Opinion
No. 55468 Judgment affirmed.
November 3, 1971. Rehearing denied December 8, 1971.
APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. MORAN, Judge, presiding.
Harry Golter, of Chicago, and William J. Scott, Attorney General, of Springfield, (Overton, Marks Schwartz, of Chicago, and James B. Zagel, Assistant Attorney General, of Springfield, of counsel,) for appellant.
Edward V. Hanrahan, State's Attorney, of Chicago, (Robert A. Novelle, and James R. Kavanaugh, Assistant State's Attorneys, of counsel,) for the People.
The defendants, Marie and Irene Plazewski, were found guilty on charges of battery in a bench trial, and each was fined $100.
The defendants took direct appeals from the convictions to the Supreme Court, but these appeals were transferred to this court by order of the Supreme Court. The defendants contend (1) that the filing of new charges eight months after their arrests deprived them (a) of their right to know and have a copy of the charges against them and (b) of their right to a speedy trial; (2) that the filing of unsigned and forged charges vitiates the entire proceedings; (3) that they were deprived of their right to a speedy trial by the failure of the City of Chicago to file a bill of particulars in the time ordered by the court; and (4) that they were not proved guilty beyond a reasonable doubt.
Due to the nature of the contentions raised, we first set forth the circumstances surrounding the defendants' arrests and review the proceedings in the Circuit Court. On April 27, 1968, a large number of individuals marched from Grant Park to the Civic Center as a part of peace-day activities. These demonstrators were permitted to hold a rally for a short time at the Civic Center Plaza, but when the crowd which numbered three to four thousand persons became so large that it was blocking vehicular and pedestrian traffic, the police ordered the demonstrators, who were chanting and yelling, to disperse. After the dispersal order was given, the crowd broke through a rope barrier which encircled an area under repair on the plaza, and the police officer directing the dispersal was struck and injured. At this point, a number of the 150 uniformed police officers who were assigned to crowd control grouped into dispersal formations and started moving the rally participants off of the plaza. A great many arrests arose out of these incidents including those of Marie and Irene Plazewski.
Marie Plazewski was originally charged (1) with disorderly conduct in violation of section 193-1(d) of the Municipal Code of the City of Chicago; (2) with resisting arrest, and (3) with criminal damage to property. Irene Plazewski was originally charged (1) with disorderly conduct and (2) with resisting arrest.
The defendants appeared in court for the first time on May 1, 1968, and presented motions to dismiss all the pending charges. Hearings on these motions were continued to a later date. On May 29, 1968, the motions to dismiss the disorderly conduct charges were denied, but a motion was allowed requiring the City of Chicago to file a bill of particulars with respect to the disorderly conduct charges by June 17, 1968. The matter was then continued on June 17, 1968, to September 9, 1968, and then again to October 29, 1968. At that time, the defendants moved to dismiss all charges for want of prosecution because the bill of particulars had not been presented. The court denied the motion and granted another continuance until January 7, 1969.
After the cause was called on January 7, 1969, and after the defendants had answered ready, the State requested leave to file two additional complaints against each defendant and to have a nolle prosequi entered with respect to the resisting arrest and disorderly conduct charges. The Assistant State's Attorney explained that the pending complaints had been hastily drawn up and signed in the aftermath of the disturbances at the Civic Center on April 27, 1968, by the police officers who transported the defendants from the Civic Center to the police station. He stated that his reason for seeking to file the new amended complaints in the present proceeding was to avoid having the defendants rearrested and resubmitted to bail. The court over the defendants' objections permitted the filing of the new complaints which charged Marie Plazewski with a battery against Detective Patrick Clark and with resistance to an arrest made by him and which charged Irene Plazewski with battery against Officer John J. Napela and resistance to an arrest made by him.
The Assistant State's Attorney recognized that the defense might have been taken by surprise by the new charges, and he suggested that leave be given to the defendants to file a request for a bill of particulars or other appropriate discovery. The cause was then continued by agreement to February 17, 1969. After preliminary motions were heard on February 17, 1969, the cause proceeded to trial before the court on February 19, 1969. The defendants were found guilty on the battery charges.
The defendants initially contend (1) that when they were brought before a magistrate on May 1, 1968, they did not receive copies of the charges against them as required by Section 109-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1967, ch. 38, par. 109-1), (2) that they were deprived of a right to a speedy trial because the City of Chicago failed to file a bill of particulars with respect to the disorderly conduct charges within a reasonable time, and (3) that the court did not have jurisdiction over them because the original complaints were false, fraudulent, unsigned, or forged.
The battery charges filed on January 7, 1969, of which the defendants were convicted, were based on acts separate and distinct from the alleged acts on which the earlier charges were based. The allegation that Marie Plazewski struck Patrick Clark is fundamentally different from allegations that she failed to obey a dispersal order, that she struck Officer Walter Bortko, or that she defaced a jail wall. The allegation that Irene Plazewski struck John J. Napela is fundamentally different from allegations that she disobeyed a dispersal order or that she resisted Officer Walter Bortko. The initial contention to dismiss even if valid, would not warrant reversal of the battery convictions.
The defendants contend additionally that the filing of the battery charges eight months after their arrests deprived them of their right to a speedy trial as guaranteed in the Sixth Amendment to the United States Constitution and in Article II Section 9 of the Constitution of Illinois 1870. The defendants cite and rely upon People v. Love, 39 Ill.2d 436, 235 N.E.2d 819. In that case, the court considered the contention that a 148 day delay between the filing of a complaint and the arrest of the defendant deprived the defendant of a speedy trial where the delay was without cause or justification. The court after stating 39 Ill.2d at 442, 235 N.E.2d 823, "that in determining whether the right to a swift trial has been observed that the reckoning must be from the time the complaint or other form of accusation is filed, rather than from the time of arrest," held however, that the 148-day delay in arresting the defendant did not deprive him of a speedy trial where there was no suggestion that the delay was intentionally oppressive or purposeful and where there was no showing of prejudice from the delay to the defendant.
The crucial distinction between Love and the present case is that in Love the delay occurred subsequent to the filing of a complaint whereas in the case at bar the delay occurred prior to the initiation of formal proceedings on the battery charges.
Sections 3-5 through 3-8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 3-5 to 3-8) set forth time limitations within which prosecutions of various offenses must be commenced, and it is only under unusual circumstances that the initiation of a prosecution which is not barred by the statute of limitations would constitute a deprivation of the right to a speedy trial. In People v. Hryciuk, 36 Ill.2d 500, 224 N.E.2d 250, cited by defendant, the court rejected the contentions that the constitutional provision for a speedy trial has no application until after a formal prosecution has commenced and that delay before the initiation of formal proceedings is governed exclusively by the statute of limitations. In that case, the defendant, after confessing in 1939 to rape and murder was tried on the rape charge and convicted. In March 1953, the defendant was granted a new trial on the rape charge in post conviction proceedings. On the following day the State indicted the defendant for murder, and the defendant was eventually convicted. The only evidence which was introduced against the defendant in the murder prosecution was the 1939 confession which the defendant contended was involuntary. The defendant's opportunity to cross-examine witnesses on the critical issue of the voluntariness of the confession was diminished because one of the witnesses to the confession was dead and the other two had little personal recollection of it. The court noted that no more evidence was available in 1953 than in 1939, and the delay in prosecuting was deliberate and calculated and that the defendant was prejudiced by the delay; and it held that "under the unusual facts of this case, the defendant has been deprived of a speedy trial and due process of law." ( 36 Ill.2d at 505, 224 N.E.2d at 252.) In the present case the prosecutions of the battery charges were commenced well within the period allowed by the statute of limitations. See: Section 3-5 of the Criminal Code of 1961.
The defendants argue that they were prejudiced because "Clearly, the Defendants had no way of knowing prior to trial which of the many pending charges they were required to defend against." The record does not support this assertion. Some 40 days before the defendants went to trial on the battery and resisting arrest charges, the prosecutor stated in open court that he would not proceed to trial on the original charges. The fact that the nolle prosequis were not entered or the non-suits on the original charges taken until after the trial had begun does not alter the fact that the defendants were on notice that the original charges would be dropped. When the case was called for trial the defendants answered ready and made no requests for additional time to prepare their defense or to obtain a bill of particulars; and during the course of the trial the prosecution offered no evidence on the original charges.
• 1 The record before us does not demonstrate the unusual factors which were present in Hryciuk. The prosecution was commenced within the period allowed by the statute of limitations; the defendants were free on bail pending trial; and the defendants were not prejudiced by the delay in the defense of the battery charge. In view of the facts and circumstances we hold that the defendants were not denied a speedy trial.
It is also contended that the defendants were not proved guilty beyond a reasonable doubt. The principle witnesses for the State were Officers Patrick M. Clark and John J. Napela. Both officers were assigned to crowd control at the Civic Center. On April 27, 1968, Detective Clark testified that Marie Plazewski struck him on the head with her purse and knocked him to his knees as he was attempting to arrest one Virgil Vogel, who was urging the crowd to resist the police. Officer Napela testified that he went to assist Clark and grabbed Marie Plazewski by the arm; and that while he was attempting to subdue Marie, he was struck on the head repeatedly by Irene Plazewski. Virgil Vogel and Irene Plazewski testified on behalf of the defendants and gave testimony conflicting with that of the officers.
The defendants point out (1) that the battery charges were not filed until eight months after they were arrested and initially charged, (2) that Officers Clark and Napela testified to signing complaints against them which were not included in the court file, and (3) that Napela identified the officer directing the dispersal as a person who was not present at the Civic Center at the time of the incidents involved herein; and they argue that "where the State's witnesses have been impeached to the point where their credibility is questionable then reasonable doubt arises as to their entire testimony."
• 2-4 We have carefully reviewed the record and we hold that there is nothing so inherently improbable in the testimony of the complaining witnesses as to set aside the conviction. We are convinced that the relatively insignificant discrepancies in the testimony of the police officers do not impeach the testimony when viewed as a whole. Where the cause is tried without a jury, it is the function of the trial judge to determine the credibility of the witnesses and the weight to be given their testimony, and where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact. ( People v. Clark, 30 Ill.2d 216, 195 N.E.2d 631.) The record further shows that the Amended Complaints were signed and filed by leave of court on January 7th, 1969.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.
ADESKO, P.J., and DIERINGER, J., concur.