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People v. Hornal

JUNE 9, 1975.




APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH F. CUNNINGHAM, Judge, presiding.


This is an appeal by the defendant, Ralph W. Hornal, from a judgment of conviction entered by the circuit court of St. Clair County on a jury verdict of guilty to the charge of attempted burglary and the imposition of a $500 fine and a sentence which required the defendant to spend ten weekends in the county jail.

The defendant raises the following contentions on appeal. First, that "the trial court erred in denying the defendant's motion to suppress the identification and physical evidence where the line-up was held and the evidence seized as a direct result of the defendant's unlawful detention and the line-up procedure itself was unduly suggestive." Secondly, that "the trial court erred in denying defendant's motion for a directed verdict of acquittal where the evidence adduced by the state was insufficient to prove beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime for which he was convicted." And lastly, that "the trial court erred in denying defendant's motion in limine and in permitting the state to present testimony relating to separate offenses where said testimony failed to conform to any of the exceptions to the general rule prohibiting its introduction at the defendant's trial upon an unrelated charge." In view of the defendant's contention that his detention was unlawful we find it necessary to review the testimony received by the trial court at the hearing on defendant's motion to suppress.

At this hearing the State called two witnesses. The first witness was Patrolman Wilbert Jeremias. He testified that he was a police officer for East St. Louis. He stated that he learned over a radio broadcast that some subjects had just cashed a stolen check. The description given was four white males with long hair and one subject with bandages on his feet. Included was the description and license number of the car in which the subjects had departed. This was the only description of the subjects. Patrolman Jeremias was accompanied to the scene of the arrest by two Belleville police officers and two Washington Park police officers. The Belleville police had the name of the subject who had allegedly signed the check, Duke Gilliam. All of the officers proceeded to 1810 North 40th Street, the address written on the back of the endorsed check. The police asked the landlady's daughter who owned the Dodge station wagon parked out in front. The landlady's daughter answered that it might be Duke Gilliam's, one of the tenants who lived upstairs. At this point the only individual the police were looking for was Duke Gilliam. After receiving permission from the landlady's daughter, the police proceeded up the stairs to the only apartment on the second floor. There the police observed a door partially open. Through the opening the police observed a white male with bandages on his feet lying on a bed. It was too dark for the officers to observe anything else in the room. The police knocked on the door; when no one answered, they entered the apartment. No one granted the police permission to enter the apartment. The police had neither a search warrant nor a warrant for arrest of anyone in the apartment. Upon entering the apartment the police observed other individuals sleeping in adjacent rooms. All the occupants of the apartment were told to get up. The police asked Duke Gilliam to identify himself. Gilliam was not placed under arrest immediately. However, after a lapse of about 5 minutes Duke Gilliam and the other occupants of the apartment, including the defendant, were placed under arrest. Upon further examination Patrolman Jeremias stated that Gilliam stated that he owned the apartment. The police had not come to arrest anyone in the apartment other than Duke Gilliam. Upon being asked why the other occupants were arrested Jeremias responded, "Well, they fit the general description of the subjects supposed to have been with him; just long hair is all we had to go on." Long hair was the only reason the defendant was arrested. Once inside the apartment the police observed some brown substance in a plastic bag, which was believed to be marijuana, and a brown envelope with some white pills in it. Officer Jeremias did not charge the defendant with possession of these items. Officer Jeremias could not think of any reason why, with five police officers available, they could not have secured either an arrest warrant or a search warrant. On cross-examination by the State's attorney, Jeremias stated the reason they proceeded to Gilliam's apartment was that the check contained the name and address of Duke Gilliam. The witness then affirmatively answered the following question, "Now, at the same time the Washington Park Police were looking for this same automobile with the same license number, because of an attempted burglary of the lady that we just had on the stand here, isn't that right?" The witness also affirmatively answered the question, "So, now, you had reason to believe that whoever stole that check could be found at this particular address that you went to, and whoever committed the attempted burglary would be found there because of the automobile?" The witness was then asked, "Also at that time Washington Park — Mr. Nelson — had a description of the two men who had committed this attempted burglary?" to which the witness responded, "Yes, sir." The State's attorney concluded this line of questioning by asking, "At that point you had reasonable grounds to believe that whoever committed the burglary cashed this check and stole the check and could be found at that location?" The witness answered, "That is correct." Upon being questioned by the police the defendant gave his address as 1810 North 40th Street, Gilliam's apartment. A subsequent check revealed that the defendant was issued the license plates on the Dodge station wagon. On redirect examination the witness stated that he did not have any information that any persons other than Duke Gilliam would be in Gilliam's apartment. The witness also repeated that the Dodge station wagon had been identified as Gilliam's car. He stated that Gilliam had cashed the check. The following colloquy then occurred:

"Q. Is it your testimony then that the reason the other two individuals were arrested at that time, and the reason they were charged with all of this was because they matched the general description of having long hair?

A. Right, sir.

Q. Officer, do you know what they were charged with as a result of this arrest?

A. Not from Belleville, I don't know.

Q. Were they charged with possession of things which were in the apartment?

A. I don't know; I didn't see any charges on it.

Q. Did you file any complaints?

A. No.

Q. Do you know which of the officers did?

A. Belleville and Washington Park; I think East St. Louis filed charges of possession —

* * *

Q. Now, Officer, at the time did you have any description as to the height and weight other than for Mr. Gilliam?

A. No, sir, I don't believe so."

Except for the age of the landlady's daughter, approximately 50 years old, which was elicited on re-cross-examination this concluded Officer Jeremias' testimony.

The only other witness called was James A. Rokita, an officer in the Belleville Police Department. Officer Rokita explained ...

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