People v. Johnson
| Decision Date | 24 March 1970 |
| Docket Number | No. 42007,42007 |
| Citation | 257 N.E.2d 3,45 Ill.2d 38 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Richard A. JOHNSON, Appellant. |
| Court | Illinois Supreme Court |
Gerald W. Getty, Public Defender, Chicago (George L. Lincoln and James J. Doherty, Chicago, of counsel) and Block, Erdos & Lupel, Chicago (Warren Lupel and Joel J. Kruger, 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 Arthur Belkind, Asst. State's Attys., of counsel) for the People.
Richard A. Johnson was tried in the circuit court of Cook County and found guilty in a jury trial of the crime of armed robbery and sentenced to the penitentiary for a period of three to eight years. He has appealed directly to this court, alleging, among other things, that he was denied his constitutional rights to a speedy trial, to due process and the effective assistance of counsel.
Defendant, together with two co-defendants, was indicted for three separate robberies under three separate indictments numbered 68--2088, 68--2089 and 68--2090. The State elected to proceed first with indictment 68--2090, and then later, because of the death of the complaining witness in that case, trial proceeded on indictment 68--2088 which is the case now before us. We shall first consider defendant's contention relative to a denial of a speedy trial.
Defendant was arrested in Wisconsin and brought back to Illinois on April 12, 1968, and the application of the four-term statute (Ill.Rev.Stat.1967, ch. 38, par. 103--5) depends upon whether defendant requested or agreed to a continuance granted on July 22. If he did, then the trial, started on October 9, 1968, was within the four-month period and the statute is not applicable.
Prior to July 22 defendant was represented by a private attorney and a number of continuances were entered on motion of the State or upon order of the court because of difficulties concerning the appearance of one of the defendants who was a minor. On July 22 at a hearing attended by defendant and his attorney and one of the co-defendants and his attorney, who was the Public Defender, defendant's private attorney requested and was granted leave to withdraw. The following colloquy then occurred between the court and the defendant:
The last question was directed to the Public Defender who was representing the other two defendants and he replied that he would not then be ready for trial, that though he had had some discussion on it he hadn't gone into all the facts. The defendant then addressed the court about some matters in the county jail and the court directed him to talk to his attorney. Defendant replied that he did not have an attorney now and the court told him that his lawyer (the Public Defender) was right here. The court then gave the Public Defender two weeks to prepare for trial and showed the motion for continuance to be by defendant for two weeks until August 5. No objection or exception whatsoever was made to this announcement.
At the hearing on August 5 defendant asked the court if he could get a bar association attorney because the Public Defender had nine cases already and had no time to handle his case. From the record this question was not answered as the court was involved in a jury trial and the matter was continued by order of court until August 14. On this latter date defendant addressed the court stating that on July 22 the court had appointed the Public Defender to represent him against his objection and that the Public Defender had asked for a continuance against his objection, and therefore he, Pro se, was filing a petition for discharge under the 'Fourth Term Act.' On September 10, after hearing and presentation of the transcript of the July 22 hearing, this petition was dismissed.
There is no question that if defendant did not request or agree to the continuance on July 22 the four-month limitation would be applicable here. But we cannot agree that defendant did not request or acquiesce in such continuance. As is clearly apparent from the colloquy above quoted, after defendant's private counsel withdrew he had no attorney and he was not ready for trial. He mentioned a preference for a bar association attorney, but he did not object nor remonstrate in any way when the court appointed the Public Defender who was already familiar with the pending indictments. It is not error for a court on its own motion to appoint an attorney for one accused with a crime unless it is done over his objection and some exception is taken to the court's action at the time. (People v. Ephraim, 411 Ill. 118, 103 N.E.2d 363.) Nor did defendant object to the continuance which was granted on his behalf and which he would have needed whether a bar association attorney or the Public Defender had been appointed. It was not until August 14, after the running of the four-month period, that defendant for the first time made any disclaimer as to the continuance granted for his benefit on July 22. We hold that defendant both accepted the appointment of the Public Defender at the time it was made and also consented to and acquiesced in the request of his said attorney for a continuance. We think it clear, as in People v. Rankins, 18 Ill.2d 260, 163 N.E.2d 814, that defendant's belated dissatisfaction with his counsel and objection to his appointment were made solely to avoid the continuance previously granted; that regardless of his subsequently expressed dissatisfaction he was bound by the acts of his counsel at the time, and that the delay occasioned on that date was effective to suspend the running of the four-month limitation. An accused may not fully avail himself of the service of appointed counsel and then, later, disclaim both the services and the appointment when it appears to his advantage, for to permit such a disclaimer would cause undue delay and greatly embarrass the effective prosecution of crime. People v. Rankins, 18 Ill.2d 260, 163 N.E.2d 814.
Defendant's next contention is that he was coerced into trial in the present case without adequate time to prepare and as a result he was denied due process and effective assistance of counsel. All three indictments had been set for trial but only 68--2090 had been set with subpoenas. Two days before trial date defense counsel called to inquire which case the State intended to try. He was told that it would be 68--2090, but later in the day the State learned that the prosecution witness in that case had died. Defense counsel was immediately called to apprise him of this fact, but he was not in his office and his secretary took the message. At trial time, on October 7, the State elected to proceed in the subject case to which defendant objected. Both the State and the court recognized that defendant might want additional time to prepare and the court twice offered to grant defendant a continuance stating that he would not force defendant to trial if he were not ready. Defendant was reluctant to take a continuance on his own motion, but when again told by the court that if he were ready the trial would proceed and, if not, he could have a continuance, counsel asked for and was granted a recess to talk to the defendant. Thereafter counsel proceeded on his motion to suppress identification testimony without any further discussion of a continuance or any objection to proceeding with the case. After extensive testimony the motion was denied and the case continued until the next day, October 8, when it was held on call until the following day, October 9, when trial began.
We agree that one accused of a crime is entitled to sufficient time for preparation of his defense and that to be precipitously forced into trial without an opportunity to prepare would constitute a violation of his fundamental rights. But on the basis of the above facts there is no evidence of coercion or force of any kind. Due to circumstances beyond the control of anyone, death of the prosecution witness in indictment 68--2090, defendant was given the privilege of going to trial on the subject case or taking a continuance for purpose of further preparation if needed. After consultation between defendant and his attorney the choice was made to proceed on this case. There then ensued a full day's hearing on the motion to suppress identification during which counsel exhibited a thorough knowledge and grasp of all the details of the case. Another full day passed before trial commenced on October 9. Even had the court refused a specific request for a continuance by defendant he would have had difficulty proving that such refusal embarrassed him in his defense or prejudiced his rights as is required under such circumstances. (People v. Surgeon, 15 Ill.2d 236, 154 N.E.2d 253; People v. Kunowski, 360 Ill. 416, 196 N.E. 524.) As it was he was given the full co-operation of the court; he was offered such time as he thought he might need. To argue that he was forced to choose as he did is to argue technicalities. The right to a speedy trial and the right to avoid a precipitous trial are separate but related rights. Both are designed to assure an accused a fair trial, to prevent undue delay in one instance and undue haste in the other. He can demand action or avoid action as the exigencies of his situation may dictate. But fairness and justice are not a one-way street. Society is likewise entitled to...
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