APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
543 N.E.2d 875, 187 Ill. App. 3d 860, 135 Ill. Dec. 307 1989.IL.1282
Appeal from the Circuit Court of Cook County; the Hon. Will E. Gierach, Judge, presiding.
JUSTICE HARTMAN delivered the opinion of the court. BILANDIC, P.J., and DiVITO, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN
Following a bench trial, defendant was convicted of murder and armed violence. The armed violence count was merged with the murder conviction and defendant was sentenced to 35 years in custody of the Department of Corrections, with three years of mandatory supervised release. Defendant appeals, raising issues concerning the legality of his arrest, the quantum of proof supporting his conviction and his sentence.
Upon defendant's motion to quash arrest and suppress evidence, the circuit court conducted an evidentiary hearing. Defendant testified that on November 9, 1984, at about 10 p.m., he was in his home on Honore Street in Harvey; heard a knock at the side entrance of the building; looked out a window and saw three men, Harvey police officers, standing on the porch, adjacent to the door. Defendant opened the door "slightly" and when one of the men, Detective Frederick Joseph, tried to "force [his] way in," defendant pushed the door shut. Defendant insisted the officers neither identified themselves nor displayed a warrant to him. When he asked them through the closed door whether they had a warrant, Joseph replied "No" and told defendant to open the door because they wanted to talk to him. Defendant complied and Joseph pulled him outside the house. All three officers began to strike him, defendant averred, telling him that he'd "never see the street again" and "You're going to jail, mother-fucker." The officers did not identify themselves until they were in the police car with him. Defendant was not asked to go to the police station, but was forced to do so.
Detective Joseph testified that at 3:40 p.m. on November 9, 1984, he and his partner, Wolfson Watson, arrived at an alley at 14712 Maplewood in Harvey to investigate a reported shooting. Joseph spoke to several residents of the surrounding area and learned from one detective at the scene that an individual had seen the suspected offenders leave the area in a "light top over gray primered GM-type car," either a Monte Carlo or a Cutlass. Other persons told the police they heard gunshots.
Joseph proceeded to Ingalls Hospital at 4:30 p.m. and there learned that the victim of the shooting, Robert Davis, had died. He obtained photographs of the body and went to Davis' home, where his mother identified the victim depicted in the photograph as her son. Benjamin Davis, the victim's brother, also at home, informed the police that he saw his brother at approximately 3 p.m. that day, riding in the front passenger seat of a "gray over light blue with primer 1975 Oldsmobile Cutlass"; "Jimmy Pugh" was driving the car and Marcus Hunter sat in the rear seat, passenger side. Benjamin described defendant as short and stocky, weighing approximately 150 pounds. He also gave the officers defendant's address.
Police officers went first to Hunter's house; when they informed Watson and Joseph that Hunter was not at home, they proceeded to defendant's residence on Honore Street at 7 or 8 p.m. Defendant's father told Watson and Joseph his son was not at home. They placed the building under surveillance and, at 10:10 p.m., observed two males walking south on the street. One entered the Pugh residence; the other continued walking. The officers stopped the individual who remained on the street and asked him who had just entered the Pugh house. He replied, "Jimmy Pugh."
Watson and Joseph knocked on the door of the house. When defendant answered, he was asked to step outside. Defendant did so, leaving the door behind him ajar. The detectives announced their office and said "[they] had to have him down at the station to talk to him about the shooting that occurred on Maplewood." According to Joseph, defendant then "attempted to flee back into the house." Watson grabbed defendant's arm, handcuffed him and placed him under arrest.
Joseph maintained that he and Watson were in plainclothes at the time of the arrest and that a uniformed officer joined them later on the porch. Although the individual who answered the door did not identify himself as James Pugh, Joseph averred he recognized defendant based on Benjamin Davis' description. Joseph admitted he had no warrant when he arrested Pugh and that defendant did not go to the police station voluntarily. He denied pulling defendant out of his house and saying, "You're going to jail, motherfucker."
Watson's testimony as to the events of November 9 tracked that given by Joseph except for the following points: Benjamin Davis described defendant to Watson and Joseph as a black male of medium to dark complexion, short in stature, with close-cropped hair and weighing about 150 pounds. After leaving the Davis residence, the detectives drove first to local hangouts and through the area where witnesses had seen defendant earlier that day. During their initial visit to defendant's home at 8 or 9 p.m., Edward Pugh, defendant's brother, told Watson and Joseph that he owned a 1976 Cutlass, light blue with gray primer on one of the doors, the keys for which he left on his dresser that day and knew neither where the car was nor who had it. Watson testified that they did not see the car described to them earlier at defendant's home. He insisted he never told defendant he'd "never see the street again" or "You're going to jail, motherfucker.", Defendant's motion to quash his arrest for lack of probable cause and to suppress evidence was denied.
At trial, Marcus Hunter, called by the State, testified that he was at a friend's house on the afternoon of November 9 when defendant drove up in a "gray prime" Cutlass. Hunter joined defendant in the car and they drove to a liquor store on 154th Street, where they purchased a six-pack. Hunter maintained that in the course of 10 minutes, he and defendant each drank three beers and shared a joint. They continued to drive until they saw Davis' brother, Nathaniel, who told them they could find Davis "around the corner" at the Davis home. Davis got into the car with Hunter and defendant; defendant stayed in the driver's seat, Davis took the front passenger seat, and Hunter went to the rear of the car, behind Davis.
After purchasing gas at 150th and Dixie Highway, defendant stopped the car in an alley near Maplewood Street. Defendant got out of the car, walked to and opened the front passenger door, and told Davis that he (defendant) "wanted his money." Davis responded, "What?" and got out of the car. Davis and defendant then began "tussling" or "wrestling." After the men fought for "a couple of minutes," Hunter got out of the back seat of the car to break up the fight and succeeded in "holding Robert back," when defendant reached into the back passenger seat of the car and retrieved a "big, black revolver." Hunter did not observe anything in Davis' hands. When he saw defendant advancing toward him with the gun, Hunter "dove" back into the car, and defendant began firing the gun at Davis. As defendant approached Davis, Davis started "backing up" and then turned and attempted to run once defendant started shooting. Davis fell to the ground about 5 to 10 feet from where he started. Defendant walked up to Davis as he lay on the ground. Davis said, "I'll give you the money, man, just don't kill me." Defendant shot him again and then reached into Davis' jacket pocket and retrieved some money. He ran back to ...