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People v. Pleshko

OPINION FILED DECEMBER 23, 1983.

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

v.

JOSEPH PLESHKO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Stephen A. Schiller, Judge, presiding.

PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was found guilty of burglary and received a prison term of four years. (Ill. Rev. Stat. 1981, ch. 38, par. 19-1.) On appeal he contends that: (1) the trial court admitted evidence of unrelated criminal activity; (2) defense counsel incompetently failed to object to the admission of said unrelated crimes and lacked knowledge of the basic concepts of criminal procedure; (3) the evidence did not establish guilt beyond a reasonable doubt; (4) the prosecutor improperly commented on defendant's failure to testify; and (5) the trial court failed to give the proper jury instruction on circumstantial evidence. We affirm.

Initially, we note that nearly half the record on appeal is devoted to extensive pretrial proceedings which address defendant's motions and arguments thereon. Because defendant contends, for the most part, that his privately retained counsel provided inadequate legal representation, we will set forth the pertinent facts of the pretrial hearings before discussing the merits of this cause.

The record reveals the defendant and co-defendant Rick Moutrey were arrested in Chicago at approximately 9:15 p.m. on August 6, 1980, while they were conversing with friends in the vicinity of Hamlin and Wellington Streets. Both men were subsequently charged with one count of burglary. Prior to trial, on April 1, 1981, a hearing was held on defendant's motions to quash his arrest, to suppress his post-arrest statement and for a separate trial

First, defendant argued that his arrest was unlawful because he was unaware that a warrant was outstanding at the time and because the arresting officer, James Gillespie, neither had a warrant nor reasonable grounds to take defendant into custody. In rebuttal, Gillespie testified for the State that while on patrol he received a radio assignment that a man who was wanted on a burglary warrant was in the 2900 block of Hamlin Street. Gillespie stated that he and his partner, James Bart, proceeded to that area in their squad car and upon arrival they saw defendant and others standing near a parked motorcycle. Gillespie asked for identification and was promptly shown everyone's drivers licenses. He then handcuffed defendant, informed him that he was under arrest and took him to the fourteenth district police station. After checking the police computer Gillespie discovered three arrest warrants under defendant's name.

On cross-examination, Gillespie stated that defendant was neither shown nor read an arrest warrant and that he had not seen defendant at any time prior to the day of the arrest.

The State next called investigator Thomas Spanos who testified that on March 6, 1980, he talked to Roberta McColm in her apartment which was located in the 2900 block of North Hamlin Street. Also present were the burglary victims, Martha Latka, and her daughter. Spanos stated that McColm admitted that she had received some of Latka's property from defendant. McColm then showed Spanos a strobe light which Latka acknowledged was hers.

Following defendant's objection to a question to Spanos about his further investigation of this case, a side-bar conversation ensued where the State explained that it sought to prove that a warrant had been issued for defendant's arrest. Defense counsel stressed that the arrest was improper because he had never seen such document and if one existed defendant should have been given a copy. The State countered that although the arresting officer did not have the warrant with him, one had in fact been issued on March 20, 1980, for the burglary which occurred on March 3. The State offered to stipulate that defendant was not shown the warrant, but defense counsel interrupted and said he intended to show that there was no probable cause for the arrest in the first place.

Still testifying for the State, Spanos said that during his investigation of the burglary he spoke with Wesley Frauen on March 6, 1980. Frauen had not been placed under arrest but was brought to the station to be questioned. Frauen stated that on March 3 he rented his car to defendant and Moutrey for $25. Spanos testified further that Latka's neighbor had informed her that a vehicle (which matched the one that defendant and Moutrey had rented) was parked behind Latka's house and that someone got out of the car and went into the yard. Another neighbor told Latka that she recognized the car and knew who owned it. The owner turned out to be Wesley Frauen.

Testifying further, Spanos stated that he conferred with State's Attorneys and later secured a warrant for defendant's arrest.

Spanos was then impeached on cross-examination when he admitted that he had testified at defendant's preliminary hearing that he was the one who arrested defendant but that he had also testified before the court in the instant matter that another officer had in fact arrested defendant. After eliciting further testimony from Spanos that neither Frauen's nor defendant's brother's statements were the sole basis for the investigation of this case, defendant rested.

Defendant then argued that the testimony of Officers Gillespie and Spanos revealed a discrepancy as to who arrested defendant and that a question remained as to why Gillespie had failed to obtain a copy of the warrant. Defendant urged that this arrest was unlawful because he was forced to rely on Gillespie's "word of mouth" that a warrant existed and because the State failed to show how Gillespie knew, other than by a radio call, that a warrant had been issued. The State countered that it would rely on the court's ability "to apply the law to the facts."

Denying defendant's motion to quash his arrest, the court reasoned that Gillespie's testimony that he received radio information that a warrant existed and that he was the officer who physically took defendant into custody was unrefuted. Moreover, the court ruled, case law is replete with authority that while an arresting officer must have reasonable grounds to believe that a warrant existed, he need not have the warrant itself in his possession. Also, probable cause to arrest was properly based on the statements of Wesley Frauen, defendant's brother, the observations of the burglary victim's neighbors and the officer's view of the stolen strobe light which Latka identified and which Roberta McColm said defendant gave to her.

Concerning Spanos' testimony that he was the one who arrested defendant, the court explained that Gillespie brought defendant to the police station and that shortly thereafter Spanos spoke with defendant. Whether Spanos believed he was placing defendant under arrest or not was unimportant, the court reasoned, since the arrest was made when defendant was taken into custody by an officer who had reasonable grounds to believe that a warrant existed.

Defendant's motion to suppress his post-arrest statements was addressed next. Officer Gillespie testified for the State that following the arrest he informed defendant of his Miranda rights and that defendant responded that he understood them. Defendant was then taken to the fourteenth district police station and placed in a lockup cell.

On cross-examination Gillespie reiterated the above facts and further stated that he did not know whether defendant was subsequently interrogated at the police station.

Detective Daniel Kepp next testified for the State that he and Detective Baraniak were present when Spanos showed defendant a waiver of rights form. Kepp said that Spanos asked defendant a series of questions which he (Spanos) typed as well as the answers defendant provided. Upon completion, defendant read the statement, made corrections and signed his name. Testifying further, Kepp stated that defendant was not promised leniency nor was he told that if he cooperated the police would help to get his bail lowered and that he would be given probation.

Under cross-examination Kepp stated that the question and answer session with Spanos proceeded uninterruptedly and that four people were present: defendant, Kepp and Detectives Spanos and Baraniak.

The State next called Spanos who testified that prior to questioning he informed defendant of his Miranda rights, that defendant acknowledged that he understood them, signed a rights waiver form and agreed to give a written statement. Detectives Baraniak and Kepp were present but did not ask any questions. After giving a statement, defendant signed it in Spanos' presence. Shortly thereafter defendant's father arrived.

Cross-examination of Spanos disclosed that defendant was interrogated for approximately one hour. At the close of Spanos' testimony the court received the State's exhibit of defendant's statement into evidence.

In rebuttal, defendant examined his brother, Walter Peter Pleshko, who testified that because Spanos threatened him with being charged as an accessory and said that Ms. Latka had threatened to have defendant murdered, he falsely told Spanos that defendant admitted to him that he (defendant) was involved in the burglary. After defendant was arrested he called his brother, who brought their father to the police station. Walter Peter Pleshko testified further that at the station Spanos said that defendant had been very cooperative and was not in trouble because he was so helpful and that he guaranteed that defendant would only receive a probationary sentence. Under cross-examination, Walter Peter Pleshko said that defendant had not admitted that he participated in the burglary although defendant had suggested that some of his friends may have been involved.

Defendant's father, Walter Peter Pleshko, Sr., was then called to testify. He said that he visited defendant at the police station and that he spoke to Spanos who stated that defendant had been cooperative.

Defendant testified next. He stated that after he was placed in custody at the station for approximately 1 1/2 hours Spanos introduced himself, took defendant to a room and told defendant that if he would cooperate he would not go to jail, that Spanos would help to get defendant released and would get his bond lowered. Defendant stated that he was cooperative, answered questions and gave a statement because he was afraid. He read only parts of his statement and said that Spanos made certain corrections which defendant initialed. ...


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