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12/31/87 the People of the State of v. Larry Mcgee

December 31, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LARRY MCGEE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

520 N.E.2d 836, 165 Ill. App. 3d 833, 117 Ill. Dec. 485 1987.IL.1969

Appeal from the Circuit Court of Cook County; the Hon. Michael B. Getty, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE QUINLAN delivered the opinion of the court. CAMPBELL and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Larry McGee was charged by information with violation of section 24-1.1 of the Criminal Code of 1961 for possession of a weapon as a convicted felon. (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1.) Following a jury trial, McGee was convicted and sentenced to a term of five years' imprisonment. McGee appeals, seeking a reversal of the trial court's denial of his motion to quash his arrest and suppress the evidence obtained from the alleged illegal detention. McGee also seeks a reversal of the jury verdict entered against him and contends that a denial of due process occurred when the prosecution was allowed to present the prejudicial evidence of his prior rape conviction to the jury even though it was an element of the crime with which he was charged. McGee also challenges the constitutionality of the unlawful possession of firearms by felons statute (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1) on equal protection and due process grounds.

The underlying incident occurred on January 18, 1986, when an armed robbery took place at the intersection of 55th and Halsted Streets in Chicago, Illinois, at about 4:15 p.m. Plainclothes Chicago police officers Kaider and Collins were in a patrol car at 56th and Halsted when they heard the "flash message" radio simulcast of the robbery over their police radio. The broadcast described the assailants as two black men, one of whom was wearing a black leather coat. The officers began looking for the suspects and within three minutes of the flash message they spotted two black men talking with two women in the alley behind 5530 South Emerald. One of the men, later identified as Larry McGee, was wearing a three-quarter length black leather coat. The officers identified themselves, drew their guns, and ordered all four persons to place their hands on the garage wall. As the group began to turn towards the wall and raise their hands upward, Larry McGee also turned toward the wall, but he only raised his left hand and with his right hand he pulled a gun out of his pocket and threw it into the backyard of 5530 South Emerald. Thereafter, a .22 caliber revolver loaded with four rounds of ammunition was recovered from the yard of 5530 South Emerald. After McGee was arrested, the officers drove him to the site of the armed robbery, where the victim was unable to positively identify him as the assailant. However, because of McGee's 1980 felony conviction for rape, McGee was charged with violation of section 24-1.1 of the Criminal Code (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1), unlawful possession of a firearm by a felon.

At the trial below, the Judge reserved ruling on the defendant's motion to quash his arrest and suppress the evidence until after hearing the State's case through the testimony of Officer Kaider. Officer Kaider testified as to the circumstances surrounding his detaining and searching Larry McGee. He testified that during the search the defendant turned to face the garage wall, raised his left hand to the wall, and with his right hand reached into his pocket and took out a gun, which he then threw into the backyard of 5530 South Emerald. Officer Kaider identified the .22 caliber revolver at trial as the same one which he had recovered from the backyard of South Emerald on January 18, 1986.

After hearing Officer Kaider's testimony, the court then excused the jury and heard argument on the defendant's motion to quash and suppress. The trial Judge denied the motion, finding that the officer had a reasonably articulated suspicion to stop and frisk McGee as required under section 107-14 of the Illinois Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1985, ch. 38, par. 107-14.) The court found that McGee was properly stopped and frisked because he was spotted within three minutes of hearing the "flash message," was within a block of the robbery scene, was wearing a black leather coat, and generally matched the broadcast description of the assailant. After finding that the officers had sufficient articulable suspicion to stop and question the defendant, the court also found that the nature of the crime, armed robbery, gave the officers grounds to search for a weapon pursuant to section 108-1.01 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1985, ch. 38, par. 108-1.01.) At the close of the State's evidence, the defendant then moved for a directed finding but that motion was summarily denied.

Following the denial of the motions to quash, to suppress and for a directed verdict, the defendant presented his case. The jury heard the testimony of the defendant and Barbara Potts. The defendant and Ms. Potts' both claimed that the defendant did not have a gun, although Ms. Potts testimony was based on the fact that she never saw a gun on the defendant's person that afternoon and did not observe him discarding it during the search. Officer Kaider and Ms. Potts both testified that there was no one else in the backyard of 5530 South Emerald at the time the defendant allegedly threw the gun into the yard. The jury returned a verdict finding the defendant guilty of unlawful use of weapons by a felon and the court subsequently sentenced McGee to five years' imprisonment. The defendant now appeals, seeking a reversal of his conviction.

The issues presented for review are whether the trial court properly denied defendant's motion to quash his arrest and suppress the evidence; whether evidence of defendant's prior felony conviction improperly prejudiced the jury and denied defendant due process even though the felony was an element of the crime with which he was charged; and whether the unlawful use of weapons by a felon statute is unconstitutional.

The defendant first contends that the trial court should have granted his motion to quash his arrest and suppress the evidence obtained from his allegedly illegal detention. The defendant argues that his initial detention was not warranted and cites People v. Steckhan (1983), 116 Ill. App. 3d 173, 452 N.E.2d 122, in support of his contention that the police had an insufficient reason to stop and question him. In Steckhan, the defendant was stopped and questioned based solely on the tenuous factors that he "was the last passenger to de-board the plane, was young, walked slowly through the concourse, looked over his shoulder, and his flight originated in a source city." (116 Ill. App. 3d at 177-78.) McGee asserts that Officer Kaider and Officer Collins, like the officers in Steckhan, had an insufficient articulable suspicion to initially detain him, because the area in which he was detained is about 90% black and there were many people in the vicinity that fit the description of the robber on the flash message. The defendant distinguishes People v. Canity (1981), 100 Ill. App. 3d 135, 426 N.E.2d 591, in which this court found sufficient suspicion based on the fact that in that case the court found that the race of the defendant was different from any of the apartment complex residents. The defendant further argues that the present case was not a situation where he had attempted to flee when he saw the officers approaching the group, as did the defendant in People v. Vena (1984), 122 Ill. App. 3d 154, 460 N.E.2d 886, and thus there was no "consciousness of guilt" exhibited here to warrant detention. Accordingly, defendant concludes that, under the totality of the circumstances, the officers had insufficient reason to detain or arrest him because the flash message description was too generalized to distinguish him from the many other persons in the area at the time of the stop who could have fit the description.

On the other hand, the State argues that the arrest and search were proper and that the trial court's decision was not against the manifest weight of the evidence. In Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, the United States Supreme Court held that a police officer must have a sufficient reasonable articulable suspicion that the defendant has been involved in a recent crime to warrant an investigatory stop. This standard has been codified in the Illinois Code of Criminal Procedure, section 107-14 (Ill. Rev. Stat. 1985 ch. 38, par. 107-14), to permit a police officer to "stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense." The State cites People v. Lumpp (1983), 113 Ill. App. 3d 694, 447 N.E.2d 963, where this court found sufficient probable cause to arrest a defendant where the flash message described the offenders as a black man and a white woman, and the defendant, who was black, was found in the area of the crime shortly after it happened in the company of a white woman. In Lumpp the court upheld the arrest even though, as here, the only eyewitness to the crime was unable to identify the defendant. (113 Ill. App. 3d at 704, 447 N.E.2d at 972.) The State argues further that the officers need only have had a reasonably prudent belief that the defendant had committed the crime, based on their knowledge of the totality of facts and circumstances (People v. Jackson (1986), 145 Ill. App. 3d 789, 792, 495 N.E.2d 1359, 1361-62), and that their suspicion that defendant was the offender "must have been based on more substantial facts and circumstances than would support a mere hunch [under these facts and circumstances and], . . . yet less substantial than those necessary to support a finding of probable cause to arrest" (People v. McGowan (1977), 69 Ill. 2d 73, 77-78, 370 N.E.2d 537, 539). The State asserts here that the trial court's finding that the officers had sufficient articulable suspicion to stop and then to search the defendant was not against the manifest weight of the evidence and should be affirmed by this court. People v. Williams (1974), 57 Ill. 2d 239, 311 N.E.2d 681.

The facts at the time of the stop, as found in the record, were that the defendant was a black male wearing a black leather coat and was in the company of another black male. Thus, the defendant here did fit the description of the offender that was simulcast to the officers. Additionally, the defendant was found one-half block east and one-half block south of the armed robbery site within three minutes of the simulcast. Moreover, as noted, the defendant was wearing a black leather coat, which had also been described in the simulcast. Ms. Potts admitted on cross-examination that McGee and his companion had arrived only minutes before the officers arrived. Under the totality of the circumstances here, the officers had the minimum articulable suspicion ...


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