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People v. Rogers

APRIL 1, 1974.

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

v.

JAMES E. ROGERS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. WHITE, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

Defendant was charged with unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(4)) as the result of a police officer's discovery, following a traffic stop of the automobile driven by defendant, of a .12-gauge sawed-off shotgun partially concealed beneath the rear seat. He was found guilty at a bench trial and sentenced to a term of 90 days in the House of Correction. He appeals, seeking reversal of the judgment of conviction, raising the following issues for our determination: (1) whether the trial court erred in denying his motion to suppress evidence (shotgun) obtained by the officer's search; (2) whether the trial court violated the defendant's right to due process of law at the hearing on the motion to suppress evidence by failing to remain impartial; (3) whether the trial court erred in determining that the defendant was guilty beyond a reasonable doubt; and (4) whether the trial court erred in concluding that the defendant had expressly and understandingly waived his right to a jury trial. For reasons which follow, we affirm the judgment of the trial court.

On February 11, 1973, a police officer stopped the automobile driven by the defendant because he had not properly signaled a right turn. At a hearing on a motion to suppress evidence, the officer testified that:

"After I stopped the defendant and he did not produce a driver's license, I had occasion to look into the vehicle. I noticed the rear seat was pulled up and I noticed an object sticking from under it. I saw the barrel portion of a .12 gauge sawed-off shotgun. At that time I did not know that it was a shotgun. Approximately two or three inches of it was showing."

The judge denied defendant's motion to suppress the shotgun as evidence. Counsel for defendant protested on the ground that the officer had conducted a search without probable cause because he admitted that prior to conducting the search he did not know that the object in question was a shotgun. The judge then addressed the following question to the police officer:

"THE COURT: When you observed this object sticking out, what did it appear to you to be?

THE OFFICER: It appeared to be a gun."

The judge again denied defendant's motion.

Defendant then entered a plea of not guilty, whereupon the court addressed him as follows:

"THE COURT: Plea of not guilty. You have a right to have your case heard by a jury, do you wish to have a jury hear your case?

DEFENDANT: Yes.

THE COURT: Pardon me? You'll have to answer as to whether you wish to have a jury hear your case, that's twelve people?

DEFENDANT: No, I don't."

The matter proceeded to a bench trial, whereupon the court found the defendant guilty and sentenced him to the ...


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