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People v. Tilden

OPINION FILED APRIL 6, 1979.

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

v.

COMMODORE TILDEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROMIE J. PALMER, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant was convicted of the felony offense of unlawful use of weapons and sentenced to three to nine years imprisonment. (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(b).) On appeal, he contends that the trial court erred by denying (a) his motion to suppress evidence seized at the time of his arrest; and (b) his motion in limine to prevent the revelation of the nature of his prior felony conviction.

At approximately 1:45 to 2 a.m. on an October night, two uniformed policemen, while cruising in a marked squad car, received a radio assignment concerning a suspicious man in a nearby alley and, upon their arrival there, they observed a man (later identified as defendant) walking toward an automobile parked in the middle of the alley. Officer Eichler testified that at this juncture he alighted from his vehicle and approached defendant, who then turned and began to walk away. Eichler asked him to return and produce his identification. Watching defendant search his pockets for his driver's license, Eichler observed a gun tucked into his waistband and shouted to his partner, "He's got a gun." In response, Officer Willer drew his weapon, and defendant was arrested and then searched. The gun was found to contain six live rounds of ammunition.

Defendant and his common-law wife, Margaret Brawner, testified that when he came home from work at 1:30 to 1:45 a.m. on the night in question, he left his car parked in the alley while he brought some food to the apartment; however, before leaving the apartment he clipped a holster to his belt. When Ms. Brawner asked him why he needed his weapon, he replied "I guess you [sic] right." Defendant testified that he then left the gun on a chest of drawers and returned to the alley unarmed while Ms. Brawner testified that she did not know whether or not he was carrying his gun when he left the apartment.

Defendant further testified that as he was approaching his car, he encountered two policemen — one of whom asked to see his driver's license. He complied, and when the license was returned Eichler patted him down and asked if he had any weapons. Although he denied having a weapon, he was handcuffed and taken back to his apartment where he obtained bail money in the amount of $30 from Ms. Brawner. Defendant also stated that when the police arrived in his apartment the gun was on the chest of drawers where he had left it, and that when he and Eichler were going down the steps after leaving the apartment, the latter asked him how much money he had and, when he answered that he was not going to pay anything, Officer Eichler said, "Regardless of what you say, I'm going to lie."

In 1960, defendant was convicted of murder and confined in a penitentiary until his release three years and 10 months prior to the occurrence in question. While ordinarily such evidence is necessary to prove the commission of the felony offense of unlawful use of weapons, defendant by a motion in limine before the jury selection sought to prevent disclosure of the nature of the prior conviction by offering to stipulate that within five years of the occurrence he had been released from the penitentiary following his conviction of an undesignated felony. The State refused to so stipulate, and the trial court denied the motion in limine. Thereafter, the indictment which identified the nature of the former felony as murder was read to the jurors, who were then instructed not to consider it as evidence against defendant. The State made no reference to the conviction during voir dire, but defense counsel did ask several jurors whether defendant's prior murder conviction would affect their verdict.

During the presentation of its case, the State in its proof of the prior conviction did not disclose its nature. However, after defendant had taken the stand in his own defense, the prosecutor, in rebuttal, made the following statement:

"MR. BURCH [prosecutor]: Judge, in rebuttal there will [sic] a stipulation. The stipulation or agreement is that on the 1st of September 1960, Mr. Commodore Tilden the defendant in this particular case was convicted in the Circuit [sic] of Cook County on the charge of murder.

So stipulated?

MR. ISAACSON [defense counsel]: So stipulated."

OPINION

Defendant first contends that the trial court erred by denying his motion to suppress evidence seized as the result of an illegal Terry stop. We disagree.

• 1 The Illinois codification of the holding in Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, provides that:

"A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense * * * and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be ...


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