Appeal from the Circuit Court of Cook County; the Hon. JOSEPH
A. POWER, Judge, presiding. Judgments affirmed.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Defendants were found guilty by a jury of the unlawful sale of narcotics and each was sentenced to a term of 20 to 30 years in the penitentiary. They appeal.
Prior to the trial of this cause, a motion to suppress certain evidence was filed on behalf of both defendants. At the hearing on the motion, Chicago Police Officer William Walsh testified that he had a conversation at police headquarters on July 16, 1965 with Theodore Hall, a police informant, regarding a controlled purchase of narcotics. Officer Walsh testified that Hall had been successfully employed by him and his partner on five or six prior occasions, and by the police generally on numerous occasions, for such purpose.
The officer testified that Hall telephoned defendant Cunningham and arranged to meet him that same day in a park at 63rd Street and Stony Island Avenue in Chicago. Hall was then "strip searched," and when it was determined that he had neither money nor narcotics on his person, he was given $40 in prerecorded currency with which to effect the purchase.
Officer Walsh testified that he and his partner, Officer Walter Kienzle, transported Hall to the vicinity of 63rd and Stony Island and that they kept Hall under observation from a C.T.A. elevated platform for several minutes. Cunningham, who had been seated on a park bench nearby, approached Hall a few minutes after the latter arrived in the park and the two men engaged in a short conversation. Cunningham and Hall then walked west along the north side of 63rd Street to Harper Avenue where they entered a tavern on that corner. The police officers maintained their surveillance from across 63rd Street. Cunningham and Hall remained in the tavern a short while, after which Cunningham exited the tavern alone.
Officer Walsh testified that, upon observing Cunningham leaving alone, the officer crossed the street and entered the tavern, and was informed by Hall that Cunningham had gone to "meet his connection," and that he would "be right back." The officer returned to his position across the street and observed Cunningham return and re-enter the tavern. A few minutes later Cunningham again exited the tavern alone and had a short conversation with defendant Battle in front of the tavern.
Cunningham then motioned to Hall to come out of the tavern and the three men walked north along the east side of Harper Avenue to an apartment building at 6227 Harper. Cunningham and Battle entered the building, while Hall remained outside, and the two men returned a few minutes later. Defendant Battle then left Cunningham and Hall and proceeded westerly, while the latter two men walked north along Harper Avenue.
Officer Walsh testified that he and Officer Kienzle followed Cunningham and Hall and, after Hall gave a prearranged signal indicating that the purchase had been completed, Cunningham was stopped and placed under arrest. The officer testified that Cunningham stated at the time he was placed under arrest, "I'm just a patsy for this!" Cunningham was searched by Officer Walsh and $10 of the prerecorded funds were found on his person. Meanwhile, Hall had given Officer Kienzle two tinfoil packets. Cunningham was then placed in the custody of other officers who had arrived at the scene, and Officers Walsh and Kienzle went in search of Battle, who was found and arrested by the officers about 15 minutes later near 62nd Street and Dorchester Avenue. A search of his person revealed the balance of the prerecorded funds which had been given to Hall by the officers. The officers had no warrant for the arrest of either defendant. At the conclusion of Officer Walsh's testimony, the motion to suppress the currency as evidence was denied.
On February 14, 1966, defendants filed a motion for a severance, which was allowed primarily because of the statement made by Cunningham at the time of his arrest, to the effect that he was "a patsy for this," which was made outside the presence of Battle. Defense counsel also represented that a trial of both defendants together would be prejudicial to Cunningham inasmuch as Battle had a narcotics conviction in his record whereas Cunningham did not. When the matter came on for trial on September 14, 1966, the People made a motion to consolidate the trials of the two defendants. After the trial court was advised that the Cunningham statement would not be used by the People at trial and after it was determined that the defenses of the two defendants would not be antagonistic to each other, the motion to consolidate was allowed over objection of the defendants.
The evidence for the People adduced at trial through the testimony of Theodore Hall and Officer Walter Kienzle was generally the same as that taken at the hearing on the motion to suppress, with the exception that any conversation or statement made outside the presence of either or both of the defendants was not admitted into evidence.
In addition, Hall testified that after he and the two defendants had arrived at the apartment building on Harper Avenue, and before the two defendants entered the building, Cunningham requested money from him and he gave Cunningham the $40 in prerecorded funds. Hall also testified that as he and Cunningham proceeded northerly along Harper Avenue, Cunningham handed him two tinfoil packets, at which time Hall put on his jacket (which was the prearranged signal that the purchase had been completed). Cunningham was then placed under arrest and was searched, and Hall gave the tinfoil packets to Officer Kienzle; it was stipulated between the parties that the packets contained heroin and marijuana. Hall also admitted at trial that he was a narcotics addict.
Weldon Burris testified on behalf of the defendant and stated that at the time of trial he was a resident of the Cook County Jail. He testified that on the morning of July 16, 1965, between 10:00 a.m. and 11:00 a.m., he was present at a dice game in which both Battle and Cunningham were participants. Burris testified that Battle had won about $65 in the game, and that the game broke up shortly when it was announced that the police were on the way. The witness stated that he had known defendant Battle since 1938 or 1939. On cross-examination Burris testified that the dice game in question might have been held on the 15th day of July rather than the 16th. He further stated that he saw Battle while in jail and prior to the trial, but that he never discussed his testimony with him.
Officer Kienzle testified in rebuttal to matters which contradicted defense witness Burris' testimony as to the whereabouts of the defendants at the time the sale of the narcotics was taking place.
Defendant Battle argues that, as to him, the denial of the motion to suppress the evidence was error, in that the search of his person and the seizure of the currency used as evidence against him were the result of an illegal arrest, made without a warrant or probable cause. We are of the opinion that the evidence adduced at the hearing on the motion to suppress showed that Officers Walsh and Kienzle had ample grounds to believe that Battle was involved in the sale of the narcotics to Hall, that they had probable cause upon which to ...