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10/27/87 the People of the State of v. Donald Spicer

October 27, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD SPICER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

516 N.E.2d 491, 163 Ill. App. 3d 81, 114 Ill. Dec. 336 1987.IL.1595

Appeal from the Circuit Court of Cook County; the Hon. Philip J. Carey, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and STAMOS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Following a bench trial, defendant, Donald Spicer, was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)), armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2), and attempted armed robbery (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4, 18-2). Defendant was sentenced to concurrent terms of 40 years for three counts of murder and 15 years for attempted armed robbery. *fn1 On appeal, defendant contends: (1) eyewitness lineup identification evidence should have been suppressed as the fruit of an illegal arrest; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the trial court erred in failing to appoint substitute counsel and in failing to conduct a hearing on defendant's pro se motion for new trial alleging ineffective assistance of trial counsel; and (4) the trial court erred when it entered judgment and imposed sentence on three counts of murder where only one death occurred. For the following reasons we affirm in part and vacate in part.

The evidence shows that William Davis was shot and killed during the commission of an attempted armed robbery. On October 28, 1983, at approximately 4 p.m., two black men were "buzzed" into the premises of Venus Lingerie by the owner, William Davis. Employees Ruth Sanders, Mr. Davis' sister, and Pearl Jordan were there when the men entered.

Both men pulled guns as soon as they entered the premises. The men told Ms. Sanders and Ms. Jordan to place their purses on their desks and then asked what was in the back room. The women later told the police that one man was short and stocky and the other was tall and slender. Defendant was identified as the short man.

The tall man directed the women into the back room and ordered them to lie face down on the floor. When he noticed that Ms. Jordan was on her side, he kicked her. Both women were then tied with telephone cords.

The short man was with Mr. Davis in the entrance area and then followed him into the back office where the women were. As Davis came into the room, he saw the women tied up and said, "I don't believe you guys got bullets in those guns." Defendant responded that they did and then shot Davis.

Mr. Davis picked up an office chair and backed the two men out of the office area, out of the women's view. The women heard a struggle in the hallway, then a shot and then silence.

Shortly thereafter, Davis called to the women and told them that the men had left. The women freed themselves and went to Davis' aid. They found Davis sitting in the hallway bleeding and immediately phoned the police. Mr. Davis died while at the hospital.

Both women went to the police station that evening and described the assailants. One was a dark-skinned black man, short, stocky, and approximately 35 to 40 years old. The other was a black man with a medium complexion, tall, slender, and approximately 35 to 40 years old. Both men wore dark clothing but neither wore a mask. The office was well lighted and both women got a good look at the men. They told the police that they could identify the assailants but did not see either of the assailants in any photographs given to them that evening.

On November 4, 1983, seven days after the murder, detectives took a group of six photographs to Ms. Sander's home. There is conflicting testimony as to when the police took the photographs to Ms. Jordan's home for her viewing, but it was about the same time. Both women immediately identified the defendant from the photographs.

The evidence shows that the police selected this particular group of photographs, including the defendant's, because they knew that these six men associated with each other. There was also testimony that these six men, including defendant, had been acquitted in an unrelated case.

The police issued a "stop order" on defendant as a result of the eyewitness identification. The "stop order," issued November 4, 1983, directed law enforcement officials to notify detectives if the defendant was picked up for any violation. Detective DiGiacomo testified that one of the witnesses gave him the defendant's address at this time. The record is unclear as to how the witness knew defendant's address.

Sometime between 9 and 10 p.m. on November 15, 1983, 11 days after detectives knew defendant's address, Detectives DiGiacomo and Solecki went to defendant's apartment without a warrant. There is no evidence that the officers received any new information during these 11 days.

Defendant answered his door and allowed the detectives to enter. Four guests, two females and two males, were at defendant's apartment at this time. The defendant and the two detectives stepped into a room to talk. The detectives told the defendant that he had been identified from photographs shown to witnesses involved in a robbery and requested that he accompany them to appear in a lineup.

The defendant became "loud and abusive" and told the detectives that there was no way he was going anywhere with the officers. At this time, defendant backed the officers out of the apartment and locked the door behind them.

Detective Solecki went to call for assistance while Detective DiGiacomo remained in the hallway to guard the door. Defendant peeked out the door of his apartment a few minutes later to see if the officers were still there and promptly locked the door again.

About 10 or 15 minutes later, six to eight more officers arrived. Some of them remained on the street to watch the windows of defendant's apartment. The others knocked on defendant's door, announced who they were, and told the ...


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