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May 17, 1994


Appeal from the Circuit Court of Winnebago County. No. 92-CF-380. Honorable John W. Nielsen, Judge, Presiding.

Quetsch, Colwell, PECCARELLI

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Following a jury trial in the circuit court of Winnebago County, the defendant, Gus Hood, was convicted of first-degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1 (now codified, as amended, at 720 ILCS 5/9-1 (West 1992))) and sentenced to an extended term of 90 years in prison. On appeal, the defendant contends that: (1) there was no probable cause to arrest him, and the trial court therefore erred in denying his motion to suppress two statements he subsequently made to police; (2) he was denied the effective assistance of counsel because his trial counsel failed to: (a) make an offer of proof to preserve error when objections to trial counsel's questions were sustained; (b) move for a directed verdict; and (c) poll the jury; and (3) the trial court erred when it sentenced him to a longer term of imprisonment than a codefendant who pleaded guilty to the first-degree murder. We affirm.

At approximately 5:25 a.m. on February 24, 1992, the defendant was arrested for the murder of Charles Meehan, who had been found submerged in a creek near the Orton Keyes housing project earlier that morning. An autopsy revealed that the cause of death was from drowning, but that Meehan also had bruises on his forehead, nose, chin, forearm, left eye, right lower chest, back of the scalp, back of the left arm and left hand. He also had several fractured ribs and two areas of hemorrhage in the brain caused by blunt trauma to the head.

At the police station, the defendant made his first written statement at 9:52 a.m. on February 24. The defendant stated that on February 21 he and two friends, Craig Zellman and "Crazy" (Dewayne Crossen) got into a fight with Meehan in Crazy's apartment. The defendant said that he punched Meehan in the nose, Zellman punched Meehan in the back and head, and Crazy kicked Meehan in the ribs and pulled his hair. They subsequently escorted Meehan down to his car, where Crazy got into the driver's seat, Zellman entered the front passenger seat, and the defendant and Meehan sat in the backseat. They drove to a street behind Orton Keyes, ended upby a creek, and again started fighting with Meehan. The defendant and Meehan fell into the water, and Zellman and Crazy proceeded to hit and kick Meehan while he was in the water. The defendant got up and walked back to the car, leaving Crazy, Zellman and Meehan. Later, Crazy and Zellman returned to the car and they drove away. They stopped somewhere in Orton Keyes and Crazy traded the car for three bags of cocaine. The three of them then returned to Crazy's apartment and got high on the cocaine. The next morning, the defendant told his girlfriend, Connie Gullickson, what had happened, and he and Connie walked down to the creek. Connie saw the body in the creek, but he did not. The defendant stated that altogether, in both fights, he hit Meehan "maybe ten times."

The defendant signed a second statement at 3:01 p.m. on February 24. In this statement, the defendant said that when he and Meehan were in the creek, Crazy told him to keep Meehan under the water. The defendant admitted that he held Meehan face down under the water and that when Meehan stopped moving, he, Crazy and Zellman left.

Prior to trial, the defendant moved to suppress the two statements he made to the police on the ground that they were the product of an illegal arrest made without probable cause. At the hearing on the motion to suppress, the testimony established that on February 23 Detectives Robert Redmond and Steven Johnson were told by Lieutenant Gambini, the detective division commander, that a woman named Penny Abramson may have some information about a possible homicide. Redmond spoke with Abramson by phone, and she stated that her daughter, Melinda Byard, had told her that an "ugly man" had been beaten and the body dumped somewhere. At about 3:45 p.m. on February 23, Redmond and Johnson spoke with Byard in person. She denied any knowledge of a homicide, but expressed concern about a man named Chuck who had been staying at a homeless shelter with her. Byard stated that she had last seen Chuck on the night of February 21 at Crazy Dewayne Crossen's apartment. She also recalled that the defendant and Crazy had gotten into a "pretend fight" that night.

Detective Johnson ran Byard's name through the computer system to see what addresses had been associated with her. The computer printout revealed the defendant's name and an address at 2809 Echo Street. Detectives Redmond and Johnson went to 2809 Echo Street at approximately 4:30 p.m. on February 23 and were met at the door by a man and a woman. The officers asked to speak with the defendant, but they left after being told that the defendant was not there.

At approximately 4 a.m. on February 24, Redmond and Johnson were called back to work and told that a woman named Terry Neal had come to the police station and reported that the defendant had stabbed someone to death and dumped the body behind the Orton Keyes housing project. Sergeant Stephen Pirages testified that Neal had received her information from the defendant's girlfriend, Connie Gullickson, but Detective Johnson testified that he thought Neal received the information from Craig Zellman's wife, Vanessa Zellman. Police officers subsequently found Meehan's body lying in a creek behind Orton Keyes. Sergeant Pirages testified that Meehan had a long red mark on the abdomen area which made it appear as if he had been stabbed, but that the mark was in fact a severe abrasion, not a stab wound.

At approximately 5:25 a.m. on February 24, Lieutenant Gambini, Sergeant Pirages, Detectives Redmond and Forrester, and Officers Clark and Oswald went to 2809 Echo Street. They did not have a warrant for the defendant's arrest. Sergeant Pirages knocked on the front door several times and identified himself as a police officer. Craig Zellman answered the door and Pirages asked if they could come inside. Zellman opened the door and allowed the officers to enter the residence.

Sergeant Pirages asked Zellman if he was home alone, and Zellman answered that his wife, Vanessa, was upstairs. Pirages asked if the defendant was there. At that point, Vanessa Zellman was walking down the stairs. Craig Zellman looked at his wife and said "you tell him." Pirages and Oswald suddenly heard some movement coming from the upstairs, and Oswald and Clark ran up the stairs and located the defendant on the second floor. The defendant was handcuffed and transported to the police station.

The trial court denied the defendant's motion to suppress, ruling that the officers had probable cause to arrest him and that his subsequent statements were therefore not the tainted "fruit" of an illegal arrest. The defendant appeals, contending that the information received from Melinda Byard and Terry Neal was not enough to establish probable cause to arrest. The defendant argues that Byard had not accused him of criminal activity and that Terry Neal's statement that he had stabbed a man and dumped the body behind Orton Keyes was hearsay evidence based upon information Neal received either from Connie Gullickson or Vanessa Zellman. The State correctly argues, though, that the defendant waived this issue by not raising it in his motion for a new trial. See People v. Enoch (1988), 122 Ill. 2d 176, 119 Ill. Dec. 265, 522 N.E.2d 1124.

Nor was any plain error (134 Ill. 2d R. 615(a)) committed suchthat we should reverse the trial court despite the defendant's failure to raise the issue in his post-trial motion. Probable cause to arrest exists when the totality of the circumstances known to the officers are such that a reasonable prudent person would believe that the suspect is committing or has committed a crime. ( People v. Scott (1993), 249 Ill. App. 3d 597, 601, 189 Ill. Dec. 108, 619 N.E.2d 809.) The probability of criminal activity, not proof beyond a reasonable doubt, is required. ( Scott, 249 Ill. App. 3d at 601.) Whether probable cause is present is governed by commonsense considerations ( Scott, 249 Ill. ...

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