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March 22, 1994



Released for Publication May 5, 1994.

Scariano, Hartman, McCORMICK

The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court:

At about 11:30 p.m. on November 29, 1990, Joseph Dukes was robbed at gunpoint by several young men outside the French Quarters, a tavern at 3743 West Chicago Avenue in the City of Chicago. He was returning from a nearby restaurant where he had bought food for his wife, Dorothy Dukes, who owned the tavern. One of the young men hit Dukes with a pistol while the three others took two rings from him and rummaged through his pockets, removing approximately twenty-five dollars. Dorothy Dukes and the Dukes' friend, Reginald Mack, witnessed the robbery from inside the tavern. The bartender, apparently aware of the robbery, shook the burglar gates at the tavern's front window, and the young men then fled.

Immediately after the assault, Joseph Dukes flagged down a police car and told the officers that he had been robbed and that he would be able to recognize his assailants if he saw them again, although he did not provide them with a description of the robbers. The officers drove Dukes around the neighborhood for about twenty minutes searching for the robbers, but without success.

About four days after the robbery, Joseph Dukes' twenty-five year old daughter, Karen, provided him with the first names and addresses of three of the robbers, including defendant's, and a general description of the fourth. Dukes phoned the police with the information, but they did not respond to his call. However, on December 9, 1990, Officers Roy Isakson and Judith Carr met with Dukes regarding an unrelated theft, and at that time, he gave them the information he had received from Karen. Without contacting Karen or inquiring how she came upon this information, Carr and Isakson returned to the police station and consulted the robbery case report, which stated that the robbers were four black males between sixteen and twenty-one years old. Isakson testified that they did not obtain arrest warrants because of the late hour.

Between 3 and 4 a.m., the officers went to the addresses supplied by Dukes to arrest the individuals named by his daughter. They arrested Christopher Holmes and Marcus Terry and then proceeded to defendant's home. There his father told the officers that defendant was "spending the night at James' house." One of the men in the car directed the officers to "James'" house where they arrested defendant and James Burley who matched the description of the fourth person that Karen had given her father. Defendant was fifteen years old at the time of his arrest.

At about 8 a.m., Joseph and Dorothy Dukes and Reginald Mack viewed a showup of the four suspects, but, according to their testimony, none of them identified defendant. However, the arrest report on defendant and his pretrial motion indicate that defendant was "identified in a lineup."

Assistant State's Attorney Lauren Freeman testified that at about 2:30 p.m., she met with defendant and identified herself as an attorney working with the police, advised him of his Miranda rights, and told him that he could be charged as an adult in this case. A juvenile officer was present with Freeman when defendant gave a statement relating that he was walking with two girls when he saw his codefendants near the French Quarters. They told him to watch for the police. Defendant "had a hunch" that they planned to rob Joseph Dukes, who was walking across the street, and he watched for the police, as directed. Defendant saw the robbery and afterwards, he and his three codefendants ran away.

Defendant and his codefendants were charged by indictment with armed robbery and aggravated battery. (Ill. Rev. Stat. 1989, ch. 38, pars. 18-2-A, 12-4-B(8).) After the trial court simultaneously heard Terry's, Burley's, and defendant's pre-trial motions to quash arrestand to suppress evidence, the Judge found that the officers had acted in good faith in making the arrests, although they had only "thin evidence of probable cause" when they arrested defendant and Terry. The Judge added that "there wasn't a tremendous amount of information linking the two to the crime, but there was sufficient probable cause for the officers to act." He nonetheless found that when the officers arrested Terry and defendant at private dwellings, they violated Payton v. New York (1989), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (holding that police may not make a warrantless arrest at a suspect's residence absent consent or exigent circumstances). The Judge granted Terry's and defendant's motions to quash arrest, but refused to suppress evidence, finding that pursuant to New York v. Harris (1990), 495 U.S. 14, 109 L. Ed. 2d 13, 110 S. Ct. 1640, evidence obtained apart from an illegal arrest under Payton is admissible. The Judge also found that the officers had no probable cause to arrest Burley and granted his motion to quash arrest and to suppress evidence.

The cases were severed for trial, but the four defendants were tried in the same proceedings--a jury trial for defendant and simultaneous bench trials for his codefendants. The Judge excused the jury when witnesses were cross-examined by defendant's codefendants' counsel.

At trial, Joseph Dukes identified defendant as one of the robbers, although he could not recall where defendant was standing during the robbery because, at that time, he was focusing on the gun. He stated that as the robbers fled, he saw defendant from about seventy-five feet away turn around to pick up his cap, and that he recognized defendant from seeing him ten or twelve times in the neighborhood. He also identified Holmes, stating that he often visited his grandmother in the tavern. Dukes recalled that his daughter got the information regarding the robbery from defendant's uncle.

Mack testified that he was looking out the tavern window when he saw the robbers surround Joseph Dukes; he then went to the back of the tavern and told Dorothy Dukes that her husband was being robbed. When he returned to the window, the bartender was shaking the burglary bars and the robbers ran away. He stated that defendant stood at Dukes' right side during the robbery. Mack got a second look at the robbers as they doubled back and ran down the street. Mack identified each defendant in ...

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