WRIT OF ERROR to the Circuit Court of Cook County; the Hon.
THOMAS H. FITZGERALD, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 27, 1966.
Lyman Moore, Jerry Barbee, and Herman Magby were tried jointly for the armed robbery, on July 27, 1962, of Wally's Certified Market in Harvey, Illinois. The jury found Moore and Barbee guilty, and Magby not guilty. Moore was sentenced to a term of imprisonment of not less than 20 nor more than 40 years, and Barbee was sentenced to a term of imprisonment of not less than 15 nor more than 30 years. Both judgments are before us for review, Moore's as No. 38635, and Barbee's as No. 39000. Because of the similarity of the factual background and the contentions of the two defendants, we have consolidated the cases for opinion.
Each defendant contends that his judgment of conviction should be reversed because evidence illegally seized from Barbee's automobile was erroneously admitted in evidence, because the court erroneously permitted the prosecution to present evidence of an unrelated criminal offense which involved the firing of shots at a police officer, and because the prosecution displayed weapons before the jury in an improper and prejudicial manner. Each defendant also asserts other errors that relate to him alone.
We consider first the asserted error in the trial judge's rulings upon the motions to suppress. Each defendant filed a separate motion to suppress the use in evidence of guns alleged to have been illegally seized. In this court the claim of illegal search and seizure is restricted to a single weapon, a sawed-off shotgun taken by police officers from Barbee's automobile on the morning of October 31, 1962. Separate hearings were had upon each motion, but the evidence did not differ significantly.
At each hearing officer Joseph Gorman of the Chicago Police Department was the principal witness. He testified that at approximately 1:00 A.M. on October 31, 1962, he received a radio call that a police officer had been fired upon and needed assistance. He responded, and met officer Thomas Clifford, the officer who had been fired upon. Clifford told Gorman that when he first heard shots, he turned and saw a man standing in front of a parked automobile. A second man jumped from the driver's seat, and the man in front of the car then fired another shot in Clifford's direction. The two men ran together down the street and through a gangway between two houses. A search for the two men was unsuccessful, and after an evidence technician had examined the car for fingerprints, officers Gorman and Clifford searched it. In a cloth bag on the back seat of the car they found the loaded sawed-off shotgun.
The officers had not obtained a warrant for the search of the car, and the search did not accompany an arrest. After the car was searched it was kept under police surveillance. Moore and Barbee were not arrested until about 5:30 A.M. when they returned and started to get in the car.
The defendants rely heavily upon Preston v. United States, 376 U.S. 364, 11 L.Ed.2d 777, in which the Supreme Court of the United States held invalid the search of an automobile after its occupants had been arrested and taken to the police station. The court there phrased the issue "whether the facts of this case are such as to fall within any of the exceptions to the constitutional rule that a search warrant must be had before a search may be made." (376 U.S. at 367.) The defendants point out that the search in this case did not accompany an arrest, and they argue that since the officers were able to "stake out" the car, it was effectively in police custody, and the search without a warrant was invalid. We do not agree.
The unique facts of this case are only awkwardly analogous to any decided case of which we are aware. The car was not moving, (cf. Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543,) and the search did not accompany an arrest. (Cf. Abel v. United States, 362 U.S. 217, 4 L.Ed.2d 668.) But the fourth amendment is concerned with unreasonable searches and seizures, and the reasonableness of the conduct of police officers is not to be narrowly circumscribed by the chance boundaries of decided cases. Hindsight might suggest that as things turned out it would have been possible for the officers to appear before a magistrate and get a search warrant before the defendants returned to the car. But the officers had no way of knowing when, or if, the defendants would return. Similarly, they had no way of knowing whether the defendants, if they did return, would attempt to secure a weapon from the car and make their escape. Whether the car was effectively in police custody depended upon the ability of the officers to prevent the defendants from moving it when they returned. They succeeded, but before the event its outcome could not have been predicted.
In this case, moreover, the officers were confronted in the middle of the night with a critical situation. It was reasonable to assume that the explanation for the shots fired at officer Clifford might be found in the car which the defendants abandoned when they fled. The officers were under the highest duty to determine the cause of that shooting, and to apprehend the men who fired the shots. Their failure to act promptly might have subjected them to discipline. When a police officer could justifiably be disciplined for failure to act, his action can hardly be characterized as unreasonable.
The robbery with which the defendants were charged occurred on July 27, 1962. Witnesses to the robbery testified that the sawed-off shotgun recovered from Barbee's car was similar to a weapon used by Magby during that crime. After this testimony, the shotgun was received in evidence. The defendants contend that references to the shooting on October 31, 1962, just prior to the recovery of the shotgun, were erroneously permitted to come to the jury's attention, and they claim that they were thereby deprived of their right to a fair trial. They rely on the proposition that "the guilt of an accused cannot be established by proving that he committed other offenses and so is an evil man and therefore more likely to have committed the crime charged." People v. Harvey, 12 Ill.2d 88, 91.
The first reference at the trial to the shots fired at officer Clifford occurred during the prosecutor's opening statement. The defense immediately objected and asked to be heard in chambers. There, each defendant joined in a motion that a mistrial be declared. The court denied this motion. The defendant Magby then requested a special instruction that the prosecutor's statement be disregarded as to him. The court indicated its willingness to give such an instruction, but Magby's request was withdrawn. No other motion or objection was made at this time by any defendant.
Officer Clifford was later called as a witness by the State. He was asked whether anything unusual occurred during his patrol on October 31, 1962. Before he could answer the defendants asked to be heard. During the colloquy between court and counsel that followed, the prosecutor agreed not to elicit any testimony concerning the shooting incident from officer Clifford. At the suggestion of one of the defendant's attorneys, he also agreed to discuss the situation with the witness before his testimony to insure that the shooting would not inadvertently be called to the jury's attention. Officer Clifford's testimony then described the recovery of the shotgun without referring to the shooting.
In rebuttal, on the eleventh day of the trial, the prosecution called officer Charles Dean of the Chicago Police Department. Officer Dean testified to the conditions under which a confession by Barbee had been obtained. He was asked, "Now, describe the circumstances under which the defendant, Barbee, was held?" He replied: "He was held when I come to work I was briefed on the case. He was being held after his arrest during ...