APPEAL from the Circuit Court of Cook County; the Hon.
SYLVESTER C. CLOSE, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant Rico Adams, defendant Fred Johnson and Albert Winfrey were charged in an indictment with burglary, armed robbery and armed violence. Winfrey's motion for severance was granted and defendants Adams and Johnson were tried jointly.
Prior to trial, defendant Adams filed a motion for discharge, alleging that pursuant to section 103-5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(a)) his right to a speedy trial was violated because he was not brought to trial within 120 days from the day he was taken into custody. Adams was arrested on September 18, 1978, for the armed robbery in the case now before us. At the time of his arrest he was on parole stemming from a plea of guilty to an offense listed as murder and reduced to armed robbery. On October 8, 1978, he posted bond for the armed robbery and was released from custody. On January 8, 1979, he was arrested for a parole violation because of his arrest on the armed robbery charge. On April 23, 1979, he filed motions to quash his arrest and to suppress evidence. On May 29, 1979, he surrendered himself in exoneration of his bond. The trial court denied Adams' motion for discharge, finding that his detention on the parole warrant did not trigger the 120-day rule.
After a jury trial, defendants were found guilty of burglary, armed robbery and armed violence. The circuit court of Cook County sentenced both to extended terms of imprisonment: Adams to extended terms of 14 years for burglary and 35 years for armed robbery; Johnson to 15 years for armed robbery and an extended term of 10 years for burglary.
Defendants appeal. Adams contends that the trial court erred in denying his motion to discharge because he was not brought to trial within 120 days of being taken into custody. Both defendants contend they were denied a fair trial (1) because of alleged improper cross-examination of defense witnesses, (2) because the prosecutor made improper comments during closing argument, and (3) because defendants were improperly given extended term sentences.
Because of the contentions raised, the evidence need not be stated in detail. The record shows:
On September 17, 1978, defendants Adams and Johnson and a third person entered the house at 5222 South Green Street, Chicago, occupied by Diane Brashear, her two children, Edward Marshall, Lamont Marshall and Tony Marshall. Both Adams and Johnson had guns. The occupants were made to lie on the floor. Threats of death were made. Two radios, a gold watch, a small television set and money were taken by defendants. Adams and Johnson, after their arrest, were identified by the occupants. Both defendants presented alibi witnesses.
We disagree with Adams' contention that the trial court erred in refusing to discharge him because he was not brought to trial within 120 days of his being taken into custody. The State argues that because Adams made bail on October 8, 1979, the applicable limitation period required for a speedy trial is 160 days from the date defendant demands trial (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(b)) (the 160-day rule) and that the rule set forth in section 103-5(a) (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(a)) that a defendant be tried for an alleged offense within 120 days from the date he was taken into custody (the 120-day rule) is inapplicable here. We agree with the State.
• 1 In order to be discharged under the 120-day rule, defendant must have been in custody in connection with the charge for which he was subsequently tried. (People v. Nettles (1969), 107 Ill. App.2d 143, 246 N.E.2d 29.) The issue here is whether Adams' detention on the parole warrant, which began on January 8, 1979, is to be considered as detention on the robbery, armed violence and burglary charges for purposes of the 120-day rule.
This issue was raised in People v. Daily (1975), 30 Ill. App.3d 413, 332 N.E.2d 146. In that case, defendant was arrested for armed robbery on August 17, 1973. He posted bond on September 5, 1973, and was released. On September 7, 1973, he was arrested on a parole violation. He remained in custody until December 13, 1973. On that date the parole warrant was withdrawn and defendant was granted return of his bond money on the armed robbery charge. Defendant was then released on his own recognizance. The Daily court found defendant's detention on the parole warrant beginning on September 7 was not to be considered as detention on the armed robbery charge for purposes of the 120-day rule. The Daily court pointed out that this same question had been raised in People v. Patheal (1963), 27 Ill.2d 269, 189 N.E.2d 309, but had not been decided.
In People v. Patheal, the defendant was arrested on August 20, 1959, on a warrant charging the offense of armed robbery. At the preliminary hearing on September 4, 1959, the defendant was ordered held to await the action of the grand jury. On December 11, 1959, the defendant was delivered into the custody of a State parole agent under a warrant charging him with violation of parole, and he was taken from the county jail to the penitentiary. The indictment charging armed robbery was returned by the grand jury on December 15, 1959. The defendant was discharged from the penitentiary on January 21, 1960, and was immediately taken into custody on a warrant issued under the indictment. He remained in custody continuously until February 23, 1960, when he filed his motion for discharge, which was denied. The supreme court reversed, finding that the time spent in the penitentiary would be counted in computing the period of delay involved in bringing the defendant to trial upon a different charge and because the defendant had not been brought to trial within four months of his arrest, he was discharged.
• 2 We find that the court in Daily correctly determined that the precise issue raised in that case had not been decided by the court in Patheal. We note that in Patheal the defendant was in custody continuously from the date he was arrested on the armed robbery charge until he filed his motion for discharge. However, in Daily the defendant was on bond on the armed robbery charge at the time he was taken into custody on the parole warrant. Similarly, in the case before us defendant Adams was on bond on the charges of robbery, armed violence and burglary at the time he was arrested on the parole warrant. We conclude that because defendant Adams was released on bond on the burglary, armed robbery and armed violence charges, the 160-day rule for defendants on bail or recognizance became applicable. (People v. Griegel (1978), 64 Ill. App.3d 508, 381 N.E.2d 369; People v. Sibley (1976), 41 Ill. App.3d 616, 354 N.E.2d 442.) The cases which follow Patheal all involved defendants who were in custody continuously from the date of arrest on the offense in question until the day they filed motions for discharge. See People v. Burchfield (1978), 62 Ill. App.3d 754, 379 N.E.2d 375.
• 3, 4 Applying the 160-day rule here, we find that defendant Adams was not denied his right to a speedy trial. The motions to quash his arrest and to suppress evidence filed by Adams on April 23, 1979, did not constitute a demand for trial. While no magic words are required to constitute a speedy trial demand, there must be some affirmative statement in the record that requests a speedy trial. (People v. Coleman (1977), 50 Ill. App.3d 40, 365 N.E.2d 246.) The motions filed by Adams on April 23, 1979, cannot be construed as a communication to the court that Adams was demanding trial. Although the record reveals that Adams made a formal demand for trial on October 5, 1978, we note that he was not on bail on that date. A demand for trial made while a defendant is in custody is ineffective to trigger the running of the 160-day rule. (People v. Byrn (1971), 3 Ill. App.3d 362, 274 N.E.2d 186; contra, People v. Arch (1975), 33 Ill. App.3d 331, 337 N.E.2d 221.) Because Adams' formal request for a speedy trial was made while he was in custody and was never renewed at the time of filing the motion for bail or after he was admitted to bail, the running of the 160-day rule was not triggered. Defendant Adams was not denied his right to a speedy trial.
Even if the motions of April 23, 1979, are construed to be a demand for trial, defendant Adams was not denied his right to a speedy trial because the trial began well within the 160-day period.
Because we find the 160-day rule applicable here, we need not address the issue of whether a continuance granted February 5, 1979, should be attributed to defendant Adams as a delay "occasioned by the defendant" (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(a)), thereby rendering the 120-day rule inapplicable.
We also disagree with the contentions of defendants that they were denied a fair trial because (1) during cross-examination of defendant Johnson the prosecutor was allowed to question Johnson about whether he had any prior convictions, and (2) during cross-examination of defendant Adams' wife the prosecutor was allowed to ask her who ...