Before trial, Robert Pride pleaded guilty but was not sentenced by defendants' trial time. Edward Pride entered a guilty plea on the second trial day. Although Robert Pride was not allowed to testify at trial because he asserted his fifth amendment rights, an offer of proof was made outside the presence of the jury that only he and his brother committed the burglary with no help from defendants. Edward Pride testified to the same effect. Further facts will be set forth in the Discussion of the following issues on appeal.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
520 N.E.2d 901, 165 Ill. App. 3d 1038, 117 Ill. Dec. 550 1988.IL.59
Appeal from the Circuit Court of Cook County; the Hon. John N. Hourihane, Judge, presiding.
Rehearing Denied February 23, 1988.
JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and PINCHAM, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
This is a consolidated appeal from the jury convictions of burglary and the sentences of defendants, John Grayson and Darren Lindsey. Defendants were sentenced, respectively, to seven years' and six years' imprisonment. The basic facts are as follows.
Responding to an early morning burglar alarm call, two police officers drove to a grocery store on South Kedzie in Chicago and parked the squad car with its spotlight shining upon a large hole in the rear of the store. As the officers approached the store, they observed defendants climbing out of the hole. According to the officers' testimony, the car spotlight illuminated Lindsey's face as he emerged first, immediately running away. As Grayson followed Lindsey out, a crowbar fell to the ground. One of the officers apprehended Grayson while the second officer pursued Lindsey, who was found hiding under a nearby porch. An assist unit placed defendants in an arrest wagon, whereupon the officers climbed through the hole into the store. They found three to five large plastic bags filled with food items from the store. When they were unable to find other persons, a canine unit was summoned. The unit discovered two more suspects hiding in the store. These two men were later identified as Robert and Edward Pride. All four suspects were then transported to the police station and subsequently charged with burglary.
The first issue raised by defendants consists of their contention that they were denied effective assistance of counsel because of failure to move for dismissal based on violations of their rights to a speedy trial. They argue that Grayson was tried 167 days into the term, and Lindsey was tried 128 days into the term. The State asserts that Grayson was tried on the 88th day, and Lindsey on the 68th day. We agree with the State.
Illinois law provides that a person in custody must be tried 120 days from the date he was taken into custody unless delay is caused by the defendant. (Ill. Const. 1970, art. I, § 8; Ill. Rev. Stat. 1983, ch. 38, par. 103-5.) Defendants carry the burden to affirmatively establish a violation of the right to a speedy trial, and delays attributable to a defendant toll the statutory period. (People v. Reimolds (1982), 92 Ill. 2d 101, 440 N.E.2d 872.) A defendant is considered to have occasioned a delay when he requests a continuance, agrees to a continuance, or when his actions otherwise cause or contribute to a delay. (People v. Bivins (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044.) Applying these general rules to the delays contested by defendants as being attributable to them, we find no violations of their speedy trial rights.
First, defendants erroneously charge the court with delays occasioned by Grayson's motion for substitution of Judges. This two-day delay is attributable to Grayson. The 43-day period between August 16 and September 28, 1984, is chargeable to both Grayson and Lindsey; the continuance was by agreement so defendants could obtain counsel.
Grayson next disputes the continuance occurring from October 5 to October 30, 1984. On September 28, Assistant Public Defender Preston Bowie was appointed to represent all defendants. On October 5, Grayson filed a pro se motion for severance which was later denied and a pro se motion for appointment of counsel other than a public defender because of complaints he had pending against the office of the public defender arising out of their representation of him in an unrelated case. The court took the appointment of counsel motion under advisement and informed Grayson that Assistant Public Defender Gary Stanton would continue to represent him until the motion was ruled on. Also on this date, Grayson expressly agreed to a continuance to October 30 for discovery purposes, including the arranging of an interview for Edward Pride concerning his participation in a Treatment Alternatives to Street Crime program . Not only did Grayson himself agree to this continuance but, in spite of the continuance's being partially for the purpose of the TASC interview, the interval was also partly due to Grayson's pro se motion and therefore 25 more days are attributable to him. (See People v. Ruple (1980), 82 Ill. App. 3d 781, 403 N.E.2d 129.) This time period also tolled the statutory period for Lindsey, as his counsel requested and agreed to the continuance.
On October 31, the court granted Grayson's request for alternative counsel and asked Grayson if he wanted a continuance to November 13 for that purpose, since no private attorney was then available. Grayson objected and stated that he wanted to demand trial. Earlier, upon filing his pro se motion, Grayson told the court that he could not represent himself and wanted an appointed attorney. After his objection, the court granted the State's motion to continue the matter to November solely for appointment of counsel for Grayson. Therefore, ...