APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
DEVINE, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Following a joint bench trial in the circuit court of Cook County, defendants, Neal Wallace and Claude Ellis, were found guilty of the misdemeanor of tampering with a vehicle (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 4-102). Each was sentenced to 364 days in the Cook County Department of Corrections.
Defendants appeal their convictions. The principal issues raised by defendants are (1) that the trial court erred in finding there was probable cause for the police to stop and search the defendants; (2) that the unverified complaints charging the defendants did not state an offense; (3) that the evidence was insufficient to prove defendants guilty beyond a reasonable doubt; (4) that the trial court erred in denying the defendants a new trial where they were compelled to go to trial with an attorney who was not adequately prepared to protect their rights and who waived a jury on their behalf without informing them of the consequences of such a waiver.
We reverse and remand for a new trial.
Defendants were sitting on the steps of a building on October 2, 1980, when they were detained by a Chicago police officer. The complaining witness identified them to the officer as the two men he had seen earlier apparently touching and inspecting his automobile. Defendants were arrested and charged with the misdemeanor offense of tampering with a vehicle.
The formal complaints signed by the complaining witness were not verified. The complaints also contained an error in the statutory designation of the charge, and failed to identify the owner of the vehicle. During the trial and over defense objections, the trial court allowed the State to correct the statutory designation of the charge, verify the complaints, and identify the complaining witness as the owner of the automobile.
The record discloses that eight days after their arrest, defendants, without counsel, appeared in court for a hearing on the charges. The trial court told them the matter was being "passed for trial." An assistant State's Attorney advised defendants to retain counsel, and told them a bar association lawyer was in court and was available to represent them. Shortly thereafter, an attorney introduced himself to defendants as the bar association counsel. Defendants agreed to his representing them and signed a cash bond refund form allowing the attorney to receive the bond proceeds in payment for his services. The attorney briefly interviewed defendants. The cases were then called for trial. The attorney filed his appearance on behalf of defendants, told the judge he was ready for trial, and on behalf of defendants entered a plea of not guilty and waived a jury trial. The trial court did not ask defendants whether they understood the significance of the jury waiver.
Initially, defense counsel moved to quash the arrest for lack of probable cause to stop and search the defendants. Officer Hunt was called by defendants to testify in support of their motion, and asserted that she had responded to a report of a "theft in progress." She testified that after she arrived at the scene the complainant pointed to the defendants as the two men he had seen near his automobile who appeared to be examining it. Defendants contend that when approached by the police they were not involved in any conduct upon which probable cause for their arrest and search could be based.
• 1 It is true, as defendants claim, that the trial court somewhat prematurely terminated the examination of the police officer, declared that probable cause existed, denied the motion to quash the arrest, and directed that the trial proceed. Nevertheless, there was sufficient testimony in connection with the presentation of the motion to support the trial court's ruling. The nature of the complaint to the police, the identification of the defendants by the complaining witness, and the totality of the circumstances were adequate to allow the trial court to find probable cause as it did. See People v. Willingham (1982), 89 Ill.2d 352.
At trial the complaining witness testified that his neighbor had called him at 5:20 a.m. on October 2, 1980, and told him two men were tampering with complainant's car. The complainant looked out his window and saw the larger of two men on the left side of his car motioning with his arms, and the smaller man looking inside the car with a flashlight. He immediately called the police and then went out to the street, where he saw what he believed to be the same two men walk to some nearby steps and sit down. He pointed them out to one of the police officers who had arrived on the scene, identifying defendant Wallace as the smaller man and defendant Ellis as the larger man. Complainant further testified that he examined his car and saw that the rubber on the window of his car was torn.
It was stipulated that the testimony given by Officer Hunt on the defendants' motion to quash their arrest would apply to the trial. She had asserted that she too observed the tear of the rubber on the complainant's car window, and also that she observed that a door lock was bent.
The prosecution evidence further disclosed that when the police arrived at the scene pursuant to complainant's alarm, the defendants were seated on the steps of a building near complainant's automobile. When the complaining witness identified the defendants to the officer as the two men he had seen earlier apparently touching and inspecting his car, the defendants were detained and searched. The police found a screwdriver in the pocket of defendant Wallace. On searching the nearby area, the police also found another screwdriver and a flashlight in the bushes near the steps where the defendants had been sitting when approached by the police.
Defendant Wallace testified that defendant Ellis had asked Wallace to accompany him to Ellis's place of employment where Wallace could get work that day. He agreed to do so. On the way, they walked to the building at which they were arrested. They had gone into the building and had purchased some "reefer" to take with them. As they were leaving the building to continue their walk, the police approached them. Defendants immediately threw away the "reefer." Wallace denied that he or Ellis was involved in any way with the complainant's automobile.
At the conclusion of the trial the defendants were found guilty and each was sentenced to 364 days in jail. Shortly after conviction but before the presentation of post-trial motions, trial counsel for defendants was granted leave to formally withdraw, and he did so withdraw. New counsel filed a ...