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The People v. Ostrand

OPINION FILED SEPTEMBER 23, 1966.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE AND DEFENDANT IN ERROR,

v.

LYNN A. OSTRAND, APPELLANT AND PLAINTIFF IN ERROR.



APPEAL from and WRIT OF ERROR to the Circuit Court of Cook County; the Honorable Judges, WALTER P. DAHL and EDWARD E. PLUSDRAK, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

These are consolidated appeals from the circuit court of Cook County where defendant, Lynn Ostrand, after two separate jury trials, was convicted of the offenses of armed robbery and the unlawful use of weapons. He was sentenced to terms of 5 to 15 years imprisonment for the armed robbery, and 8 to 10 years for the unlawful use of weapons.

It is defendant's theory that prejudicial error occurring at both trials requires reversal of the convictions.

During the armed robbery trial (Indictment No. 63-141), Edward Course, an independent oil delivery man, testified that on November 9, 1962, shortly after noon, he was making a delivery at 4816 Shakespeare Avenue, Chicago, and in the process thereof was on his knees listening to sounds from the vent pipe. While in this position he was "poked" in the back. Upon arising, he was confronted by a man with a blue steel snub-nosed pistol in his hand who demanded his money. When Course replied that he had none, the robber stated "don't give me that" and proceeded to search his pockets, taking about $50 in money from one pocket and a wallet from another. After warning his victim to remain where he was, the robber walked away. Course followed the man for a time, but eventually the latter disappeared from view. It appeared upon cross-examination that the robber had been wearing a "tyrolene [sic] salt and pepper affair color" hat at the time of the robbery. Course stated that the police found a similar hat under a staircase about a block and a half away from the scene of the robbery. The hat was never introduced as evidence. Course at the trial identified defendant as his assailant and stated that he had identified him previously at a line-up.

Police officer Frank Novak testified that he placed defendant under arrest at the Burdland Tavern, located at 3556 West Armitage, Chicago, on December 5, 1962, at about 5:00 P.M. It appears that Novak had received a description of defendant and his name from a known but undisclosed informant. He made the arrest on the basis of this information, information from Donald Evans, that given him by Course, and from other sources independent of the robbery of Course. Officer Novak also testified that at the time he arrested defendant, he observed a gun fall to the floor from defendant's trouser leg. Defendant initially denied that the gun was his, but later seemingly acquiesced in its ownership, refusing to tell where he had obtained it. All testimony relating to the gun given by officer Novak and its admission into evidence were objected to by defendant. On cross-examination, officer Novak stated that the gun was not what he would call a "snub-nose".

Defendant's sister testified for the defense that she had telephoned the Y.M.C.A., defendant's place of residence, at about 1:00 P.M. on November 9, 1962, and had talked to defendant. Marion McGuire, a Y.M.C.A. maid, testified that she saw defendant on November 9, 1962, at about 11:30 A.M. She later saw him there a little after 1:00 P.M. when he was using a telephone. The witness stated that when defendant had originally taken a room at the Y.M.C.A., he was working nights and ordinarily left his room at 3:00 P.M. Bruno Mariana testified in rebuttal for the State that defendant had not worked nights.

Donald Evans testified for the State over objection by the defense that he had received a phone call from a person who identified himself as defendant and whose voice the witness recognized as defendant's on November 9, 1962, shortly after 12:00 noon or 1:00 P.M. The witness was asked to pick up the caller in the witness's car. He drove to the appointed place and picked up defendant. Defendant then told Evans that defendant had just robbed an oil man and directed Evans to get him out of the neighborhood. They went to the Burdland Tavern where Evans identified himself with a driver's license given him by defendant having the name "Edward Course" upon it. The driver's license was admitted into evidence on behalf of the State.

Nick Lachona, a friend of defendant, testified that he had telephoned defendant at approximately noon on November 9, 1962, and had talked to him at that time. Maurine Caruso was called by the defense and she stated that she had also talked with defendant by telephone between 12:00 noon and 12:30 P.M. on the day in question.

Defendant initially maintains that the court erroneously allowed evidence of independent crimes involving him to be placed before the jury. Particularly, it is claimed that officer Novak's statement that he had received information concerning the description of defendant independent of the robbery of Course necessarily informed the jury that defendant was involved in other crimes. We do not believe this testimony can fairly be said to have prejudiced defendant, for officer Novak was at that time being asked about the basis upon which he had arrested defendant. No specific mention of any other crime involving defendant was made, and the contention on this point is without merit.

Defendant also challenges the admissibility of evidence that when arrested he possessed a pistol and the introduction of the pistol into evidence, on the grounds that such evidence was irrelevant and unconnected with the crime charged in the armed robbery indictment. There was evidence that the robber employed a hand gun during the crime charged, and although there was no evidence that the gun possessed by defendant at the time of his arrest was the one employed during the robbery, we have previously held where there is evidence indicating that an accused possessed a weapon at the time of the offense, a similar weapon found in his possession at the time of his arrest may be admitted against him, and identification of such weapon as the one actually used in the commission of the offense is unnecessary. (People v. Johnson, Docket No. 38706, decided this term; People v. Gambino, 12 Ill.2d 29; People v. Lenhardt, 340 Ill. 538.) That Course stated that the weapon employed by the robber was a "snub-nose" while officer Novak testified that he would not classify as such the weapon connected with defendant at his arrest affects only the probative value and not the admissibility of this evidence.

Defendant further maintains that the pistol was obtained incident to his unlawful arrest and should have been suppressed. The statute then in effect provided that an arrest without warrant might be made by a police officer whenever a criminal offense has in fact been committed, and reasonable grounds exist for believing that the person to be arrested has committed it. (Ill. Rev. Stat. 1961, chap. 38, par. 657.) The arresting officers in this case had received information that a person answering defendant's description had been involved in the commission of various offenses. The officers had the description by the robbery victim, who had a good opportunity to observe his assailant, information from a known but unidentified informer, and similar information from Donald Evans that corroborated the information supplied by the first informant. As observed before, "Reasonable grounds for believing that a person has committed a criminal offense may be found in information furnished by an informer if * * * independently corroborated." (People v. Durr, 28 Ill.2d 308, 311.) Under the circumstances here present, there can be no question that probable cause existed for arresting defendant.

Defendant next argues that evidentiary admission of his alleged inculpatory statement, an implied admission of possession of the pistol, was error in that he had not been apprised of his constitutional rights to counsel and to remain silent. The contention is without merit, for there are no claims of coercion, and we have held in People v. Hartgraves, 31 Ill.2d 375, 379, 380, that an otherwise voluntary statement need not be rejected because the State did not affirmatively caution the accused as to his rights. The new principles concerning the admission of confessions, inculpatory and exculpatory statements recently set forth by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 34 Law Week 4521, 16 L.Ed.2d 694, are not mandatorily applicable to cases where, as here, trial has occurred before the date of that decision. Johnson v. New Jersey, 384 U.S. 719, 34 Law Week 4592, 16 L.Ed.2d 882.

Defendant also states that the State wrongfully suppressed exculpatory evidence in its possession when it failed to produce the "tyrolene [sic] salt and pepper affair color" hat alluded to by the robbery victim. There was no request for the production of this hat, and defendant may not claim error for the first time on appeal. People v. Milani, 34 ...


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