Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. NATHAN M. COHEN, Judge, presiding. Judgment
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT. In a non-jury trial the defendant was convicted of unlawful use of a weapon *fn1 and sentenced to the penitentiary for a term of two to four years. He contends that the weapon introduced in evidence was the product of an illegal search and seizure and that the failure of his attorney to move to suppress the evidence was a denial of his right to competent representation of counsel. He further contends that the State failed to prove his guilt beyond a reasonable doubt. The facts follow.
Defendant was arrested while riding with another man in the back seat of a taxicab operated by one Leon Looper. The arresting officer Charles Wright testified that he and his partner Aubly Policky, were driving east on 51st Street in Chicago when Looper's cab pulled in front of their squad car; that they noticed that at each intersection the defendant or the man with him would turn around and look at the police car; that they believed that this suspicious activity warranted investigation; and that they curbed Looper's vehicle after switching on their dome light. Wright further testified that Looper got out of the cab; that he (Wright) approached the cab on the driver's side and that Policky advanced on the other side; that he heard a thud from inside the cab; that he opened the rear door on the driver's side and found a .32 caliber pistol on the floor between defendant's legs.
On cross-examination Wright testified that he observed defendant and the other man in the taxicab drinking from a bottle, but that he could not tell whether it contained an alcoholic beverage. He stated that defendant was not arrested on suspicion of drinking in a public vehicle. Upon further questioning by defense counsel, Wright testified that he recalled making the following statement at a hearing conducted prior to the trial:
"THE COURT: Who had the pistol?
"OFFICER WRIGHT: Willie Gant dropped it as I came up to the side of the car. He had his hand over the front seat and the gun was in his hand and as I walked up with my gun, he dropped it." (Emphasis ours.)
Wright stated that if he were asked the same question again, his answer would be the same; that is, that he saw the gun in Gant's hand. On further cross-examination however he contradicted his earlier statements and testified that he did not recall if the gun was in defendant's hand or whether he had only heard it drop to the floor.
The law is well settled in Illinois that the failure to move to suppress an item which is later introduced in evidence waives the right to object on appeal to the admission of said evidence. People v. Riley, 31 Ill.2d 490, 202 N.E.2d 531; People v. Sotos, 26 Ill.2d 460, 187 N.E.2d 245; People v. Ikerd, 26 Ill.2d 573, 188 N.E.2d 12. Defendant concedes that the question of admissibility cannot be raised directly on this appeal, but he contends that under the circumstances of this case the failure to make a motion to suppress was a vital error and revealed such incompetency as was equivalent to deprivation of his right to counsel. Hence, he argues, he should not be considered to have waived the issue of admissibility.
"Whenever the court in good faith appoints or accepts the appearance of a member of the bar in good standing to represent a defendant, the presumption is that such counsel is competent. . . . The best of counsel makes mistakes. His mistakes, although indicative of lack of skill or even incompetency, will not vitiate the trial unless on the whole the representation is of such low caliber as to amount to no representation and to reduce the trial to a farce." (Pp 562-563.)
Generally, the Illinois Supreme Court has adhered to the principles set forth in the Reeves opinion, People v. Stephens, 6 Ill.2d 257, 128 N.E.2d 731; People v. Clark, 7 Ill.2d 163, 130 N.E.2d 195; People v. Dean, 31 Ill.2d 214, 201 N.E.2d 405; People v. Green, 36 Ill.2d 349, 223 N.E.2d 101. It might be argued however that certain language used by the court in a recent decision involving court appointed counsel (People v. Robinson, 33 Ill.2d 391, 211 N.E.2d 697), indicates a less stringent rule where counsel is not of the defendant's own choosing. In that case the court held that to sustain a contention of incompetency of counsel, "the defendant must clearly establish actual incompetency and substantial prejudice resulting therefrom." In the instant case defendant's attorney at the trial was the Public Defender of Cook County, a court appointed counsel, but it is unnecessary to determine whether a different standard has been formulated with respect to such counsel for under either test the attorney in this case was not incompetent.
Prior to defendant's trial this court had decided in People v. DeFilippis, 54 Ill. App.2d 137, 203 N.E.2d 627, that an individual was required to allege a possessory interest in items which he sought to suppress from evidence, and this was the law in Illinois at the time of defendant's trial. The DeFilippis decision was subsequently reversed by the Supreme Court of Illinois, People v. DeFilippis, 34 Ill.2d 129, 214 N.E.2d 897, (Justice Underwood dissenting) on the basis of United States v. Jones, 362 U.S. 257 (1960). Our decision in DeFilippis however was supported at that time by the decision in United States v. Konigsberg, 336 F.2d 844 (3d Cir 1964), cert den 379 U.S. 933 (1964), which distinguished United States v. Jones, supra, on facts practically identical to those in DeFilippis. See also United States v. Romano, 203 F. Supp. 27 (DCD Conn 1962) and Ramirez v. United States, 294 F.2d 277 (9th Cir 1961). These cases follow a principle of law set forth by Justice Learned Hand in Connolly v. Medalie, 58 F.2d 629 (2d Cir 1932), which was followed in every federal circuit but the First.
Despite this amount of precedent, the Public Defender has argued that the defendant's trial counsel exhibited incompetence by relying upon the rule of law as decided by the Appellate Court. In other words he contends that trial counsel, to avoid being labelled incompetent, must anticipate the decisions of a higher tribunal even though a contrary principle has been stated by the courts in numerous jurisdictions. Such a standard, if adopted, might prove too rigorous for even the Public Defender in this case. We hold that defendant's attorney at trial acted competently in declining to make the motion to suppress and therefore the question of the propriety of the arrest is not before the court at this time.
Defendant's second contention is that there is no proof that he concealed a weapon "on or about his person." Officer Wright testified at the trial that he recalled making a statement in a prior proceeding that he saw defendant holding a gun in his hand at the time of the arrest. He further testified that if asked the same question with respect to defendant's possession of the gun, his answer would be the same. This testimony supports defendant's position that there was a total failure of proof that he had concealed a weapon on or about his person, the crime for which he was indicted. People v. Beason, 342 Ill. App. 621, 97 N.E.2d 603; People v. Foster, 32 Ill. App.2d 462, 178 N.E.2d 402. The State argues that defendant's dropping of the pistol to the floor of the cab constituted an attempt to conceal a weapon within the meaning of the statute, citing People v. Euctice, 371 Ill. 159, 20 N.E.2d 83. In that case the court stated that there was sufficient evidence that defendants had been concealing their guns on or about their persons and had dropped them to the floor and kicked them under the rear seat of the car. That portion of the cross-examination of Officer Wright in the instant case, revealing that he was no longer sure that he saw the gun in the ...