APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. WHITE, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
___ N.E.2d ___ At the conclusion of a jury trial the defendant, Hernandez Jackson, was found guilty of two counts of armed robbery. Judgments were entered on the verdicts and the defendant was sentenced to a single term of four years to four years and a day in the penitentiary.
On appeal the defendant contends that: (1) his conviction was improperly based upon evidence which was the fruit of an unlawful arrest; (2) the trial court abused its discretion in denying his motion for a continuance; (3) he was denied a fair trial when the trial court permitted improper testimony to be placed before the jury; and (4) his guilt was not established beyond a reasonable doubt.
We affirm the defendant's conviction as to count I and reverse his conviction as to count II. The following facts are pertinent to the disposition of this appeal.
The testimony presented at the trial indicates that at approximately 4:30 p.m. on October 30, 1974, Calvin Curry and Lee Braxton were walking down the stairs of a highrise housing project building located at 4155 Lake Park, Chicago, Illinois. As they rounded a turn on the stairs they were confronted by the defendant who pointed a sawed-off shotgun at Curry's face. Curry testified in court that the defendant was standing four to five feet from him on a landing between the ground floor and the second floor and that the lighting was good.
The defendant was accompanied by another adult and eight or nine children. The defendant commanded Braxton and Curry to turn and face the wall. Curry testified that he faced the defendant for one minute before being told to turn around. The victims obediently turned around and placed their hands up against the wall. Curry further testified that at the defendant's instruction the children searched his pockets and took his wallet, watch and personal papers. The other adult offender searched Braxton's pockets but no property was taken from his person or presence. During the commission of the offense, Curry turned around momentarily and pleaded with the defendant not to kill them. The defendant told Curry to turn back around and face the wall which he did. When the children had finished going through Curry's pockets the defendant and his accomplices left the scene. Curry stated that the entire incident lasted approximately five minutes.
Immediately after the incident Curry and Braxton came out of the entry of the building and flagged down a police car. At the trial Curry testified that in relating the incident to one of the officers he described the man with the shotgun as wearing a black knotted scarf on his head, and having a little moustache and squinty pink eyes. The police report did not contain any description of the offenders.
The defendant was arrested on December 3, 1974, by Officer Daniel Davis. Officer Davis had no warrant for the arrest. A motion to quash the arrest was filed on November 21, 1975. On October 5, 1977, at the hearing on the motion to quash the arrest, Officer Davis testified that he was given the defendant's name and address by Leroy McCaster. McCaster had just been arrested for the armed robbery of Willie Brown which had occurred earlier in the day on December 3, 1974, at 4155 Lake Park, Chicago, Illinois. In a conversation with Officer Davis immediately after the alleged offense Brown named McCaster as one of the robbers and McCaster was subsequently arrested in his apartment at 4155 Lake Park.
Officer Davis further testified that after his arrest McCaster admitted his participation in the robbery of Brown and told him and his partner, Officer Paul Newell, where weapons used in this robbery were kept in another apartment at 4155 Lake Park. Officer Davis went with his partner and McCaster to that apartment and recovered the weapons. After being transported to the police station McCaster told Officer Davis of 14 other specific robberies that he had participated in in the area around 4155 Lake Park. McCaster implicated the defendant as his accomplice in these other robberies. Officer Davis stated that McCaster identified the defendant by using the defendant's nickname of "Cowboy." McCaster also supplied the officer with the defendant's address and with a physical description of the defendant. Officer Davis went on to testify that before arresting the defendant he examined the police reports of 14 or 15 robberies with similar modus operandi which were committed in the area around 4155 Lake Park including the armed robberies of Calvin Curry and Lee Braxton on October 30, 1974. Officer Davis then arrested the defendant at his apartment at 4155 Lake Park. When arrested the defendant answered to the nickname of "Cowboy."
Later that same evening the defendant was placed in a lineup where he was viewed by Curry and Braxton. Curry made an identification of the defendant at the time and later identified him at the trial as one of the offenders. Braxton did not identify the defendant at the lineup. Furthermore, he was not called to testify at the trial. The defendant was indicted on two counts for the armed robberies of Calvin Curry (count I) and Lee Braxton (count II).
The defendant initially contends that the trial court erred in not granting his motion to suppress evidence. The defendant sought to suppress the lineup identification on the grounds that the evidence was obtained incident to an unlawful arrest. He asserts that his arrest was unlawful because the officer making the arrest lacked probable cause. The defendant attributes this absence of probable cause to the failure of Officer Davis to independently verify information received by an informant, Leroy McCaster, that the defendant had engaged in unlawful activity.
In recent years considerable confusion had developed with regards to the methods of establishing probable cause for warrantless arrests based upon tips from "informants." Counsel for both parties have cited numerous cases in this regard. We do not find that they are controlling in the case at bar. We believe that the situation in the case before us is entirely different from the situation in which information is supplied by either a "professional" or "ordinary citizen" informant with regards to a crime alleged to have been committed.
1, 2 "The rule is that probable cause exists for arrest where a reasonable and prudent man, having knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense." (People v. McKee (1968), 39 Ill.2d 265, 273, 235 N.E.2d 625.) Where a co-offender, who is under arrest and in custody, supplies the officer with a "tip" implicating alleged accomplices, the test is whether the statement of the co-offender constitutes probable cause for the arrest of the alleged participating accomplices. People v. Atkinson (1974), 21 Ill. App.3d 258, 315 N.E.2d 152. See also People v. Sims (1978), 58 Ill. App.3d 668, 374 N.E.2d 1050.
The facts presented in two Illinois Supreme Court cases are strikingly apposite to the facts of the case before us. In People v. Denham (1968), 41 Ill.2d 1, 241 N.E.2d 415, Leon Miller, who was arrested in connection with a robbery, implicated Richard Ford, who was subsequently arrested. Ford in turn told police officers that the defendant was committing burglaries in the old town area together with Irving Duffy. Based upon this information the ...