APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
507 N.E.2d 89, 154 Ill. App. 3d 320, 107 Ill. Dec. 425 1987.IL.370
Appeal from the Circuit Court of Cook County; the Hon. James Bailey, Judge, presiding.
JUSTICE JOHNSON delivered the opinion of the court. JIGANTI and LINN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON
This is the second appeal by defendant, Richard Jackson, from his conviction for murder, attempted murder, and armed robbery (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(a), 8-4(a), 18-2(a)). In the first appeal of People v. Jackson (1983), 119 Ill. App. 3d 951, 458 N.E.2d 59, this court reversed and remanded the cause for a new trial. At a bench trial on remand before the original trial Judge, defendant was again convicted of the same offenses. He was sentenced to concurrent terms of 60 years for murder, 60 years for armed robbery, and 30 years for attempted murder. This sentence was ordered served consecutively with a previously imposed 10-year sentence on an unrelated offense.
This appeal raises the following issues for review: (1) whether the trial court committed reversible error in denying defendant's motion for substitution of Judges; and (2) whether the trial court abused its discretion by ordering defendant's concurrent sentence of 60 years to be served consecutively with a previously imposed 10-year sentence.
Defendant and his brother, Dennis Emerson, were indicted by grand jury in October 1979 for the armed robbery and murder of Delinda Byrd and the armed robbery and attempted murder of Robert Ray. They were convicted by a jury with Honorable James M. Bailey presiding, and defendant Jackson was sentenced to concurrent terms of 60 years for murder, 60 years for armed robbery, and 30 years for attempted murder. Defendant appealed. On appeal, this court reversed the convictions and remanded the cause for a new trial, ruling that the prosecution's closing argument was improper and that the trial court erroneously admitted evidence of Robert Ray's prior out-of-court statements.
At trial on remand, the case was again assigned to Judge Bailey. Six days later, defendant filed a motion for substitution of Judges, arguing that the 10-day limitation to move for substitution applied to his case. Judge Bailey denied the motion and the case was continued until March 25, 1985, at which time defendant waived a jury trial (co-defendant, Dennis Emerson, was simultaneously tried before a jury) and was again convicted of the same offenses.
The record reveals that on the night of August 13, 1979, Robert Ray, who ran the Centaur Lounge at 69th and Racine in Chicago, was visited by his acquaintance Dennis Emerson and defendant. The three men were socializing in Ray's living quarters in the rear of the lounge. Delinda Byrd, Ray's girlfriend, joined them later. Emerson and defendant tied up, searched, and robbed Ray and Byrd at gunpoint and then robbed the lounge. They then stabbed the victims in the back several times and threw them into the bedroom after having set the bed on fire. The assailants fastened the bedroom door with a wire and then departed.
Ray and Byrd removed their bindings and escaped into an air shaft through a bedroom window. Ray climbed through a second window into the lounge and went to summon the fire department. Byrd was unable to climb out of the air shaft and died before firemen could rescue her. Ray was hospitalized for 9 days with a collapsed and punctured lung, and he suffered from smoke inhalation.
At the close of trial the court found defendant guilty. The court sentenced him again to concurrent sentences of 60 years for murder, 60 years for armed robbery, and 30 years for attempted murder. The Judge ran the sentences consecutive to defendant's 10-year sentence for aggravated battery and armed violence, which stemmed from his guilty plea to the stabbing of a guard while he was incarcerated from his original conviction in this case. Defendant appeals. I
Defendant's first contention on appeal is that his motion for substitution of Judges, pursuant to section 114-5(a) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 114-5(a)), was made within 10 days of the case on remand's being placed on Judge Bailey's trial call and, therefore, the Judge's denial of the motion for lack of timeliness is erroneous. Section 114-5(a) of the Code, commonly referred to as the mandatory-substitution statute, provides "for an automatic substitution of Judges without proof of actual prejudice if such a motion is ...