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People v. Tobias

OPINION FILED JUNE 19, 1984.

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

v.

ROBERT TOBIAS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Robert Sklodowski, Judge, presiding.

PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 12, 1984.

A jury found defendant guilty of armed robbery, aggravated kidnaping and deviate sexual assault. Based upon his past criminal record, he was adjudged an habitual criminal and sentenced to life imprisonment. Defendant appeals, contending that: (1) evidence of a gun, holster and lineup identification was erroneously admitted at trial; (2) the sentencing statute is unconstitutional; (3) the assistant State's Attorneys' signatures on the sentencing petition were invalid; and, (4) defendant was improperly denied a continuance to prepare for his sentencing hearing.

The victim testified that on the night of March 14, 1981, she was accosted by a man with a gun as she attempted to unlock the front door to her house. At gunpoint, she was led down her front steps, past four other houses, to a dark gangway where she was sexually assaulted and robbed. The streetlights were lit, enabling the victim to see her attacker.

A Chicago police officer testified that on April 15, 1981, at 1:45 a.m., he and his partner received radio messages to the effect that a stolen vehicle, occupied by three black males, was being pursued by other policemen in the immediate area and later that the auto was abandoned and its occupants were fleeing on foot. As they approached the locale, they observed an abandoned vehicle. The officers drove through the area, known for its high crime rate of stolen vehicles. They observed three black males sitting in a parked car. The occupant in the back seat suspiciously crouched down when they approached. The three men were ordered out of the car. A pat-down search of defendant revealed an empty shoulder holster under his jacket. Using his flashlight, the officer observed a blue steel revolver on the back seat of the car. Defendant was arrested, placed in a lineup, and was identified by the victim as the man who attacked her one month earlier.

At a suppression hearing defendant testified that on April 15, 1981, at 1:45 a.m. he was sitting in the back seat of a parked car talking with two friends in the front seat. The car was not stolen nor in violation of any traffic laws. Police officers ordered him out of the car, proceeded with a pat-down search and discovered he was wearing an empty shoulder holster.

Prior to and at the close of trial, defendant's motions to quash the arrest and suppress the evidence of the shoulder holster and gun were denied. Evidence of the lineup identification, the victim's in-court identification of defendant, the shoulder holster and gun were submitted to the jury. Defendant was found guilty as first noted above.

At the sentencing hearing, after both parties stated they were prepared to proceed, defense counsel stipulated to certified copies of three 1969 convictions for rape, armed robbery and deviate sexual assault, which were not among the convictions in the presentence investigation report. After so stipulating, the State petitioned for a sentence of life imprisonment under the habitual criminal statute. (Ill. Rev. Stat. 1981, ch. 38, par. 33B-1.) Defendant's motion for a continuance, because he had no notice that such a petition would be filed that day, was denied; however, the court recessed for two hours. The State provided defense counsel with a list of witnesses to be called regarding defendant's prior convictions. When the court reconvened, defendant moved that the habitual criminal statute be found unconstitutional, which was denied. The State's petition was read to defendant in open court. Defendant denied the recidivist allegations in the petition and requested a hearing. During the hearing, the circuit court heard testimony from a witness who identified defendant as the man who robbed and raped her in 1960, giving rise to charges pending against defendant in another action. A police detective testified regarding defendant's prior arrests and convictions in 1969, 1972 and 1973. Over defense objection, the court then received certified copies of defendant's convictions in 1969, March 1973, and July 1973, together totaling convictions for three rapes, three deviate sexual assaults and three armed robberies. The court found defendant to be an habitual criminal and sentenced him to life imprisonment.

I

• 1 Defendant maintains that the evidence of the gun, holster and derivative lineup identification should have been suppressed because his arrest was unlawful, absent probable cause. An officer who reasonably believes a suspect to be involved in criminal conduct may stop the suspect and conduct a limited search of the person to protect himself from hidden weapons. (Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868; People v. Ellis (1983), 113 Ill. App.3d 314, 446 N.E.2d 1282.) The record reveals sufficient facts to support the officer's reasonable belief that defendant was involved in criminal activity, which included evidence that: the officer was radioed that another patrol car was pursuing a stolen vehicle in the vicinity, from which three black males exited and were fleeing on foot; the area was known for its high crime rate of stolen vehicles; he saw the abandoned stolen vehicle; and he observed three black males sitting in a parked car nearby, of whom defendant took off his hat and crouched down in the back seat. Based on these facts, the officer was justified in conducting the protective frisk.

• 2 The search revealed defendant was wearing an empty shoulder holster, which provided the officer with the basis for further search of the car since the gun could be nearby and still be used against him. (People v. Tilden (1974), 26 Ill. App.3d 447, 451-52, 325 N.E.2d 431.) The gun was in plain view on the back seat. An object in plain view may be lawfully seized without a warrant if viewed, as here, from a place where the officer has a right to be and circumstances known to him at the time give rise to a reasonable belief that the object constitutes evidence of criminality. (People v. David (1981), 96 Ill. App.3d 419, 421, 421 N.E.2d 312.) The arrest was lawful. For the foregoing reasons, defendant's claim that the gun, holster and lineup identifications were improper because obtained as a result of an illegal arrest also fails.

• 3 Defendant claims that the lineup identification was invalid as well because of the victim's poor opportunities to observe her assailant. Assuming defendant had not failed to raise this issue in his post-trial motion, and therefore waived it for purposes of review (People v. Hebein (1982), 111 Ill. App.3d 830, 842-43, 444 N.E.2d 782), the identification was based upon adequate evidence and was therefore valid. (People v. Brown (1972), 52 Ill.2d 94, 285 N.E.2d 1; People v. Goka (1983), 119 Ill. App.3d 1024, 458 N.E.2d 26.) Defendant maintains that the assault and robbery occurred in a dark gangway where the victim would have been unable to see well. There is sufficient record evidence indicating the victim was able to see defendant before reaching the gangway. The victim had ample opportunity to view defendant: she looked at defendant when he first accosted her; the street was well-lit; and she walked at defendant's side, looking at his face, as they proceeded past four houses.

II

• 4 Defendant claims the Habitual Criminal Act (Ill. Rev. Stat. 1981, ch. 38, par. 33B-1 et seq.) (Act) under which he was sentenced violates both the Illinois and the United States constitutions. In 1969, defendant was convicted of the felonies of rape, armed robbery and deviate sexual assault. In March 1973, defendant was again convicted of rape, armed robbery and deviate sexual assault. And in July 1973, defendant was again convicted of the same three felonies. Each of the aforementioned offenses contain the same elements as those now designated as Class X felonies, thereby fulfilling the initial requirements of the Act. (Ill. Rev. Stat. 1981, ch. 38, par. 33B-1(a).) The current offenses were committed: (a) on March 14, 1981, more than four months after the effective date of the Act; (b) within 20 years of the judgment entered on the first felony convictions in 1969; (c) after the second felony convictions in July 1973; and, (d) ...


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