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People v. Payne

OPINION FILED OCTOBER 21, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

DARNELL PAYNE ET AL., APPELLANTS.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Kenneth L. Gillis, Judge, presiding.

JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Following a joint jury trial in the circuit court of Cook County, defendants, Darnell Payne and Larry Bailey, were convicted of armed violence, armed robbery and burglary. Payne was sentenced to concurrent terms of 24 years' imprisonment for the armed-violence and armed-robbery offenses, Bailey was sentenced to concurrent terms of 18 years' imprisonment for those offenses, and both defendants were sentenced to concurrent terms of seven years' imprisonment on their burglary convictions. The appellate court affirmed except as to Bailey's armed-violence conviction, holding as to it that he had never been charged with that offense. (102 Ill. App.3d 950.) We allowed defendants' petition for leave to appeal.

The facts surrounding the crimes need only briefly be related here. Earlene Norman testified that defendants, armed with a sawed-off shotgun and a handgun, broke into the Normans' apartment at approximately 9 a.m. on November 8, 1978, stealing some $2,000 in cash which Mrs. Norman's husband, who was working at the time of the crimes, had apparently recently received in an insurance settlement. Defendants remained inside the apartment for approximately 20 minutes while holding a gun to Mrs. Norman's head, threatening her life, and otherwise physically restraining and abusing her. They were seen fleeing the apartment by Claud Pearce, the janitor of the building, and by Sherry Friend, the adult daughter of one of the residents of the building.

The police interviewed the victim and other residents and potential witnesses and, later that afternoon, received information regarding the identity and addresses of the offenders from an individual previously unknown to the police. Defendants were thereafter arrested in Bailey's apartment. After placing defendants under arrest, the officers searched the apartment and recovered, from the vegetable compartment of the refrigerator, a .32-caliber nickel-plated revolver and a loaded .25-caliber blue-steel automatic. Defendants were placed in a six-man lineup later that evening and identified by both Earlene Norman and Claud Pearce. Sherry Friend did not view the lineup.

Prior to trial, defendants moved to quash their arrests and suppress all evidence obtained as a result thereof on the ground that the police acted without probable cause and without a warrant. Following a hearing, the trial court found that there was "ample evidence of probable cause to arrest" but suppressed the weapons, holding that the search of the refrigerator was illegal be cause it exceeded the area within defendant's immediate control.

Defendants were identified at trial by Mrs. Norman, Mr. Pearce and Sherry Friend. The blue-steel revolver was also admitted in evidence after a ruling by the court that defense counsel's cross-examination of one of the police officers had "opened the door" to the suppressed weapon. Mrs. Norman was recalled and identified the weapon by its size and color as similar to the one held by defendant Bailey. Bailey testified in his own behalf. He denied all involvement in the crimes, stating that he was asleep at his girlfriend's apartment during the relevant time period. The jury returned guilty verdicts on all charges.

While defendants first argue that the trial court committed reversible error in admitting the previously suppressed handgun and related testimony, we agree with the trial and appellate courts> that defendants invited or "opened the door" to this evidence. Consequently, we need not consider the propriety of the search which revealed the gun. Defense counsel's entire cross-examination of one of the arresting officers, which the trial court held "opened the door" to this evidence, consisted of the following:

"[DEFENSE COUNSEL]: Officer Munkvold, at the time of the arrest of Mr. Bailey and Mr. Payne, they were searched, were they not?

[ASSISTANT STATE'S ATTORNEY]: Objection.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Basis?

[ASSISTANT STATE'S ATTORNEY]: In fact, I'll withdraw ...


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