Appeal from the Circuit Court of Du Page County; the Hon.
Charles Norgle, Judge, presiding.
JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 23, 1984.
In separate informations, defendants Harry Martin and Dennis McClinton were each charged with two counts of armed robbery, two counts of armed violence and seven counts of unlawful use of weapons. In a consolidated Jury trial on the armed robbery and armed violence counts, the defendants were each found guilty of two counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)) and two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). In the defendants' consolidated bench trial regarding the unlawful use of weapons charges, each was found guilty of two counts of unlawful use of weapons. (Ill. Rev. Stat. 1979, ch. 38, par. 24-1(a)(9).) Defendant Martin was sentenced to 35 years' imprisonment on each count of armed robbery, 35 years on each count of armed violence, and five years on each count of unlawful use of weapons. Defendant McClinton was sentenced to 30 years on each count of armed robbery, 30 years on each count of armed violence, and five years on each count of unlawful use of weapons. All sentences were to run concurrently for both defendants.
On February 18, 1981, at about 11 p.m., the defendants pushed their way through the rear door of an Oak Brook McDonald's restaurant during the course of a bread delivery. The defendants herded the employees into a corner and approached John Kasprzyk, the store manager. The defendant Martin was dressed in a snowmobile suit, wearing a ski hat and gloves and wielding a revolver. He pointed the gun at Mr. Kasprzyk's face, ordered the manager to the rear of the store, and then commanded him to open and empty the contents of the store safe into a bucket. The other employees were ordered into the walk-in refrigerator. The defendant McClinton, who was dressed in dark pants, ski cap, gloves, jacket and pinkish glasses, then took Mr. Kasprzyk at gunpoint to the front of the restaurant and directed him to empty the cash register drawers into the bucket. In addition to over $1,800, the defendants also took a white bank bag from the safe. On the bag were written the words "BACK UP."
One week later, on February 25, 1981, at approximately 11 p.m., the defendants were observed in the immediate area of a Darien McDonald's. When stopped, the officers found the two revolvers and the bank bag from McDonald's. Defendants were subsequently arrested and charged with armed violence, armed robbery and unlawful use of weapons.
On May 26, 1981, defendants filed two motions to suppress evidence. On June 8, 1981, a hearing was first held on the motion to suppress pertaining to the stop and search of the car in which Martin and McClinton were arrested.
The first witness on this motion was Harry Martin. He testified that on February 25, 1981, he was driving in his brother's Ford station wagon with Dennis McClinton as his passenger, when they were stopped by the Darien police. According to Martin, immediately after they were stopped, the arresting police officers stood about 10 or 15 feet away with their guns drawn, and told Martin to get out of the vehicle and put his hands on his head and walk toward them. None of the police officers approached the vehicle prior to the time Martin was ordered out of the car. When he was ordered to get out of the car, Martin turned to McClinton and told the other man to get out of the vehicle, and they then walked toward the police with their hands on their heads. When they reached the squad cars, Martin testified that the police threw them to the ground, placed shotguns and pistols against their heads and backs, and then proceeded to go to the car. Martin and McClinton were both searched, and they were then told to stand up and were placed against the squad car. Martin stated that after searching the defendant's car, an officer announced that he had found a bag but had not found what the police were looking for. The officer was told by a sergeant to keep searching. Martin thereafter heard the motor of his car turn off, and then a police officer hollered that he had found something in the glove compartment. Prior to this, Martin testified that the glove compartment had been locked. After the officers had opened the glove compartment, Martin and McClinton were taken over to the car and placed inside. Martin was read his rights and was told that the defendants were going to be taken to the police station, and that they were being arrested and held under investigation for an armed robbery.
The first witness for the State on this motion to suppress evidence was Darien Police Sergeant Edward S. Musial. His version of the events occurring on February 25, 1981, was quite different from that presented by the defendants. He testified that on February 25 he was in his car with another officer when he observed a Ford station wagon on Seminole Drive just north of Plainfield Road, directly across from a McDonald's in Darien. The vehicle first passed by the squad car and then backed up in front of them. At this time, Musial said he observed that a taillight lens was cracked on defendants' vehicle, although the light was operative. Defendants' car then turned around and parked on Seminole Drive for about a minute. Officer Musial then heard the car's engine start up again, the headlights came on, and the car moved onto Plainfield Road. The officer then testified that he lost the vehicle, but "two other officers stationed in the area someplace else viewed the vehicle the whole time." Musial and his partner subsequently saw the vehicle going eastbound on a different street. According to Musial, the defendants' car traveled directly in front of the police vehicle, pausing at a stop sign. In the light cast by the squad car headlights, Musial observed two male blacks in the interior of the passing car and noticed one was wearing a blue snowmobile suit, similar to that which one of the robbers had been wearing at the February 18 McDonald's robbery. The age of the two male blacks appeared to be the approximate age of the subjects mentioned in a police radio message regarding the previous McDonald's robbery. By the time the vehicle was actually pulled over by Officer Musial, at 10:45 or 10:50 p.m., five to 10 minutes had passed since the officer first observed the vehicle with the broken taillight lense.
Immediately after stopping the defendant's station wagon on Nantucket Street, Sergeant Musial ordered the occupants out of their vehicle. As they exited the car, the defendants were ordered away from the vehicle and directed to get on the ground. Subsequently, they were both patted down. While defendants were on the ground, Musial went up to the station wagon to check if there was anyone else hiding in the darkened vehicle. Musial testified that as he approached the vehicle, he could see on the floor a red bank bag marked with a McDonald's name, plus a blue ski mask, a blue knit cap and two pairs of gloves on the front seat. In a prior police radio message, and in a flier the officer had received concerning the Oak Brook McDonald's robbery, he had gained information that one of the robbers had worn a blue ski mask, the other had worn a blue knit cap, and they both had been wearing gloves. After finding the bag, gloves, and hat, Musial walked back to the squad car and gave his handcuffs to an officer so that one of the defendants could be handcuffed.
Musial then returned to the station wagon because he had additional information that one of the robbers had been armed with a 4-inch revolver and the other with a 2-inch revolver. According to Musial, he opened the unlocked glove compartment and found a 4-inch, .38-caliber revolver in "plain view," and a bank-type bag with the words "BACK UP" written on the bag. Inside the bank bag, he found a .32-caliber, 2-inch revolver inside a holster. Musial testified that he had looked in the glove compartment because "we were investigating two subjects in an armed robbery" and he wanted to check for weapons or other fruits of the crime.
A head security manager from McDonald's, who was present at the scene, identified the bank bag as having been taken from a McDonald's store in an armed robbery. Musial then advised the other officers that he believed that these were the two men who were wanted for investigation in an armed robbery. The two men were read their Miranda warnings and taken into custody.
Following the testimony of Martin and Musial, the trial court denied the defendants' motion to suppress and made the following finding:
"That the stopping of the vehicle based on the articulable suspicion was reasonable and the vehicle having been stopped and the observations of the police officer who testified as to what he saw in the vehicle, justified a further intrusion into the vehicle that is, the glove compartment."
A hearing was then held on a second motion to suppress. In this motion defendants requested the suppression of identification testimony on the grounds that the defendants had been illegally detained without being presented to a magistrate, and that during this period of illegal detention a counselless lineup was conducted. Both Martin and McClinton testified that initially they were denied an opportunity to call a lawyer at the Darien police station. Martin stated that he was told that he did not need to call an attorney because he was only being held for investigation. Martin and McClinton were held in the station house basement for approximately an hour, and then were taken upstairs to be photographed and fingerprinted. Afterwards, each defendant was permitted to make a phone call. Martin telephoned his fiancee and told her to contact his lawyer and inform the attorney of his location and predicament. McClinton called his mother.
Subsequently, the defendants were transported to the Oak Brook police station. They each testified that they were denied their requests to make another phone call from the second station house. Sometime during the morning of February 26, defendants were put in several separate lineups. There was no attorney present at any of the lineups, although Martin testified he requested his lawyer's presence. At the lineups, McClinton was identified by three of five witnesses, while Martin was identified by one witness.
After the lineups, McClinton was served with a complaint for armed robbery and an arrest warrant with a bond of $100,000. Martin received a copy of a charge for armed robbery and unlawful use of weapons, as well as a warrant from Chicago. Each defendant was also given a ticket for driving without a license and for having an inoperable taillight. On the morning of February 27, both defendants were taken before a judge.
The trial court denied defendants' motion to suppress the identification testimony and the case proceeded to a jury trial on counts I, II, III and IV charging armed robbery and armed violence. The defendants waived their right to a jury on counts VI and VII charging unlawful use of weapons on February 18, 1981 (date of robbery). Counts VIII through XII charging unlawful use of weapons on February 25, 1981 (date of arrest) were initially severed and later nolle prossed. Count V, charging unlawful use of weapons on February 18, was also nolle prossed.
At trial, the State produced a number of eyewitnesses to the February 18 robbery. Their testimony included identification of the defendants, identification of the items worn by defendants during the crime, and identification of the revolvers used by defendants.
During the presentation of witnesses, the defense renewed a prior motion in limine to restrict the State from bringing out the fact that defendants were arrested in the vicinity of the Darien McDonalds. The court denied the motion again. The attorneys for each defendant also renewed the motion to suppress ...