Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Tribett

OPINION FILED JULY 17, 1981.

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

v.

CLYDE TRIBETT, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT GREEN, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 14, 1981.

Defendant was indicted for the possession of a controlled substance. (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(a).) Following a bench trial, he was found guilty and sentenced to a term of 6 years.

On appeal, he contends that: (1) the State failed to establish probable cause for his arrest; (2) the State failed to prove a continuous chain of possession of the controlled substance; (3) the court erroneously admitted evidence of a prior conviction; (4) he was improperly questioned concerning the veracity of another witness; (5) the court erred in failing to excuse, sua sponte, a prospective juror who expected defendant to prove himself innocent; (6) he was denied a fair trial as a result of the cumulative effect of trial errors; and (7) he was not proved guilty beyond a reasonable doubt. We affirm.

Prior to trial defendant filed a motion to quash arrest and suppress evidence. At the hearing on the motion, defendant testified that on June 21, 1977, he was employed by a television service in Chicago. At 9:45 p.m., he left work and proceeded to his girlfriend's apartment located at 3620 North Pine Grove. On his way he stopped at the Jewel supermarket where he purchased four TV dinners. He then parked his car in the 3600 block of Broadway and walked down Patterson Street and then over to Pine Grove. As he was walking east on Pine Grove, defendant felt a need to urinate, so he went to the parking lot behind the building at 3620 North Pine Grove. While he was urinating, a squad car pulled into the parking lot, two officers jumped out with their guns drawn and instructed defendant to put his hands over his head. When told to do this, defendant was still urinating. After being told a second time, he set the TV dinners on the car next to him and raised his hand.

Defendant further testified that he was then searched by one of the officers. Not finding anything, the officer took his flashlight and looked under the car next to defendant. The officer recovered a package approximately 15 feet from where defendant was standing. After informing the officer that the package did not belong to him, he was placed under arrest.

Officer Fraser testified that on June 21, 1977, he and his partner were on patrol in a marked squad car and in uniform. As he was driving on Patterson near Pine Grove, he saw defendant walking on Patterson and then run into an alley leading to the parking lot at 3658 North Pine Grove. The officers in their squad car followed defendant into the alley and observed defendant standing between a parked car and a wall. The officers, with their guns drawn, identified themselves and ordered defendant to turn around. After the second order, defendant, while urinating, turned around. Defendant raised his right hand into the air but kept his left hand near the waistband area of his pants. Fraser then observed defendant drop a packet to the ground and attempt to kick it with his foot. After retrieving the packet which contained a crushed brown powder, Fraser placed defendant under arrest. Thereafter, the court denied defendant's motion to quash arrest and suppress evidence.

The following pertinent evidence was adduced at trial.

Officer Fraser testified that on June 21, 1977, he was on patrol with his partner, Officer O'Grady. As they were proceeding westbound on Patterson, they observed defendant walking toward them. Fraser continued to drive westbound when he saw defendant run into an alley. The officers followed defendant and momentarily lost sight of him, after which Fraser saw defendant facing a cement wall between two parked cars in the parking lot. The officers got out of their squad car and ordered defendant to turn around. Defendant was urinating and when told to turn around a second time, he complied. Defendant put his right hand in the air and kept his left hand around his waistband. Defendant threw a packet to the ground and attempted to kick it under a car. Fraser picked it up, saw it contained a crushed brown powder, and placed it in his pocket. Defendant was then arrested and taken to the police station.

Fraser further testified that at the station he handed the packet to O'Grady who placed it in a department evidence envelope. O'Grady put his signature on the back of the envelope and then placed tape over the signature to insure that they would be able to detect whether anyone tampered with the envelope. An evidentiary number and a record's division number were also placed on the envelope. O'Grady then left the room with the envelope and went downstairs. Fraser did not go with him. At trial O'Grady was unable to testify because he had been killed in a car accident several months earlier.

After testifying, over objection, as to the general procedure for transporting evidence to the police laboratory, Fraser identified the envelope and the brown substance contained therein, marked for identification purposes, as the articles obtained on the night of June 21, 1977. Fraser also identified Officer O'Grady's signature. Although O'Grady's signature and the tape were intact, the envelope was not in the same condition as when he had last seen it. The envelope now had staple markings, tape and initials as well as a slit along one side. After the arrest, the next time Fraser saw the envelope containing the controlled substance was the morning of trial.

Elizabeth Olsen-Koza, a chemist for the Chicago Police Department, testified that on June 29, 1977, she received a sealed envelope. She did not know when the envelope was received by the police laboratory; however, when shown a receipt, she testified that it arrived June 22, 1977. After performing a series of tests, Ms. Olsen-Koza was able to determine that the substance was diacetyl morphine, the chemical name for heroin, and that it had a total weight of 38.45 grams.

At this point defendant's objection to the admission of the brown substance into evidence on the ground that the State had failed to prove a continuous chain of possession was overruled.

Defendant's testimony at trial mirrored the testimony he gave at the hearing on his motion to quash arrest and suppress evidence, except that at trial, he also testified that while standing in the parking lot, he saw the door to the building close as if someone had just walked in.

In rebuttal, the State, over objection, introduced a certified copy of defendant's prior conviction. In 1975, defendant had pleaded guilty to possession of a controlled substance for which he received 5 years' probation.

Thereafter, the jury found defendant guilty of possession of a controlled substance. Following a hearing in aggravation and mitigation, he was sentenced to a term of 6 years. Defendant appeals.

OPINION

I

Defendant first contends that the controlled substance seized at the time of his arrest should have been suppressed because the State failed to establish probable cause for his arrest. He argues that his arrest occurred at the point Officer Fraser and his partner jumped out of the car with their guns drawn. The State maintains that defendant was not arrested until after he voluntarily dropped the packet to the ground.

• 1 As a general rule, it is permissible for a police officer to make a warrantless arrest if he has probable cause to believe that the person arrested is committing or has committed a criminal offense. (People v. Brown (1980), 88 Ill. App.3d 514, 410 N.E.2d 505; People v. Philson (1979), 71 Ill. App.3d 513, 389 N.E.2d 1223; Ill. Rev. Stat. 1977, ch. 38, par. 107-2(c).) Whether probable cause exists in a particular case depends on whether the totality of facts and circumstances known to the officers when the arrest is made are sufficient to warrant a man of reasonable caution to believe that the arrested person has committed a crime. People v. Philson; People v. Green (1980), 88 Ill. App.3d 929, 410 N.E.2d 1003; see also People v. Higgins (1972), 50 Ill.2d 221, 278 N.E.2d 68, cert. denied (1972), 409 U.S. 855, 34 L.Ed.2d 100, 93 S.Ct. 195.

• 2, 3 An arrest is made by an actual restraint of the person or by his submission to custody. (People v. Fulton (1979), 68 Ill. App.3d 915, 386 N.E.2d 605; Ill. Rev. Stat. 1977, ch. 38, par. 107-5(a).) The elements necessary to constitute an arrest are: (1) the authority to arrest; (2) assertion of that authority with the intent to effect an arrest; (3) the understanding of the arrestee; and (4) restraint of the person to be arrested. (People v. Fulton; People v. Bridges (1970), 123 Ill. App.2d 58, 259 N.E.2d 626; see also People v. Wipfler (1977), 68 Ill.2d 158, 368 N.E.2d 870.) There is, however, a difference between an arrest and the stopping of an individual for questioning as part of an investigation. People v. Fulton.

• 4-6 Notwithstanding the lack of probable cause to arrest, a police officer, in appropriate circumstances and in an appropriate manner, may approach and stop an individual for a reasonable period of time in order to investigate possible criminal behavior, provided that the officer's decision to stop is based on specific and articulable facts which, when combined with rational inferences from those facts, reasonably warrant an investigative intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20-21, 20 L.Ed.2d 889, 905, 88 S.Ct. 1868, 1879; People v. Grice (1980), 87 Ill. App.3d 718, 410 N.E.2d 209; Ill. Rev. Stat. 1977, ch. 38, par. 107-14.) In determining whether a stop is reasonable, an objective standard is used, namely whether the facts available to the police officers warrant a man of reasonable caution to believe that the action taken was appropriate. (Terry v. Ohio; People v. Grice.) However, a mere suspicion or hunch is not sufficient. (People v. Jackson (1979), 77 Ill. App.3d 117, 395 N.E.2d 976.) Finally, the standard for appellate review of a motion to suppress is whether the trial court's ruling was manifestly erroneous. People v. Brown (1980), 88 Ill. App.3d 514, 410 N.E.2d 505; People v. Williams (1974), 57 Ill.2d 239, 311 N.E.2d 681, cert. denied (1974), 419 U.S. 1026, 42 L.Ed.2d 302, 95 S.Ct. 506.

While defendant correctly asserts that the mere observation of a man running into a parking lot, absent other articulate reasons for suspicion, does not yield probable cause for an arrest, there is no indication in the record that the police intended to arrest defendant at the point they exited their squad car, notwithstanding that their guns were drawn. At approximately 10:30 p.m. on the evening of June 21, 1977, Officer Fraser and his partner were on patrol in a marked police car. As they were proceeding westbound on Patterson Avenue, they saw defendant six or seven houses away walking eastbound and carrying a brown paper bag. When the squad came within 10 or 20 feet of defendant, he suddenly darted through an alley into the parking lot of the building at 3658 North Pine Grove. The officers immediately followed, whereupon they observed defendant standing between a parked car and a wall. The officers exited their car with their guns drawn, announced their station and ordered defendant to turn around. After the second order, defendant, while urinating, turned around. Defendant raised his right hand but kept his left hand near the waistband area of his pants. Defendant was instructed to remove his left hand from his waistband area and put it where it could be seen. Fraser then observed defendant drop a packet to the ground and attempt to kick it with his foot. After retrieving the packet which contained a crushed brown powder, defendant was arrested.

• 7 While there is no question that defendant's sudden running into the alley was not a crime, it certainly was unusual. From the officer's viewpoint defendant's conduct at 10:30 p.m. was at least reasonably suspicious to justify an inquiry into his sudden flight. (Compare People v. Clay (1971), 133 Ill. App.2d 344, 273 N.E.2d 254.) Upon entering the alley, the officers saw defendant facing the wall and standing between the wall and a parked car. From this position it would be difficult, prior to exiting their car, for the officers to determine defendant's activities. The officers' conduct in exiting their car and ordering defendant to turn around was necessary in order to ascertain his identity. While it is recognized that no formal declaration of arrest is necessary for an arrest to occur (People v. Brown (1980), 81 Ill. App.3d 271, 401 N.E.2d 310; People v. Zach (1979), 77 Ill. App.3d 17, 395 N.E.2d 758), the fact that the officers had their guns drawn does not necessarily indicate an arrest. (People v. Basiak (1977), 50 Ill. App.3d 155, 365 N.E.2d 570.) Considering that defendant had his back to the officers so that the officers could not determine the location of his hands or whether he possessed any weapons, they were justified in drawing their guns in order to insure their own personal safety. Furthermore, there is nothing to suggest that the officers were pointing their guns at defendant. Under the circumstances, we conclude that it was not unreasonable for the police officers to routinely draw their weapons as a precautionary measure to guard against unexpected developments in the course of their investigation. Additionally, defendant himself testified that he was facing the wall as the officers approached and from this position he could not have seen that their guns were drawn until after he turned around. As such, the drawing of guns was of little consequence to defendant's decision to turn around in compliance with the officers' request.

• 8 It has been repeatedly held that the two essential elements of an arrest are the intent of the officer and the understanding of the arrestee. (People v. Wipfler (1977), 68 Ill.2d 158, 368 N.E.2d 870; People v. Zach (1979), 77 Ill. App.3d 17, 395 N.E.2d 758.) A review of the evidence adduced at the hearing on the motion to suppress indicates that these two elements were not present. Until that point in time when defendant discarded the packet, the police officers were merely investigating his suspicious behavior. It is especially important to note that upon exiting their car, the officers did not inform defendant that he was under arrest or that he had committed any violation. It is apparent from the record that the officers were not aware that any crime had been committed. In addition, defendant's own testimony indicates that he did not consider himself arrested until after the officers had picked the packet off the ground. Accordingly, we find that the facts in the instant case fail to establish or suggest an immediate intention on the part of the police officers to arrest defendant upon exiting their car.

• 9 Upon being instructed to remove his left hand from the waistband area of his pants and to get it up where it could be seen, defendant dropped a packet to the ground and attempted to kick it with his foot. After Fraser retrieved the packet and determined that it contained a crushed brown powder, probable cause for defendant's arrest existed. (See People v. Cimino (1970), 45 Ill.2d 556, 257 N.E.2d 97.) Consequently, we cannot say that the trial court's order denying defendant's motion to suppress was manifestly erroneous.

II

Defendant next contends that his conviction must be reversed because the State failed to establish a continuous chain of possession between the substance seized by the arresting officers and the substance analyzed by the police department's chemist. The State maintains that a proper foundation for the introduction of heroin into evidence was properly laid through the testimony of two ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.