People v. Browry
| Decision Date | 08 November 1972 |
| Docket Number | No. 56567,56567 |
| Citation | 8 Ill.App.3d 599,290 N.E.2d 650 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James BROWRY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Victor G. Savikas, Frederick F. Cohn, Chicago, for defendant-appellant.
William J. Scott, Atty. Gen., James B. Zagel, Asst. Atty. Gen., Edward V. Hanrahan, State's Atty., Robert A. Novelle, Henry A. Hauser, Asst. State's Attys., Chicago, for plaintiff-appellee.
This is an appeal from judgment that convicted defendant of rape and burglary and from an order that dismissed his post-conviction petition without a hearing. A two-count indictment charged defendant with the two offenses. He was tried by a jury and found guilty. After hearing and overruling post-trial motions, the trial court sentenced defendant to serve concurrent terms of 15 to 25 years for rape and 10 to 20 for burglary.
In the appeal from the convictions, defendant contends that (1) he was entitled to a discharge because he was not brought to trial within 120 days from the date he was taken into custody; 1 (2) he was denied the right to effective assistance of counsel because his court-appointed lawyer did not move for his discharge when he was not tried within 120 days after he was taken into custody; (3) he was denied a fair trial because the trial court did not instruct the jury on the issue of consent and the elements of theft; (4) the sentences are excessive.
In the appeal from the order dismissing his post-conviction petition, defendant contends the dismissal was error because the petition alleged violations of his constitutional rights, allegations which were sufficiently supported by facts.
September 11, 1967, on the prosecutrix's complaint of rape and burglary, defendant was arrested. He never was admitted to bail. Before trial, he was given a psychiatric examination. It was reported to the trial court that defendant was unable to cooperate with counsel. Accordingly, the court ordered a competency hearing. On October 4, 1967, he was found incompetent to stand trial and the court committed him to the custody of the Illinois Department of Mental Health.
On May 28, 1968, it being thought he had recovered, defendant was released to the custody of the sheriff of Cook County. One month later, the charges against defendant were reinstated, the Public Defender was appointed to represent him and a psychiatric examination was ordered. This time the report disclosed that defendant knew the nature of the charges against him and was able to cooperate with his counsel. On July 26, 1968, counsel petitioned for a hearing to determine defendant's competency. A jury was impaneled, and on the evidence submitted, a verdict was directed finding that defendant was competent. Pleas of not guilty were entered and the cause continued for trial. Then, either on motion of the State or by order of court, the cause was continued from time to time until October 24, 1968 when the State filed a petition to extent the time for trial under the provisions of Section 103--5(c) of the Criminal Code. 2 The petition was granted. From time to time, the cause was continued until December 19, 1968 when the trial began. Neither before nor after his conviction, did defendant make any claim that he was entitled to discharge because he was not brought to trial in compliance with the 120-day statute.
Now, in this court, defendant contends that he should have been discharged because 149 days elapsed between May 28, 1968, when he was released to the custody of the Cook County sheriff and October 24, 1968 when the State petitioned for extension of the 120-day period. Defendant, however, does not tell us how he could have been discharged when before his conviction neither he nor anyone for him called to the trial court's attention his claim to a discharge. It is well settled that a defendant who wants the benefit of the 120-day statute must make application for discharge before he is convicted. See People v. Stahl, 26 Ill.2d 403, 404, 186 N.E.2d 349; People v. Kelley, 105 Ill.App.2d 481, 244 N.E.2d 818. If he does not, he waives the right to contend that he was denied a speedy trial. (People v. Williams, 28 Ill.2d 280, 192 N.E.2d 356; People v. Hill, 3 Ill.App.3d 286, 278 N.E.2d 441.) This is the law whether a defendant is represented by counsel of his choice or one appointed by the court. See People v. Reader, 26 Ill.2d 210, 186 N.E.2d 298.
Overlooking for the moment this failure to request a discharge, the record discloses that the trial delay was caused by defendant. On September 19, 1967, at his request, and for his benefit, he was given a psychiatric examination. It is recognized that the right to a speedy trial can be lost when an accused requests a psychiatric examination to determine his competency. See Annot., 57 A.L.R.2d 302, 313. And, it is well settled that in a proper case delay to ascertain a defendant's mental capacity to stand trial is not only permissible; it does not infringe on the constitutional right to a speedy trial nor violate the statute enacted to implement the constitutional guarantee. (People v. Benson, 19 Ill.2d 50, 55, 166 N.E.2d 80; People v. Jenkins,101 Ill.App.2d 414, 243 N.E.2d 259.) The psychiatric report that followed told the trial court that defendant was unable to cooperate with his counsel. This report warranted the October 4, 1967 order for the competency hearing. The order tolled the 120-day rule. (People v. Robinson, 130 Ill.App.2d 29, 33, 264 N.E.2d 484.) Defendant was found incompetent and on October 5, 1967 he was committed for the duration of his incompetency.
On May 28, 1968, when there were grounds to believe that defendant could stand trial, he was released by the Department of Mental Health to the sheriff of Cook County. See People v. Crawley, 131 Ill.App.2d 971, 267 N.E.2d 755; Ill.Rev.Stat.1967, ch. 38, par. 104--3(b). Then, on motion of his court-appointed counsel, he was subjected to another psychiatric examination. Acting on the results of that examination, defendant's counsel, on July 26, 1968, petitioned for a competency hearing. This hearing was held and on that day the jury was directed to find defendant competent to stand trial. As a result, and for the first time after October 5, 1967, defendant was legally competent, with the statutory right to be tried within 120 days, or within the extended period the trial court had the power to grant. (Ill.Rev.Stat.1969, ch. 38, par. 103--5(a)(c); People v. Robinson, 130 Ill.App.2d 29, 32--33, 264 N.E.2d 484.) Defendant was brought to trial on December 19, 1968. This was within the 60-day extension that was granted on October 24, 1968. See People v. Tamborski, 415 Ill. 466, 114 N.E.2d 649; People v. Allen, 1 Ill.App.3d 197, 272 N.E.2d 296. These facts show that defendant was not entitled to a discharge because of delay in bringing him to trial.
As his second contention, defendant points to the fact that his court-appointed lawyer did not move for his discharge under the 120-day statute. He argues that this resulted in his being denied effective assistance of counsel at his trial. Defendant insists that this failure cannot be construed as a waiver by him but rather as an abridgement of his constitutional rights. In support, he cites People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810, a case in which one defendant was discharged because he was not brought to trial within the time required by law. Had the Public Defender checked the court records, he would have discovered that Morris was similarly entitled to discharge. A timely motion would have obtained Morris' discharge from custody. It was the Public Defender's failure to move for Morris' release, coupled with meagre preparation and scant attention to the case, which led the Supreme Court to conclude that the conduct of Morris' court-appointed counsel '* * * did not measure up to that expected of a competent and conscientious trial attorney.' 3 Ill.2d 437 at 452, 121 N.E.2d at 819. Morris, then, was a case in which, had the motion for discharge been made, it would have been granted. This was a case, had the motion for discharge been made, it would have been denied. It is hard to point to a greater difference between two cases. We conclude that Morris does not apply to the issue before us.
Defendant's third contention concerns the trial court's instructions to the jury. It will be recalled that defendant was charged with having sexual intercourse with the prosecutrix by force and against her will and with having entered her hotel room with the intent to commit theft. Defendant contends that the trial court, on its own, should have instructed the jury on the elements of theft and on the issue of consent. Its failure to do so, defendant argues, denied him a fair trial. Defendant relies on People v. Davis, 74 Ill.App.2d 450, 221 N.E.2d 63, where the charge was attempt robbery but no instruction on the elements of robbery was given the jury.
In this case, defendant concedes that the jury was instructed on the elements of rape and burglary. He insists, however, that it was the trial court's duty to give the jury an instruction on the elements of theft because '(t)heft is not a self-defining term but is a precise and technical legal concept.' In People v. Parks, Ill.App., 273 N.E.2d 162, where as in this case, the charge was burglary, we were faced with the same contention. We said that
Concerning his contention that the trial court should have instructed the jury on the issue of consent, defendant argues that his defense to the rape charge was consent by the prosecutrix. Therefore, defendant insists, the trial court, without being tendered an instruction on the subject, erred in not instructing the jury on...
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