Appeal from the Circuit Court of Du Page County; the Hon.
Edward F. Kowal, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, Charles Arnhold, and four co-defendants were found guilty of aggravated kidnaping and conspiracy to commit theft by a jury following a trial in the circuit court of Du Page County. Defendant was sentenced to serve concurrent 28- and 2-year terms of imprisonment for these offenses and was also ordered to pay a $5,000 fine for the aggravated kidnaping. Defendant appeals arguing that (1) he was denied his right to a speedy trial, (2) the trial court erred in allowing the jury to examine handwriting exhibits during deliberations when the exhibits had not previously been examined by the jury in open court, and (3) the trial court erred in permitting testimony about a photographic identification of defendant conducted while defendant was in custody and a lineup was feasible. We affirm.
This court has already reviewed, and affirmed, the convictions of defendant's four co-defendants. Co-defendant John Bolla's conviction was affirmed in a published opinion which sets forth the facts on which the convictions were based. (People v. Bolla (1983), 114 Ill. App.3d 442, 448 N.E.2d 996.) For purposes of this appeal, it suffices to note that Edward Kvavli, a wealthy restauranteur and tavern owner, was abducted on May 29, 1980, and held for $600,000 ransom. Kvavli was released the next day on the understanding that he would raise, and pay to his abductors $600,000 or they would kill Kvavli, Kvavli's sister and Kvavli's nephew. Defendant and his four co-defendants were arrested a few days later after the completion of a previously arranged drop of the money the abductors were demanding.
• 1 Defendant first argues that he was denied his statutory right to a speedy trial. (Ill. Rev. Stat. 1979, ch. 38, par. 103-5.) Defendant was arrested on the charges at bar on June 3, 1980, and bonded out on July 18, 1980. He was arrested on unrelated charges on July 24, 1980, and withdrew his bond for the initial charges on August 21, 1980. On October 15, 1980, defendant filed several motions which tolled the speedy trial term.
For defendant to prevail on his claim, three periods of time must be included in computing the statutory term: (1) the period from defendant's initial arrest on June 3 to his bonding out on July 18; (2) the period from defendant's July 24 arrest on unrelated charges to his withdrawal of his bond for the initial charges on August 21; and (3) the period from defendant's withdrawal of his bond to his October 15 filing of his motions. The State argues that the first of these three periods should be excluded and at oral argument urged this court to overrule our then recent decision in People v. Sonntag (1984), 128 Ill. App.3d 548, 470 N.E.2d 631, which is adverse to the State's argument. It will be unnecessary to reconsider Sonntag as the State urges, however, because the second period necessary to defendant's claim must be excluded from computation of the term.
The pertinent provisions of the Speedy Trial Act provide:
"(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 defendant * * *.
(e) If a person is simultaneously in custody upon more than one charge pending against him in the same county, or simultaneously demands trial upon more than one charge pending against him in the same county, he shall be tried, or adjudged guilty after waiver of trial, upon at least one such charge before expiration relative to any of such pending charges of the period prescribed by sub-paragraphs (a) and (b) of this Section." (Ill. Rev. Stat. 1979, ch. 38, pars. 103-5(a) and (e).)
The dispositive question in the case at bar is whether a defendant on bond on one charge who is taken into custody on a second charge is, without more, also in custody on the first charge. There is a split of appellate court authority on this question. (People v. Day (1979), 76 Ill. App.3d 571, 583, 394 N.E.2d 1378, 1388.) One line of authority holds that when a defendant on bond on one charge is taken into custody on a second charge he is automatically simultaneously in custody on both charges. (See, e.g., People v. Wilson (1974), 19 Ill. App.3d 466, 468, 311 N.E.2d 759, 761; see also People v. Brown (1981), 94 Ill. App.3d 609, 418 N.E.2d 1093, aff'd on other grounds (1982), 92 Ill.2d 248, 255 (the question at bar apparently was not raised in the supreme court as that court said the appellate court's conclusion on that matter "is not here in dispute"); and Heaney v. Northeast Park District (1935), 360 Ill. 254, 260 ("A decision by a court of review is not an authority upon a question neither considered nor decided by it. [Citations.] * * * questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents * * *"), quoting with approval Webster v. Fall (1925), 266 U.S. 507, 69 L.Ed. 411, 45 S.Ct. 148.) The other line of authority holds to the contrary. People v. Cooper (1977), 56 Ill. App.3d 354, 355-58, 371 N.E.2d 987, 987-89.
We choose to follow Cooper because it is more in harmony with the Speedy Trial Act's overall structure than cases such as Wilson and Brown. The Speedy Trial Act is characterized by a sharp distinction between defendants who are in custody and those who are on bail. The State is required to bring a defendant who is in custody to trial within 120 days from the date on which he was taken into custody. (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(a).) In contrast, a defendant on bail must be tried within 160 days from the date on which he demands trial. (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(b).) To construe the phrase "simultaneously in custody on more than one charge" to encompass a situation where a defendant is in custody on one charge but still on bond on another would do violence to a statutory scheme which carefully and sharply distinguishes between defendants in custody and those on bond.
• 2 Defendant was thus not in custody on the charges at bar for the period between his July 24 arrest on unrelated charges and his August 21 withdrawal of his bond for the charges at bar. This period, accordingly, must be excluded in computing the 120 day term. This is dispositive of the issue raised because the other two periods combined total less than 120 days. This being true, it is unnecessary to address the State's argument that the first period of custody should be excluded from the computation of the term.
• 3 Defendant next argues that "[t]he trial court erred in allowing handwriting exhibits to be examined by the jury without first allowing such examination in open court." The allegation closest to this assertion of error in defendant's post-trial motions was that "[t]he Court erred in allowing handwriting exhibits of both known and questioned handwriting [sic] documents to be examined by the jury although a handwriting expert had already testified as to his analysis." This claim that the jury should not have been given the exhibits because the expert had already given his opinion is quite different from the claim on appeal that the jury should not have been given the exhibits during deliberations because they had not examined them previously in open court. The issue raised has therefore been waived by defendant's failure to raise it in his post-trial motions. People v. Pickett (1973), 54 Ill.2d 280, 282.
• 4 Moreover, the claimed error is not cognizable as plain error. (87 Ill.2d R. 615(a).) The plain error rule permits a reviewing court, as a matter of grace in a criminal case, to consider unpreserved errors which deprived a defendant of substantial means of enjoying a fair and impartial trial or which occurred in a case in which the evidence was closely balanced. (People v. Pickett (1973), 54 Ill.2d 280, 283.) A six-page handwritten note was found when defendant was searched at the time of his arrest. The note detailed a plan to kidnap Kvavli. The writing on the note was compared by handwriting expert Joseph Wichmann to liquor license applications which, the evidence indicated, had been filled out by co-defendant Leo Bonvini. Wichmann was of the opinion that the same person who wrote the note had completed the applications. Defendant does not argue that the exhibits or Wichmann's testimony were inadmissible nor even that the exhibits could not have been shown to the jury under any circumstances. Rather, he makes the limited claim that the jury should have been shown the exhibits first in open court. Such an error could not have deprived defendant of substantial means of enjoying a fair and impartial trial. Also, the evidence at trial including the evidence defendant had possessed the note, the evidence with respect to Kvavli's out-of-court photographic lineup identification of defendant and Kvavli's in-court identification of defendant while defendant was seated among spectators in the courtroom was not so closely balanced that the mere linkage of the note to Bonvini, which was all the handwriting evidence did, could have prejudiced defendant. The issue therefore will not be reviewed as plain error.
• 5 Defendant's third and final argument is that Kvavli's identification of defendant from a photographic lineup should have been suppressed because defendant was in custody and a lineup was otherwise feasible. Although the Illinois Supreme Court does not appear to have reversed any convictions solely on that basis, that court has often held that, when a suspect is in custody and a corporeal lineup is otherwise feasible, photographic identification techniques should not be used absent extenuating circumstances. (People v. Kubat (1983), 94 Ill.2d 437, 471; People v. Williams (1975), 60 Ill.2d 1, 9; People v. Jackson (1973), 54 Ill.2d 143, 147-48; People v. Holiday (1970), 47 Ill.2d 300, 306-07.) However, a violation of this rule will not result in reversal of a conviction where the witness who made the improper photographic identification also makes a reliable in-court identification. See People v. Kubat (1983), 94 Ill.2d 437.
In the case at bar, Kvavli identified defendant first at a corporeal lineup; however, this identification was suppressed because defendant's right to the presence of counsel was violated. (United States v. Wade (1967), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951; Kirby v. Illinois (1972), 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877.) Kvavli subsequently identified a photograph of defendant showing the appearance of defendant's facial and head hair at the time of his arrest rather than their different appearance at the time of corporeal lineup from a photographic ...