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People v. Sutherland





APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS J. MAHON, Judge, presiding.


After a jury trial, defendant was convicted and given concurrent sentences as follows: For murder, 40 to 90 years; for attempted murder, 15 to 30 years; and for each of six counts of armed robbery, 10 to 20 years. On appeal, issues are raised as to whether (1) the warrantless seizure of defendant's clothes violated the constitutional prohibition against unreasonable searches and seizures; and (2) the court erred in refusing to hear witnesses at the hearing on the motion to suppress identification testimony.

In the course of a shooting during the robbery of a gambling house by four armed men, one of the patrons was killed and another wounded. One of the offenders also was wounded, and a short time later defendant was admitted to a hospital for treatment of a gunshot wound. Defendant's clothes were removed at the hospital, and a security guard testified that they were placed in a plastic bag which he put under his desk. Subsequently, police officers, without obtaining a search warrant, obtained and photographed the clothes.

Prior to trial, at a hearing on defendant's "motion to suppress evidence illegally seized," defendant testified that he did not know what happened to his clothes after they had been taken from him at the hospital. John Horton, one of three hospital security guards on duty that evening, stated that he had placed the bag containing defendant's clothing under his desk and did not give anyone permission to remove the bag. He admitted, however, that on prior occasions he had given police officers the clothing of gunshot victims.

Officer Solicki testified that during his investigation he learned that one of the offenders had been wounded by a .30-caliber carbine bullet; that he had been given a description of the wounded offender and of the clothes worn by him; that he was told the wounded offender had a blackjack in his rear pocket; that at the hospital defendant gave two conflicting versions of the events surrounding his gunshot wound; that after he viewed defendant's X rays, which indicated that defendant was shot by a .30-caliber bullet, he inquired as to the whereabouts of defendant's clothes; that a security guard gave him the bag containing defendant's clothes; that it was the usual practice for police to inventory gunshot victims' clothing; and that he was informed the security guard was a cousin of defendant. The court denied the motion to suppress the evidence without making any findings of fact.

Defendant had also made a motion to suppress identification testimony, which the trial court denied without conducting an evidentiary hearing.

The evidence at trial relevant to the issues raised was as follows: Charles Eiland, doorman at the gambling house, testified for the State that a patron known to him as the "man with the plaid suit" (later identified by him as defendant) left the gambling house at about 10 p.m. and then buzzed the doorbell a few minutes later; that when he opened the door defendant put a gun to his head and three other men wearing gas masks also entered; that defendant forced him and other patrons into a basement room, where they were lined up against the wall and searched; that his wallet, ring, and money were taken from him; that defendant left to answer the front door buzzer and he (Eiland) heard two shots and later saw that Elmer Payton had been killed and a man he knew as "Dino" was wounded; that he had seen defendant at the gambling house several times during the preceding six months; and that he was shown pictures of defendant and his clothes by the police on the evening of the shooting.

Archie Rowe, Larry Ware, Hezie Green, Eugene Parker, and Hosea Green each testified for the State that they were in the gambling house when four men carrying guns entered the premises; that three of the men were wearing gas masks; that the armed men ordered them against the wall and took various items of value, including money, from them; and that after several gunshots were fired, the robbers left. Both Rowe and Ware stated that "Dino" and Elmer Payton had been shot, and they identified defendant as the offender who was not wearing a gas mask. There was additional testimony by Rowe that he had seen defendant in the gambling house on other occasions and that, after the offenders left, he saw three people help a fourth person get into a white panel van. Ware also stated that defendant pointed a gun at his head and took $340 from his (Ware's) pockets; and that he was shown a picture of defendant and his clothing prior to identifying him.

Kenneth Prothro, also known as "Dino," testified for the State that he buzzed the doorbell to obtain entry to the gambling house and, when the door was opened, defendant hit him on the head with a pistol; that when he (Prothro) grabbed the pistol, defendant shot him twice, after which defendant said, "Die mother-f____ker," and shot him two more times; that he then heard one of the offenders say, "Number Two has been shot," following which two of the men carried defendant out of the building; that he had seen defendant in the gambling house and in the neighborhood on previous occasions; and that defendant often wore a plaid suit.

Sheila Merriweather and John McCall, employees of a funeral home located on the same block as the gambling house, testified that they observed a light-colored van strike two parked cars as it sped away after the robbery.

Police officer Thompson testified that on the day after the occurrence, pursuant to information he received in his investigation, he went to a particular address where he observed a white van in the driveway matching the description of the vehicle used by the offenders in the robbery; that after he saw bloodstains on the front seat of the car, he entered the unlocked front door of the building at that address and went upstairs to the office of Youth Ex-Offenders Service where a search of this office revealed watches, wallets, guns, bullets, gas masks, and the identification cards of some of the gambling house robbery victims.

Officer Solicki testified that he recovered defendant's clothing from the hospital, including a pink shirt and plaid pants; and that he found 14 .38-caliber cartridges and a blackjack in the pockets. There was testimony from another officer that a fingerprint from the white van was that of defendant and testimony from a medical examiner that Eddie Payton died from a chest bullet wound.

Defendant testified that on the evening in question he was robbed by two men who, after taking his briefcase and pocket change, shot him in the stomach; that he was taken to the hospital by some passersby; and that he was then in the employ ...

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