Appeal from the Circuit Court of Peoria County; the Hon. Peter
J. Paolucci, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Defendants, Constance Jones, Diane (Cerami) Lanken, Jonathan Cray and James Knobloch, appeal from their convictions of conspiracy to commit gambling and defendants Jones and Lanken also appeal from their convictions of syndicated gambling following a jury trial in the circuit court of Peoria County. The court sentenced all of the defendants to conditional discharge for a period of 18 months plus fines of $3,000 and court costs each for Jones and Lanken and $2,500 and court costs each for Cray and Knobloch. The defendants raise 10 issues for our review, only one of which we need address — whether the trial court erred in denying the defendants' motion for discharge for violation of their right to a speedy trial.
The incidents giving rise to the convictions being challenged in this appeal transpired on April 22 and April 29, 1981. On both dates, undercover officers of the Peoria police department attended meetings at the Continental Regency Hotel in Peoria where an "investment program" called New Concepts was presented. The meetings were conducted primarily by Donald Sanders, a co-defendant who is not a party to this appeal, with reference to a chart or charts which described how the "members" of New Concepts could qualify for as much as $35,000 on a $675 investment.
Each new member, accepted into the program on affidavit that his/her combined income and net worth were in excess of $100,000, was required to tender $675 in cash to the individuals managing the program, $50 of which was nonrefundable and used for administrative expenses and $625 of which would be returned to the member as he/she progressed to the position of "chart manager." At a later stage of similar progressions, the member would potentially qualify for $17,000 or $35,000, depending on whether or not he had brought at least two additional "investors" into the program.
The scheme of progressions was described by a series of charts in pyramid diagrams with a "chart manager" at the top and supported by successive layers of positions for two, four and eight names. At a point where all existing charts had all eight names filling the bottom, entry level positions, the existing charts would "split," each forming two new charts with the base level names elevated to the next level containing four names. These new charts, in turn, would split when all eight names were entered on their bottom levels. In this manner, the names at the four-name level would progress upward to the two-name level. A third split in the same manner would cause the names at the two-name level to rise to the "chart manager" position and, thus, qualify for the return of their $625 investments. This same four-level process was then to be repeated on a second series of charts as more members joined in the scheme. However, in the latter series the eight-name entry level consisted of "chart managers" and culminated in attainment of the "collector's box" position at the top wherein $35,000 would be distributed.
Mr. Sanders explained that the New Concept scheme was unlike the illegal "pyramid" or "chain letter" games in that the number of charts in existence would be limited to 100 or 150 by introducing a qualifying not-for-profit organization, consisting of 1,000 or more members, into the scheme. Thereafter, the individuals who joined would contribute $625 with no possibility of recouping their investments; and they could, according to Sanders' explanation, declare the amount as a charitable contribution on their income tax returns. The "charitable contributions" would continue until such time as the not-for-profit organization attained the "collector's box" and received its $35,000. Then, the supporting charts would be terminated.
On April 29, after observing several of the guests at the meeting pay their money to join the program the undercover officers triggered an electronic device to alert an awaiting "SWAT" team that it was time to storm the meeting, weapons displayed, and arrest those in charge. In addition to the four defendants in this appeal, the police arrested Don Sanders, Lois Sanders and Helen Cray. On May 12, 1981, the seven defendants were indicted in five counts — gambling (two counts), theft, conspiracy and syndicated gambling.
The defendants filed pretrial motions and demanded a speedy trial on May 21. At the pretrial hearing on July 24, the court dismissed the indictment against Helen Cray and ordered suppression of some of the evidence which was seized on the basis of invalid consents and search warrants. Counsel for the prosecution volunteered to prepare a written order.
The State filed a timely notice of appeal on August 13.
Subsequently, on November 6, a written order of the trial court's July 24 rulings was prepared by the State's Attorney's office, submitted to the trial court and entered nunc pro tunc on the State's motion. This was followed by a second notice of appeal by the State dated November 9, 1981. The State's appeal to this court was never perfected. On January 20, 1982, we granted a motion by defendants to dismiss the State's appeals.
Various mesne motions were filed in the trial court subsequent to the return of this court's mandate, including defendants' motions for discharge. On August 30, 1982, the trial court denied the motions for discharge, and defendants' trial began. Following a four-day trial, the jury returned verdicts finding the four defendants herein guilty of conspiracy to commit gambling; in addition, Jones and Lanken were found guilty of syndicated gambling and two counts of gambling. The defendants were found not guilty of the remaining charges. They were convicted as aforesaid.
The prefatory question that the foregoing chronology presents is whether the State's initial notice of appeal tolled the 160-day statutory period for bringing the defendants to trial. (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(b).) The ultimate question, of course, is whether the defendants' statutory or constitutional rights to a speedy trial were violated. The following chart serves to demonstrate the relevant pretrial matters which figure into our consideration and resolution of the speedy trial issue:
April 29, 1981 Defendants arrested and jailed April 30, 1981 Defendant Jones released on bond May 1, 1981 Defendant Lanken released on bond May 2, 1981 Defendant Cray released on bond May 3, 1981 Defendant Knobloch released on bond May 12, 1981 Defendants indicted May 21, 1981 Defendants demand speedy trial July 9, 1981 Trial date set for August 31, 1981 July 24, 1981 Motions for discharge and suppression of evidence heard and rulings entered orally August 13, 1981 State files notice of appeal November 6, 1981 State submits written order for trial court's entry nunc pro tunc November 9, 1981 State files second notice of appeal from written order December 4, 1981 Appellate court enters rule to show cause why State's first appeal should not be dismissed December 8, 1981 State moves to consolidate August and November appeals December 22, 1981 Defendants move to dismiss the State's appeals January 20, 1982 Rule to show cause vacated; ...