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People v. Branch

OPINION FILED APRIL 6, 1984.

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

v.

TIMMY BRANCH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of murder and sentenced to a term of 40 years. On appeal, he contends that (1) his arrest was made without probable cause; (2) the trial court coerced the guilty verdict (a) by making improper remarks, and (b) by giving a prejudicially inaccurate deadlock instruction to the jury; (3) his right to cross-examine a State witness was erroneously restricted; (4) testimony that he was a suspect in an unrelated homicide was improperly admitted; and (5) he did not receive effective assistance of counsel.

At trial, James Boyd, A.L. Myrick and James Myrick related essentially the same version of the events that transpired in this case. Their testimony established that they and several other friends, including Frank Rawls, James Smith and the victim Andre Lofton, were in front of the Myricks' apartment building in Chicago at about 8 p.m. on November 3, 1981, when defendant approached the group. Rawls accused defendant of having robbed him, whereupon a fight ensued between the two men which ended when some shots were fired nearby by an unknown person, causing everyone to run from the scene. About 45 minutes later, the group (except for Rawls) had reassembled in front of the building when A.L. Myrick saw defendant running toward him carrying a shotgun. The streetlights were on, and he was able to see defendant's face clearly as he passed within two feet. James Myrick then hollered, "There's some guy with a gun," and all of the group ran into a nearby building. Boyd and James Myrick heard four or five shotgun blasts, and upon looking back they saw Lofton lying facedown on the stairs of the building. A.L. Myrick also heard several shotgun blasts. When the police arrived, Boyd told them that defendant was the man who had chased them with the shotgun, and the next day Boyd identified defendant from a group of police photographs. On February 13, 1982, Boyd and A.L. Myrick separately viewed a lineup and identified defendant as the gunman.

Officer Collins testified that during the early evening of November 4, 1981, he interviewed Boyd at the police station, and later that night he and his partner went to the crime scene where Boyd identified a picture of defendant as the person carrying the shotgun. He then returned to the police station, where a warrant for defendant's arrest on a charge of murder was issued.

Officer Altman, of the Elmhurst police department, then testified that on February 11, 1982, as he passed a Convenient Food Mart on York Road at about 3:15 a.m., he noticed a white-over-blue 1973 Mercury which he knew did not belong to the owner of the store, parked in a stall facing the building. Ten minutes later, it was still there but had been turned around to face the street, and when he drove into the lot to investigate, he saw three men inside. A check on the license plates disclosed that they belonged to a 1974 Chevrolet which had been reported stolen in Chicago. He then radioed for a backup unit, and when it arrived the car was stopped and the occupants were asked for identification. Defendant, who was sitting in the right front seat, produced a Colorado driver's license bearing the name "Ray Green," but a computer check thereof indicated no such license on file in that State. The officer also visually compared the license to that of a sample in a book containing pictures of all State driver's licenses, and determined therefrom that it was not a valid Colorado license. He and his partner remained on the street for about 15 minutes, attempting to establish defendant's true identity, and because he was uncooperative, they transported him to the police station where they subsequently learned through a fingerprint check that his real name was Theo Branch and that there was an active warrant for his arrest for a murder in Chicago.

Chicago Detective Sanford testified that he and his partner transported defendant from Elmhurst to a police station in Chicago, where his Miranda rights were read to him, and he was told that he had been identified as the gunman in the November 3 murder of Andre Lofton in Chicago. Defendant then admitted that he was there with three other persons; that he had a .38-caliber weapon in his hand; and that, during a shootout which was provoked by a previous robbery and subsequent fight between one of his friends and a man named "Frankie J.," Loften was killed.

Beverly Chapman, the sole defense witness, testified that she was defendant's common law wife and, in mid-October 1981, she and their daughter were living at the Salvation Army Emergency Lodge at 800 West Lawrence Avenue in Chicago. At about 11:30 a.m. on November 3, 1981, defendant, who was unemployed at the time, came there in a cab and took her to a dental appointment after which they shopped, looked at some apartments, and then spent a few hours with defendant's friends at a lounge a few blocks from the scene of the shooting. Defendant took her back to the lodge at about 8 p.m., went inside with her for a few minutes, and then left in the waiting cab. She identified a copy of the log sheet — which residents of the lodge were required to sign each time they left or returned thereto — indicating that on the day in question, she signed out at 11:45 a.m. and returned at 8:05 p.m.

OPINION

We first consider defendant's contention that his arrest lacked probable cause. Specifically, defendant maintains that his arrest was based upon the unfounded suspicions of the arresting officer, arising solely because he was a passenger in a car bearing improper license plates rather than on a reasonable belief that he was, or had been, engaged in criminal activity. He argues that even if the initial stop of the vehicle was valid, the investigating officers had no reason to presume that he was aware of or in any way responsible for the license plate violation, and thus their questioning should have been confined to the driver of the automobile. His corollary argument is that the information obtained from the officers' demands that he produce identification should have been suppressed as the fruit of this illegal arrest.

Initially, we note that defendant filed no pretrial motions to quash his arrest or suppress evidence obtained therefrom, nor did he raise this issue in his post-trial motion. Failure of the accused to challenge the legality of his arrest in the trial court generally constitutes a waiver thereof for purposes of review. (People v. Calderon (1981), 101 Ill. App.3d 469, 428 N.E.2d 571; United States ex rel. Johnson v. Illinois (7th Cir. 1972), 469 F.2d 1297.) Defendant urges, however, that the waiver rule is inapplicable here because the absence of these motions was due to the incompetency of his counsel, which he cites as an additional ground for reversal. The cases have held, however, that it is not incompetence for counsel to refrain from raising issues which, in his considered judgment, are devoid of merit unless his appraisal of the merits is patently incorrect. People v. Frank (1971), 48 Ill.2d 500, 272 N.E.2d 25; People v. Stanley (1978), 62 Ill. App.3d 638, 378 N.E.2d 1351.

In this regard, we note that section 107-14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 107-14) provides that a police officer "may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed" a violation of a penal statute, and may demand the person's name and address as well as an explanation of his actions. To be reasonable, the officer's decision to stop must be based upon specific and articulable facts combined with any reasonable inferences therefrom. People v. Scarpelli (1980), 82 Ill. App.3d 689, 402 N.E.2d 915.

Here, uncontradicted testimony established that while on a routine patrol, the arresting officer first observed the automobile in which defendant was an occupant parked in the lot of an all-night grocery store at 3 a.m. and became suspicious when, upon passing the store 10 minutes later, he saw the car still there but turned around to face the street. Driving through the lot to get a better view of the vehicle, he observed three men inside, but despite his suspicions of them, he continued on through the lot and out to the street without further investigation. Immediately thereafter, the car exited the lot and followed him until he turned into a gas station. Upon returning to the street when the car had passed, he saw some objects being thrown from the right window, but it was not until a check of the license plates disclosed that they belonged to an automobile which had been reported stolen that the officer made an investigatory stop of the vehicle. Thus, we are not persuaded by defendant's characterization of this stop as one predicated on mere suspicion or by his corrollary argument that even if the display of "improper" license plates constitutes a violation of the law, *fn1 knowledge thereof or responsibility therefor cannot be imputed to a passenger of the automobile.

• 1 It is our view, however, that defendant and his companions were engaged in conduct which justifiably aroused the suspicions of the investigating officer, and that upon learning that the license plates were stolen, the officer possessed sufficient reasonable grounds to believe that he was confronted with a situation involving a crime, e.g., theft or possession of stolen property (Ill. Rev. Stat. 1981, ch. 38, pars. 16-1(a), (d)) and was thereby justified, under section 107-14, in stopping the vehicle and requiring each of its occupants to identify himself and explain his actions. (See People v. Lippert (1982), 89 Ill.2d 171, 432 N.E.2d 605, cert. denied (1982), 459 U.S. 841, 74 L.Ed.2d 85, 103 S.Ct. 92; People v. Georgev (1967), 38 Ill.2d 165, 230 N.E.2d 851.) The identification produced by defendant was determined to be false; but, even so, it was only after an additional 15 minutes of persistently refusing to cooperate with the police that defendant was transported to the police station, where a check of his fingerprints disclosed his identity and that there was an active warrant for his arrest. Therefore, it is our judgment that defendant's presence in a car lawfully stopped for bearing stolen license plates, coupled with his production of false identification and his subsequent refusal to voluntarily give the police the information he was obliged to give, justified their action of transporting him to the police station for further investigation. Under these circumstances, we believe that motions to quash defendant's arrest and suppress evidence therefrom would have been unavailing, and we find no incompetency in his counsel's failure to file them.

• 2 Defendant next contends that certain remarks by the trial court, followed by the giving of a prejudicially incomplete deadlock instruction, coerced the ...


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