Appeal from the Circuit Court of Lake County; the Hon. William
D. Block, Judge, presiding.
PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After trial by jury defendant, Lester Keith Howard, was found guilty of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1) and home invasion (Ill. Rev. Stat. 1983, ch. 38, par. 12-11(a)(2)). He was sentenced to natural life imprisonment for murder and to an extended term of 60 years for home invasion. Defendant appeals, contending: (1) he was denied the effective assistance of counsel; (2) the State failed to preserve evidence, thus depriving him of the right to due process and to confront witnesses; (3) his guilt of home invasion was not proved; (4) the sentence to natural life imprisonment was excessive; and (5) imposition of the extended term for home invasion was not authorized by the statute.
The evidence at trial disclosed that Bridgett Howard, the wife of defendant's brother, was stabbed to death in her home in the early morning of February 16, 1983. Her husband, Freddie Howard, arrived home at about 2 a.m. and found the body on the floor of their bedroom. Dr. Helen Young, a pathologist, testified death had resulted from more than 116 knife wounds and that a "buck knife," which had been recovered near the deceased's home and contained blood, could have caused the wounds.
The evidence also disclosed there had been arguments between defendant and his brother, Freddie, prior to the death. Defendant had lived in a garage apartment attached to his brother's house which was rented by Gina Grieger. In late January, defendant threatened to kill Freddie during an argument in the apartment and produced a gun; Freddie told defendant to leave the apartment and he apologized. The men argued again a week later, and Freddie ordered defendant not to go near his house when Freddie was not home. A few days later, Freddie found defendant in the apartment and ordered him to leave.
Defendant was arrested on February 16 after discovery of the body and officers noticed fresh cuts on his index finger. Hairs recovered from the bed in decedent's room matched defendant's hair, and a shoe print on the bedspread matched one of defendant's shoes. Witnesses who saw defendant at 8:30 a.m. on February 16 described him as appearing nervous and observed a blood stain on the collar of his jacket. Another witness testified she saw defendant at about 8:30 that morning dressed only in a T-shirt and slacks; defendant told her he was using the nearby laundromat. Henry Jones testified that he had talked with defendant at about 12:30 a.m. February 16 and defendant's conversation rambled and he said he was on "syrup." Defendant pulled out a "buck knife" and chased Jones, then threw the knife at him. Freddie Howard testified he saw defendant outside a tavern at 12:45 a.m. that morning and offered him a ride, which defendant declined.
The State called an F.B.I. agent, an expert witness in blood classification, who had tested blood samples from the murder scene, comparing them with blood samples of defendant, Ricky Belcher and Alvin Foxworth. Many of the tests made were inconclusive, but results for serum haptoglobin on some items of evidence were consistent with the blood of both defendant and Ricky Belcher. The witness testified that 50% of the black population have the same type of haptoglobin as does defendant and as was found at the murder scene; 30% of the black population have the same type blood as did the victim and as found also on some of the examined items. This witness stated that in testing for haptoglobin a blood sample is placed in a gel and, based upon the banding pattern which results, it can be classified as containing one of three types. The gel test samples made in this case were disposed of in the lab shortly after the testing in April 1982. If requested, photos of the samples depicting the banding pattern in the gel could be made, but were not in this instance.
The State also introduced evidence of several statements made by defendant to the police and others relating to this matter. Freddie Howard testified that a week after the murder defendant told him that Alvin Foxworth and Ricky Belcher must have entered the house. Defendant had said he was in the garage apartment and, when he heard a scream, ran upstairs to the deceased's bedroom, but left because he felt other people were there. Defendant also told Gina Grieger he had gone to his brother's house with Foxworth and Belcher, but was in the apartment when he heard decedent scream.
Defendant gave three statements to different police officers after his arrest. He first related that he had been at a bar until 2 a.m. on February 16, after which he went to his mother's home and slept. When he learned later that day his sister-in-law was dead and his brother had been arrested, defendant stated he cut himself on the hand so it would appear he had killed her and the brother would not go to prison. Later the same day defendant was questioned by another officer and signed a typed statement which related that defendant met Belcher and Foxworth outside a tavern at 11:30 p.m. on February 15. They drank, smoked marijuana and used cocaine while discussing how defendant might get even with his brother for throwing defendant out of the apartment. The three men then went to Freddie Howard's house and entered the bedroom so they could jump the brother when he came home. The decedent, who had been sleeping in the bed, awoke and Belcher stabbed her. Defendant stated he ran from the house. In a third interview, defendant stated he and the other two men decided to enter the Howard home to jump Freddie after they saw his car was not parked at the home. Defendant said he first went to the garage apartment to retrieve some jewelry, then joined the other men in the bedroom. One of the others walked to the bed with a knife and, when defendant heard a scream, he realized his sister-in-law was sleeping there and ran out of the house.
Defendant testified in trial he had never argued with the deceased. He agreed he had talked to Henry Jones that night, but denied threatening him with a knife. Defendant testified he met Foxworth and Belcher and asked them for a ride to his brother's house to pick up jewelry belonging to Gina Grieger, but denied asking them to help jump his brother. Defendant stated that when he left the garage apartment he noticed Foxworth's car was empty and the house door open. He then went up to the bedroom and, feeling someone was there, ran out. Defendant said he was intoxicated and high on cocaine at the time. Defendant testified he signed the statement for the police without reading it because he was high and had told them the same story as in court. He denied asking anyone to help jump his brother or stab decedent.
An expert on blood classification called by the defense testified she was unable to view the gel test samples referred to by the State's expert witness as they had been disposed of. She did examine a diagram the State's witness had drawn for the jury in trial which purported to depict the banding pattern for a particular type of haptoglobin he had found in testing; defendant's witness testified she could not determine from the diagram which type was depicted.
In rebuttal, Alvin Foxworth testified he had not seen defendant on the night in question. His girlfriend and her sister testified they had been with Foxworth that night.
• 1-3 Defendant contends he was denied effective assistance of counsel when his trial attorney failed to file a motion for discharge under the speedy-trial act and by failing to request production of blood test samples before their destruction.
It has been established that an attorney must give reasonably effective assistance to his client and that a defendant claiming ineffective assistance of counsel must show that the attorney's performance was deficient and prejudiced the defense. (People v. Barnard (1984), 104 Ill.2d 218, 233, 237, 470 N.E.2d 1005.) The right to discharge under the speedy-trial act is waived unless a motion is made prior to conviction (People v. Callahan (1981), 95 Ill. App.3d 479, 481, 420 N.E.2d 787, appeal denied (1981), 85 Ill.2d 568; Ill. Rev. Stat. 1983, ch. 38, par. 114-1(a)(1)) and failure of counsel to seek discharge of his client on these grounds can constitute ineffective assistance of counsel. (People v. Morris (1954), 3 Ill.2d 437, 452, 121 N.E.2d 810.) However, failure of counsel to move for discharge cannot demonstrate either deficient performance on his part or prejudice to defendant where there were no lawful grounds to do so. People v. Gibson (1975), 30 Ill. App.3d 555, 559, 333 N.E.2d 549; People v. Callahan (1981), 95 Ill. App.3d 479, 482, 420 N.E.2d 787, appeal denied (1981), 85 Ill.2d 568.
In the present case, defendant remained in custody from his arrest on February 16, 1983, to commencement of trial on September 12. The State and defendant agree that the 120-day speedy-trial term was temporarily suspended by trial continuances requested by defendant from June 13 to July 11 and from July 11 to August 22. They dispute, however, whether the continuance granted by the trial court on August 19, which was on the State's motion and continued the trial date to September 12, was an extension of the 120-day term under section 103-5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(c)). If the trial date was not extended under this section, then defendant was brought to trial ...