People v. Nunnery

• Court: Illinois Supreme Court
• Writing for the Court: GOLDENHERSH
• Citation: People v. Nunnery, 54 Ill.2d 372, 297 N.E.2d 129 (Ill. 1973)
• Decision Date: 04 June 1973
• Docket Number: No. 45064,45064
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Major NUNNERY, Appellant.

Page 129

297 N.E.2d 129

54 Ill.2d 372

The PEOPLE of the State of Illinois, Appellee, v. Major NUNNERY, Appellant.

No. 45064.

Supreme Court of Illinois.

June 4, 1973.

Gerald W. Getty, Public Defender, Chicago (Robert M. Gray and James J. Doherty, Asst. Public Defenders, of counsel), for appellant.

William J. Scott, Atty. Gen., Springfield, and Bernard Carey, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane and Matthew J. Moran, Asst. State's Attys. of counsel), for the People.

GOLDENHERSH, Justice:

Defendant, Major Nunnery, was indicted in the circuit court of Cook County on three charges of armed robbery. Upon allowance of his petition based upon the 120-day rule (Ill.Rev.Stat.1967, ch. 38, par. 103--5), defendant was discharged. The People appealed, the appellate court reversed and remanded the cause for trial (People v. Nunnery, 4 Ill.App.3d 217, 280 N.E.2d 537), and we granted defendant leave to appeal.

The record shows that on February 9, 1969, defendant was arrested on charges of armed robbery, presumably the same offenses for which he was later indicted. On May 27 two indictments were returned against defendant; one, containing two counts, charged him with having committed two separate armed robberies on February 9, 1969, and the other, in one count, charged him with having committed an armed robbery on January 22, 1969. The indictment charging the offense of January 22 and one of the counts charging an offense on February 9 named the same victim. On June 4, 1969, defendant was arraigned, the court, on its own motion, appointed the public defender to represent him on all three charges, and he entered a plea of not guilty. At the arraignment the public defender filed a written motion for discovery containing 21 paragraphs, moved orally for reduction of defendant's bond, and that the People make 'an election.' It is not clear from the colloquy which followed precisely what election defendant requested be made, and we shall not engage in conjecture as to whether it concerned electing which case to try first, or whether there was some problem as the result of the same victim's being named in two indictments charging separate offenses on different dates. Defendant had been incarcerated since his arrest on February 9. The motion to reduce bond was denied, the motion for discovery was allowed as to several paragraphs, denied as to others, and after hearing brief oral argument on the paragraphs remaining, the court indicated it would reserve its ruling on those points to give the People an opportunity to respond to them. The requests for discovery on which the court reserved its ruling concerned whether, when, by whom, and under what circumstances defenant had been identified. Although not entirely clear, we conclude from the colloquy between court and counsel that although the assistant State's Attorney did not concede that defendant was entitled to the information requested, he desired to ascertain whether and by whom identifications had been made and there might then be an objection to making disclosure to the defendant. The following colloquy then occurred:

'COURT: How much time would you like?

DIVANE (Assistant State's Attorney): Whatever date you set for the case.

COURT: Is there any term situation here?

DIVANE: There is one, your Honor, six weeks hence.

COURT: Set this for June 12th. Make that without subpoenas.'

On June 12, 1969, defendant filed a petition for discharge, and after several continuances granted upon the request of the People, on July 11, 1969, the petition was heard and allowed, defendant was discharged and the People appealed.

In reversing the judgment of the circuit court, the appellate court held that although the delay in the indictment and arraignment could not be attributed to defendant, his filing of the discovery motion on the 115th day tolled the running of the 120-day period and that a new 120-day period started at the end of whatever period of delay resulted from his filing the motion.

Defendant contends that the appellate court's decision forced him to elect between his constitutional right to a speedy trial and his right to pretrial discovery, thus depriving him of due process of law; that the record shows that defendant's motion did not cause any delay, and that the decision served to create 'an invidious classification of defendants based on wealth,' and denied him equal protection of the law.

The...