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People v. Redmond

OPINION FILED MAY 29, 1979.

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

v.

WILLIAMN. REDMOND, A/K/A WILLIAM NOAH REDMOND, A/K/A WILLIAM RANDALL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. HOWARD MILLER, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Defendant William Redmond, appearing pro se, was found guilty by a jury in the circuit court of Cook County of unlawful possession of more than 30 grams of cannabis in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 704(d)) and unlawful possession of a controlled substance known as phencyclidine in violation of section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b)). He was sentenced to imprisonment for two to six years.

On appeal defendant contends that: (1) his motion to quash the arrest and suppress evidence was improperly denied; (2) no effective waiver of counsel was made; (3) two defense instructions were improperly refused; and (4) improper comments by the prosecution in its closing argument denied him a fair trial.

The testimony at the hearing on defendant's motion to quash arrest and suppress evidence and at trial revealed that on June 30, 1976, at approximately 1:30 p.m. Officers Leonard Kukulka and Terrence O'Connor were proceeding in a squad car westbound on 45th Street in Chicago. Officer Kukulka noticed a 1969 Oldsmobile traveling several car lengths in front of him without a rear license plate. After curbing the vehicle, Kukulka met the driver, whom he identified as the defendant, in front of the squad car which was parked behind the car driven by defendant. Kukulka asked defendant for his driver's license. Kukulka told the defendant he was stopped for failure to have a rear license plate. Defendant insisted he had one and the two proceeded to the rear of defendant's car. Defendant lifted up a license plate rack attached to the back of the car and showed Kukulka the plate. Kukulka described the rack as an indentation in the bumper which folded down in order to allow gas to be put into the car. Kukulka testified that the spring mechanism of the rack was broken causing the rack to be in a downward vertical position with the license plate facing the car so that no license plate was visible.

During this time, Officer O'Connor was checking the front of the car and told Kukulka that the car did not have a current city vehicle sticker. Kukulka stated that it was at this point that he told defendant that a temporary driver's license was not acceptable for bond purposes and that defendant would have to go to the police station to post a cash bond. He placed defendant under arrest and told him he would have to conduct a protective pat-down search. Kukulka testified that as he attempted to do so, defendant swung at him, grazing the left side of his head. A scuffle ensued and Kukulka, aided by his partner, subdued the defendant. Kukulka then searched the defendant recovering a tin foil packet from defendant's shirt pocket containing a tan powder which Kukulka said he believed to be a controlled substance.

Kukulka stated that a purse defendant had slung over his shoulder when he first exited his car was knocked to the ground during the scuffle. His partner picked up the purse and in examining its contents found three manila envelopes which contained crushed green plant. The officers then drove defendant to the police station where a more thorough search of his person was made uncovering eight hand-rolled cigarettes from his sock. This evidence was inventoried and sent to the crime lab.

Officer O'Connor stated that he observed a 1975 city vehicle sticker and a license applied for sticker on defendant's car windshield. He called back to Kukulka that there was no current (1976) vehicle sticker on the car. When he looked up after checking for a front license plate, he observed defendant strike his partner. He assisted his partner in restraining defendant and handcuffed him. He testified that it was after defendant was searched and placed in the squad car that he recovered defendant's purse from the street and examined its contents.

Elizabeth Olson-Koza and William Tyrrell, chemists employed by the Chicago Police Department, testified on behalf of the State. Olson-Koza testified she tested and weighed the green plant contained in the three manila envelopes and the eight hand-rolled cigarettes and determined the green plant to be cannabis sativa with a total weight of 37.5 grams. Tyrrell testified that he examined the tin foil packet of tan powder and determined its weight to be .98 grams. After testing the powder, he found it contained phencyclidine.

After his motion for directed verdict was denied, defendant testified that at the time of his arrest he was employed as a field representative for Standard Educators assisting children having school and juvenile problems. He stated that on June 30, 1976, he was driving a 1969 Oldsmobile owned by a friend, Leon Dale. He had known Dale for two or three years, saw him three or four times a month, but did not know his employment. Defendant testified that he picked up the car from Dale two days before the incident.

Defendant stated that when he was stopped, the license plate rack was in an upright position and the rear license plate was visible. He testified that the license plate rack could never hang straight down as Officer Kukulka testified because the bumper of the car would prevent it and it could be pulled down only to a horizontal position. Defendant also testified that displayed on the front windshield of the car was a current city vehicle sticker and a license applied for sticker. Defendant attempted to show that there was a current vehicle sticker on the car by introducing into evidence a receipt defendant said he received from the Chicago Police Pound the day the car was released to him which indicated the date of the vehicle sticker on the car. An objection was sustained since the court found it appeared as if the date on the document had been altered. Defendant was allowed to introduce into evidence a copy of the title to the car which he said he received from Dale's wife and was necessary to obtain the release of the car from the pound.

Defendant testified that after he showed Kukulka his temporary driver's license, Kukulka said that was not enough and conducted a pat-down search. According to defendant, he did not become belligerent and the pat-down search revealed nothing. After this search, defendant said O'Connor told Kukulka that there was no current vehicle sticker and Kukulka grabbed defendant's hand and told him he was under arrest. Defendant stated that he snatched his hand away and Kukulka grabbed him. Defendant denied striking Kukulka and denied having any knowledge that marijuana was in his purse or that a tin-foil packet was in his shirt pocket. He stated that he had looked in his purse three hours earlier and it did not contain three manila envelopes. He testified that he did not see the officers take anything out of his purse and the first he knew of the tin foil packet was when Kukulka told him that was what he had pulled out of his shirt pocket. Defendant also denied having eight hand rolled cigarettes in his possession and said he did not see the officers remove them from his sock.

Leon Dale, called as a rebuttal witness for the State, testified that he had owned a 1969 Oldsmobile but sold it in 1974 to an individual known to him as Shorty. Dale identified the copy of the title to the car as that which he had signed over to Shorty and identified his signature on the document.

Dale stated that he had never seen the defendant prior to being in court. Dale's physical appearance did not match that testified to by the defendant.

Defendant then testified that the Leon Dale he received the car from was not the same Leon Dale who had just testified. The defendant stated that he had known the person from whom he received the car and he had known him by no other name than Leon Dale.

The jury found defendant guilty on both charges.

I.

At the outset it is necessary to consider the State's contention that defendant waived the issues he raises on review by his failure to file a written motion for new trial in accordance with section 116-1 of the Code of Criminal Procedure of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 116-1).

After verdict and before sentencing, the public defender on behalf of the defendant made an oral motion for new trial. He argued that the trial court erred in refusing certain jury instructions tendered by the defense, but stated that by pointing out only one error he did not intend to waive other errors properly preserved in the record. No objection was made by the State. The trial court denied the oral motion.

• 1, 2 Section 116-1 provides that a written motion for a new trial shall be filed by defendant within 30 days after the entry of a finding or the return of a verdict and shall specify the grounds therefor. This section addresses only post-trial procedure in the trial court, it contains no reference to the waiver rule or to appellate procedure, and it prescribes no consequences for a failure to comply with its terms. (People v. Sweeny (5th Dist. 1978), 57 Ill. App.3d 879, 885, 373 N.E.2d 663.) That a post-trial motion for new trial be in writing is not made mandatory by this section. (People v. Biers (3d Dist. 1976), 41 Ill. App.3d 576, 578, 353 N.E.2d 389.) Instead our supreme court has held that a general oral motion for a new trial, if not objected to by the State, will preserve for appeal all errors which appear properly preserved on the record. (People v. Whitehead (1966), 35 Ill.2d 501, 503-04, 221 N.E.2d 256; People v. Flynn (1956), 8 Ill.2d 116, 118-20, 133 N.E.2d 257; People v. Prohaska (1956), 8 Ill.2d 579, 583, 134 N.E.2d 799.) There is no evidence in the record that the State objected to the absence of a written motion or requested specificity. Therefore, defendant is not precluded from raising the present issues on review. See People v. Houck (1st Dist. 1977), 50 Ill. App.3d 274, 281, 365 N.E.2d 576.

II.

The trial court denied defendant's motion to quash the arrest and suppress evidence on the basis that the officers could have reasonably believed they were dealing with something other than an ordinary traffic violation. The court found the testimony concerning whether there was a current vehicle sticker irrelevant since defendant was stopped for failure to have a rear license plate.

A.

Defendant argues that his custodial arrest for a minor traffic offense was unreasonable and he was justified in resisting the search made incident to the arrest. Defendant was stopped for the failure to display a rear license plate. According to Officer Kukulka's testimony there was a rear license plate, but it was not in a proper position causing it to be unreadable.

Failure to properly display license plates is a violation of section 27-354(a)(d) of the Municipal Code of the City of Chicago as well as the Illinois vehicle title and registration law (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 3-413). Section 3-413(a) requires a license plate to be affixed to both the front and rear of a vehicle. Section ...


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