People v. Nowak

• Decision Date: 24 March 1970
• Docket Number: No. 39708,39708
• Citation: 258 N.E.2d 313,45 Ill.2d 158
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Frank NOWAK, Appellant.
• Court: Illinois Supreme Court

Page 313

258 N.E.2d 313

45 Ill.2d 158

The PEOPLE of the State of Illinois, Appellee, v. Frank NOWAK, Appellant.

No. 39708.

Supreme Court of Illinois.

March 24, 1970.

Rehearing Denied May 26, 1970.

Jerome Feldman and Julius Marciniak, Chicago, appointed by the court, 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 Montemurro, Asst. State's Attys., of counsel), for the People.

BURT, Justice.

Defendant Frank Nowak and a co-defendant, Rodney Rosochacki, were found guilty of murder by a jury in the circuit court of Cook County. Nowak was sentenced to serve 15 to 30 years in the penitentiary and Rosochacki 30 to 50 years. Rosochacki's conviction and sentence were affirmed by this court in a separate appeal on January 29, 1969. (People v. Rosochacki, 41 Ill.2d 483, 244 N.E.2d 136.) The facts relating to the occurrence are fully stated in the opinion in Rosochacki and need not be repeated here. In Nowak's appeal he contends that his constitutional right to a speedy trial was violated by denial of his application for discharge made pursuant to the provisions of section 103--5(a) of the Code of Criminal Procedure; that reversible error was committed by failing to produce an available eyewitness to the murder which resulted in a conviction based solely upon the testimony of a minor unindicted accomplice; that the evidence fails to prove defendant's guilt of felony murder and that the admission into evidence of co-defendant Rosochacki's statements against Nowak was prejudicial error and operated by deny him a fair trial.

The record shows that Nowak was arrested on the charge on December 1, 1964, and held in custody continuously until the trial began on May 25, 1965. On May 10, 1965, his counsel filed a motion for discharge alleging failure to comply with the provisions of section 103--5(a) of the Code of Criminal Procedure (Ill.Rev.Stat.1963, ch. 38, part. 103--5(a)) which requires that 'Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody' unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal. (Ill.Rev.Stat.1967, ch. 38, par. 103--5(a).) This statute is designed to implement the right to a speedy trial as guaranteed by the State and Federal constitutions. (People v. Love, 39 Ill.2d 436, 443, 235 N.E.2d 819; People v. Baskin, 38 Ill.2d 141, 144, 230 N.E.2d 208; People v. Fosdick, 36 Ill.2d 524, 528, 224 N.E.2d 242). While the statutory requirement cannot be said to be co-extensive with constitutional safeguards (People v. Tetter, 42 Ill.2d 569, 574, 250 N.E.2d 433; People v. Love, 39 Ill.2d 436, 443, 235 N.E.2d 819), compliance with the statute usually operates to prevent constitutional questions of speedy trial from arising, since the constitutional safeguards protect only against arbitrary and oppressive delays. (People v. Baskin, 38 Ill.2d 141, 144, 230 N.E.2d 208.) The court denied defendant's motion for discharge and it is clear from the record that he was not tried within 120 days of being taken into custody. In determining whether or not the trial court was justified in denying the motion it becomes necessary to inquire whether the delay in the trial beyond the 120-day period was occasioned by the defendant, the criterion being whether defendant's acts or conduct in fact caused or contributed to the delay. People v. Fosdick, 36 Ill.2d 524, 529, 224 N.E.2d 242.

Defendants Nowak and Rosochacki, together with Charles Gregory, who had been indicted with them on an unrelated burglary charge, were arraigned on all indictments before Judge Napoli, the presiding judge of the criminal division, on December 24, 1964. Counsel appearing for defendants were Julius Marciniak for Nowak, Walter La Von Pride for Rosochacki and Seymour Fishman for Gregory. Pleas of not guilty were entered and the cause was assigned to Judge Plusdrak and continued to December 29. On the date specified all defendants and their counsel appeared before Judge Plusdrak who ordered copies of statements and lists of witnesses to oral statements furnished as requested within 15 days and allowed the State until January 15 to make its election as to which of the cases, burglary or murder, would be tried first. After consultation with counsel the cases were set for trial on February 3, 1965, but continued to January 15, 1965, the date on which the State was to make its election.

However, before the 15th arrived, attorneys Pride and Fishman appeared before Judge Plusdrak on January 7. Pride presented a motion for substitution of judges, signed by Rosochacki, which named Judges Plusdrak and Wells as unacceptable. The assistant State's Attorney called attention to the fact that the other defendants were entitled to 24 hours notice to enable them to join in the motion or waive their rights to name judges unacceptable to them. Fishman then entered a waiver on behalf of Gregory and Nowak as well. Pride stated that he had notified Marciniak, Nowak's attorney, but doubted that he would appear. After Pride admitted that he did not have proof of service, the court held the cases on call until the following day, directing Pride to file proof of service at that time. The cases were then transferred to Judge Napoli for reassignment. Later on the same day, January 7, Pride appeared before Judge Napoli at which time he stated that Fishman had to leave and that he (Pride) represented all defendants as well as attorneys Fishman and Marciniak with authority to waive on the motion for substitution. The judge said that he wanted all attorneys in court the following morning and instructed Pride to notify them to be there.

On January 8, 1965, at 10:00 A.M. the three attorneys appeared before Judge Napoli at which time Fishman, representing Gregory, and Marciniak, representing Nowak, announced that they were not naming any judge on the substitution. The presiding judge announced the assignment of the cases to Judge Edward F. Healy. Immediately thereafter, at a time still shown by the record as 10:00 A.M., Pride appeared alone before Judge Healy. Neither Marciniak nor Fishman appeared. Pride announced on this first appearance before Judge Healy that he represented Rosochacki and attorneys Fishman and Marciniak, attorneys for the other defendants, who 'could not wait'. He stated that he had the authority to waive the presence of all defendants. The court remarked about the dangers inherent in such procedure. After Pride suggested that February 3, the trial date originally fixed by Judge Plusdrak be retained, Judge Healy stated that a trial date in his court must be fixed by agreement of counsel; that the case would be held on call until the following Monday (January 11, 1965) and that Pride should notify all other lawyers to be there. Pride agreed and the cause was adjourned to Monday, January 11, 1965 at 10:00 A.M. On that date attorneys Pride and Fishman appeared but Nowak's attorney, Marciniak, was absent, though Pride assured the court that he had called him as the court requested. After pointing out that he could not set the case in the absence of Marciniak the court held the case on call for the following day, Tuesday, January 12.

On January 12 the only attorney present was Fishman who stated in response to the court's question that Marciniak was absent though notified on three occasions to be there. Fishman assured the court that February 3 would be satisfactory to other counsel as a trial date. The court indicated that the cases would be set on that date but insisted that defendants Rosochacki and Nowak be brought into court so they would know 'what is going on'. When Nowak appeared he was advised that his attorney had failed to appear in court on three successive occasions; that trial was being set for February 3, 1965 and that since his counsel had not appeared and announced himself ready for trial the cases would be continued on defendants' motion. The transcript further shows that Marciniak appeared in court later that day and was served with a copy of a written statement, list of witnesses and list of witnesses to written and oral statements. He made no objection to the date set for trial nor to the fact that the cases had been continued on motion of defendants.

On February 3, 1965, with attorneys Pride and Marciniak both present, the assistant State's Attorney announced that they were not going to proceed and that the State would need a 'couple of weeks' to prepare. The court then inquired about the dates of March 8 or 9. Pride stated that he preferred to March 8. Marciniak indicated assent if it was convenient with the court and the State. The court then ordered a continuance to March 8 on motion of the State. On the date last mentioned attorneys Fishman and Marciniak were present and announced themselves ready for trial but the assistant State's Attorney stated that counsel for Rosochiacki had filed a motion for a behavior clinic examination on behalf of his client which was returnable to March 22, 1965, and suggested that the cases be set for the same date. He assured the court that trial would have been held except for this development. The court continued the cases of March 22, 1965. While both attorneys Fishman and Marciniak made it clear that they did not join in Pride's motion for an examination they made no objection to the continuance as such. On March 22 attorneys Pride and Marciniak were present and Pride requested that two phychiatrists be appointed by the court to examine his client Rosochacki, claiming that the behavior clinic examination was insufficient to determine whether he was competent to stand trial. Pride also asked for a hearing to determine the question of competency. While making it clear that he had no motion to make, Marciniak made no...