People v. Miller
| Decision Date | 26 July 1974 |
| Docket Number | No. 57907,57907 |
| Citation | 21 Ill.App.3d 762,316 N.E.2d 269 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnnie MILLER (Impleaded), Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
David Lowell Slader, Portland, Or., for defendant-appellant.
Bernard Carey, State's Atty., Cook County (Patrick T. Driscoll, Jr. and James S. Veldman, Asst. State's Attys., of counsel), for plaintiff-appellee.
Johnnie Miller, Eddie Ligon and Edward Dell Hooks were charged in a multiple court indictment with the murder of Gilbert Burns and the aggravated battery of Robert Burns, in violation of sections 9--1 and 12--4 of the Criminal Code. (Ill.Rev.Stat.1969, ch. 38, pars. 9--1, 12--4.) The jury found all three men guilty of aggravated battery, and found Miller and Ligon guilty of murder; the murder charge as to Edward Hooks was dismissed for violation of the 120-day statute. The trial court sentenced Johnnie Miller to concurrent terms of 30 years to 60 years on the murder conviction and 7 to 10 years on the aggravated battery conviction.
All three defendants prosecuted an appeal under a single general number. In People v. Ligon, 15 Ill.App.3d 746, 305 N.E.2d 212, this court affirmed the convictions of Ligon and Hooks and modified the sentences imposed on the aggravated battery convictions to conform to the Unified Code of Corrections.
In his appeal, defendant Miller contends that he was denied the right to a speedy trial; that he was denied the right to a fair trial by reason of the introduction of incompetent and prejudicial evidence and the improper comment of the prosecutor; that the trial court improperly refused to instruct the jury on the elements of self-defense and manslaughter; and that the sentence imposed upon the murder conviction was excessive. The evidence adduced at trial is set forth at length in Peopole v. Ligon and need not be repeated here.
OpinionDefendant Miller contends that he was denied the right to a speedy trial because more than 120 days elapsed between the date of his incarceration and the date of his motion for discharge, without any delay having been caused by him in the proceedings, and that consequently the trial court erred in denying his motion for discharge filed pursuant to section 103--5 of the Criminal Code. (Ill.Rev.Stat.1971, ch. 38, par. 103--5.) Defendant alleges that he was arrested and charged with the instant offenses on August 13, 1971, from which date he was held without bond; that at a hearing held on August 16, 1971, the matter was transferred to another branch of the Cook County felony court because the matter initially was improperly assigned to a branch that did not hear the type of felony here involved; that at the August 16 hearing, his mother requested time to secure him an attorney; that the matter was continued to September 2, 1971; and that the continuance from August 16 to September 2 was not due to his mother's request for time to secure counsel but rather was due to the State's improper assignment of the case to the wrong court, necessitating reassignment to the proper court.
We hold this contention is without merit. The following colloquy occurred at the hearing on August 16, 1971, resulting in the continuance to September 2, 1971:
(Whereupon, said cause was continued to September 2, 1971.)'
A continuance that is granted upon the request of a defendant for the purpose of retaining counsel will constitute such a delay in the proceedings chargeable to him as will toll the running of the 120-day statute. (People v. Jenkins, 101 Ill.App.2d 414, 417--420, 243 N.E.2d 259.) The questions that arise concerning the instant request for time to retain counsel--that the request was made by someone other than defendant and that defendant himself did not expressly join in that request or accede to the continuance--are obviated by the fact that defendant was a minor at the time and by the fact that the person making the request was his mother. In light of the foregoing, the continuance must be attributed to defendant and the trial court was correct in denying defendant's motion for discharge. Merely because the matter had been assigned to one branch of the circuit court and then transferred to another in no manner delayed the proceedings nor worked to defendant's prejudice; he desired time to secure private counsel in any event, and he succeeded in doing so. In fact, had the matter not been reassigned, defendant's request for a continuance would have extended the proceedings another three weeks, since the record discloses that the date of September 23, 1971, was suggested for advancement of the matter before the September 2 date was settled upon.
Defendant further contends that during final summation to the jury, the prosecutor made a covert reference to defendant's election not to testify at trial, and that the comment violated his right against self-incrimination and denied him a fair trial.
During the State's opening argument, the prosecutor commented that the jury should consider the testimony of the eyewitnesses 'who have not been impeached, have not been rebutted' in light of the defendants' theories of the case, and in final summation he commented that when the jury considers the variations and 'twists' in the testimony of the State's witnesses they should also consider that the testimony of those witnesses went unrebutted. Later during final summation the prosecutor commented that the State's witnesses were not the 'caliber of people out on the street to witness crimes,' and that the State was 'stuck' with them. He told the jury that they should '(k)eep in mind you did not hear from anybody who told you what happened that night except our witnesses.'
Defendant attacks the last comment as a covert reference to the fact that he did not take the stand in his own behalf. No objections to the statements were raised at trial, so any irregularities are deemed waived. (People v. Dailey, 51 Ill.2d 239, 282 N.E.2d 129.) Although this court will consider prejudicial arguments made without objection of counsel if as a result thereof the parties litigant cannot receive a fair trial, we do not consider the comments of counsel to fall within that rule. (People v. Dailey, 51 Ill.2d 239, 282 N.E.2d 129.) The State's closing argument was not calculated to direct the jury's attention to defendant's failure to testify. Rather, it revolved around the allegedly uncontradicted nature of the State's case, which provided overwhelming evidence of guilt.
Defendant also contends that he was denied a fair trial by the introduction of photographs of the scene, which allegedly improperly depicted bloodstains on the sidewalk. He argues that the photographs were introduced into evidence ostensibly to show where the offense had occurred, but in reality to show 'the gruesomeness of the killing in graphic form.'
The photographs in question clearly do not support defendant's contention. As noted by the trial court in overruling the defense objection to the introduction of the photographs, one cannot tell that the marks on the sidewalk are in fact bloodstains; there are not, as alleged by defendant, 'pools of blood' on the pavement. Testimony had been elicited from the State's witnesses prior to the introduction of the photographs that two buildings were involved in the incident and...
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