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12/20/89 the People of the State of v. Cornell Fenner

December 20, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

CORNELL FENNER, DEFENDANT-APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WILLIAM



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

HORTON, a/k/a Melvin Horton, Defendant-Appellant

548 N.E.2d 147, 191 Ill. App. 3d 801, 138 Ill. Dec. 917 1989.IL.1989

Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas and the Hon. Robert A. Nolan, Judges, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendants, Cornell Fenner and William Horton, were each charged in the circuit court of Du Page County by separate informations with the offenses of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19-1(a)) and theft (Ill. Rev. Stat. 1987, ch. 38, par. 16-1(a)(1)) arising out of the same occurrence. Following a bench trial, Fenner was found guilty of two counts of burglary and was sentenced to a 12-year term of imprisonment on one count. Horton, following a stipulated bench trial, was found guilty of both burglary counts and was sentenced to two 14-year terms of imprisonment to run concurrently with each other and concurrently with separate convictions in Du Page County and Cook County. Upon motion of defendants, this court consolidated their appeals.

The two issues raised on appeal are: (1) whether the trial court erred at a pretrial suppression hearing in precluding defendants from inquiring of the police officers as to their subjective intent in stopping defendants' vehicle; and (2) whether Horton must be granted a new sentencing hearing if his convictions in a separate case on appeal are reversed.

The following relevant facts were adduced at the joint hearing on defendants' motion to quash arrest and to suppress evidence. On August 8, 1987, a Saturday, at approximately 6 a.m., defendants and a third man, Charles Nunnery, entered the Origa Corporation located at 928 North Oak Lawn in Elmhurst, Illinois. Nunnery inquired about employment with Robert Haenisch, an employee of Origa, who was working overtime. After Haenisch told the three to return on Monday to the personnel department, the trio departed the premises. Shortly thereafter, Haenisch observed a car with the same three men drive from behind the Origa building to a location behind a Xerox building adjacent to Origa in the industrial complex. Two of the men exited the vehicle and walked over to several semitrailers parked near the Borg-Warner building on the other side of the Xerox building. The two appeared to be looking around the semitrailers. The third man moved the vehicle to the side of the Xerox building and waited. Haenisch apparently was unable to observe any further activity on the part of the two individuals near the semitrailers. Haenisch knew that both Xerox and Borg-Warner were closed on Saturdays.

At 6:21 a.m., Haenisch telephoned the Elmhurst police department and told the dispatcher that three black males had driven behind the Xerox building and that two had gotten out of the car and were looking around the semitrailers. Haenisch described the car as an older model Chevrolet or Oldsmobile, light colored, beige or tan, with rust spots.

Officer John Hybl of the Elmhurst police department received a radio dispatch at 6:21 a.m. that a suspicious, older, gold car was parked in the lot behind the Xerox building at 935 Oak Lawn in Elmhurst with two black male occupants. He was familiar with the area and had patrolled by there earlier that morning. He knew the dispatcher received the information from a person at 928 Oak Lawn. Approximately two to three minutes after receiving the dispatch, as he was responding to the location, Hybl observed an old gold-colored Chevrolet with two black males in the front seat stopped facing north at a stop sign at the intersection of Oak Lawn and Grand Avenue. Oak Lawn is a dead end street only a block long, and the stop sign is at the north end. The Xerox building is at the south end of the block. He saw no other vehicles on the street. As Hybl turned his squad car onto Oak Lawn from Grand Avenue, he slowed down in order to read the license plate number on the gold Chevrolet. He then proceeded down Oak Lawn and pulled into a parking lot. As he did so, the Chevrolet turned right and proceeded east on Grand Avenue. Hybl dispatched the direction of travel of the Chevrolet, the color of the vehicle, and the license plate number. He did not dispatch a request to stop the vehicle.

Officer Rick Sidell of the Elmhurst police department heard the original radio dispatch, the dispatch by Hybl, and a dispatch by Officer Nicholas, who reported the gold Chevrolet as going eastbound on Grand Avenue at a high rate of speed. Sidell observed the gold Chevrolet traveling in his opposite direction. Sidell made a U-turn and followed the Chevrolet at a distance of one car length, where he observed that the license plates were expired. He then activated his overhead lights and effected a traffic stop. According to Sidell, he stopped the vehicle because its license plates were expired. The vehicle was not speeding at that time. During the examination of Officer Sidell, the defendants, following an objection by the State, were prevented from asking Sidell his subjective intent for stopping the vehicle. The trial court ruled that the officer's subjective intent was immaterial.

Upon stopping the vehicle, it was discovered that the vehicle contained numerous boxes of booster cables and spark plug wires. Further investigation at the Borg-Warner building revealed that booster cables and spark plug wires were missing from the semitrailers and that the missing property was the same type as that found in defendants' vehicle. All three defendants were then arrested for burglary at the scene of the traffic stop.

Defendants contend on appeal that the trial court erred in prohibiting them from asking Officer Sidell any questions regarding his intent in stopping their vehicle. In this regard, defendants first argue that they should have been allowed to ask Sidell questions regarding his intent in order to establish whether Sidell's stopping of defendants' vehicle for a traffic violation was a pretext for ...


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