Appeal from the Circuit Court of Vermilion County; the Hon.
James K. Robinson, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 14, 1983.
Defendants were convicted of burglary. Ellis was sentenced to three years' probation and ordered to make restitution. Simmons was sentenced to four years' probation and also was ordered to make restitution. On appeal, defendants raise three issues: (1) Did the police have sufficient grounds to detain defendants pursuant to a Terry stop; (2) assuming arguendo that sufficient grounds for a Terry stop existed, was the subsequent detention of the defendants outside the scope of Terry; and (3) were defendants denied the effective assistance of counsel?
On February 22, 1982, an information was filed charging Douglas Ellis and Jerry Simmons with the offense of burglary. Defendants filed a motion to suppress, alleging that evidence and statements were obtained from them pursuant to a stop which was made without either probable cause or a reasonably articulable suspicion. A hearing on the motion was held on April 8, 1982. Officer Calvin Showers testified that on February 19, 1982, at approximately 1:25 a.m., he noticed two men walking across the parking lot of the Holiday Square shopping center in Danville. None of the stores in the shopping center were open at that time of night. The men were between 100 and 200 feet from any of the stores in the shopping center and were walking directly east of a Wendy's restaurant. The men made no movement toward Wendy's nor did they look in the windows. Showers explained that there were residences bordering the area in which the men were walking. He stated that it was possible to cut through the parking lot for the purpose of getting to these residential areas.
Showers stated that he drove his police van toward the two men, stopped and asked them for identification. Defendants identified themselves and produced driver's licenses. Showers retained defendants' driver's licenses while he ran a warrant check. An alert tone was subsequently broadcast over the police radio which indicated that a warrant was pending on one of the defendants. At that point, Showers searched Simmons and found an 18-inch pry bar concealed in Simmons' trousers. Simmons was then handcuffed and transported to jail; Ellis was patted down and subsequently informed that he was free to leave.
Showers testified that later the same day he compared the pry bar to marks made on the door of Depke Welding during a prior burglary. Showers concluded that the pry marks on the door were made with a bar similar to the bar seized from the defendant. Showers then went to Ellis' residence along with Investigator Garrett of the Danville Police Department. Showers asked Ellis to accompany the officer to the station for questioning. Ellis agreed and went inside the residence to put on his shoes. Showers stated that Ellis told the officers to come in and wait while he got dressed. While in Ellis' apartment, the officers observed numerous tools and a Jack Daniels gift set in the apartment. Showers recalled that similar items had been mentioned in recent burglary reports; Ellis was then placed under arrest and taken to the police station.
Garrett testified that he interrogated Ellis and Simmons on the day of their arrest. Ellis admitted to committing several burglaries, but stated that he had acted alone. Simmons admitted to the same burglaries, but stated that Ellis had joined with him in these burglaries. Simmons also stated that he and Ellis stole a Pepsi-Cola vending machine from the Redwood Barber Shop. The trial court found that Officer Showers had an "articulable suspicion" sufficient to justify a Terry stop on the defendants and denied their motion to suppress. Before defendants' bench trial on April 20, 1982, the trial court advised defendant Ellis as follows:
"THE COURT: You are also charged, together with a co-defendant in this case I have previously advised you both and I would again advise you both at this time that in the event there is any conflict with having one lawyer represent each of you, you would be entitled to a lawyer free of conflict, or in effect, separate lawyers. Do you understand this?
THE COURT: It's my understanding that this matter is being called for trial this morning. The State had originally been granted a severance. The State has agreed with the defendants and each of them that the defendants will stand for trial as originally charged, cases will be consolidated for trial as far as both defendants are concerned; is that correct?
MR. RICHARD: Yes, Your Honor.
MR. NEY: Yes, Your Honor."
Richard Schomburg testified that on January 29, 1982, he noticed that certain items were missing from his office, including a decorative box of Jack Daniels whisky. He subsequently found pry marks on the service door of his building.
Keith Garrett testified that on February 19, 1982, he obtained statements from the defendants in which each admitted the burglary. The statements were introduced into evidence. Ellis admitted taking a case of Jack Daniels and other items from the premises. Following closing arguments by ...