People v. Baker
| Decision Date | 01 August 1984 |
| Docket Number | No. 82-582,82-582 |
| Citation | 469 N.E.2d 602,82 Ill.Dec. 958,127 Ill.App.3d 565 |
| Parties | , 82 Ill.Dec. 958 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth BAKER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Steven Clark, Deputy State Appellate Defender, Mark W. Solock, Chicago, for defendant-appellant.
Richard M. Daley, State's Atty., Chicago (Michael E. Shabat, James S. Veldman and Maria Elena Gonzalez, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.
In a jury trial the defendant, Kenneth Baker, was found guilty of murder and home invasion and was sentenced to terms of 35 years and 25 years respectively, the sentences to run consecutively. On appeal, Baker claims that the trial court erred in denying his Petition for Discharge Based on Statutory Right to Speedy Trial filed January 5, 1982. He was arrested February 14, 1981, and his petition alleged that more than 120 days had passed since he indicated that he was ready for trial and that he was entitled to discharge for want of prosecution as provided in section 103-5 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1981, ch. 38, par. 103-5). That statute mandates that every person in custody "be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, * * *." The controlling question in determining whether defendant was entitled to discharge under the speedy trial statute is whether the delay of his trial was occasioned by the defendant; if so, he is not entitled to a discharge. (People v. Leonard (1974), 18 Ill.App.3d 527, 310 N.E.2d 15.) Between defendant's arrest and the date of his motion for discharge there were 301 calendar days. During this period there were numerous continuances, some on motion of defendant, some on motion of the State; others were by agreement. The continuances by agreement and upon defendant's motion were, of course, delays chargeable to defendant. When the delay is caused by the defendant, the 120-day period starts anew from the date to which the defendant has caused a delay. People v. Lee (1969), 44 Ill.2d 161, 254 N.E.2d 469.
Application of these principles to this case makes the court proceedings of August 11, 1981, critically important. Defendant contends that "although the Memorandum of Orders indicates that this date was B/A (by agreement) the transcript of the proceedings on that date clearly indicate (sic) that this continuance cannot be attributable to the defendant." The State does not contest defendant's entitlement to a discharge if this statement were true. However, the State asserts that it is not true, and we agree.
The transcript of proceedings for August 11, 1981, shows the following:
It will be noted that Judge Arthur J. Cieslik who was presiding at the proceedings on August 11, 1981, concluded that the continuance was by agreement and stated so on the record. To this there was no objection. The hearing on defendant's petition for discharge was also before Judge Cieslik who, in denying the petition, said that after examining the transcript of proceedings, the sheets he prepared at the time the case was heard and signed at the close of the day, as well as the commonlaw record, that By Agreement was a proper statement of the record and that accordingly, the motion for discharge was not well taken and was denied.
The order of continuance on August 11, 1981, in the commonlaw record is unambiguous and clearly by agreement. After a review of the transcript of proceedings upon which defendant relies, the trial court found that the commonlaw record spoke the truth. The statement of defense counsel in the transcript of proceedings can be interpreted to mean that defendant was ready for trial or to mean that he was ready to have his case set for trial. There was no objection when the court indicated that the case would be given a future date for trial and when the date was set, defense counsel said, "Fine."
Defendant relies on People v. Behay (1977), 67 Ill.2d 423, 10 Ill.Dec. 568, 367 N.E.2d 1334, where our supreme court held that a continuance was not a delay occasioned by the defendant. In that case, the court held that no waiver of the right to a speedy trial occurred merely because of defense counsel's failure to object to the court's entry charging a continuance to him. However, the record in Behay showed that the trial judge and counsel for the parties were actually engaged in the trial of another case. Similar considerations buttressed the appellate court's ruling that a continuance was not occasioned by the defense in People v. Parker (1978), 59 Ill.App.3d 302, 16 Ill.Dec. 592, 375 N.E.2d 465. In Parker, the commonlaw record read By Agreement but the undisputed evidence was that defense counsel was not in court on the date the continuance was ordered. Further, the trial judge knew that a jury trial was in progress. These cases are thus distinguishable from the case at bar. The determination of accountability for delay rests in the judgment of the trial court and its decision should be sustained on appeal unless it is clearly shown that the court's discretion was abused. (Parker, 59 Ill.App.3d at 304, 16 Ill.Dec. 592, 375 N.E.2d 465.) We cannot say on this record that the trial judge misinterpreted what was happening before him, mistakenly recorded the continuance as by agreement, and erred in denying the petition for discharge. Selvaggio v. Kickert School Bus Line, Inc., (1964), 46 Ill.App.2d 398, 197 N.E.2d 128.
Defendant was charged in a five-count information. The first count charged that defendant murdered Ira E. Clark in violation of section 9-1(a)(1) of the Criminal Code of 1961 (Ill.Rev.Stat.1981, ch. 38, par. 9-1(a)(1)). The second count charged that defendant murdered Ira E. Clark in violation of section 9-1(a)(2) of the Criminal Code of 1961 (Ill.Rev.Stat.1981, ch. 38, par. 9-1(a)(2)). The third count charged that defendant murdered Ira E. Clark while committing a forcible felony (home invasion) in violation of section 9-1(a)(3) of the Criminal Code of 1961 (Ill.Rev.Stat.1981, ch. 38, par. 9-1(a)(3)). The fourth count charged defendant with committing the offense of home invasion in violation of section 12-11(a)(2) of the Criminal Code of 1961 (Ill.Rev.Stat.1981, ch. 38, par. 12-11(a)(2)). The fifth count charged defendant with committing the offense of armed violence. Prior to trial the State nolle prossed the armed violence count.
Defendant contends that home invasion is a lesser included offense of felony murder, and that therefore his conviction of the lesser offense must be vacated, citing People v. Devine (1981), 98 Ill.App.3d 914, 54 Ill.Dec. 73, 424 N.E.2d 823, cert. denied 458 U.S. 1109, 102 S.Ct. 3490, 73 L.Ed.2d 1371. The weakness of defendant's argument is that with three possible bases for the general guilty of murder verdict, it is impossible to state that the verdict was based on the felony murder count alone. If a jury returns a general verdict of guilty when the defendant is charged with several counts of an offense, defendant will be deemed guilty on each count. (People v. Lloyd (1981), 93 Ill.App.3d 1018, 49 Ill.Dec. 487, 418 N.E.2d 131.) Indeed, defendant's reply brief "concedes that he was convicted of murder in each of three manners possible." The jury's guilty verdict indicates an intention to convict defendant of murder under sections 9-1(a)(1) and 9-1(a)(2) (), as well as under the felony murder section 9-1(a)(3) (Ill.Rev.Stat.1981, ch. 38, par. 9-1(a)(3). No reason is advanced why a murder verdict on the basis of sections 9-1(a)(1) and 9-1(a)(2) should not stand with the conviction for home invasion.
Defendant claims numerous instances of prosecutorial misconduct. However, under the harmless error doctrine, they do not singly or collectively constitute reversible error unless the error or errors resulted in substantial prejudice to the defendant and can be said to have contributed to the guilty verdict. People v. Baptist (1979), 76 Ill.2d 19, 27 Ill.Dec. 792, 389 N.E.2d 1200; People v. Hilliard (1982), 109 Ill.App.3d 797, 65 Ill.Dec. 343, 441 N.E.2d 135.
Defendant argues that the evidence here was sufficiently close to put the case beyond the reach of the harmless error doctrine. The State's case was simple and straightforward. Baker went on a rampaging jealous rage culminating in his kicking open the door of Gwendolyn Thompson's apartment and entering with a knife in his hand. Present in the apartment were Gwendolyn, her sister, Charlotte Jackson, Ira Clark, the deceased, and Stephanie Watson, defendant's common law wife. Defendant overpowered Clark who was unarmed and stabbed him to death. This was the substance of the testimony of both Gwendolyn and Charlotte. Defendant and Stephanie testified...
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