Appeal from the Circuit Court of McLean County; the Hon.
WALTER A. YODER, Judge, presiding. Affirmed in part, reversed in
part, and remanded with directions.
Defendant was found guilty of murder following a jury trial. Sentence imposed was for a term of not less than 16 years nor more than 40 years. Defendant's post-trial motion was denied and he appeals.
It is urged that the court erred, (1) in admitting into evidence certain photographs of the victim to defendant's prejudice, (2) in admitting into evidence an automatic pistol and cartridge clip which, it is argued, were obtained through unlawful search and seizure, (3) in refusing to permit cross-examination of a prosecution witness to show coercion and intimidation, (4) in refusing to instruct and permit argument upon the prosecution's burden of proof arising under a bill of particulars, and (5) in that the consecutive sentence imposed is void and should run as concurrent, with a sentence for burglary of not less than 5 years nor more than 10 years.
On October 31, 1967, the body of the victim, Tribbett, was found beside a country road in McLean County. The indictment alleges that the defendant shot the victim on September 22, 1967. A bill of particulars given orally in open court stated that the shooting occurred between 8:00 p.m. on September 22nd and 2:00 p.m. September 23rd.
A witness for the prosecution, Hines, testified that he was driving a car in which defendant was riding in the right front seat while the victim was in the back seat, and that while he was not paying serious attention, he believed that the others were arguing. He testified that defendant pulled out two weapons and shot Tribbett as he sat in the back seat. The body was put out of the car by the side of the country road a short distance from Route 51. Hines was serving a sentence for burglary at the time of trial and testified under immunity granted under this homicide.
Defendant was arrested at a motel in Davenport, Iowa, on October 2, 1967, at about 2:00 a.m. He was then in the company of one Patricia Reynolds and her infant child. This arrest by the Davenport police was pursuant to a warrant issued for defendant by reason of a burglary at Bradley, Illinois, where firearms were taken. Contemporaneous with the arrest an automatic pistol was seized in the motel room and subsequently identified as being the murder weapon, as well as being taken in the burglary at Bradley.
Patricia Reynolds testified for the prosecution that the morning after the murder, she and her child began travelling with the defendant. It appears that this status continued until the date of the arrest on October 2nd, the parties staying at various motels in the area of Rock Island, Davenport and Moline. During a part of this period it appears that Hines was accompanying them. She testified that while she was staying with the defendant at a motel in Moline, defendant had told her how he had gotten angry with Tribbett and shot him as he sat in the back seat of the car.
In arguing the error in admitting the pistol and clip into evidence, the defendant first contends that the arrest was unlawful. A detective of the Davenport police testified concerning the arrest, stating that he had knowledge of a general police bulletin of a burglary at Bradley, Illinois, at which guns were stolen, and that he had a subsequent telephone call from the Bradley police department advising that a warrant had been issued for the arrest of defendant for this burglary and asking that he be picked up. Upon such state of facts an arrest is authorized by the Illinois Statute, chapter 38, § 107-2(b), Ill Rev Stats 1967. The officer testified that such facts also authorized arrest under Iowa law.
The defendant and Patricia Reynolds were discovered at the motel in Davenport at which time they were using the name Edwards. There is some evidence to the effect that the motel manager had given the police information concerning a long distance telephone call to a motel guest in which there was reference to the effect that a murder was known and that the guest should leave. At about 2:00 a.m. the police went to the room occupied in Edwards' name and called for Walton who came out. Defendant opened the door and subsequently acknowledged that he was Walton. He was placed under arrest outside the room. Patricia Reynolds came to the door, first saying that her name was Edwards. The testimony is that Reynolds consented that the officers come into the room to search. A weapon, not tendered in evidence, was pointed out by Reynolds to the officers, somewhat concealed on a ledge behind the bathroom door. The testimony is that the pistol at issue was observed on the top of a nightstand between the beds at which time the clip was in a functioning part of the pistol.
No motion to suppress was filed prior to the commencement of trial. The issue was raised by oral motion at the conclusion of the testimony in chief of the Davenport detective. He was then examined further out of the presence of the jury. There is no other evidence upon the issue.
The trial court ruled that the pistol was seized as incident to a lawful arrest at a time when it was in plain view, and that Patricia Reynolds had such status as a cotenant of the room to consent to the search. The motion to suppress was denied.
Defendant argues that there was no search incident to an arrest as the defendant was outside of the room and in custody. He further contends that if the pistol was in plain view, there was no need to go into the room to obtain it. Finally, it is argued that Reynolds had no authority to consent to the search. Defendant cites chapter 38, § 108-1, Ill Rev Stats 1967, but no authorities supporting the point of view. Such statutory section provides that upon lawful arrest the officer may search the person arrested and his "immediate presence" for the purpose of protecting the officer from attack, preventing an escape, discovering the fruits of crime or articles or things which may have been used in the commission of, or constitute evidence of, an offense.
The Supreme Court has held that a search implies a prying into concealed places, but that the seizure of contraband or evidence in plain view is not unreasonable. The People v. Tate, 38 Ill.2d 184, 230 N.E.2d 697; The People v. Pickett, 39 Ill.2d 88, 233 N.E.2d 560. Facts somewhat comparable to defendant's contention, that since defendant was outside of the room under arrest there was no necessity for the officers to enter the room, are found in The People v. Davis, 33 Ill.2d 134, 210 N.E.2d 530, where the defendant was arrested for a traffic violation. He got out of the car to produce his driver's license and thereupon the officer saw a tinfoil package on the floor of the car. This proved to contain narcotics. It was held that there was no search, but rather a reasonable seizure of an article in plain view. The record is not precise in describing from what point the officer saw the automatic pistol which he seized and unloaded. In The People v. Wright, 41 Ill.2d 170, 242 N.E.2d 180, an officer standing upon a public right-of-way observed operations incident to policy gambling through the window. It was held that it was not a search to observe that which was in plain view, and that the ensuing arrest was lawful and the seizure of the material was not unreasonable. In Harris v. United States, 390 U.S. 234, 19 L Ed2d 1067, 88 S Ct 933, it is said that where an officer has a right to be in a position to observe, objects in plain view may be seized and introduced into the evidence.
Entering the room is not, in itself, a search. Reynolds was occupying the room with her infant and the record shows that she had been the consort of defendant and lived with him with her infant for some days, staying at various motels. We cannot say that entering the room with her consent produced a trespass. The officer's seizure of the pistol in plain view on a nightstand was not illegal. The People v. Wright, supra. Since there was no search in fact, we need not discuss the authorities such as People v. ...