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People v. Anderson





Appeal from the Circuit Court of Coles County; the Hon. Joseph R. Spitz, Judge, presiding.


Following a jury trial, defendant was convicted of burglary in violation of section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 19-1(a)). He was sentenced to eight years in the Department of Corrections with credit for 246 days which he spent in custody prior to sentencing.

Defendant's first contention on appeal is that he was not brought to trial within 120 days of the beginning of his incarceration as required by section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a)). The defendant was arrested on May 29, 1981, and was charged with burglary by means of an information filed on June 2, 1981. His jury trial was originally set for August 4, 1981. On July 27, 1981, defendant filed a motion for a change of judge, which was granted on July 29, 1981. Defendant filed his motion for discharge pursuant to section 103-5(d) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(d)) on September 25, 1981, alleging that he had been incarcerated for a period in excess of 120 days without having been brought to trial. This motion was denied on September 29, 1981, the day that defendant's jury trial began. In his oral ruling on the motion for discharge, the trial judge attributed at least one week's delay to defendant's request for a change of judge.

Section 103-5(a) and (f) of the Code provides in pertinent part:

"Speedy trial. (a) 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 unless delay is occasioned by the defendant * * *.

(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subparagraphs (a), (b), or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended." (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a), (f).)

A motion for a substitution of judges constitutes a delay occasioned by a defendant for purposes of the above statutory provision. (People v. Zuniga (1973), 53 Ill.2d 550, 293 N.E.2d 595.) In determining whether a defendant who filed a motion for a change of judge was tried within the time limit prescribed by section 103-5(a), it is obviously necessary to determine the length of the delay attributable to the defendant. This determination is best made by the trial judge, who possesses knowledge of the conditions and circumstances of his circuit and is thus in the best position to evaluate the time necessary to complete the administrative steps involved in a reassignment of judges. The trial judge's determination as to the length of delay occasioned by such a motion should be sustained unless it is apparent that the court abused its discretion in making that decision. People v. McClure (1979), 75 Ill. App.3d 566, 394 N.E.2d 833.

• 1 When a case is reassigned from one judge to another, it loses whatever seniority it had on the original judge's calendar; it must be returned to the chief judge for reassignment; and it probably assumes a place at the bottom of the new judge's list of pending cases. In other words "reassignment start[s] anew the administrative procedure of bringing the defendant's [case] to trial." (People v. Zuniga (1973), 53 Ill.2d 550, 554, 293 N.E.2d 595, 597.) In view of the above considerations and the generally prevalent congestion existing in the courts> of even comparatively small counties such as Coles, we cannot say that the trial court abused its discretion in allocating a delay of one week to defendant's motion for a change of judge. Thus for purposes of section 103-5(a) of the Code of Criminal Procedure of 1963 defendant was brought to trial within 116 days of his initial incarceration (see People v. Woodruff (1980), 90 Ill. App.3d 236, 412 N.E.2d 1171 (time elapsed for purposes of section 103-5(a) is computed by skipping day when custody begins and counting the day when trial begins)). It follows that the trial court did not err in denying his motion for discharge.

Defendant also asserts that the evidence which the State presented at his preliminary hearing was insufficient to establish probable cause that he had committed a burglary (see Ill. Rev. Stat. 1981, ch. 38, par. 109-3(a)), and that the court therefore erred in denying his motion to dismiss the burglary charge at the conclusion of the hearing. The State's sole witness at the preliminary hearing was Captain David O'Dell of the Mattoon police department, who testified that he interviewed defendant on April 4, 1981, after receiving information from two persons that defendant had been involved in a burglary at the Patricia Messick residence. The defendant told O'Dell that he went to the Messick residence with Joe Horath and Bud Zyke with the intent of stealing an HBO unit. The defendant broke a back window of the home, but the three were chased away by a neighbor. A day or two later, Horath came to defendant's residence with an HBO unit, which he said was from the Messick residence. Horath wanted to sell the unit, and defendant accompanied him to Albert Hite's garage where they sold it for $20 cash, which they divided between them.

• 2 The above evidence, which consists of an account of defendant's confession to the effect that he was involved in the burglary with which he was charged, falls under the exception to the hearsay rule pertaining to admissions. (Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill.2d 193, 246 N.E.2d 269; People v. Howell (1977), 53 Ill. App.3d 465, 368 N.E.2d 689.) Even if Captain O'Dell's hearsay account of defendant's confession was not subject to one of the hearsay rule exceptions, however, it would nevertheless have been admissible at the preliminary hearing. (People v. Velez (1966), 72 Ill. App.2d 324, 219 N.E.2d 675.) In our view, defendant's statement, as related by Officer O'Dell, that he broke a window at the Messick residence after he and two companions arrived there with the intent of committing a burglary, was in itself sufficient to establish probable cause that defendant had participated in the commission of a burglary. Cf. People v. Bonner (1967), 37 Ill.2d 553, 229 N.E.2d 527 (preliminary hearing may be terminated once probable cause is established).

• 3 Defendant cites only two cases, People v. Williams (1975), 28 Ill. App.3d 402, 328 N.E.2d 682, and People v. Davis (1972), 3 Ill. App.3d 738, 279 N.E.2d 179, in support of his position on the probable cause issue. He emphasizes the statement of the Davis court that the mere breaking of a hole in a wall does not constitute burglary and the statement in Williams that the throwing of a brick through a window is not an entry for purposes of establishing a defendant's guilt of burglary. The question of whether defendant's breaking the window constituted an entry sufficient to establish that he committed a burglary is, however, irrelevant to the issue of whether he is responsible for the burglary on the basis of the accountability theory, which is an alternative to the nature of proof required to convict one of a substantive offense. (Williams.) Evidence was presented that defendant broke the window with the intent of facilitating the burglary of the Messick residence which Horath later completed. This was all that was necessary to establish probable cause that defendant was accountable for the burglary.

The defendant's remaining allegations of error require an account of the evidence presented at his trial. Patricia Messick testified that in early April 1981, she noticed a broken window in her home. Two or three days later, she noticed that the HBO unit on her television was missing. At the time she noticed the missing unit, she observed that the same window which had previously been broken had been broken a second time. There was a larger hole in it than when she first noticed it broken.

Officer Carl Smith of the Mattoon police department stated that at approximately 10:25 p.m. on April 4, 1981, he was called to the Messick home to investigate the theft of an HBO unit. When he arrived at the residence, he noticed a broken window in the southeast bedroom.

The State's next witness was Joseph C. Horath, who testified that on the evening of April 1, 1981, he, defendant, and Lonnie Zykes were attending a birthday party for defendant's brother at defendant's mother's home. (Bud Zykes and Lonnie Zykes are apparently the same person; during his testimony, Horath used the two names interchangeably to refer to the third person who accompanied him and the defendant to the Messick home.) At defendant's urging, he and Zykes accompanied defendant to the Messick home, where defendant broke a window. Someone then chased them off, but defendant and Horath later returned to the Messick home. While defendant waited outside "watching for neighbors or somebody," Horath opened the broken window and took the HBO unit off of the TV. They then split up and Horath hid the unit in some weeds. About two days later, defendant and Horath went to Albert Hite's garage where they met George Stewart. Stewart said that he was interested in the HBO ...

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