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08/26/87 the People of the State of v. Paul Mcgee Et Al.

August 26, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PAUL MCGEE ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

513 N.E.2d 885, 160 Ill. App. 3d 807, 112 Ill. Dec. 276 1987.IL.1243

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

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendants Paul McGee and Dennis Eason were charged jointly by information with home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a)(1)), armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)), armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2), unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10-3(a)), and residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-3(a)). After a jury trial, both defendants were convicted on all charges. Paul McGee was sentenced to a total of 18 years' imprisonment, and Dennis Eason was sentenced to a total of eight years.

Defendants appeal and raise the following contentions: (1) the police were not justified in making an investigatory stop of defendant McGee prior to his arrest; (2) the police lacked probable cause to arrest defendant Eason; (3) the photographic and lineup identifications of defendants made prior to trial were fruits of defendants' illegal arrests and should have been suppressed; (4) assuming that this court finds that the out-of-court identifications were fruits of the illegal arrests or remands for an evidentiary hearing on that issue, at which hearing the out-of-court identifications are found to be "fruits," then another hearing is required to determine whether the in-court identifications were tainted by the out-of-court identifications; (5) the trial court improperly prejudiced the jury against defendant McGee by allowing a police file photograph with the words "subject participated in a burglary" written on the back to go to the jury during its deliberations; (6) defendants were denied a fair trial because the State elicited testimony that the complaining witnesses had failed to identify anyone but defendants, despite viewing numerous photographs, thereby improperly bolstering the witnesses' identifications of defendants with irrelevant prior consistent statements.

For the reasons stated below, the judgment of the circuit court of Cook County is affirmed.

Prior to trial, a motion to quash arrests was filed on behalf of both Eason and McGee. At the hearing on the motion, the following evidence was adduced. On November 28, 1983, at about 7:04 p.m., Wilmette police officers Kwielford and Devorek received a radio broadcast from the Kenilworth police that an attempted burglary of a home located one-half block from the Plaza del Lago shopping center in Wilmette had just been reported. The broadcast did not give a description of the offender or offenders or of a vehicle, but did provide a "vague" description of a shoe pattern found in the mud at the scene.

Kwielford and Devorek drove to the parking lot of the shopping plaza. Kwielford got out of the car near the intersection of 10th and Sheridan. Devorek drove into the lot. Kwielford then received a radio call from Devorek and began to walk toward the north end of the parking lot. The north end of the lot was used by tenants of a nearby apartment complex and patrons of a nearby arcade shop. The remainder of the large parking lot was used by patrons of the stores located within the plaza. Near the south end of the lot was a Jewel food store, which was open on the night in question. Kwielford testified that he believed that one other store in the plaza also was open at the time. A short time earlier, it had snowed lightly. The snow had stopped prior to the time the officers arrived at the shopping center.

Parked at the north end of the lot was a car in which Kwielford could see a person sitting in the passenger seat. That person was defendant Paul McGee. There were several cars parked at the north end of the lot, but this was the only car that did not have snow on it. Kwielford approached the car. As he came to the passenger side of the car, he observed a flashlight and a pair of gloves on the front seat, and a ski mask on the hump between the driver's seat and passenger seat. Kwielford asked McGee to step out of the car. McGee was not armed. As McGee got out of the car, Kwielford saw a pry bar on the floor of the car. He also observed that McGee's shoes were muddy and that there were no muddy footprints near the car.

Kwielford asked McGee what he was doing there. McGee said he was waiting for his friend. Kwielford asked McGee where his friend was, and McGee replied that he did not know. Kwielford then asked McGee his name and date of birth. Kwielford ran a name check on McGee which showed that there was an outstanding warrant for his arrest out of Skokie. Kwielford then arrested McGee, and McGee was taken to the police station by another officer.

Kwielford then called Wilmette police officer Mueller to come to the parking lot and "sit on [a] car that was parked in the parking lot." Before Mueller arrived and within several minutes after McGee was arrested, defendant Dennis Eason walked up to the car from the direction of the Jewel store. Eason was carrying a bag containing some goldfish crackers. Kwielford asked Eason his name and what he was doing there. Eason replied that he went to Jewel to purchase some goldfish crackers. Kwielford looked in the bag and saw some goldfish crackers and a time-stamped receipt that read 7:10 p.m. The time then was about 7:20 p.m.

Officer Mueller then arrived at the parking lot. Mueller looked at the bottom of Easons's shoes and then left to go to the scene of the reported attempted burglary. Mueller then called Kwielford and told him to bring Eason to the scene of the attempted burglary. Kwielford handcuffed Eason, told him he was being taken in for investigation, and transported him to the scene of the attempted burglary. While at the scene, Mueller removed one of Easons's shoes and compared it to the print which had been left in the snow and mud.

At the close of the hearing, the trial court granted the motion to quash arrests. The State then filed a motion for reconsideration. The court granted the motion for reconsideration and vacated its earlier order quashing the arrests. A motion for substitution of Judges was made and granted. The matter then proceeded to trial. The testimony at trial indicated the following.

On October 12, 1983, at around 10 a.m., two black men, one taller than the other, entered the Evanston home of Regina Nash. Nash and her housekeeper, Ms. Hortense Plummer, were the only people in the house. The men gained entry to the home by pretending to deliver flowers. One of the men had a gun. The men took Nash and Plummer to separate rooms in the house and tied them up. Various items were taken from the house.

After the offenders left, Nash called the Evanston police. Detectives Michael Perry and Robert Page arrived and interviewed the victims regarding descriptions of the offenders. Nash and Plummer were taken to the Evanston police department and shown numerous photographs, but failed to make any identifications. Nash and Plummer provided descriptions of the offenders from which police detective Robert Simmons prepared composite sketches. Copies of the composite sketches were distributed to various police agencies.

Between October 12, 1983, the date of the incident, and December 5, 1983, Nash and Plummer failed to identify anyone from police photographs. Detective Perry testified that none of the photographs shown to Nash or Plummer prior to December 5 included a photograph of either defendant. On December 5, 1983, Plummer tentatively identified the defendants from police photographs. She confirmed the identifications at a lineup conducted two days later. Nash identified defendant Eason at the lineup. She identified McGee at the subsequent preliminary hearing. Both Nash and Plummer identified the defendants at trial.

Following trial, the jury found Eason and McGee guilty on all counts. The trial court sentenced McGee to 18 years' imprisonment for armed robbery, 18 years for home invasion, 15 years for residential burglary, and three years on each of two counts of unlawful restraint. The trial court sentenced Eason to eight years' imprisonment for each charge of armed robbery, home invasion, and residential burglary, and three years for each of two counts of unlawful restraint. All sentences were to run concurrently. Both Eason and McGee filed notices of appeal. Their cases were consolidated for purposes of appeal. I

On appeal defendants initially argue that the police were unjustified in making an investigatory stop of defendant Paul McGee. Defendants assert that McGee was "seized" within the meaning of the fourth amendment when the police ordered him out of the parked car. (Terry v. Ohio (1968), 392 U.S. 1, 16, 20 L. Ed. 2d 889, 903, 88 S. Ct. 1868, 1877.) They maintain that the investigatory stop of McGee was made without the "reasonable and articulable suspicion" to believe that defendant had committed a crime, as is required by Terry. The facts known to Officer Kwielford at the time he seized McGee amounted to a mere hunch, defendants assert, which was insufficient to justify the seizure.

Specifically, defendants look to the Terry test of whether the facts available to the officer at the time of the seizure "'warrant a man of reasonable caution in the belief' that the action taken was appropriate." (392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880.) In applying the Terry test to these facts, defendants note that the radio report that the police officers received failed to give any description of the offender(s) or of a vehicle. Further, Kwielford testified that McGee was not doing anything of a suspicious or criminal nature prior to the seizure. Kwielford also admitted that none of the objects he saw before the seizure necessarily indicated criminal behavior. Kwielford admitted that a flashlight is not necessarily a burglary tool and that it was not unusual to see someone with a ski mask in late November. Further, the trial court conceded that those items were consistent with legitimate activity (People v. Beroukas (1981), 98 Ill. App. 3d 990, 994, 425 N.E.2d 5, 9) when it vacated its initial order granting the motion to quash.

Defendants maintain that the "sum total" of Kwielford's knowledge was that a black man was sitting in the passenger seat of a parked car in an open shopping center at a time and place close to an attempted burglary in a white residential area. The trial court initially found, at the close of the hearing on the motion to quash arrests, that McGee was stopped based on Kwielford's "sixth sense" about a black man sitting in a white residential area. The court held at that time that the officer's "sixth sense" was not a constitutionally sufficient justification. Defendants contend that this was a proper ruling that should have been upheld. The fact that McGee was black and the neighborhood was white does not justify the intrusion. (People v. Watson (1972), 9 Ill. App. 3d 397, 400, ...


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