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People v. Kelly

OPINION FILED JULY 10, 1985.

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

v.

LARRY KELLY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Jr., Judge, presiding.

JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

Defendant, Larry Kelly, was convicted of armed robbery by a jury and sentenced to 18 years in the Illinois Department of Corrections. On appeal defendant contends that (1) his arrest and the search of his car were illegal (2) the admission of three guns into evidence was improper and (3) he was prejudiced by the prosecutor's opening statement and closing argument. We affirm.

The victim, Willie Perkins, testified that on March 2, 1981, he and two friends, Anthony and Tommy Hickey, were at the home of Anthony and Tommy's sister. While there, the Hickey brothers conversed in the kitchen where Perkins could not hear them. Someone knocked at the door, and Anthony opened the door just wide enough so that he could slide out. Anthony remained in the hall for a couple of minutes. Perkins could not see who was in the hall. When Perkins and the Hickey brothers then left the apartment to go to Perkins' car, which was parked in the alley, the Hickeys walked approximately six feet ahead of Perkins. As Perkins approached the alley from the gangway, he heard someone say, "[H]old it, Slim." Turning, he saw a man wearing a red and white ski mask and holding a sawed-off shotgun. The man told him to lie on the ground, and he threatened to kill Perkins if he moved. The man took Perkins' handgun from him as well as $160 in cash, including three $50 bills. He did not, however, search Anthony or go near Tommy.

The robber ordered the Hickeys and Perkins to get in Perkins' car. They complied, and Perkins started driving up the alley. Perkins watched the man out his window, and when the robber disappeared from the alley, Perkins started to back his car to see in which direction the man had gone. The robber then jumped out of the gangway and fired twice. Perkins pulled forward, then backed up again when the robber entered the gangway. This time the robber jumped out and started running toward the car as he fired two more shots. When Perkins saw the robber, he put the car in forward gear and accidently ran into a garage. The Hickey brothers jumped out and ran in the direction of the robber.

Perkins drove to a lounge at 16th Street and Homan, where he called the police. Two uniformed officers arrived in a squad car with Anthony in the back seat. Perkins gave the police a description of the robber.

Approximately three hours after the incident occurred, Perkins went to a tavern called the Bucket of Blood. There, he spoke with Charles Jackson, and he then went to 19th Street and Kedzie to again call the police. Two plainclothes policemen came, and Perkins gave them the name of Ricky Kelly or Little Rick and told them that Kelly had a blue Cadillac and could be found near the Bucket of Blood. Subsequently, Perkins and Jackson were taken in a squad car to the Bucket. Perkins exited the car, and looking through a crowd of approximately 20 people, he pointed out defendant as wearing the same clothes as the robber. When defendant denied committing the crime, Perkins stated that he recognized the robber's voice.

Officer Jude Evans testified that he responded to the initial call regarding an armed robbery and that he spoke with Perkins and Anthony Hickey. He also responded to the later call that Perkins had additional information. After speaking with Perkins and Jackson, he went to 16th Street and Kedzie to look for Little Rick, who, according to Perkins, had perpetrated the robbery. The officer looked for an older model blue Cadillac and saw one parked on the street facing the wrong direction. Defendant was in the driver's seat, and Audrey Hickey was next to him. Anthony Hickey was in the back with another female. The officer saw defendant hand something to Anthony. Everyone was ordered out of the car. Defendant and Anthony were searched, and a .16-gauge shotgun shell was found on Anthony. A search of the car revealed a .12-gauge shotgun shell stuck in the driver's seat. After Perkins arrived and identified defendant, the officer placed defendant under arrest and brought him and Anthony to the 10th District.

Officer Evans further testified that after defendant was given his Miranda warnings, he stated that he was not the trigger man in the robbery but only the lookout, and he had split the proceeds with the Hickeys. Defendant identified the gunman as Anthony Mack, but when Perkins viewed Mack, he was unable to identify him. Finally, the officer stated that after asking defendant's girlfriend, Audrey Hickey, if she knew about the robbery and the location of the weapons involved in the robbery, he proceeded to the first-floor apartment at 3105 West 15th Street. At that address he recovered a .12-gauge sawed-off shotgun, a .16-gauge sawed-off shotgun and a pistol. Also, two live .12-gauge shells were recovered, one of which was in the shotgun.

The final witness to testify was a handwriting expert. She testified that a letter received by Perkins had been written by defendant. The letter was read to the jury, and in it the author apologized for the robbery and asked to make a deal so that he would not have to go to the penitentiary again.

Defendant first argues that his arrest and the search of his car were not based on probable cause, and therefore the fruits from the illegal arrest and search, Perkins' out-of-court and in-court identifications of defendant, defendant's statement to the police, and the shotgun shell found in defendant's automobile, should have been suppressed. In support of his argument, defendant states that the arrest and search were improper because the arresting officer did not know the underlying basis for the citizen-informer's conclusion that defendant had committed the armed robbery. We reject this argument.

At the hearing on defendant's motion to quash his arrest and suppress the evidence, defendant testified that on the evening of March 2, he had parked his car, a light green Cadillac, the wrong way in the parking lane in order to give another car a "jump." Anthony Hickey and two females were in the car. According to defendant, he was standing by the open hood to his car when police officers approached, told him that he had robbed someone and asked to search the car. Defendant did not give his permission. Defendant further testified that he did not hand anything to Hickey. The officers conducted a pat-down search of Hickey and himself. He was not handcuffed at this time. When the squad car arrived with Perkins and Jackson, Jackson jumped out and started yelling that defendant had robbed Perkins. The officers then placed defendant and Hickey under arrest. Defendant also testified that Perkins at first said that defendant was not the robber, but after talking to the officers several times, he stated that defendant was the robber.

Officer Evans testified that the second time he made contact with Perkins on the night of the occurrence, Perkins stated that he found out that it was Little Rick who had robbed him, that Little Rick hangs out near the Bucket, that Little Rick was seen with Anthony Hickey or dividing money with unknown Negroes, and that Little Rick would probably be in an older model blue Cadillac. Perkins told the officer that his information came from Charles Jackson. The officer asked Jackson if this information was true, and he replied that it was. The officer did not inquire as to the basis for Jackson's knowledge.

Officer Evans further testified that he went to the Bucket, where he saw an older blue Cadillac facing the wrong way. Defendant was in the driver's seat, and Audrey Hickey was next to him. Anthony Hickey was in the back with another female. The hood of defendant's car was not open, and no jumper cables were visible. As he approached the car, the officer saw defendant hand something to Anthony. A pat-down search led to a recovery of a .16-gauge shotgun shell from Anthony, and a search of the car led to the recovery of a .12-gauge shotgun shell that was stuck in the front seat. When Perkins arrived, he did not speak to anyone prior to identifying defendant. No police were standing next to defendant at the time the identification was made. The officer stated that he placed defendant under arrest before taking him to the 10th District.

Willie Perkins testified regarding the description of the robber he gave the officers and the information that he gave the officers which resulted from his conversation with Jackson. Further, he testified that when the police drove him to the area of the Bucket, they told him that there would be a crowd of people and that he should pick out the robber if he saw him. He first identified ...


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