SUPREME COURT OF ILLINOIS
508 N.E.2d 708, 116 Ill. 2d 474, 108 Ill. Dec. 397 1987.IL.505
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Donald Lowery, Judge, presiding.
JUSTICE WARD delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case. CHIEF JUSTICE CLARK, specially Concurring. JUSTICE SIMON, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD
The defendant, William Cabrera, was found guilty of murder, robbery and burglary by a jury in the circuit court of Cook County (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), 18-1, 19-1) and was sentenced to a term of 60 years for murder and to extended-term concurrent sentences of 14 years for burglary and robbery. The appellate court affirmed the convictions but reduced the defendant's sentence for burglary and robbery to seven years. (134 Ill. App. 3d 526.) We granted the defendant's petition for leave to appeal (103 Ill. 2d R. 315).
On this appeal the defendant claims (1) the trial court erred in finding that the police had probable cause to arrest him; (2) he was denied the right to be tried by a fair and impartial jury; (3) the State failed to prove him guilty of burglary beyond a reasonable doubt; and (4) the trial court abused discretion in imposing a 60-year extended-term sentence.
On February 12, 1981, Yoel A. Keena, a 74-year-old man, was found dead in a back room of the Assyrian National Foundation (the Foundation) at 1475 West Balmoral Street in Chicago, where he had been temporarily living. Investigating Detective Thomas Sappanos found that entry had been made through a broken window in the office of the foundation and that the premises had been ransacked and a cash box broken into. Sappanos also discovered a receipt for Thomas Cook traveler's checks with the name of the victim; however, no checks were found. The next day, February 13, Sappanos spoke with Dr. Shaku Teas concerning the results of the autopsy she performed on the victim and was informed that the cause of death was "[s]trangulation and subdural hemorrhage [, bleeding underneath the fibrous membrane forming the outermost layer covering of the brain,] due to blunt trauma."
Learning that some of the victim's traveler's checks had been used to make purchases of clothing, Detectives Sappanos and Thomas Keane, on February 20, went to the "Different Circle" store in the Century Mall in Chicago. There they questioned Derrick Moore, assistant sales manager, about the purchase made with the stolen checks. Moore informed them that three men came to the store at about 8 p.m. on February 11; he assisted two of the men while they browsed through the store, and a saleslady assisted the third man (whom Moore later identified on April 7, as Ruben Lopez) in the purchase of a red jacket, a white shirt with a Popeye logo, and a necktie. The purchase was made with a Thomas Cook traveler's check, and an identification card bearing Lopez' picture was used. The three men remained in the store for about 20 or 30 minutes. Moore watched as they went into the "Saturday's Generation," a store across from the "Different Circle." Shortly thereafter, Moore observed the three men leaving that store carrying two shopping bags, one with the name "Different Circle," the other with "Saturday's Generation."
On February 23 Moore, after looking through approximately 200 police photographs or "mug shots" at the Chicago Area 6 police station, identified a photograph of the defendant as a picture of one of the men present in the store at the cashing of the check. Moore also told the detectives that the defendant had "a large scar going from his ear down in a diagonal line towards his neck" which was not shown in the photograph. That evening, Sappanos and Keane went to the defendant's apartment at 5523 North Kenmore in Chicago, but he was not there.
The next day at about 5:30 p.m., Sappanos received a telephone call at the police station from a clerk-receptionist at the defendant's apartment house, informing him that the defendant had just returned. Sappanos and Keane, without an arrest or search warrant, immediately went to the defendant's apartment, knocked at his door and identified themselves. The defendant, wearing only gym shorts and looking as though he had just taken a bath or a shower, opened the door. When he did, the detectives observed the scar on his neck and informed him that he was under arrest. They gave him the Miranda rights and told him that they "were investigating a homicide, [and] the fact that he had been identified as a person being involved in cashing the [traveler's] checks from the homicide." Upon the defendant's consenting, the detectives made a cursory search of the apartment; nothing was taken. The defendant later claimed that the officers unlawfully entered his apartment, came into his bathroom while he was taking a bath, and told him he was under arrest for murder and burglary. While he was dressing, the detectives searched his apartment without his consent, taking three photos of his girlfriend, the title to his car, his driver's license, and his social security card. The detectives denied these allegations.
The defendant was then taken to the Area 6 police station, where, at approximately 6:30 p.m., he was placed in an interview room. In the room, Detective Keane again informed the defendant of his Miranda rights. Sappanos then questioned the defendant about the stolen traveler's checks and the murder, but the defendant denied knowledge of either incident. The detectives then left the defendant in the interview room, returning at approximately 9 p.m. with a sandwich and drink for the defendant. Shortly thereafter, Detectives Sappanos, Keane and Chris Grogman asked the defendant to sign a consent form to search his apartment. The defendant signed the form and remained in the interview room. During the search of his apartment, the detectives did not find anything related to the murder or cashing of the traveler's checks.
At about 5 p.m. on February 25, Sappanos and Keane entered the interview room to question the defendant, and again prior to questioning, he was given his Miranda rights. The defendant told the detectives that he had not been truthful about the check-cashing situation. At first, the defendant told the detectives that Lopez had approached him with the checks, saying that he "had found the traveler's checks in the alley." The defendant then changed his story and said that Lopez informed him that he had obtained the checks by "ripping off a place" next to a dog-grooming parlor, which, as Sappanos testified, was next door to the Foundation. Lopez and he then went to the shopping mall "and cashed the checks." Subsequent to the questioning, Detectives Sappanos, Keane and Grogman left the station with the defendant, as he agreed to show them where Lopez lived.
Arriving at the 1400 block of West Summerdale in Chicago, Sappanos and Keane left the squad car to locate Lopez' apartment, while Grogman remained with the defendant. Upon finding the apartment, Sappanos and Keane obtained, from Lopez' mother and sister, a signed consent to search the apartment. Sappanos found a white shirt with a Popeye logo and took it to the squad car where the defendant identified it as one of the items purchased with the stolen traveler's checks. Grogman took the defendant back to the police station, then returned to Lopez' apartment to continue the search. He found an identification card, to which a picture of Lopez had been affixed, that was later identified by Derrick Moore as the card used by Lopez in cashing the traveler's checks. Sappanos, Keane and Grogman went back to the station, and two other detectives completed the search. They found the red jacket that had been purchased at the "Different Circle" store.
Early on February 26, after providing the defendant with a sandwich and soda, Sappanos and Keane gave the defendant his Miranda rights another time. Again the defendant told the detectives that he had not been totally truthful about the homicide incident. He told them that on the night before the checks were cashed he and Lopez had entered the Foundation by going through a broken window in the office. Once inside, Lopez told him to "search in the front" of the Foundation. There, he found a metal cash box, pried it open, and took $40 which was in the box. The defendant said that, while he was in the front office, Lopez went to the back of the Foundation where he found the victim, who had been awakened by the intrusion. The defendant saw Lopez strike the victim twice; however, the weapon was not described. (The autopsy referred to "strangulation" and "blunt trauma.") The defendant then went to the back room and searched the victim's pockets, where he found the victim's traveler's checks. He and Lopez then left the premises, Lopez taking the traveler's checks from the defendant, and the defendant keeping the $40. The defendant stated that on the following day Lopez told him that he was going to cash the traveler's checks and that if he, the defendant, would come along, he would buy something for him (the defendant). The defendant said he agreed and then gave Lopez $20 of the $40 dollars taken from the cash box. The defendant stated that several items of clothing were purchased with the checks, including a red jacket.
After the defendant's statement to them, the detectives called in an assistant State's Attorney to take the confession. Before taking the confession, the assistant State's Attorney gave the defendant the Miranda rights, which the defendant indicated he understood. In his confession the defendant repeated what he had told Detectives Sappanos and Keane. However, he added that Lopez, using the stolen checks, bought him a pair of yellow corduroy pants and a pair of purple and black dress pants that he had pointed out to Lopez in the "Different Circle" store. (Apparently the defendant erred in this, as the record indicates that the pants were purchased from the "Saturday's Generation" store.) Later that morning, the defendant signed his confession, initialed each of its pages and corrected an error in the transcription of it. A few hours later, the defendant signed another consent form, agreeing to a second search of his apartment. That search produced, as Sappanos testified, the two pairs of pants Lopez had bought for the defendant.
The defendant does not contest the trial court's determination that there were exigent circumstances at the time of his arrest so as to justify the warrantless arrest. Nor does he challenge the finding of voluntariness of his confession, and he acknowledges that numerous times he was given his rights under Miranda.
The defendant first argues that the trial court erred in denying the motion to quash his arrest for lack of probable cause. Citing People v. Creach (1980), 79 Ill. 2d 96, and People v. Carnivale (1975), 61 Ill. 2d 57, the defendant says that the question is whether probable cause to arrest him arose merely because he was in the presence of a person who had used stolen traveler's checks in making a purchase, and for whom the police had probable cause to arrest. He says there was no probable cause to arrest and that all statements and physical evidence obtained by exploitation of his illegal arrest must be suppressed. Too, the defendant notes that the trial court's statement that the defendant was "the person that passed the traveler's check belonging to the deceased," is in direct contradiction to Derrick Moore's trial testimony that the defendant was not the person who made the purchase with the victim's traveler's check. The State, citing People v. Pickett (1973), 54 Ill. 2d 280, argues that the defendant has waived the issue of probable cause by failing to raise it at trial or in his post-trial motion for a new trial. We consider, however, that the record adequately shows that the defendant preserved, for review, the issue of probable cause. We need not address the defendant's argument that the trial court erred in stating that the defendant made the purchase with the victim's check, for there was probable cause to arrest on wholly independent grounds.
"Probable cause exists in the objective sense if '". . . the facts and circumstances within the arresting officer's 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."' [Citations.] This standard requires more than mere suspicion, but it does not require the arresting officers to have in their hands evidence sufficient to convict the defendant. The courts, in striking a balance between the need to protect citizens from invasions of their privacy at the whim of police officers and the countervailing need to allow leeway for efficient enforcement of the laws, are sensitive to the fact that policemen must often make their decisions to arrest or not to arrest under ambiguous circumstances and must exercise their judgment, at the risk of making a mistake. 'In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' [Citation.]" People v. Moody (1983), 94 Ill. 2d 1, 7-8.
In reviewing a trial court's denial of a defendant's motion to quash an arrest for lack of probable cause, this court will not disturb a trial court's finding of probable cause to arrest unless that finding was manifestly erroneous. People v. Clay (1973), 55 Ill. 2d 501, 505; People v. Summers (1981), 100 Ill. App. 3d 170, 175; People v. Calderon (1980), 85 Ill. App. 3d 1030, 1036.
The defendant seriously misstates the issue when he says it is simply whether the defendant's being with a person who purchased merchandise with a stolen traveler's check gave probable cause to arrest. It seems clear that the police had other significant information from which probable cause to arrest was reasonably inferred.
Derrick Moore, from the "Different Circle" store, looked through approximately 200 police photographs before identifying a photograph of the defendant as one of the men who was present at the time the purchase was made with the stolen traveler's check. Too, Moore told the detectives that the defendant had a large scar on his neck; a scar that was not visible in the photograph. At trial prior to identifying the defendant's picture, Moore testified that, after speaking with the investigating officers, he had gone to a police station and "looked through pictures, mug shots." The defendant's attorney moved for a mistrial on the ground that the reference to "mug shots" was prejudicial. The motion was denied. Later when the prosecution was moving for the admission of various exhibits, including the police photograph of the defendant that Moore had picked out, Mr. Lyster, the defendant's attorney, objected to the photograph's admission. The record reads:
"MR. RAAB [Prosecutor]: People's Exhibit Number 43 for identification, having been identified as a colored photograph of the defendant, William Cabrera, being identified by Derrick Moore at Area 6 Violent Crimes vicinity on the 23rd of February, 1981; and also having been identified by Detective Thomas Sappanos as the photograph that was in fact identified by Derrick Moore on that day and at that place.
MR. LYSTER: Your Honor, I will object to that. That is the mug shot. Of course, it has his breastplate in front of him, indicating his RIWR number on January 21, 1980.
I think, obviously, it would be prejudicial for it to be admitted, even if it is altered or modified, or clipped, because you would further focus attention on the bottom photo by even covering it. In other words, if we covered the bottom of it with any kind of piece of paper. Obviously, you don't have to be -- you know, all you have to do is be a Sam Spade to know what this photo is." (Emphasis added.)
The trial court, after telling the prosecutor, who was arguing for admission of the photograph, that the jury would be shown whatever exhibits were admitted in evidence, denied its admission. Thus, the officers had a Chicago police department mug shot of the defendant with an identification board, and as his attorney complained, the mug shot indicated his Chicago police department identification number and referred to January 21, 1980.
Detective Thomas Sappanos and Thomas Keane were the principal officers in the murder investigation, but at least two other officers were assigned to the investigation, Sappanos testified. Sappanos testified, too, that he prepared about four investigative reports prior to the defendant's arrest on February 24 and that he made a specific report on the identification of the defendant before he and Keane arrested him at 5523 North Kenmore Avenue in Chicago. It is apparent that the police, from the defendant's mug shot with his name and the police identification number, were able to examine the Chicago police department reports regarding the defendant and could ascertain his record and address. Thus, they were able to arrest him at his apartment at 5523 North Kenmore Avenue in Chicago. As stated, Detective Sappanos testified that he prepared a report on the identification of the defendant before his arrest. He certainly would have examined the Chicago police department records of the defendant.
At the time of the defendant's arrest, it must be reasonably concluded that the detectives had knowledge of the defendant's entering and leaving the store with Lopez, the man who cashed the murder victim's check; that his Chicago police department mug shot, with his police identification number, had been identified by Moore; and that from the mug shot they ascertained the information appearing in the Chicago police department records regarding the defendant.
That information included a record of the defendant's convictions for burglary and attempted burglary. At the hearing on the defendant's motion to quash arrest and suppress evidence the State introduced copies of these convictions for burglary and attempted burglary.
Other information in the police department records which was available through the defendant's so-called "rap sheet" or criminal record appears in the record before us in the presentence investigation report. It discloses other burglary arrests, including one on January 21, 1980, which date the defendant's attorney said appeared ...