People v. Green

333 N.E.2d 478, 30 Ill. App. 3d 1000, 1975 Ill. App. LEXIS 2730
Appellate Court of Illinois·Decided July 7, 1975·No. 59481·Published·Cited by 12 cases

Opinions

Mr. JUSTICE EGAN

delivered the opinion of the court:

The defendant, Brenda Green, and Melvin Loveless were indicted for murder and conspiracy to murder her husband, Lawrence Green. Loveless entered a plea of guilty and the defendant was found guilty by a jury; she was sentenced to a term of 25 to 35 years.

The defendant and the deceased were married in March, 1972, and lived at 3653 South King Drive in Chicago. In the early morning of August 29, 1972, the deceased’s body was found by the police lying face down in a street in Wilmette with a black plastic bag over his head. His death was due to a severe injury to the skull and brain which, in the opinion of the pathologist, was caused by a “broad, blunt, heavy object compatible with a two-by-four.” On September 8, the defendant gave statements to the police and State’s Attorney in which she said that she had talked to Melvin Loveless about killing her husband, with whom she had had difficulty, and that she let Loveless in her apartment on the night of August 28, knowing he was going to kill her husband. Later she assisted Loveless in removing her husband’s body from her apartment and disposing of it in Wilmette.

The defendant first contends that her motion for discharge under the Four Term Act was improperly denied. (Ill. Rev. Stat. 1971, ch. 38, par. 103 — 5.) The defendant was arrested on September 8, 1972, and remained in custody until her trial began on April 26, 1973. She was arraigned on November 14, 1972, and the case was assigned to Judge Stray-horn. On the same day, with 52 days remaining in the term, the defendant filed a motion for discovery before Judge Strayhorn, who, in reliance on the appellate court opinion in People v. Nunnery, 4 Ill.App.3d 217, 280 N.E.2d 537, over objection of the defense attorney, continued the case on motion of the defendant to December 15, 1972, without subpoenas to set the case for trial.

On December 15, 1972, the following occurred before Judge Stray-horn:

“Mr. Lincoln [Public Defender]: With reference to Mrs. Green I was under the impression this was set for Monday, has this been motioned up for today?
The Court: No, it is regularly on this call for today for filing of discovery.
Mr. Lincoln: Well, as long as it is here I will file a motion to suppress which I was planning on filing Monday.
# # #
Mr. Lincoln: I would like to file the motion to suppress physical evidence and motion to quash arrest and suppress evidence.
* # *
The Court: State ordered to file its response to defendant Loveless’ request for discovery within fifteen days from today. Mr. McNeil, you will have on behalf of Mr. Loveless fifteen days thereafter to file your response to the State’s request for discovery. Motion of' defendant Green to suppress physical evidence — what physical evidence are you seeking to suppress, Mr. Lincoln?
Mr. Lincoln: I believe there were some papers in a wastebasket and there were some other items but I am not sure exactly what.
The Court: Before we hear this motion you will file an amended motion setting forth the specific items you seek to suppress and to quash the arrest from and we will hear your motion on January 19. It will be motion of the defendant.
Mr. Lincoln: We are ready for a hearing on our motion.
The Court: You can’t be ready for a hearing, Mr. Lincoln. You have just told me you thought this matter was up Monday; it will be motion of the defendant Green for January 19.
Mr. Lincoln: I indicated I thought it was up Monday, yes, so far as the motion.
The Court: It’s motion defendant, Mr. Lincoln, January 19.
Mr. Lincoln: Can I say what I have to for the record?
The Court: No, I don’t want to hear anything else in that connection. You are not going to clutter up the record. You just stood up here and said you thought it was up Monday and now you file a motion and you say you are ready for a hearing on it. Motion of the defendant, January 19.
Mr. Lincoln: On this motion I have no other evidence that I need to gather other than the defendant.
The Court: Well, it’s motion of the defendant Green, January 19.
Mr. Lincoln: We will object to it being motion of the defendant.
The Court: Your objection is overruled.”

It is the position of the State that the discovery motion of November 14 and the motion to suppress of December 15 each tolled the statute. The State concedes if neither motion did toll the statute the defendant must be discharged.

The impact of discovery motions on the statutory period has been expressed in People v. Nunnery, 54 Ill.2d 372, 374, 297 N.E.2d 129, which reversed the appellate court opinion relied on by the trial judge in this case. In Nunnery, the defendant was arraigned 115 days after his arrest and filed a discovery motion. The State contested some aspects of the motion, and the court reserved its ruling on the request for information concerning whether, when, by whom, and under what circumstances the defendant had been identified. The State’s Attorney requested time to learn by whom the defendant had been identified because he might have had an objection to disclosing that information to the defendant. At the same time the State’s Attorney mistakenly informed the judge that the statutory period would not run for 6 weeks. The supreme court upheld the trial court’s order discharging the defendant (54 Ill.2d 372, 376-377):

“The record contains no explanation of why defendant’s arraignment and the appointment of counsel were delayed until he had been incarcerated for 115 days. Clearly he was entitled to discovery [citation], and if, as is now contended, the People were ready for trial within the 120-day period, the information which the court ordered the People to produce could have been given defendant promptly and the court advised immediately as to the People’s position with respect to the paragraphs of the motion on which the ruling was reserved. Furthermore, it was the State’s Attorney who erroneously advised the court that the statutory period would not run for 6 more weeks, and nothing in the record indicates that defense counsel, appointed that day, knew when the defendant was arrested and how long he had been in custody. Upon consideration of all of the circumstances we conclude that the delay was not occasioned by the defendant and the circuit court did not err in discharging him.”

In People v. Scott, 13 Ill.App.3d 620, 301 N.E.2d 118

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People v. Green, 333 N.E.2d 478, 30 Ill. App. 3d 1000, 1975 Ill. App. LEXIS 2730 (Ill. Ct. App. 1975).

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