APPEAL from the Circuit Court of Ogle County; the Hon. HELEN
RUTKOWSKI, Judge, presiding.
MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Mr. PRESIDING JUSTICE MORAN delivered the opinion of the court:
Rehearing denied October 28, 1971.
Defendants were convicted of armed robbery of an A & P store in Rochelle, Illinois. Their cases were transferred to this court by the Supreme Court and have been consolidated for the purpose of appeal.
Both defendants contend that the trial court erred in (1) refusing to grant their hearing on defense counsel's motion, made during trial, to quash a search warrant and suppress evidence, and (2) that their court appointed counsel was incompetent. In addition, defendant Baker contends that he was not proved guilty beyond a reasonable doubt.
The State's evidence consisted of the testimony of the store manager, the check-out clerk, two policemen, two people whom defendants visited shortly after the time of the robbery, and defendant Baker's father. According to these witnesses, Baker, who was known to the check-out clerk, entered the store alone about 5:00 P.M. on September 29, 1969. He remained for 10 to 15 minutes in the general area of the store's freezer section, from which vantage it is possible to observe the store office containing several safes. Baker left without making a purchase. About 6:00 P.M., a man, who was not wearing a mask and who was later identified as defendant Emert, entered the store. He arrived at the check-out counter carrying a shopping bag and a box of "Sociable" brand crackers. The man drew a gun and announced the robbery. He took about $1100, including an A & P pay envelope, containing approximately $40, marked "Marian". During the period of the robbery, only the manager and the clerk were in the store. Both remembered the time because they were in the process of completing the six o'clock closing. The man left at approximately 6:15 P.M., and ran across the street into an areaway between buildings. He was followed by the manager. Upon reaching the alley behind the buildings, he entered a moving, white 1959 Pontiac which was waiting near the entrance to a house rented by defendant Baker and occupied by both defendants and Baker's father.
Baker's father testified that defendants came to visit him from Kentucky on the Friday before the robbery; that he saw his son sometime before 6:00 P.M. on the night of the crime and that he knew his son intended to return to Kentucky but did not know the exact time he planned to leave.
Mrs. Margie Hess testified that on the day in question defendants arrived at the Hess apartment about 6:30 P.M. (she remembered the time because "Gunsmoke" was just coming on television); that Emert brought a box of "Sociable" crackers with him and defendants remained for about two hours. Mr. Hess testified that they were driving a white 1959 Pontiac.
John McAllister, a State Trooper, testified on direct examination that he received a radio message which described a white 1959 Pontiac and informed him that the men therein were armed. He saw the automobile late in the evening of September 29, 1969, followed it, and pulled up behind it when it stopped. According to the trooper, Emert was driving and Baker was in the front seat. He further said that, after pulling up behind the automobile, he ordered defendants to get out, to put their hands up and told them they were under arrest. Prior to any Miranda warning, he asked Emert where they were heading. The reply was "to Kentucky to visit Baker's sick relatives." He then gave them the Miranda warnings and asked to search the automobile. Emert said, "Yes, sir. Go ahead." A search of the trunk revealed a .38 calibre Smith and Wesson pistol and some money.
On cross-examination, the trooper changed his testimony by denying that any statements were made before the Miranda warnings were given.
Defendants were taken to the Marshall County jail and later transferred to Ogle County; their car was towed to a garage in Woodford County. On October 2, 1969, the Rochelle police (Ogle County) advised the State Police that there should have been more money in the automobile. On the basis of this information, the trooper obtained a search warrant and went to the garage in Woodford County. His second search revealed approximately $200 and an A & P money envelope with "Marian" written on it.
Defense counsel questioned McAllister about the search warrant. The trooper stated that the warrant had not been served on the defendants and that the defendants were not informed of any search. When counsel asked if an informant was involved, the State requested a discussion out of the presence of the jury. In chambers, defense counsel said he had never seen a copy of the search warrant. The State's Attorney left to get a copy. The trial judge said, "It is my understanding that you have to make a motion to suppress before the case goes to trial." The State's Attorney returned and defense counsel began to question the basis for the issuance of the warrant. The court reviewed its file on the case, determined no pretrial motion to suppress had been filed, reminded defendants' attorney of the length of time that the men had been in jail, and of the length of time since he had been appointed. The State's Attorney said, "For the record, I don't have any knowledge of the search warrant. I have no objection to that being in the record." However, he did object on the ground that the motion was not timely. The court then said, "I think you better scrap any testimony concerning the search warrant." The hearing resumed in the presence of the jury and no further questions were asked concerning the warrant.
The store manager was recalled and identified the A & P envelope with "Marian" written on it (found in the second search) as the one taken in the robbery.
Defendants were the only witnesses for the defense. Defendant Baker said he met Emert in Kentucky and returned to Illinois with him; that Emert's house had recently burned down and a collection had been taken up for him; that Emert placed that money in a paper bag which he locked in the trunk of the Pontiac. According to Baker, he visited the A & P twice during the day of September 29, 1969, once at about 10:00-11:00 A.M. and once between 4:30-5:00 P.M.; that the second visit was for the purpose of meeting a friend; that he met and talked with the friend for about five to ten minutes in the store and then returned to his father's apartment. He said that when he and Emert left, between 5:45 and 5:50 P.M., Baker's father was asleep on the couch; that they then went to the Hess apartment in Emert's white 1959 Pontiac, arriving at the Hess' at approximately 6:00 P.M., or before, and that the "Flintstone's" were on television. They left the apartment 2 hours later, Emert driving, and stopped for a beer; after leaving the bar, Baker drove. Baker stopped the automobile because of car trouble, got out of the vehicle and raised the hood to check it. At that time there was a ...