APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN E. SYPE, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After trial by jury, defendant Robert Sledge and his co-defendant Felipe Fresco were found guilty of armed robbery and home invasion. Defendant Sledge was thereafter sentenced to a 6 1/2-year term in the penitentiary for armed robbery and we are concerned only with his appeal in this case. See People v. Fresco (1980), 87 Ill. App.3d 431, 409 N.E.2d 123.
The parties do not substantially dispute the facts. It appears that on the evening of January 31, 1979, Lucille Thompson was having a party at her home at 1216 School Street in Rockford, attended by about 50 persons. She was playing cards in the kitchen with other guests at about 11 p.m. when her daughter ran in and announced a robbery was taking place. Two men entered, the first wearing a brown or dark stocking cap over his face and a red scarf; this man was carrying a sawed-off gun and was believed by Mrs. Thompson to be a black person. The second man was taller and wore a white stocking cap, he carried a pistol and had a Spanish accent. Both men wore dark gloves. Mrs. Thompson estimated that about $200 was taken from persons in the house.
At about 11:30 p.m. Rockford police officer Lester Anderson responded to a call to that address, as did other officers, and after hearing a description of the robbers he left to patrol the area in his squad car. A few minutes later at a nearby intersection of Mulberry and Oakley Streets, Anderson saw a car parked with its lights out and two people sitting inside. As he drove towards it he observed a black male on the driver's side and a man of apparent Spanish descent sitting on the passenger side. Hearing the car start, Anderson pulled his squad car in front of it whereupon the passenger jumped out and ran. The driver, identified by Officer Anderson as defendant Sledge, was ordered out of the car, handcuffed and placed in the back seat of the squad car. He was wearing a dark stocking cap and a red scarf. At about this time, Officers John Vaughn and Anthony Picirilli arrived to assist and observed Sledge pushing money behind the cushion of the back seat of the squad car. Anderson and the other officers searched the car in which Sledge had been sitting and found several pairs of gloves and a white stocking cap. Anderson also recovered a sawed-off rifle from under the driver's seat.
The issues presented for review are (1) whether the trial court erred in denying defendant's motion to suppress physical evidence; (2) whether defendant was denied a fair trial; and (3) whether he was proved guilty beyond a reasonable doubt.
Defendant contends first that because Officer Lester Anderson did not testify at the hearing of defendant's pretrial motion to suppress physical evidence that defendant was denied a full and fair hearing and there were insufficient facts presented to justify the finding by the trial court that there was probable cause to arrest him. He concludes that the search was incident to an illegal arrest and the evidence recovered thus should have been suppressed.
It appears that for medical reasons Officer Anderson was unable to testify at the suppression hearing on April 26, 1979. Officers Vaughn and Picirilli testified that they had received a radio call while on patrol in their squad car referring to an armed robbery at 1216 School Street. The robbers were described as a Negro male, wearing a brown hat and red and white scarf, carrying a sawed-off shotgun, and a possibly Mexican male wearing a white ski mask and carrying a revolver. As they patrolled they observed Officer Anderson with defendant in custody putting him in the squad car. These officers, over defendant's objection, were permitted to also testify to facts related to them at that time by Officer Anderson as to what he had seen before their arrival. This hearsay testimony was limited by the trial court, however, to its consideration of whether Vaughn and Picirilli had probable cause to detain defendant, and it was ruled as not admissible on the issue of whether Anderson made a proper stop of defendant prior to the arrival at the scene of the other officers. The limited testimony essentially disclosed that Officer Anderson had a description of the robbers, had observed the parked car containing a black man and a Mexican-appearing man and the arrest of Sledge as we have earlier described.
The trial court determined that the officers could properly search the squad car in any event and also properly searched defendant's person on the reasonable assumption the money found behind the seat came from him. It further found Vaughn and Picirilli had probable cause to detain defendant. The court made no finding at that time on the issue of whether Officer Anderson had probable cause to arrest defendant but denied his motion to suppress physical evidence.
The joint trial of defendants Sledge and Fresco commenced May 23, 1979, before Judge John E. Sype, who had also heard Sledge's motion to suppress evidence. Officer Lester Anderson testified at trial and was extensively cross-examined by both of the attorneys for the defendants. He related that he had been dispatched to 1216 School Street, arriving at approximately 11:30 p.m. on January 31. He there received a description of the robbers, then left the scene in the squad car. A few minutes later he saw a car parked facing him without lights, with two persons in it and drove towards it. The squad car lights illuminated the interior of the car, and the officer observed a Mexican and a Negro male in it; the Negro man fit the description of one of the robbers given to the officer at the scene of the robbery. As he drove closer, movement started in the car as though the men were going to jump out and he pulled the squad car over to it. The Mexican male jumped out and ran away and the other man, who was sitting in the driver's seat, reached under the seat for something. Officer Anderson testified he believed the man (whom he identified in court as defendant Sledge) was a suspect in the armed robbery and ordered him out of the car at gun point. Defendant was wearing a brown sweater cap and a red scarf as had one of the robbers at the School Street address. Defendant was searched for weapons and handcuffed, then placed in the squad car. Officer Anderson looked under the seat where defendant had been sitting and found a .22-caliber sawed-off rifle. Also recovered from the car was a white stocking cap in which eye holes had been cut and brown gloves.
None of the victims to the robbery were able to identify the masked robbers in trial. Mrs. Thompson did testify that the brown hat and red scarf worn by defendant when arrested were the same as those worn by one of the robbers, who was also black. She also identified the sawed-off rifle and the white stocking cap recovered from the car. Anthony Thompson, who was present at the robbery, also identified in trial the rifle, white ski mask, brown hat and bandana as being the same as those used by the robbers.
Defendant testified and denied participating in the robbery. He stated he was walking home after getting his hair fixed when he saw the car in question with two men whom he did not know sitting in it. One of these men offered him $10 to drive the other man home; defendant agreed to do so, and that person then left. Defendant stated he got in the car and had just started to drive when the police car arrived. The other man then jumped out, ran, and defendant was arrested.
Defendant contends first that his motion to suppress evidence should have been granted as there were no facts adduced at the hearing of the motion to support a finding that Officer Anderson had probable cause to arrest him.
Both the State and defendant appear to agree in their briefs that a reviewing court is not limited solely to the evidence presented at the suppression hearing to find support for a finding of probable cause and that it may also consider evidence adduced at trial in determining whether a denial of a motion to suppress was error. (People v. Braden (1966), 34 Ill.2d 516, 216 N.E.2d 808.) Defendant, however, cites People v. Williams (1978), 62 Ill. App.3d 874, 379 N.E.2d 1222, for authority that evidence adduced at trial supporting admission of the evidence sought to be suppressed can be considered on review only if it was introduced in trial before the introduction of the questioned evidence itself. In the present case, the physical evidence recovered from the car and defendant was first produced in trial for purposes of identification by the testimony of police department property and identification officers who had custody of it. The exhibits were marked for identification and these officers testified as to their location and safe-keeping since defendant's arrest and until trial. Lucille and Anthony Thompson were next called to testify and identified certain of the exhibits as being used by the robbers as we have earlier described. Officer Anderson was the next witness called and was examined by the State and cross-examined by counsel for defendants regarding the events leading to defendant's arrest and search of the car. At the close of the State's case the disputed exhibits were offered and admitted in evidence over defendant's objection.
In People v. Williams, upon which defendant relies for exclusion of the trial testimony of Officer Anderson as supplemental support on appeal for the probable cause finding of the trial court, the disputed evidence was not introduced at trial or on the motion to suppress heard at the same time. There, in seeking to support the finding of the trial court that there was probable cause for defendant's arrest, the State referred on appeal to defendant's arrest sheet containing his fingerprints which first came into the record at the sentencing hearing. The reviewing court, however, declined to consider evidence not presented at trial. (People v. Williams (1978), 62 Ill. App.3d 874, 880, 379 N.E.2d 1222, 1227.) Other reviewing courts> have referred to People v. Braden and suggested that testimony in support of the trial court's probable cause determination should be ...