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People v. Spencer

OPINION FILED JULY 9, 1982.

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

v.

ANTHONY SPENCER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant was charged with murder, armed robbery and attempted aggravated kidnapping, tried by a jury, and found guilty on all charges. He was sentenced to 40 years imprisonment. Defendant appeals.

Defendant raises three issues on appeal: (1) whether the police had probable cause to arrest him; (2) whether the court erred in allowing the prosecutor to cross-examine defendant's alibi witnesses as to their failure to testify at the preliminary hearing; and (3) whether the prosecutor's remarks during closing argument were so improper as to deny the defendant a fair trial.

An abbreviated statement of facts follows. Additional evidence necessary to the resolution of each issue will be given as needed. During the evening of August 2, 1979, Dr. Ng Lun, of Windsor, Ontario, his wife Threse, his daughter Valerie, his son John, and his nephew Victor Seeyave, walked east on Cermak Road to State Street hoping to find a cab to take them to their hotel located on North Lake Shore Drive. They were accosted on State Street by two men, one of whom had a gun. One of the men demanded that Valerie give him her purse. She complied. The purse contained $45-50 in Canadian money and a watch. The man with the gun reached for Threse and said, "Lady, you are coming with me." In response Dr. Ng Lun tried to pull his wife towards him. When he did so, the man with the gun walked in front of Dr. Ng Lun and shot him. Both men fled following the shooting. Dr. Ng Lun, although now wounded, walked with his family two blocks further down the street when he suddenly collapsed. John and Victor ran down State Street to summon help. Dr. Ng Lun was taken by the police to Mercy Hospital where he died a short time later. While waiting at the hospital Victor and John viewed approximately 90 photographs brought there by the police. Victor singled out only one photograph as looking similar to the assailant.

On August 3, 1979, Valerie viewed three lineups. Defendant was only included in the third. She did not identify anyone from the first, stated that a man in the second, later identified as Carl Miller, looked similar to the assailant and from the third lineup identified defendant as the perpetrator.

Victor also viewed three lineups on August 3, 1979. He did not identify anyone from the first, and from the second also singled out Carl Miller as looking like the assailant, and from the third lineup identified the defendant as the perpetrator, although he stated at the time of the identification that the defendant's hair was different from that of the man who did the shooting. Police investigator Johnson described defendant's hair on the day of the lineup as extremely close to his head and filled with grease. Valerie and Victor viewed the lineups independently of each other.

On March 26, 1980, an assistant State's Attorney and a police investigator flew to Windsor, Ontario, to show Threse and John six photographs. John identified the defendant's photograph as that of the man who shot his father. Threse was unable to identify anyone as the assailant from the photographs.

At trial Valerie, John and Victor also made in-court identifications of defendant as the man who shot Dr. Ng Lun. Threse Ng Lun did not make an in-court identification of defendant.

The defendant called Diego "Eddie" Ghebremediahan, Anthony Brown and Ramon Sims to testify on his behalf. All testified that on the night and at the time in question they were with defendant at Eddie's home drinking beer. Over defense counsel's objection the prosecutor asked Brown and Sims why they hadn't testified at the preliminary hearing held on August 23, 1979. An assistant State's Attorney later testified, however, that the names of these three defense witnesses were known and included in the felony file folder prepared on the case as early as August 3, 1979.

The defendant's brother testified that on the night of the crime defendant's hair had been processed so that it was lying down on his head in waves, and further that defendant had worn his hair in that style for a long time prior to August 2, 1979. Although defendant's home was searched by the police on August 3, 1979, they found nothing there taken in the robbery. Neither Canadian money nor Valerie's watch were found on defendant's person when he was arrested. At the time of his arrest defendant was wearing new shoes and a new suit and had purchase receipts totaling $124.63 in his possession.

The jury found defendant guilty of all charges. Defendant appeals.

OPINION

Defendant first contends that the police lacked probable cause to arrest him and that therefore the trial court erred in denying his motion to quash his arrest and suppress evidence.

As stated in People v. Creach (1980), 79 Ill.2d 96, 101, 402 N.E.2d 228, 230, cert. denied (1980), 449 U.S. 1010, 66 L.Ed.2d 467, 101 S.Ct. 564, "Probable cause to arrest exists `when the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.' [Citations.]" Although an uncorroborated tip by an unknown informer is insufficient to establish probable cause, where the tip is independently corroborated by other facts and circumstances, probable cause has been found to exist. (People v. Helms (1978), 67 Ill. App.3d 729, 385 N.E.2d 127.) Police officers may rely on the tip of a private citizen without independent verification or examination of his reliability. (People v. Bell (1981), 96 Ill. App.3d 857, 421 N.E.2d 1351.) In deciding the question of probable cause the courts> deal with probabilities, the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. (People v. Walls (1980), 87 Ill. App.3d 256, 408 N.E.2d 1056.) Whether or not probable cause to ...


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