Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. Maloney, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Defendant, Marrion Logan, was found guilty in a jury trial of murder and was sentenced to 50 to 100 years to run consecutively to a sentence he was already serving. Defendant appeals from his conviction and sentence.
Defendant raises the following issues before this court: (1) whether defendant's statutory right to a speedy trial was violated; (2) whether the prosecutor's use of peremptory challenges to exclude blacks from the jury violated defendant's right to an impartial jury; (3) whether a lineup identification of defendant was improperly admitted at trial where defendant's counsel was not present at the lineup; and (4) whether the entry of a consecutive sentence was proper in the alleged absence of a finding on the record that such a sentence was necessary for the protection of the public.
Defendant was charged with the murder of Raymond Hord. No issues are raised with respect to the sufficiency of the evidence. The evidence produced at trial established that defendant and his girlfriend were at the Good Rockin Lounge at 12:30 a.m. on July 1, 1976. The victim was also there with a group of friends. Witnesses for the State testified that the defendant kicked the victim and smudged the victim's white slacks. An argument ensued and defendant and the victim were asked to leave the bar. The victim left but the defendant refused to leave. After a short time defendant and his girlfriend left. Defendant returned 15 minutes later wearing a full-length trench coat and demanded that the bar patrons tell him where the victim went. He then opened his trench coat and raised a shotgun. Defendant left the bar and got into a car parked across the street. He began to drive away when he spotted the victim sitting in a car. Defendant and the victim got out of their cars. The defendant told the victim that he was going to kill him and fired three shots, striking the victim once in the chest and killing him. Defendant got into his car and drove away. He stopped his car a few blocks away and shot randomly toward the murder scene. Defendant testified on his own behalf that he had never been to the Good Rockin Lounge and that at the time of the incident he was spending the weekend with some friends in Homestead, Illinois.
• 1 The first issue raised by defendant is whether the trial court erred in denying defendant's timely motion for discharge because the statutory term of the speedy trial act had run. (Ill. Rev. Stat. 1975, ch. 38, pars. 103-5(a) through (f).) Defendant claims that he was not brought to trial within 160 days of the date that his attorney answered ready and demanded trial.
On September 15, 1980, defendant answered ready for trial. The case was continued several times by motion of the State until December 11, 1980, when the State answered ready for trial. The case was continued three more times by order of the court until February 17, 1981. On February 17, defendant's case was called but the defense attorney was not present. The following colloquy occurred:
"THE CLERK: Marion Logan. Marion Logan.
THE COURT: You had better have Dorfman call him again, and talk to him, himself, because you know, secretaries have romance on their minds and other things. You cannot rely upon them to convey the message, properly. Mr. Logan, your lawyer is not here. I understand he was in the building, earlier, and there must be some reason, some inconsistency or some other reason that he is not here, so we will have to hold your case on the call until tomorrow and remand you to the custody of the Cook County Sheriff.
THE DEFENDANT: All right.
THE COURT: I will see you in the morning.
THE DEFENDANT: All right.
THE COURT: It is 2:25 p.m. That is order of Court, February 18th. That concludes the call."
The trial court's entry on the memorandum of orders indicated that the continuance was by order of the court. The following day the defense attorney appeared but the State requested a continuance. The State indicated that defense attorney had just tendered a new list of alibi witnesses and the State wanted to interview the witnesses. The case was continued until March 2 and again until March 9 on motion of the State. On March 9, 1981, defendant filed a petition for discharge under the speedy trial act alleging that 175 days had elapsed since defendant answered ready for trial.
During argument on the petition for discharge, the State asserted that the continuance entered on February 17 was attributable to defendant since defense counsel did not appear in court on the day when the case was called. Defense counsel advised the court that on February 17 he was in the courthouse but when he called his office his secretary informed him that it was not necessary to proceed to court since the court clerk had telephoned and indicated that the case was being held on call until the following day. The trial court denied defendant's petition and changed its previous order of February 17 to indicate that a continuance was granted on motion of defendant. The trial in this matter commenced on March 23, 1981.
Defendant contends that in the period between the time he demanded trial on September 15, 1980, and the filing of the petition for discharge on March 9, 1981, defendant did nothing to delay trial nor did he request or agree to a continuance. Defendant argues that defendant's response, "All right," to the judge's decision to hold the case until the next day was not a continuance by agreement and did not constitute a waiver of the right to a speedy trial even though the defendant did not object to the court's order. Defendant argues that on the previous court date (January 30, 1981) there was no indication that the case was set for trial on February 17, so the fact that defense counsel failed to appear did not delay the trial of defendant's case. Further, defendant argues that the trial court should have ...