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People v. Green

OPINION FILED SEPTEMBER 15, 1980.

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

v.

BOBBY GREEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. VINCENT BENTIVENGA, Judge, presiding.

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

After a jury trial, Bobby Green (defendant) was found guilty of an armed robbery on January 28, 1978 (Ill. Rev. Stat. 1975, ch. 38, par. 18-2). After a bench trial he was also found guilty of another armed robbery on January 31, 1978. He was sentenced to two concurrent terms of 9 years and a fine of $1000. His appeals have been consolidated.

The incident of January 31, 1978, was tried first. Harry Nash and William Veal were employees of a gasoline station in Chicago. Nash arrived for work that day about 6 p.m. A few minutes later Nash entered the station and saw Veal held at gunpoint. Nash and Veal both identified defendant as the person holding the gun. Nash remembered defendant had robbed the station on January 28 with use of the same gun. Defendant took business receipts from Veal and also his personal money. Defendant ordered the men to lie down on the floor as he had ordered Nash during the previous robbery of January 28. During this earlier robbery, Veal was not present. On that occasion, at defendant's request, Nash permitted him to remain in the station for 10 or 15 minutes to warm himself. Defendant left, then returned and committed the robbery.

On February 11, 1978, Investigator Charles Ford showed a series of eight photographs to Nash and Veal. Both of them selected and identified the picture of defendant. Thereafter, both men identified defendant in a police lineup.

For the defense, Michael Penny testified he went to the station on January 28, 1978. He lost $150 there in a dice game being operated by Nash. He saw no police while he was there. Leotis Brewer testified he was with defendant at a party all evening on January 28, 1978. Audrey Thomas testified she was at a party with defendant on January 28 at the time of the robbery. This testimony concerning the party was corroborated by Judy Jordon, defendant's sister, and Stella Green, defendant's wife.

Nash testified in rebuttal there was no gambling at the station on January 28, 1978. Police officer Darragh testified he came to the gasoline station on January 28 and saw no one there other than Nash.

After trial on the armed robbery of January 31, the parties entered into a written stipulation. This document stated the pendency of the two indictments and the return of the verdict of guilty after trial of the January 31 robbery. The parties agreed defendant would execute a jury waiver, which he did. The parties stipulated the State would produce the same witnesses who testified in the previous case and their testimony would be substantially the same. Further cross-examination of the witnesses was waived. The report of proceedings in the prior trial was adopted for the January 28, 1978, case so far as relevant. The parties reserved the right to present additional evidence. Defendant waived no further rights of any kind. Judgment and sentence would be final and appealable without post-trial motions and without waiver of objections.

I.

Defendant made a pretrial motion to quash the arrest. Investigator Charles Ford testified he interviewed Nash and Veal at the gasoline station after the January 31 robbery. They gave him a description of the robber including prominent facial scars. Thereafter, Investigator Ford spoke to Officer Steel. He suggested that defendant fit this description. Ford then selected eight photographs, including that of defendant, and displayed them to the victims. As a result of their photographic identification, he issued a "stop order" for the defendant.

During the early morning hours of March 4, 1978, Police officers Stasinopulos and Wiora saw defendant driving an automobile. At that time they were looking for defendant because of the stop order. Stasinopulos recognized defendant as the man whose picture had appeared in a police bulletin. Defendant's car was stopped. Officer Wiora testified when defendant's car was stopped, he saw the gun sticking out of the rear seat on the driver's side in plain view.

Defendant was charged at the station after the arrest with unlawful use of weapons, but this charge was dropped by the State. On this record defendant urges there was no probable cause for his arrest.

It has been frequently held probable cause depends upon whether the subjective knowledge of the arresting officer would be "`sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.'" (People v. Creach (1980), 79 Ill.2d 96, 101, 402 N.E.2d 228, quoting People v. Robinson (1976), 62 Ill.2d 273, 276, 342 N.E.2d 356, and other authorities there cited.) Existence of probable cause depends upon the totality of the circumstances as viewed under practical considerations of every day life from the point of view of reasonable men. (See Creach, 79 Ill.2d 96, 102.) The existence of probable cause may be founded upon evidence which would not be admissible at trial and which need not be sufficient to establish guilt beyond a reasonable doubt. People v. Blitz (1977), 68 Ill.2d 287, 292, 369 N.E.2d 1238, cert. denied (1978), 435 U.S. 974, 56 L.Ed.2d 68, 98 S.Ct. 1622.

• 1 Applying these principles to the case before us, we are required of necessity to conclude probable cause existed and the ...


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