APPEAL from the Circuit Court of Fulton County; the Hon. U.S.
COLLINS, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 15 and modified opinion filed March 16, 1982.
Defendant Robert Carmack appeals from his conviction, after a jury trial, for the offense of armed robbery. He was sentenced to a nine-year term of imprisonment for the armed robbery of the Graham Hospital Pharmacy, in Canton. On this appeal the defendant raises issues respecting the denial of his motion to suppress certain evidence seized at his residence, the effectiveness of his trial counsel, an evidentiary ruling by the trial court, and his sentencing.
The pertinent facts in the record indicate that on November 25, 1979, the defendant Robert Carmack, wearing a red-quilted jacket and hat, entered the staff pharmacy at Graham Hospital. He was carrying a large dark revolver. He grabbed the staff pharmacist by the arm, stuck the gun in his back and then threatened to kill him unless the pharmacist gave him all of the morphine and dilaudid at the pharmacy. When the narcotics had been turned over to the robber, he told the pharmacist and three other persons there to go to a corner and stay there for two minutes. He told them that he and a friend would kill them if they came out of the pharmacy. Then he left.
On December 12, 1979, a little more than two weeks after the Graham Hospital robbery, a gunman fitting the same description of the hospital robber struck again. The armed robber, wearing a green-quilted nylon jacket, red ski mask and glasses, entered the Canham Pharmacy, on Farmington Road in Peoria County. He was carrying a sawed-off shotgun and he demanded all the morphine and dilaudid at the store. The owner informed him that he had no morphine or dilaudid, but only demerol. After taking that, the robber left.
Then, less than two weeks later, on December 21, 1979, there was a similar armed robbery at the Our X Pharmacy, in the city of Peoria. There a man, matching the description of the person involved in the two previously mentioned robberies, brandished a sawed-off shotgun to the manager of Our X and demanded all the store's morphine and dilaudid. When the manager explained that he had only demerol, the robber took three bottles of demerol, and he left.
Peoria County sheriff's deputy Kim Sylvester was investigating the Peoria County robberies. On December 26, 1979, around 4 p.m., he showed a series of photographs to two female employees of the Our X Pharmacy. Both employees picked the defendant Robert Carmack's picture, stating that his photo looked much like the armed robber. Sylvester, that same afternoon, located and talked with Gene Nelson, manager of the Our X store. Nelson, upon viewing the photographs, made an immediate identification of the defendant's picture, indicating that it was the robber. This positive identification by Nelson occurred around 6:30 p.m. Deputy Sylvester then returned to the sheriff's office where he conferred by phone with an assistant state's attorney about the existence of probable cause to arrest. After determining that he had probable cause to arrest, he then drove to Canton, Illinois, where the defendant was known to reside. Canton is in Fulton County.
Upon arriving in Canton, he met with Canton Police Chief Don Story. Thereafter, he, Story, and several other officers went to the defendant's residence on Vine Street in Canton. The time was somewhere between 8:30 and 9 p.m. When they arrived, they observed the defendant's auto parked in the driveway. Sylvester and Story, both in plain clothes, and another uniformed officer went to the front door, while the other officers covered the back door. The officers knocked on the door, and the defendant Carmack answered, opening the door about a foot. The officers showed Carmack their identification, told him they were police officers and that they were there to arrest him. Their guns were drawn. Carmack stepped back and the officers opened the door fully, entering the house. When inside, they informed Carmack they were arresting him for the Peoria County armed robberies. They conducted an immediate pat-down search of Carmack's person. He was then handcuffed and read his Miranda rights. According to the defendant's testimony, the police then asked him if he would consent to a search of his residence, to which he refused, asking that they obtain a warrant. The defendant's wife was at home. Before returning to the station to obtain the warrant, the officers conducted a cursory examination of the other rooms in the residence, to locate any additional persons that might have been present. The officers, at the time, were aware that deadly weapons had been used in the robberies and Carmack, in one robbery, indicated he had an accomplice. The examination of the premises turned up no other person, but during it the officers did notice two ski jackets, similar to those described by the victims of the robberies, lying in plain view.
The defendant was permitted to dress fully and was then taken to the Canton police station, and then the county jail in Peoria. At the police station the officers contacted the State's Attorney's office in Canton to make arrangements to obtain a search warrant. Sylvester signed the warrant, giving the information he had received during his investigation and also referring to the nylon jackets observed during the initial search of the house. With the warrant, the officers returned to the Carmack residence and conducted a full search. They seized drug containers, a sawed-off shotgun, a red and white ski mask, the nylon jackets, and a pair of glasses. The articles were later used at the defendant's trial for the armed robbery of the Graham Hospital.
At the trial for that robbery, numerous persons testified about the circumstances of the robbery. Several persons present, although unable to identify the defendant positively, nevertheless testified that the jacket and glasses seized at defendant's house matched the apparel worn by the robber. One witness for the State, a pharmacist's technician, did make an in-court identification of the defendant Carmack as the armed robber. The other State's evidence came from employees of the Our X Drug Store that had been robbed within weeks after the Graham Hospital robbery. Three employees testified to the specifics of that robbery and then identified Carmack as the perpetrator. The manager of Our X further testified that the articles found in Carmack's home were similar to those used by the Our X robber. He also identified several drug containers seized in the search as similar to those taken from Our X.
The defense presented no witnesses, and after instructions and argument, the jury returned its guilty verdict. The presentence report indicated that the defendant had three prior felony convictions. The court sentenced him to nine years in prison. From that conviction and sentence the defendant now appeals.
We would note that in the Peoria County cases, which are not before us on this appeal, the defendant eventually negotiated a plea, receiving a seven-year sentence on a guilty plea, with the charges in the other robbery being dropped. Any additional factual development of the Fulton County case will be contained in our treatment of the issues.
The first several issues raised by Carmack all center upon his motion to suppress the evidence seized in the search of defendant's home, after his arrest. The first issue is whether the court should have suppressed the evidence based upon the police officers' warrantless, nonconsensual entry into the defendant's home and the subsequent warrantless arrest there. The defense correctly notes that the United States Supreme Court, in Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371, held that the fourth amendment prohibits warrantless entry into the home of a suspect, for the purpose of arrest, unless there is consent to the entry, or unless there exists exigent circumstances which justify proceeding without a warrant. The defense argues that the evidence in the instant case is insufficient to establish either consent or the requisite exigent circumstances. The State responds, arguing initially that the decision in Payton v. New York is to be applied prospectively only (People v. Devine (1981), 98 Ill. App.3d 914, 424 N.E.2d 823), and that such application should except arrests made prior to the date of that decision. (See, e.g., Desist v. United States (1969), 394 U.S. 244, 22 L.Ed.2d 248, 89 S.Ct. 1030.) It should be noted, in this regard, that prior to Payton and the decision in People v. Abney (1980), 81 Ill.2d 159, 407 N.E.2d 543, a warrantless arrest in the home was arguably permissible in Illinois if probable cause for the arrest existed. (See People v. Devine (1981), 98 Ill. App.3d 914, 918-19; People v. Denwiddie (1977), 50 Ill. App.3d 184, 365 N.E.2d 978, relying upon People v. Johnson (1970), 45 Ill.2d 283, 259 N.E.2d 57, cert. denied (1972), 407 U.S. 914, 32 L.Ed.2d 689, 92 S.Ct. 2445; Ill. Rev. Stat. 1977, ch. 38, pars. 107-2(c), 107-5(d).) The State, in seeking to affirm the denial of the suppression motion, also alternatively argues that the warrantless arrest of Carmack was justified under the exigent circumstances presented.
However attractive and well reasoned we find the State's argument concerning the appropriate prospective scope to be given Payton (see Desist v. United States; United States v. Peltier (1975), 422 U.S. 531, 45 L.Ed.2d 374, 95 S.Ct. 2313), a conclusion applying Payton only to those arrests made after it was decided would have little effect in this or other cases. The reason for that is that the Illinois Supreme Court in People v. Abney (1980), 81 Ill.2d 159, 407 N.E.2d 543, concluded that under their prior decisions, warrantless arrests in the home were required to be justified by consent or exigent circumstances even before Payton was decided. (People v. Abney (1980), 81 Ill.2d 159, 167-68. But see People v. Johnson; People v. Devine; People v. Denwiddie.) The result is that even were we to conclude that Payton does not apply, because ...