Appeal from the Circuit Court of Peoria County; the Hon.
Richard Eagleton, Judge, presiding.
PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 16, 1983.
After a jury trial in the circuit court of Peoria County the defendant, Lester Mason, was found guilty of armed robbery. He was sentenced to life imprisonment as a habitual offender.
The first issue which we will consider on this appeal is the defendant's claim he was denied the effective assistance of counsel at his trial. More particularly, the defendant argues he was deprived of such effective assistance of counsel because his attorney neither moved to suppress or object to evidence which, according to the defendant, was illegally seized.
At about 11 a.m. on April 22, 1982, an armed robbery took place at Schoch's Market. Schoch, the store owner, and his sister, a clerk, were accosted by a man with a knife. In response to his threats they turned over to him $260 and he left the store. The robber was described as black, wearing a beige coat and a nylon stocking over his face. Schoch followed the robber out of the store, hailed a passing van and requested the occupants to follow the robber which they did. Schoch returned to the store and summoned the police. The occupants of the van, Jose and Anita Huerta, gave chase to the robber after he left the store. The robber had passed in front of their van and was wearing a camel coat and a nylon stocking over his head and carried a knife. They lost the robber when he ran down an alley and then into a fenced backyard. After waiting on the street, they saw another black male, having the same height, weight, build and color as the robber, come out of the building into the backyard of which the robber had run. This second black male, who was dressed differently from the first, then got into a car and drove away.
After watching the house for a few more minutes and seeing nothing else happen, the van occupants returned to Schoch's Market and told the police about following the robber to the house at 924 South Warren. Three police officers then went to the house pointed out by the van occupants. Officer Hoskins first knocked on the screen door but received no answer from inside. Hoskins then opened the screen door and knocked on the main door a couple of times. When the door opened by itself, the officers asked if anyone was there. Getting no response, they entered and conducted a complete search. During the search they discovered and seized a coat, nylon mask and a knife which items were later introduced as evidence and identified by the victims as being associated with the robber.
• 1 To support a claim of ineffective assistance of counsel the defendant must demonstrate:
(1) Actual incompetence of counsel, as reflected by the manner in which he functions as a trial attorney and
(2) Substantial prejudice to the defendant resulting from the incompetence (a showing that without the incompetence, the outcome of defendant's trial would probably have been different). People v. Hills (1980), 78 Ill.2d 500, 401 N.E.2d 523.
• 2 The question which arises in this case is whether the failure to file a pretrial motion to suppress evidence under the circumstances disclosed by the testimony can be characterized as actual incompetence. Like other phases of his representation, the pretrial phase of an attorney's activities are a part of his professional duties. Depending on the circumstances this may require the filing of pretrial motions to suppress confessions (People v. Neeley (1980), 90 Ill. App.3d 76, 412 N.E.2d 1010; People v. Odom (1966), 71 Ill. App.2d 480, 218 N.E.2d 116) or for the suppression of evidence (People v. Harter (1972), 4 Ill. App.3d 772, 282 N.E.2d 10). To the extent that the State argues that the decision to file or not to file a pretrial motion to suppress evidence is a matter of trial strategy or tactics not reviewable, we believe its reliance on People v. Gallardo (1983), 112 Ill. App.3d 764, 445 N.E.2d 1213, People v. Reppa (1982), 104 Ill. App.3d 1123, 433 N.E.2d 1091, and People v. Hines (1975), 34 Ill. App.3d 97, 339 N.E.2d 489, is misplaced. In each of the foregoing cases the court did proceed to review defense counsel's conduct even after suggesting such conduct was not reviewable. The notion that defense counsel's decision is not reviewable seems to have arisen from ideas such as those discussed in People v. Gray (1965), 33 Ill.2d 349, 211 N.E.2d 369, where defense counsel did not pursue a motion to suppress a confession because the defendant denied making any statements to anybody. The court in Gray observed that the practice had been not to permit hearings on suppression motions where the defendant denied making any statements and it was the attorney's decision based on this state of facts which was described as one of tactics. However, what is referred to is the general belief that an attorney is not required to raise futile, frivolous or nonexistent defenses.
Was defense counsel actually incompetent in failing to file a suppression motion in this case? We believe not.
• 3 Although the evidence was seized as the result of a warrantless entry into and search of defendant's premises, we believe the evidence supports the burden of the officers to establish the legality of the search under one of the exceptions to searches requiring warrants. Under the authority of People v. Abney (1980), 81 Ill.2d 159, 407 N.E.2d 543, and People v. Carmack (1982), 103 Ill. App.2d 1027, 432 N.E.2d 282, we conclude the entry and search were made under exigent circumstances, one of the generally recognized exceptions justifying warrantless searches. We believe from the testimony of the van occupants who followed the robber, watched the house and then summoned the police officers, it could well have been concluded the robber may have still been in the house. Both the testimony of the van occupants and of the police officers is consistent with this view, and we believe the entry and search of the premises was reasonable.
• 4 If the evidence should not have been suppressed then neither the decision of defense counsel to file a suppression motion nor his failure to do so can be considered actual incompetence. This being so, it follows the defendant was not denied the effective assistance of counsel.
The defendant next claims that the habitual-criminal statute (Ill. Rev. Stat. 1981, ch. 38, par. 33B-1 et seq.) is violative of due process under the fourteenth amendment to the United States Constitution and under article I, section 2 of the Illinois Constitution; and that it is violative of article I, section 8 of the Illinois Constitution, which requires that after indictment the defendant shall ...