay in trial, the statutory period is tolled and begins to run anew from the date to which the case has been delayed. People v. Donalson (1976), 64 Ill.2d 536, 356 N.E.2d 776; People v. Lee (1969), 44 Ill.2d 161, 254 N.E.2d 469.

Thus, our inquiry in the instant case is whether an act of defendant, or some act to which he consented, necessitated a "slowdown" in the judicial process so as to delay his trial. People v. Jones (1971), 130 Ill. App.2d 769, 266 N.E.2d 411.

Defendant was arrested on July 9, 1976, and remained in custody until the trial began on August 9, 1977. The trial was continued "by agreement" of the parties four times between July 29, 1976, and November 24, 1976. On October 20, 1976, defense counsel informed the trial court that he was compelled to agree to a continuance because the State had not yet tendered all of the requested discovery materials. On November 24, 1976, defendant filed his petition for discharge, and by agreement of the parties, the hearing was set for December 8, 1976. On December 8, 1976, defense counsel agreed to continue the case to December 22, 1976, and restated his position that he was compelled to do so since he had not obtained certain discovery materials. Defense counsel maintained that he could not answer, in good faith, that he was ready for trial, nor could he adequately represent his client in view of the State's failure to comply with discovery requests.

On December 22, 1976, a different trial judge heard arguments on defendant's motion for discharge. By order of the court, the case was continued to December 28, 1976. On that date, the trial judge denied defendant's motion. The court reasoned that every continuance was "by agreement" and defense counsel, a "seasoned criminal lawyer," understood the legal meaning of these words. Defendant argues here, as he did in the trial court, that since he was forced to choose between his right to a speedy trial and the right to effective assistance of counsel, he was denied the right to a speedy trial when he elected not to proceed to trial unprepared. We disagree.

Our supreme court has rejected the notion that defendant's right to a speedy trial is violated when the case is continued to allow defendant to prepare for trial:

"`To argue that he was forced to choose as he did is to argue technicalities. The right to a speedy trial and the right to avoid a precipitous trial are separate but related rights. Both are designed to assure an accused a fair trial, to prevent undue delay in one instance and undue haste in the other. He can demand action or avoid action as the exigencies of his situation may dictate. But fairness and justice are not a one-way street. * * * The fact that on occasion the accused might have to jeopardize the legislative benefits of the four-month rule by asserting his right to a continuance does not entail a denial of his right to a speedy trial. * * * The election was defendant's to determine on the basis of what would better insure him a fair trial, and, having chosen to proceed, his present argument is nothing more than technical obfuscation.'"

People v. Lewis (1975), 60 Ill.2d 152, 156-57, 330 N.E.2d 857, 860, quoting People v. Johnson (1970), 45 Ill.2d 38, 43-44, 257 N.E.2d 3, 7. Cf. McGautha v. California (1971), 402 U.S. 183, 29 L.Ed.2d 862, 91 S.Ct. 2273, (criminal law is replete with situations requiring difficult judgments as to course to follow and even though defendant has constitutional right to follow whichever course he chooses, the Constitution does not always forbid requiring him to choose).

Similarly, in People v. Bradley (1976), 43 Ill. App.3d 463, 357 N.E.2d 696, the court considered defendant's claim that by reason of the State's lack of diligence with his discovery requests, he was compelled to elect between proceeding to trial unprepared and seeking a continuance which would toll the 120-day period for purposes of discharge. The appellate court rejected defendant's argument, stating:

"This contention cannot be sustained in light of People v. Williams (1974), 59 Ill.2d 402, 320 N.E.2d 849. There, it was held that even a single day preparation time before the expiration of the 120-day limit is not a denial of due process when the defendant can, but fails to seek a continuance. It follows that the election to which the defendant was put violates no constitutional guarantee." 43 Ill. App.3d 463, 467, 357 N.E.2d 696, 699-700; cf. People v. Hunter (1978), 61 Ill. App.3d 588, 376 N.E.2d 1065; People v. Lee (1975), 27 Ill. App.3d 712, 327 N.E.2d 574.

We also note that Illinois has procedures which defense counsel could have utilized to compel the State to comply with his discovery requests (Ill. Rev. Stat. 1975, ch. 110A, par. 415(d), (e), (f), (g)) and to obtain sanctions against the State for refusal to comply with a discovery order. (Ill. Rev. Stat. 1975, ch. 110A, par. 415(g)). In our opinion, defendant was not compelled to agree to continuances to obtain discovery material.

Accordingly, we hold that by agreeing to these continuances rather than demanding trial, defendant contributed to the delay of the trial, and the trial court properly denied the motion for discharge (People v. Criss (1977), 45 Ill. App.3d 973, 360 N.E.2d 543; see also People v. Green (1962), 23 Ill.2d 584, 179 N.E.2d 644).

• 2 Likewise, we believe the trial court correctly denied defendant's renewed motions for discharge on February 3, 1977, and April 15, 1977. Since defense counsel agreed to continue the case to November 24, 1976, the statute was tolled, and a new statutory period began to run on that date. On December 28, 1976, defense counsel requested a continuance to February 3, 1977. On February 14, 1977, defense counsel again moved for a continuance to February 25, 1977. Where the cause is continued on motion of defendant or his counsel, the motion for discharge will not be allowed if trial is held within four months of ...


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