APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. PRESIDING JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:
Defendant was convicted after a jury trial of unlawful use of weapons (Ill. Rev. Stat. 1969 ch. 38, par. 24-1(a)(7)), and sentenced to a term of two to five years. Subsequently, as a result of the above conviction, defendant's probation on an unrelated charge was revoked and he was sentenced to one to two years to run consecutively. It is from the conviction of unlawful use of weapons as well as the probation revocation that defendant appeals.
On appeal, defendant raises five issues for this court's consideration: (1) whether a search and seizure from a residential home absent an arrest or search warrant was unreasonable when conducted eight days after the date of the offense; (2) whether the State committed reversible error in referring to a previous criminal charge in which the defendant had been acquitted in its opening statement and case-in-chief; (3) whether the defendant's fifth amendment privilege against self-incrimination was violated by a prosecutor's comment in closing argument that the State's evidence was undenied where the defendant had presented two witnesses but did not testify himself; (4) whether a prosecutor exceeded proper bounds of fundamental fairness by stating, after the trial judge sustained defense objections to the State's line of questioning, that defense counsel was "hiding things from the jury"; (5) whether the evidence presented by the State was sufficient to prove defendant guilty of unlawful use of weapons where the evidence indicated that another person also had possession and custody of the room in which the shotgun was found.
The record discloses that on December 29, 1970, four officers of the Chicago Police Department went to the residence of defendant to arrest him for an armed robbery committed on December 21, 1970. The officers possessed neither an arrest warrant for defendant nor a search warrant for the premises. After knocking on the door, the policemen were admitted inside the premises by Lois Beals who stated that defendant was not at home. The officers then proceeded into a bedroom of the apartment and, upon lifting a mattress, found a shotgun which is the subject matter of the instant case. The defendant was subsequently found hiding in a well outside a bathroom window and arrested.
Defendant was first tried in a separate proceeding for the armed robbery which occurred on December 21, 1970. Prior to the beginning of that trial defendant presented a motion to suppress the shotgun based upon an unreasonable search and seizure of the premises. The same judge who subsequently presided over the unlawful use of weapons trial determined that the evidence obtained without a warrant was admissible in the robbery trial. Following a trial by a jury, defendant was acquitted of the robbery charge.
The State then proceeded to try defendant on the instant charge of unlawful use of weapons. While defense counsel admittedly filed no formal motion to suppress the same shotgun prior to the beginning of this trial, he did object to the introduction of such evidence and to any testimony pertaining thereto throughout the trial. The following colloquy occurred in chambers between the attorneys and the trial judge concerning the issue of whether the trial court was legally empowered to entertain a second motion to suppress the shotgun:
"State's Attorney: As far as your other motions about he [the officers] didn't have the right to seize the gun and so forth, there was not a motion to suppress filed in this case.
Defense Counsel: A motion to exclude was made at the time of the introduction.
The Court: However, I did hear the other case [the armed robbery] and based upon the evidence which I heard in the other case, I feel that the police department in this particular case did have sufficient grounds to go into the apartment.
Defense Counsel: They had no warrant.
The Court: And probable cause at the time for the arrest of Gus Mordican for armed robbery for which he was charged, tried and he was acquitted. And they did have probable cause to enter that apartment to search for him to make the arrest. And it's in the preparation or part of making the arrest that they turned over the bed and so forth which was going into the other case and that's why the motion to suppress was not filed as far as this case is concerned because we did hear the evidence in the other case. I just don't want to have the record show that I am stopping you from filing a motion to suppress at this time. That evidence was heard by me in the other case as part of a jury trial." (Emphasis added.)
Following resumption of the trial before the jury, defendant was convicted of unlawful use of weapons.
On appeal, defendant's first contention is that the trial court erred in admitting the shotgun and any testimony pertaining to it since predicated on an unlawful search and seizure. The State responds to this contention by suggesting that defendant is barred in the instant case from raising the issue of the legality of the search and seizure under the doctrine of collateral estoppel, i.e., that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Application of the above doctrine leads the State to conclude that since the same judge had previously ruled the shotgun ...