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People v. Toliver

JUNE 2, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MICHAEL TOLIVER (IMPLEADED), DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MEL R. JIGANTI, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

The defendant, Michael Toliver, was found guilty of murder and attempt robbery after a trial by jury. He was sentenced to serve 20 to 30 years on the murder conviction and 5 to 8 years on the attempt robbery conviction, the sentences to run concurrently.

On appeal, the defendant contends (1) that the in-court identification by Richard Boyd should have been suppressed because it was the product of an unlawful arrest and detention; (2) that he was deprived of a fair trial when the prosecutor made prejudicial remarks during closing argument; (3) that he should not have been sentenced on both offenses since the murder and the attempt robbery arose out of a single transaction; and (4) that his sentence was excessive.

The facts which gave rise to the charges against the defendant may be stated simply. Two men entered Joe's Place, a tavern on Chicago's southeast side, at approximately 9:45 P.M. on August 4, 1968. One of the men who was later identified as Eli Tetter, approached the bartender, Joe Peloza, Jr. The other approached the bartender's sister, Mary Krisco, demanded money, and pulled out a sawed-off shot gun. Mary Krisco panicked, and she and Joe Peloza, Jr. dropped to the floor behind the bar. Eli Tetter and Joe Peloza, Jr. then exchanged gunshots which resulted in the death of each. After the shooting the man who had approached Mary Krisco ran out of the tavern. Two customers, Richard Boyd and Jack Bebout, as well as Mary Krisco, witnessed the incident.

On August 5, 1968, the defendant was arrested and then identified in a lineup by Richard Boyd. Prior to trial, the defendant moved to suppress the identification evidence on the ground the police did not have probable cause to arrest him on August 6, 1968, and consequently that his subsequent identification was the result of an unlawful arrest and detention.

At the hearing on the motion to suppress, the defendant testified that he voluntarily went to the police station after he had learned that the police were looking for him. He was questioned, and on cross-examination he stated that he was placed in a lineup and viewed by three persons.

Detective Robert Tyson of the Chicago Police Department testified that on August 5, 1968, he interviewed Mary Krisco and received a description of the second man involved in the attempted robbery and murder. He and Detective Rutherford Wilson then went to the home of Eli Tetter where they learned that Tetter and the defendant had been been close friends. In addition, they obtained a description of the defendant from the Tetters which matched the description of the second man given by Mary Krisco and the description included in the original police report. They then went to the defendant's home and spoke with his father. The next day the defendant came to the police station and identified himself as Michael Toliver. Detective Tyson compared his physical appearance with the description of the second robber and then placed him under arrest. After the defendant denied any participation in the crimes, he was placed in a lineup. Detective Tyson's testimony was corroborated by Detective Wilson.

Richard Boyd, who had had an adequate opportunity to view the second person involved in the attempted robbery and murder, positively identified the defendant both at the lineup and at the hearing on the motion to suppress. Mary Krisco, who did not identify the defendant at the lineup, positively identified him at the hearing on the motion to suppress. Jack Bebout stated that the defendant resembled the second man, but that he could not make a positive identification. The motion to suppress the identifications was denied.

• 1-3 A police officer has probable cause to arrest a person without a warrant when the facts and circumstances within his knowledge and of which he has reasonable and trustworthy information are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested is guilty thereof. (People v. Peak, 29 Ill.2d 343, 194 N.E.2d 322.) The question of whether a police officer had probable cause to arrest a defendant must be judged in the light of the totality of the circumstances presented in a given case. (People v. McCrimmon, 37 Ill.2d 40, 224 N.E.2d 822.) Here Detectives Tyson and Wilson at the time of arrest (1) knew that the defendant fitted the description of the second robber, and (2) they knew that the defendant was a close friend of the other man who committed the attempted robbery and murder. Based on the totality of these facts and circumstances, we must conclude that the officers had probable cause to make the arrest and that the motion to suppress was properly denied.

People v. Bean, 121 Ill. App.2d 332, 257 N.E.2d 562. Davis v. Mississippi, 394 U.S. 721, and People v. Albea, 2 Ill.2d 317, 118 N.E.2d 277, cited by the defendant in support of the proposition that the identification should be suppressed as the fruit of an illegal arrest is inapplicable since we have concluded that the police had probable cause to arrest the defendant.

It is next contended that the defendant was denied a fair trial when the prosecutor in effect told the jury that the defendant had been advised by his attorney to offer a perjured defense. The defendant testified that at 9:00 P.M. on August 4, 1968, he was at Matrice Jones' apartment. At that time he was awakened by his friend, Eli Tetter who had a gun. He had a beer which tasted odd, and afterward he felt funny and lightheaded. The next thing that he remembered was waking up the next morning on the couch of Matrice Jones' apartment. Matrice Jones testified that she saw the defendant drink some beer and that the defendant and Tetter left her apartment at about 9:30 P.M.

The defendant did not deny involvement in the robbery and murder. The theory of the defense was that even though the defendant may have been present physically at the scene of the shooting, he did not have the requisite mental capacity to be guilty because he had been involuntarily drugged by Eli Tetter and because in the drugged state he could not appreciate the criminality of his conduct or conform his conduct to the requirements of law. Counsel for the defendant argued this theory vigorously to the jury and the trial judge gave instructions to the jury relating to this defense.

The defendant points to the following remarks in the prosecutor's closing argument and claims that they were so prejudicial that they deprived him of a fair trial:

"Now, if I say anything about Mr. Toomin or about his case, I don't want you to take it as a personal attack upon Mr. Toomin because he is a fine attorney, but I will address my comments to his case. Once the State has removed his heavy burden, has proved his case, after putting the man on the scene, why would a defendant not deny that he was on the scene? Why wouldn't Michael Toliver, that man, say he wasn't on the scene? Because you are not going to believe him and you are not going to believe the type witness that he brought in. So what does an average attorney or a below average attorney insist, he was not identified, nobody could see him, but what does a good attorney do or what does ...


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