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People v. Stinnette

OPINION FILED MAY 31, 1977.

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

v.

CLYDE STINNETTE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Clyde A. Stinnette was indicted in Lake County for attempt to commit theft over $150. (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(b)(1).) After a bench trial he was found guilty and sentenced to a term of 1 to 3 years imprisonment, such term to be served consecutive to a prior Federal sentence.

Three issues are raised on appeal: (1) that the trial court erred in denying his motion to suppress certain physical evidence and defendant's statement; (2) that the use of stipulated testimony in his bench trial made the proceeding tantamount to a plea of guilty, thus requiring that he be admonished pursuant to Supreme Court Rule 402 (Ill. Rev. Stat. 1975, ch. 110A, par, 402); and (3) that the consecutive sentence was based upon improper considerations.

Three witnesses testified at the hearing on the motion to suppress, Officer Robert Rydell and Sergeant Theodore Hironimus, both of the Lake Forest Police Department, and Lorene Tavernier, a teller at Midwest National Bank, Lake Forest. They stated that on September 3, 1975, while on routine patrol in the Lake Forest business district, Officer Rydell saw the defendant approach the walk-up window of the First National Bank, stay less than a minute and then enter the bank. Officer Rydell had become suspicious and radioed his superior, Sergeant Hironimus, who arrived on the scene just as defendant exited the bank, less than two minutes after entering. The officers observed Stinnette drive his car to the next block where he entered the Midwest National Bank. They followed, and as Sergeant Hironimus entered the bank he passed defendant who was leaving, again after only a short stay. Stinnette drove away and Officer Rydell followed him. Sergeant Hironimus then questioned Lorene Tavernier, the teller with whom Stinnette had spoken in the Midwest Bank, who testified that she told him that Stinnette had requested that she cash a government check for him, but she had declined as the firearms identification card he had presented to her looked irregular in that one end of the normally sealed plastic casing had been opened.

Hironimus radioed this information to Rydell, who then stopped defendant's car and asked him for his driver's license or some other identification. Defendant produced a firearms identification card which Rydell believed was invalid as one end of the casing was open and there appeared to be a photo of Stinnette added to it. He then asked Stinnette for the check in question and it was handed over to him. Hironimus arrived on the scene, examined the firearms identification card and check, believed the card to be invalid, and arrested Stinnette. Also seized at this time was a vehicle registration card which had been shown to both Officer Rydell and the bank teller. The check (social security) and both cards showed that they had been issued to one Emiliano Echevarria. Miranda warnings were then given, defendant was transported to the station, and upon being questioned by the officers he admitted that he had found the check and the identification cards, added his own picture to the firearms identification, and attempted to cash the check at the banks.

After hearing this testimony the trial judge denied the motion to suppress evidence of the firearms identification card, the vehicle registration card, the social security check, and the statement.

Counsel for defendant and the State then agreed to a stipulation that the testimony of these three witnesses would be the same at trial as at the motion hearing and that they need not be called again for trial purposes. A bench trial took place the next day before the same judge in which witness Emiliano Echevarria testified that he had not received his September social security check, that the check in question bore his name and social security number, and that he had neither made the signature on the back of it nor given anyone permission to cash it. The court heard closing arguments, considered the evidence and found defendant guilty. No post-trial motions were made by defendant.

Defendants contends that the trial court erred in denying his motion to suppress evidence of the firearms identification card, the vehicle registration card, the social security check and his statement. Specifically, he argues that the officers had no lawful justification to stop and question him so that the evidence resulting from their improper acts must be suppressed and, in turn, such tainted evidence could not be considered in establishing probable cause, thus rendering his arrest invalid. He contends further that his statement to the police was tainted as a product of both the alleged illegal stop and arrest and concludes that the three items seized and the statement given should have been excluded from evidence at trial.

• 1, 2 The State argues that since these contentions were not presented to the trial court in a post-trial motion as required by statute (Ill. Rev. Stat. 1975, ch. 38, par. 116-1) they are waived. The general rule is that issues not contained in a post-trial motion are deemed waived and cannot be urged as grounds for reversal on appeal. Although the appellate court may nevertheless take notice of plain errors affecting substantial rights under Supreme Court Rule 615(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 615(a)) and may take notice of defects in a criminal trial when the evidence is closely balanced, it is not mandated to do so. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) This rule has been applied in bench trial cases as well as in jury trial cases. People v. Harvey (1976), 41 Ill. App.3d 869, 354 N.E.2d 393; People v. Brantley (1976), 43 Ill. App.3d 616, 357 N.E.2d 105.

• 3 In regard to these contentions we do not find plain error or defect affecting substantial rights, nor do we find the evidence closely balanced; therefore, by not raising them in a timely post-trial motion defendant has waived these issues.

• 4 We will, however, briefly address the merits of these contentions. Officer Rydell observed the defendant's activities at the two banks and saw him enter his car and drive away. He stopped him for questioning only after having been informed by Sergeant Hironimus, who had also observed defendant, that defendant had attempted to cash a check using a firearms identification card believed to be false. The information raising the invalidity of the card originated from the bank teller who had dealt with defendant and claimed to have knowledge of the proper appearance of a firearms identification card. The information provided by the bank teller and relayed to Rydell by Hironimus at the very least raised suspicion that defendant had attempted to commit theft by deception.

On this basis Officer Rydell had sufficient knowledge to reasonably infer from the circumstances known to him that the defendant had attempted to commit a crime and was authorized to then stop him for temporary questioning. (Adams v. Williams (1972), 407 U.S. 143, 32 L.Ed.2d 612, 92 S.Ct. 1921; 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; Ill. Rev. Stat. 1975, ch. 38, par. 107-14.) After stopping defendant, the officer did no more than ask for some identification and an explanation of the defendant's actions. (Ill. Rev. Stat. 1975, ch. 38, par. 107-14.) Since the temporary stop was justified the evidence gained therefrom could be considered in establishing probable cause for the arrest. In turn, the later statement was also admissible as it followed both a legal stop and arrest. We find that the trial judge properly denied the motion to suppress.

Defendant next contends that his trial was nothing more than a "stipulate bench trial" proceeding on a plea of not guilty which was tantamount to a plea of guilty and that the trial court's failure to provide him the protections afforded defendants entering pleas of guilty by Supreme Court Rule 402 (Ill. Rev. Stat. 1975, ch. 110A, par. 402) requires reversal of his conviction. He bases his contention on the fact that the bulk of the evidence at his trial consisted of his attorney's stipulation to the testimony of the three prosecution witnesses at the hearing on the motion to suppress.

• 5 The court takes notice of the fact that no post-trial motions were filed in this case and finds that our earlier discussion of the waiver rule promulgated by the Illinois Supreme Court in People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856, is dispositive ...


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