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People v. White





APPEAL from the Circuit Court of Lake County; the Hon. THOMAS DORAN, Judge, presiding.


The defendant, Dennis White, was found guilty by a jury in the Circuit Court of Lake County of the offense of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2) and sentenced to a term of imprisonment of 8 to 10 years.

Defendant appeals, contending the trial court erred in denying his motion to suppress his statement, identification and certain physical evidence; that the judge made a prejudicial statement to the prospective jurors at the commencement of voir dire suggesting defendant's guilt; that the prosecutor's argument was prejudicial and contained improper comment on defendant's failure to testify; that the court erred in refusing one of defendant's tendered instructions; that he was not proved guilty beyond a reasonable doubt; and that the sentence was excessive.

We find no merit to these contentions and affirm the judgment of the trial court.

On the night of January 15, 1975, the complaining witness, Bartley Nicholson, who was a sailor stationed at Great Lakes, had been drinking in North Chicago at LaVerne's bar. He testified he left the bar about midnight in a somewhat intoxicated condition with several persons he had met there. Nicholson, a man he identified as Dennis White and a woman named Carol Grant went to an apartment where they remained for about 20 minutes. It was well lighted. Nicholson inquired of the others about the possibility of getting some drugs; the three of them then returned to the car and drove to a house in Waukegan for that apparent purpose. Nicholson testified he and defendant were walking towards the rear of the house when defendant grabbed him by the throat and held a knife to his neck. He was forced to the ground, his money, wallet and shoes were taken, and his assailant fled in the car with the woman.

Nicholson called the police and was sitting in their squad car describing the evening's events and the car to the officers when a car matching his description was driven nearby. He told the officers, "That's the car, and the man that robbed me." The police, with Nicholson in the back seat of their squad car, followed the indicated vehicle and stopped it a few blocks away. The man and woman in the car were asked to get out and Nicholson immediately identified defendant from his seat in the squad car about 20 feet away. He also identified the woman as the same person he and White had been with earlier in the evening.

The defendant was searched outside the car and had $43 in his possession. Nicholson was unclear about how much had been stolen from him; he had been paid $159 that day and had spent quite a bit during the evening. No knife was found nor was the wallet located. While driving to the Waukegan police station with defendant, the officers found Nicholson's shoes in the street.

At the police station, defendant asked to talk to Lieutenant Tufo, an officer with whom he was acquainted and who he stated had once given him a break. After a brief conversation with Tufo, defendant was advised of his Miranda rights and questioned by other officers who testified defendant admitted taking Nicholson's property by threatening him with a knife as he had described. Defendant refused to sign a written statement.

Defendant first contends the trial court erred in denying his motion to suppress his statement, the identification and the physical evidence recovered at the scene of his arrest (apparently the money and photographs of the car) as the products of an illegal arrest. He asserts that because of the intoxicated condition and unkempt appearance of Nicholson his complaints and descriptions to the officers were unreliable and could not be a basis for establishing probable cause for defendant's arrest.

• 1 It is well settled that a warrantless arrest requires probable cause. The test to determine if probable cause exists is whether a reasonable and prudent person in possession of the knowledge which has come to the arresting officer would believe the person to be arrested is guilty of a crime. People v. Bambulas (1969), 42 Ill.2d 419, 247 N.E.2d 873; People v. Macias (1968), 39 Ill.2d 208, 234 N.E.2d 783, cert. denied, 393 U.S. 1066, 21 L.Ed.2d 709, 89 S.Ct. 721.

• 2 Nicholson had described the car to the officers as a black-over-white Buick or Oldsmobile. A car of that description came by at that moment, he pointed to it and told the officers that was the car and the man who had robbed him. The officers stopped the car, the victim then identified defendant again as the robber, and the officers arrested him. The fact that Nicholson was unkempt, perhaps, in part, as a result of the robbery he had reported, and to some degree under the influence of alcohol did not bar the officers from considering his complaint and acting upon it. Nicholson had no apparent difficulty in coherently describing the crime which had been committed and its perpetrators to the officers. The car pointed out by Nicholson was a black-over-white Buick and when stopped it did contain a man whom the victim said was the robber. The officers clearly were justified by their prior knowledge in stopping the described vehicle in which defendant was riding and, upon the verification of his identification by Nicholson, in arresting him for the offense charged. (Ill. Rev. Stat. 1975, ch. 38, par. 107-14; Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868; People v. Lee (1971), 48 Ill.2d 272, 269 N.E.2d 488; People v. Sanford (1976), 34 Ill. App.3d 990, 341 N.E.2d 453.) The trial court did not err in denying suppression of the evidence stemming from defendant's arrest under these circumstances.

Defendant contends that permitting Nicholson to see him at the scene of his arrest for purposes of identification was impermissibly suggestive and tainted Nicholson's subsequent in-court identification of defendant.

• 3 We do not view the circumstances here as coming within the purview of the cases relied upon by defendant. (United States v. Wade (1967), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951; Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967.) In those cases the identification procedures were planned in advance and carried out in a manner considered to be inherently unfair to the defendants. Under the circumstances of the present case there was little else the officers could do but to pursue the car in which defendant was riding, stop it and arrest him. It so happened the victim of the crime for which defendant was arrested was in the officers' vehicle describing to them the robbery to which he had been subjected when defendant rode by and was arrested. We do not believe the officers should have put Nicholson out of their car nor were they required to give up the pursuit for fear of such a confrontation as occurred here. It appears reasonable to us that the officers proceeded as they did in taking defendant into custody; the unavoidable and coincidental confrontation occurring between the witness and defendant cannot be held to taint the subsequent in-court identification in this case. People v. Witherspoon (1975), 33 Ill. App.3d 12, 337 N.E.2d 454; People v. Brown (1975), 32 Ill. App.3d 182, 336 N.E.2d 523.

• 4 It is also clear from the facts in the instant case that Nicholson's trial identification of defendant was based upon his observation of the robber prior to the arrest. They had spent about an hour and a half together during the evening in the bar, in a well-lighted apartment and in the car; there was ample opportunity ...

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