Appeal from the Circuit Court of Lake County; the Hon. Harry
D. Strouse, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 31, 1984.
This is the consolidated appeal of Maverick Tyler, Jr., and Sammie Tyler who, together with Charles Campbell, their sister's common law husband, robbed two sailors in North Chicago, grievously injuring one with a shotgun blast. Campbell's convictions in a separate appeal were vacated in part, affirmed in part, and the cause remanded with directions. (People v. Campbell (1984), 126 Ill. App.3d 1028.) The Tylers were tried separately on Lake County indictments charging them with one count each of attempted murder, aggravated battery (while armed with a dangerous weapon), and armed violence (caused great bodily harm while armed with a dangerous weapon), and two counts of armed robbery. (Ill. Rev. Stat. 1981, ch. 38, pars. 8-4(a), 9-1(a)(1), 12-4(b)(1), 12-4(a), 33A-2, and 18-2.) Each defendant was convicted by a jury of all counts except attempted murder, and was sentenced to the Department of Corrections for concurrent terms of 20 years for armed robbery, 20 years for armed violence, and five years for aggravated battery.
They jointly contend there was no probable cause for their arrest and the statements flowing therefrom should have been suppressed, and that their sentences are excessive. Individually, Sammie Tyler contends numerous trial errors cumulatively deprived him of a fair trial, and that the wilful destruction by police of notes made during his interrogation deprived him of due process. Maverick Tyler contends denial of transcripts and a continuance violated the Brady rule and deprived him of the effective assistance of counsel, his motion to exclude in-court identification should have been allowed or hearing granted, and admission of a photograph of the victim's shotgun wound deprived him of a fair trial.
Facts common to both trials show the following sequence of events. Two sailors stationed at Great Lakes Naval Center in North Chicago, Kenneth Kleinworth and Joseph Craig Dindlebeck, were returning to the base about 10:30 p.m. on September 15, 1982. It was payday for the two men, and they had been on their way to a bar on the "strip," but decided to return to base instead so Kleinworth could prepare for a test the next day. Earlier they had been out "cruising" with another person named Jennings, and the three had shared a six-pack of beer.
As they walked southbound on Sheridan Road and approached the viaduct near 19th Street, they noticed three black men at the top by the Elgin, Joliet & Eastern Ry. Co. tracks. One of the men was holding what Kleinworth and Dindlebeck thought was a stick. They soon realized the stick was a sawed-off shotgun when the three men ran down from the tracks toward them and announced a robbery. Charles Campbell was identified as the gunman from mug shots and at his trial by both Dindlebeck and Kleinworth, but neither of the sailors could identify Sammie or Maverick Tyler from police mug shots or a photographic line-up. Kleinworth, however, later identified Maverick Tyler in court over the defendant's objection as being the unarmed assailant who was wearing a baseball cap which was later found at the scene. Kleinworth testified he had not seen any of the defendants since September 15, except that earlier on the day of trial, at the courthouse, he by chance sat down two chairs away from Maverick Tyler and recognized him as the one who had worn the baseball cap which was admitted at trial.
Campbell was identified as having pointed the shotgun at Kleinworth and repeatedly jabbed at him with the gun, prodding him toward the bushes, threatening to shoot him if he did not move. Meanwhile, the other two robbers jumped Dindlebeck, knocking his glasses off, and took his wallet containing approximately $20. When Kleinworth did not give up his money as demanded, Campbell shot him in the upper inside left thigh, rolled him up enough from his fallen position to reach his wallet, took it, and all three fled. Dindlebeck testified a second shot was fired at him as the robbers ran.
It was stipulated at both defendants' trials that the testimony of the treating physician, if called to testify, would be that Kleinworth suffered extensive soft tissue and nerve damage to his leg, and had lost approximately 70% use of his leg. It was also stipulated that the doctor would testify that plaintiff's exhibit No. 11, a photograph of Kleinworth's leg, accurately portrayed the injury as it appeared on September 15, 1982, and that the scar at the knee was the result of surgery performed to open circulation of blood to Kleinworth's lower leg. Kleinworth's disability rendered him unable to perform his duties required on board a ship, and proceedings for his medical discharge from the Navy were instituted.
On the date Campbell was arrested, September 30, Sammie and Maverick Tyler went to the police station and told North Chicago police detective VanDien that Campbell could not have been involved in the robbery because the three of them had been riding around Waukegan looking for women. Sammie Tyler admitted on cross-examination at his trial that he was lying when he gave that explanation. Sammie Tyler testified at his trial that he was at home drunk on the night of the robbery. At his trial, Maverick Tyler denied ever giving the explanation to VanDien that Campbell was with him and Sammie driving around looking for women. Maverick's alibi at trial was that he was with his girlfriend, Penny Malcolm, during the afternoon and into the evening hours of September 15, both of them retiring for bed about 11 p.m. Both defendants agreed on September 30 to let the police photograph them, and they left the station. Detective VanDien testified at Sammie Tyler's trial that Maverick Tyler was wearing a baseball cap on September 30. Also, at Sammie Tyler's trial, Detective VanDien testified in rebuttal that he talked with the defendants' sister, Joyce Fleming, on October 1 and that she told them that she, Campbell, Maverick and Maverick's girlfriend, Penny Malcolm, were all at home together at 1801 Victoria in North Chicago on the 15th, and that Sammie Tyler was out of town with a friend. At Sammie Tyler's trial, Joyce denied she told VanDien that Sammie Tyler was out of town. She testified he was at home, drunk, on the night of the 15th and, as noted previously, Sammie Tyler testified to that as well. Penny Malcolm, Maverick Tyler's girlfriend, testified at his trial that she and he were together on the 15th, shopping and running errands earlier in the day, and riding around, watching TV and drinking later that day until 11 p.m., when they went to bed.
Arrest warrants were secured for both defendants, and they were arrested on October 7. After being advised of their rights and signing waiver forms, each gave a tape-recorded statement, confessing his involvement in the robbery. Each moved prior to trial to suppress his statement, but the court denied the motions. The tapes were admitted in evidence and played for the respective juries without objection at either trial, and prepared transcripts of the tapes were also admitted.
As noted, the defendants were each found guilty of all of the offenses charged except attempted murder. Further facts necessary to an understanding of the issues raised are included below.
MOTIONS TO QUASH ARREST AND SUPPRESS EVIDENCE
Both defendants contend there was no probable cause for the issuance of warrants for their arrest and their statements resulting therefrom should have been suppressed. They argue the complaint for warrant was nothing more than complainant Detective VanDien's conclusion that the respective defendants had perpetrated the offense, and that the information supplied by him to the issuing judge was insufficient to establish probable cause to arrest. They argue the mere fact they provided statements exculpating Campbell on the basis he was with them on the evening in question cannot be used as an admission of their complicity simply because Campbell had been identified by the victims of the crime as the robber with the gun. Allowing their arrest on the basis of such an "admission" would, they posit, enable the police to arrest every positively identified defendant's alibi witness.
They additionally argue that VanDien's omission to tell the issuing judge that both victims had been shown pictures of the defendants and had not been able to identify them was deliberate, and a reckless disregard for the truth.
The State responds there was sufficient probable cause for the issuance of the arrest warrants and if probable cause is found to have been lacking for issuance of the warrants, the State alternatively argues there was nevertheless sufficient probable cause to make a warrantless arrest of the defendants. It points out the issue of VanDien's omission to inform the issuing judge of the victim's inability to identify photographs of the defendants was not specifically raised below and, as such, is waived for purposes of review.
We agree this last issue was not specifically raised below at trial or in the defendants' post-trial motion and, therefore, it is waived. (People v. Lucas (1981), 88 Ill.2d 245.) Further, although we agree the record supports the defendants' contention the warrants were issued without sufficient probable cause presented to the issuing judge, we nevertheless affirm the trial court's denial of the motion to quash and suppress on the basis there was sufficient probable cause to arrest the defendants without a warrant.
Section 107-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 107-2(1)(a), (c)) provides that a valid arrest may be made when a warrant has been issued, or there are reasonable grounds to believe that the person to be arrested is committing or has committed a crime. "Reasonable grounds" and "probable cause" are synonymous for purposes of arrest. (People v. Davis (1981), 98 Ill. App.3d 461.) The legality of an arrest is tested by the presence or absence of probable cause, and not by the presence or absence of a warrant. (People v. Weathers (1974), 18 Ill. App.3d 338.) A warrant for the arrest of the person complained against shall be issued if it appears from the contents of the complaint, and the examination of the complainant, that the person had committed an offense. (Ill. Rev. Stat. 1981, ch. 38, par. 107-9(c).) In passing on the validity of a warrant, the reviewing court may consider only information brought to the attention of the judicial officer issuing the warrant. (People v. Lindner (1980), 81 Ill. App.3d 15; see Aguilar v. Texas (1964), 378 U.S. 108, 109 n. 1, 12 L.Ed.2d 723, 725 n. 1, 84 S.Ct. 1509, 1511 n. 1.) However, when probable cause for a warrantless arrest exists, it follows that an arrest is not invalidated because it was made pursuant to an invalid warrant. (People v. Pierce (1980), 88 Ill. App.3d 1095; People v. Lindner (1980), 81 Ill. App.3d 15, 18.) Because a court's pretrial ruling on a motion to suppress is not final and may be changed at any time, review of the court's ruling may include consideration of evidence received during trial after the conclusion of the suppression hearing. (People v. Sakalas (1980), 85 Ill. App.3d 59, 65; People v. Conner (1979), 78 Ill.2d 525, 532; People v. Turner (1976), 35 Ill. App.3d 550, 567; People v. Braden (1966), 34 Ill.2d 516, 520.) Probable cause for arrest is something less than evidence necessary to result in conviction (People v. Frye (1983), 113 Ill. App.3d 853), and whether probable cause exists in a particular case depends on the totality of the facts and circumstances known to the officers when the arrest is made. People v. Walls (1980), 87 Ill. App.3d 256.
• 1, 2 In our view, the warrant issued here was invalid. Detective VanDien testified the basis for the warrant presented to the issuing judge was that (1) Campbell had been identified as the gunman by both of the robbery victims and (2) the defendants' statements on September 30 that Campbell was with them from approximately 6 p.m. on September 15 to 1 a.m. on the 16th. The record fails to show the issuing judge was advised of any other facts which would justify a conclusion that the defendants were connected in any way to the commission of the crime, save for their statements, which were intended to be exculpatory of Campbell. Maverick Tyler, in fact, later denied he made the exculpatory statement, stating that he only told the police Campbell "didn't have nothing to do with it" and that they were together on the 13th or 14th, not on the 15th. Sammie Tyler, at his trial, did not deny making the statement on the 30th, but testified that he was lying when he made the statement. The facts presented were insufficient to enable the issuing judge to make an independent determination of probable cause. Consequently, the warrant issued was invalid. The record does show, however, that Detective VanDien had more than a "bare suspicion" or "hunch" that the defendants were involved in the armed robbery, and the defendants' arrests, therefore, were lawful. (People v. Sanchez (1982), 107 Ill. App.3d 240; People v. Bell (1981), 96 Ill. App.3d 857.) A police officer has probable cause to arrest if facts and circumstances within his knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Sanchez (1982), 107 Ill. App.3d 240.) In addition to his knowledge of the facts presented to the issuing judge, VanDien was aware that three black men were involved in the robbery; one of the men other than Campbell wore a baseball cap and had a somewhat long, combed-down Afro hair style; the victims' general physical descriptions of the robbers were consistent with the defendants' physical appearances; the defendants' statements on September 30 that they were with Campbell on the 15th were contradicted by statements made the next day, October 1, when the defendants, the defendants' sisters, Brenda Tyler and Joyce Fleming, and Penny Malcolm, Maverick Tyler's girl friend, were summoned to the police station. Detective VanDien testified Joyce Fleming told him at that time that Sammie Tyler was out of town with a friend on the 15th. It was noted at the suppression hearing that Campbell had stated he was with his common law wife, Brenda Tyler, on the 15th, and that Brenda Tyler had corroborated that statement. The State argued at the hearing that such false exculpatory statements are indicative of consciousness of guilt, and differing explanations and knowledge that an explanation offered is untrue are circumstances that have been considered in determining whether there was probable cause to arrest. (See People v. Gallardo (1983), 112 Ill. App.3d 764, 770.) Further, probable cause for an arrest is based on common sense probabilities. (People v. Sokolow (1981), 97 Ill. App.3d 1109.) We believe the facts known to Detective VanDien constituted sufficient probable cause for the defendants' arrests.
We conclude the arrest was validly made, even though the warrant as issued was invalid. Consequently, the defendants' statements obtained as the result of their detention need not have been suppressed. See People v. Fox (1982), 111 Ill. App.3d 243.
MOTIONS TO SUPPRESS STATEMENTS
• 3 Each defendant moved to suppress the statement he had made to the police after arrest, which was tape-recorded and also reduced to a typed transcript. Their motions were denied after hearing, and the jury in their respective trials listened to the tape, and was given a copy of the typed transcript.
Sammie Tyler argues his motion to suppress should have been granted because the State failed to provide a material witness at the suppression hearing. Further, he contends the court's ruling was against the manifest weight of the evidence in view of his testimony that he was intoxicated at the time he made the statement, and that the police unduly pressured him to make a statement. Maverick Tyler contends his statement should have been suppressed because promises of leniency were made, mental coercion was used, his constitutional rights were not afforded him and he was too intoxicated to have voluntarily waived them, and his allegations of police misconduct were unrebutted by the State.
The State contends Sammie Tyler has waived the material witness issue since it was not specifically included in his post-trial motion. The record shows Maverick Tyler's counsel interposed an objection during the suppression hearing argument to the absence of two witnesses he alleged were material to the voluntariness of his statement, Officer Phillips and Officer Millimaki. The State argued there the witnesses were not material since they were "in and out," Millimaki merely signed the waiver as a witness, and the defendant did not deny signing the waiver. Counsel for Sammie Tyler then stated she "would make the same argument for Officer Holderbaum, on Sammie Tyler's waiver." She failed, however, to specifically include this point in her post-trial motion, her supplemental post-trial motion, or during her argument on the motions. Consequently, it would appear the purpose of a post-trial motion to enable to the court to reconsider and correct an alleged error was circumvented. The court's attention was not drawn to any particular ...