People v. Hairston

• Decision Date: 29 September 1970
• Docket Number: No. 41635,41635
• Citation: 46 Ill.2d 348,263 N.E.2d 840
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Eugene HAIRSTON, Appellant.
• Court: Illinois Supreme Court

Page 840

263 N.E.2d 840

46 Ill.2d 348

The PEOPLE of the State of Illinois, Appellee, v. Eugene HAIRSTON, Appellant.

No. 41635.

Supreme Court of Illinois.

Sept. 29, 1970.

Marshall Patner, and George J. Cotsirilos, Chicago (Patner & Karaganis, Chicago, of counsel) for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane, and Anthony M. Montemurro, Asst. State's Attys., of counsel) for the People.

CULBERTSON, Justice.

By separate indictments returned to the circuit court of Cook County, defendant, Eugene Hairston, was charged under a statutory theory of accountability with the murder of Leo McClure and with the attempted murders of Theodore Newsome and Dorocher Berrien. In still other separate indictments, he was charged with having solicited Dennis Jackson to commit each of the principal crimes. Upon being tried by a jury defendant was found not guilty of the charges of murder and attempted murder, but was found guilty of the charges of solicitation and was sentenced to the penitentiary for a term of 5 to 15 years on each charge, the sentences to run concurrently. He has appealed, advancing numerous grounds for reversal, several of which present constitutional questions that serve to give us jurisdiction to entertain the appeal.

It is undisputed that 13-year-old Dennis Jackson, at about 3:15 P.M. on September 12, 1967, fired six shots from a revolver into a parked automobile in which McClure, Newsome and Berrien were sitting, wounding the latter two and killing the former. Just prior to the firing of the shots Jackson was heard to say to the men in the car: 'I heard you was messing with the chief.' Present in the immediate vicinity of the auto were Robert Dancy, Marvin Martin and Sanders Martin, boys ranging from 13 to 15 years of age, and Paul Martin, a young adult who was jointly indicted with defendant on all charges but tried separately. All of the persons last named, and Jackson as well, were affiliated with an organization known as the Blackstone Rangers. According to the testimony of Marvin Sanders, defendant, in his early twenties, was the self-styled 'Chief' of the organization, while Paul Martin was the leader of a group within the organization which 'kept order.' Generally speaking, it was the thrust of the prosecution's theory and proof that Jackson had done the shooting as the result of an 'order' emanating from defendant in his capacity of 'chief'. By the version of one witness, defendant is purported to have said that the order had issued because the men in the car were trafficking in narcotics and taking money out of the neighborhood.

Defendant was arrested on September 21, 1967, and was held in custody continuously until tried on May 15, 1968. A motion for his discharge was filed February 18, 1968, based upon the statute which implements the constitutional guarantee of a speedy trial by providing that one in custody for an offense shall be tried 'within 120 days from the date he was taken into custody unless delay is occasioned by the defendant.' (Ill.Rev.Stat.1967, ch. 38, par. 103--5.) The motion was denied, however, on the ground that a delay and continuance of trial had been occasioned by defendant on January 19, 1968, (the 119th day after he had been taken into custody,) which caused the statutory period to run anew from January 29, 1968. More specifically, the record shows that defendant's counsel was engaged in another trial on January 19, that defendant declined a proposition that an associate of his counsel be permitted to start the trial, although the associate had participated extensively and capably in involved pretrial proceedings, and that this combination of circumstances necessitated a continuance of 10 days. Defendant now contends that such delay was improperly and arbitrarily charged to him, inasmuch as he was put in the dilemma of having to choose between his right to a speedy trial and the right to be represented by counsel of his choice, and that under a proper construction of the implementing statute, the running of the 120-day period should merely have been held in abeyance from January 19 until such time as his chief counsel could appear for trial, rather than caused to run anew from the continued date.

We find no merit in either contention. As to the latter, the implementing statute and its predecessors have been repeatedly and consistently construed to mean that a delay occasioned by an accused is a waiver of the right to be tried within the statutory period, and that the period starts to run anew from the date to which the cause has been continued because of such delay. (People v. Kuczynski, 33 Ill.2d 412, 211 N.E.2d 687; People v. Rankins, 18 Ill.2d 260, 163 N.E.2d 814; People v. Hartman, 408 Ill. 133, 96 N.E.2d 449; People v. Stillman, 391 Ill. 227, 62 N.E.2d 698; Dougherty v. People, 124 Ill. 557, 16 N.E. 852.) It is axiomatic that where a statute has been judicially construed and the construction has not evoked an amendment, it will be presumed that the legislature has acquiesced in the court's exposition of the legislative intent. Republic Steel Corp. v. Industrial Comm., 26 Ill.2d 32, 185 N.E.2d 877; Bell v. South Cook County Mosquito Abatement Dist., 3 Ill.2d 353, 121 N.E.2d 473; Consumers Co. v. Industrial Comm., 364 Ill. 145, 4 N.E.2d 34.

As to the first contention, a complete and careful reading of the transcript of the pretrial proceedings and activities involved, leaves us with an abiding conviction that any 'dilemma' was largely of defendant's own creation; that there were several delays prior to January 19 which were occasioned by defendant; that the prosecution was ready for trial as early as November 21, 1967; and that it was an election by defendant's counsel to have a hearing on a petition for bail (filed November 21, 1967) take precedence over trial, which was the greatest source of delay. But we need not elaborate upon the foregoing matters to arrive at a conclusion that the trial court acted neither arbitrarily nor improperly in charging the delay of January 19 to defendant. It is sufficient to say that where, as here, a continuance or delay in trial is occasioned because the counsel of an accused is engaged elsewhere, it is a delay properly charged to the accused. (Cf. People v. Mueller, 2 Ill.2d 311, 118 N.E.2d 1; People v. Faulisi, 34 Ill.2d 187, 215 N.E.2d 276.) To hold to the contrary, in our opinion, would be incompatible with the letter and spirit of the implementing statute and would serve only to provide a weapon with which the administration of criminal justice could be avoided or unduly harassed. It is true, as defendant argues, that one charged with a crime has a constitutional right both to a speedy trial and to be represented by the counsel of his choice, where he has in fact retained counsel; however, the mere fact that a defendant is not tried within the 120-day period fixed by the implementing statute, due to the unavailability of his retained counsel, does not bring the two constitutional rights in conflict or put an accused in the position of having to elect between rights. While the 120-day statute implements the constitutional rights to a speedy trial, it is not coextensive with, or the precise equivalent of, the right. (People v. Love, 39 Ill.2d 436, 443, 235 N.E.2d 819; People v. Stuckey,34 Ill.2d 521, 523, 216 N.E.2d 785.) Furthermore, both constitutional rights were designed for the protection of the accused, and it could not have been intended that one could be played against the other in order to provide an avenue to escape prosecution, which is the result for which defendant contends in this case.

A trial started on May 8, 1968, ended in a mistrial due to unfavorable publicity which had come to the attention of the jurors, and as a consequence there was a delay until May 15, 1968. It is next contended by defendant, over and above his claim based upon the statute, that he was deprived of his constitutional right to a speedy trial and is thus entitled to discharge. He complains in particular of two continuances granted to the prosecution subsequent to January 29, 1968, which, he states, were given without cause or explanation. While we entertain some doubt that this issue was properly raised in the trial court and preserved for review, (see People v. Bonds, 32 Ill.2d 94, 203 N.E.2d 884,) we have examined the record and find it to be without merit. The right to a speedy trial guaranteed to an accused by the constitution is protection only against delay that is arbitrary, unreasonable and oppressive, (People v. Hamby, 27 Ill.2d 493, 190 N.E.2d 289; People v. Stillman, 391 Ill. 227, 62 N.E.2d 698,) and, as we recently observed in People v. Love 39 Ill.2d 436, 442, 235 N.E.2d 819, 823: 'An important circumstance is whether there is a likelihood, or at least a reasonable possibility, that the accused has been prejudiced by the delay.' No claim is made by defendant that he was prejudiced by the delays in question, nor do we perceive a reasonable possibility that such was the case. And any fair appraisal of the record does not permit a conclusion that the delay between January 29 and May 8, 1968, was arbitrary, unreasonable or oppressive. While the prosecution was granted two continuances, both of which were for just cause and fully explained, it appears that a good portion of the delay was occasioned by the unavailability of a judge or courtroom in which to hear the case due to overcrowded dockets.

By the indictments returned against defendant, the State sought to convict him of Jackson's acts of murder and attempted murder on an accountability theory under section 5--2 of the Criminal Code of 1961, which provides in pertinent part: 'A person is legally accountable for the conduct of another when: * * * (c) Either before or during the commission of an offense, and with the intent to promote or ...