People v. Green

• Court: Appellate Court of Illinois
• Writing for the Court: EGAN; GOLDBERG; SIMON; SIMON
• Citation: People v. Green, 333 N.E.2d 478, 30 Ill.App.3d 1000 (Ill. App. 1975)
• Decision Date: 07 July 1975
• Docket Number: No. 59481,59481
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brenda GREEN, Defendant-Appellant.

Page 478

333 N.E.2d 478

30 Ill.App.3d 1000

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brenda GREEN, Defendant-Appellant.

No. 59481.

Appellate Court of Illinois, First District, First Division.

July 7, 1975.

James J. Doherty, Public Defender of Cook County, Chicago (Phillip A. Olson and Matthew J. Beemsterboer, Asst. Public Defenders, of counsel), for defendant-appellant.

Bernard Carey, State's Atty. of Cook County, Chicago (Patrick T. Driscoll, Jr., and Ricky L. Petrone, Asst. State's Attys., of counsel), for plaintiff-appellee.

EGAN, Justice:

The defendant, Brenda Green, and Melvin Loveless were indicted for murder and conspiracy to murder her husband, Lawrence Green. Loveless entered a plea of guilty and the defendant was found guilty by a jury; she was sentenced to a term of 25 to 35 years.

The defendant and the deceased were married in March, 1972, and lived at 3653 South King Drive in Chicago. In the early morning of August 29, 1972, the deceased's body was found by the police lying face down in a street in Wilmette with a black plastic bag over his head. His death was due to a severe injury to the skull and brain which, in he opinion of the pathologist, was caused by a 'broad, blunt, heavy object compatible with a two-by-four.' On September 8, the defendant gave statements to the police and State's Attorney in which she said that she had talked to Melvin Loveless about killing her husband, with whom she had had difficulty, and that she let Loveless in her appartment of the night of August 28, knowing he was going to kill her husband. Later she assisted Loveless in removing her husband's body from her apartment and disposing of it in Wilmette.

The defendant first contends that her motion for discharge under the Four Term Act was improperly denied. (Ill.Rev.Stat.1971, ch. 38, par. 103--5.) The defendant was arrested on September 8, 1972, and remained in custody until her trial began on April 26, 1973. She was arraigned on November 14, 1972, and the case was assigned to Judge Strayhorn. On the same day, with 52 days remaining in the term, the defendant filed a motion for discovery before Judge Strayhorn, who, in reliance on the Appellate Court opinion in People v. Nunnery, 4 Ill.App.3d 217, 280 N.E.2d 537, over objection of the defense attorney, continued the case on motion of the defendant to December 15, 1972, without subpoenas to set the case for trial.

On December 15, 1972, the following occurred before Judge Strayhorn:

'Mr. Lincoln (Public Defender): With reference to Mrs. Green I was under the impression this was set for Monday, has this been motioned up for today?

'The Court: No, it is regularly on this call for today for filing of discovery.

'Mr. Lincoln: Well, as long as it is here I will file a motion to suppress which I was planning on filing Monday.

'Mr. Lincoln; I would like to file the motion to suppress physical evidence and motion to quash arrest and suppress evidence.

'The Court: State ordered to file its response to defendant Loveless' request for discovery within fifteen days from today. Mr. McNeil, you will have on behalf of Mr. Loveless fifteen days thereafter to file your response to the State's request for discovery. Motion of defendant Green to suppress physical evidence--what physical evidence are you seeking to suppress, Mr. Lincoln?

'Mr. Lincoln: I believe there were some papers in a wastebasket and there were some other items but I an not sure exactly what.

'The Court: Before we hear this motion you will file an amended motion setting forth the specific items you seek to suppress and the quash the arrest from and we will hear your motion on January 19. It will be motion of the defendant.

'Mr. Lincoln: We are ready for a hearing on our motion.

'The Court: You can't be ready for a hearing, Mr. Lincoln. You have just told me you thought this matter was up Monday; it will be motion of the defendant Green for January 19.

'Mr. Lincoln: I indicated I thought it was up Monday, yes, so far as the motion.

' The Court: It's motion defendant, Mr. Lincoln, January 19.

'Mr. Lincoln: Can I say what I have to for the record?

'The Court: No, I don't want to hear anything else in that connection. You are not going to clutter up the record. You just stood up here and said you thought it was up Monday and now you file a motion and you say you are ready for a hearing on it. Motion of the defendant, January 19.

'Mr. Lincoln: On this motion I have no other evidence that I need to gather other than the defendant.

'The Court: Well, it's motion of the defendant Green, January 19.

'Mr. Lincoln: We will object to it being motion of the defendant.

'The Court: Your objection is overruled.'

It is the position of the State that the discovery motion of November 14 and the motion to suppress of December 15 each tolled the statute. The State concedes if neither motion did toll the statute the defendant must be discharged.

The impact of discovery motions on the statutory period has been expressed in People v. Nunnery, 54 Ill.2d 372, 374, 297 N.E.2d 129, which reversed the Appellate Court opinion relied on by the trial judge in this case. In Nunnery, the defendant was arraigned 115 days after his arrest and filed a discovery motion. The State contested some aspects of the motion, and the court reserved its ruling on the request for information concerning whether, when, by whom, and under what circumstances the defendant had been identified. The State's Attoney requested time to learn by whom the defendant had been identified because he might have had an objection to disclosing that information to the defendant. At the same time the State's Attorney mistakenly informed the judge that the statutory period would not run for six weeks. The Supreme Court upheld the trial court's order discharging the defendant (54 Ill.2d at 376--377, 297 N.E.2d at 131):

'The record contains no explanation of why defendant's arraignment and the appointment of counsel were delayed until he had been incarcerated for 115 days. Clearly he was entitled to discovery (Citation), and if, as is now contended, the People were ready for trial within the 120-day period, the information which the court ordered the People to produce could have been given defendant promptly and the court advised immediately as to the People's position with respect to the paragraphs of the motion of which the ruling was reserved. Furthermore, it was the State's Attorney who erroneously advised the court that the statutory period would not run for 6 more weeks, and nothing in the record indicates that defense counsel, appointed that day, knew when the defendant was arrested and how long he had been in custody. Upon consideration of all the circumstances we conclude that the delay was not occasioned by the defendant and the circuit court did not err in discharging him.'

In People v. Scott, 13 Ill.App.3d 620, 301 N.E.2d 118, the Appellate Court noted that Nunnery was decided on the precise facts before it and was authority for the proposition that not every discovery motion causes a delay which can be attributed to the defendant. The court stated what we deem to be the sound rule governing the applicability of discovery motions to the statute and the rule's rationale (13 Ill.App.3d at 630, 301 N.E.2d at 125):

'Motions for discovery may or may not require time to comply with them. A motion may be simple and easily answered or it may be detailed and difficult to answer. The information requested may be presently known or it may only be obtained after search and inquiry. The requested information may be reasonable and supplied without objection or it may call forth objections which must be heard and resolved. A discovery motion which the State can answer quickly would cause little or no delay; the State should not be permitted to use such a motion as an excuse to toll the statute implementing the constitutional right to a speedy trial. On the other hand, a discovery motion that calls for answers which are not quickly available or requests answers replete in detail would cause a legitimate delay; such a motion is properly attributable to a defendant and tolls the running of the statutory period. Whether a motion falls into the former or the latter category would depend on the facts of each case. This calls for the trial court's appraisal of the motion, its need, timeliness and complexity; it calls for the court's appraisal of the State's ability to answer the motion immediately or the merit of the State's reasons for not doing so. The interpretation of the motion and of the availability of the required information, the reasonable time needed to answer and whether proposed objections are genuine or dilatory, should rest in the judgment of the trial court and its decision as to the accountability for the ensuing delay, if there is one, should be sustained unless it is clearly shown that the court's discretion was abused.'

All the continuances are either on motion of the State, order of court, by agreement or motion of the defendant. Only if the continuance is by agreement or on motion of the defendant may the delay be chargeable to the defendant. When the discovery motion is made and the judge orders compliance and continues the matter to give the State time to comply, he must make a judgment based on what is before him at that time as to the accountability for the delay.

In this case, the public defender filed a motion for discovery when the defendant first appeared before Judge Strayhorn. Although it is a form motion, it is very comprehensive. It sought a bill of particulars containing the exact time and date of the occurrence and the exact street address and physical description of the location of the occurrence; the names and addresses of any witnesses the State might or might not call and the production of any written or recorded statements by those witnesses or any memoranda reporting or summarizing oral statements of the witnesses;...