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People v. Duncan





APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. WHITE, Judge, presiding.


Pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1979, ch. 110A, par. 604(a)(1)), the State appeals from an order granting defendants' motions to quash their arrests and to suppress identification testimony. The State argues on appeal that the trial court erred in its ruling that because the prosecutors refused to disclose their informant's identity, the information given by the informant could not be used to establish probable cause for the arrests. Further, the State contends that the photographic and lineup identifications of defendants were erroneously suppressed as being suggestive. Finally, the State argues that notwithstanding the admissibility of this evidence, the victim had an independent, untainted basis for his in-court identification of defendants.

Defendants were charged with aggravated battery following the May 14, 1979, beating of John Gibson. On February 13, 1980, there was a hearing on defendant William Duncan's and Walton Warzala's motions to quash their arrests and to suppress identification evidence. Gibson testified that on May 14, 1979, at 3:30 a.m., he was inside a motor home parked at a well-lighted intersection when a man he later identified as defendant Duncan approached and began arguing with him. Defendant told him to leave the area and then reached through the open window on the driver's side and pushed Gibson in the face. They continued arguing and Duncan said, "Nobody hits any girl around here." He broke the side view mirror of the motor home. Gibson noticed that Duncan was accompanied by two others, later identified as defendants Walton Warzala and William Votaw. Gibson got out of the motor home and was then hit and kicked by the three defendants for several minutes. A fourth person was nearby but did not participate in the beating. When the police arrived, Gibson described the men. At the February 13 hearing, however, he could not recall the description he gave to the officers. He stated that he had never seen the three men before the incident. He had been drinking that evening but stated that he was not intoxicated.

Officer Berris testified at the hearing that Gibson gave him a general description of his three assailants at the time of the incident. At the hearing, however, he did not recall the description. He further testified that he had received a telephone call from a person whose information led to the arrests of the three defendants. The caller identified himself to Officer Berris, stated that he was a relative of one of the defendants and asked the police to withhold his identity. Defense counsel asked him to disclose the informer's identity and the State objected. The trial judge stated that unless the State disclosed the informer's identity, the contents of the telephone call could not be used to established probable cause for the arrests. The assistant State's Attorney told the judge that the man was a private citizen, not a paid informer, and sought a stipulation to that effect. Defendants declined to acquiesce, and the assistant State's Attorney told the judge that he would honor the State's promise to withhold the informant's identity even though the judge had ruled that the substance of the conversation would be inadmissible.

Defense counsel continued to examine Officer Berris concerning police reports and his investigation of the incident. In response to questioning, Officer Berris admitted that without the informant's telephone call, he would not have located Earl Essig, of Independence Park, who gave him further information. Officer Berris' investigation, based on the informant's statements, revealed the following: two offenders were named Bill and Walt and the third was named Bill Votaw; the three were frequent patrons of the Bear's Den Tavern; and one offender, Bill, was manager of a girl's softball team, the Huggie Bears. Earl Essig supplied the last name of the manager of the Huggie Bears, Bill Duncan.

Defendants Duncan and Warzala were arrested at Independence Park on May 17, 1979. Votaw was arrested on May 23, 1979. Subsequently, Gibson identified all three defendants' photographs from a group of eight.

On June 13, 1979, defendants' preliminary hearing was held. Afterward, Gibson and another person viewed a lineup that followed the hearing. He identified the three defendants as his assailants.

On cross-examination at the February 13, 1980, hearing, Gibson testified that he had concentrated on the faces in the photographs when he identified defendants. He acknowledged at the hearing, however, that there were dates and markings on some of the photographs. He further stated that while he was at the defendants' June 13, 1979, preliminary hearing, he could not recall if defendants were present.

The trial judge ruled that there was no probable cause for defendants' arrests because there was "no information upon which the officer could have made an arrest. Any information that he had came from a telephone conversation which is not admitted." The judge further ruled that because the arrests were illegal, the photographs and lineup identifications were fruits of the illegal arrest and inadmissible. He also stated that the photographs were suggestive. The State then asked for a continuance, which was granted.

When the proceedings recommenced, on March 12, 1980, the State moved the court to reconsider its order quashing the arrests and suppressing the identification evidence. Also, the State asked the court to allow an in-court identification to establish Gibson's ability to identify defendants on an independent basis. Gibson testified in detail as to his ability to observe defendants during the May 14 beating. He also identified Duncan and Warzala in court. The judge stated that he had "no doubt" that Gibson had had ample opportunity to observe defendants, but denied the State's motion.

On April 9, 1980, a separate hearing was held on defendant Votaw's motion to quash his arrest and suppress identification evidence. The parties stipulated that they would adopt all the evidence presented at Duncan's and Warzala's hearing. The judge granted Votaw's motion.

The State then brought this appeal.


Initially, defendants move to dismiss this appeal. We have carefully considered the grounds of the motion and find them to be wholly unpersuasive. The appeal is properly before this ...

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