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12/29/95 PEOPLE STATE ILLINOIS v. HAYWOOD COOK

December 29, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
HAYWOOD COOK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable LORETTA C. DOUGLAS, Judge Presiding.

The Honorable Justice Buckley delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Defendant, Hayward Cook, was convicted of possession of a stolen motor vehicle and criminal trespass to a motor vehicle. Defendant appeals, raising the following issues: (1) whether the criminal trespass to a vehicle conviction should be vacated, (2) whether the trial court erred in denying defendant's motion to quash the arrest and suppress the evidence, (3) whether the trial court erred in refusing to appoint counsel for the defendant other than the public defender, (4) whether the trial court erred in allowing a peeled steering column to be usedas demonstrative evidence, and (5) whether the trial court erred in sentencing defendant as a Class X offender to a term in excess of the Class X minimum.

Defendant was arrested in Chicago at 71st Street and Halsted on July 27, 1992, by Chicago police officer Maurice McNulty. Defendant filed a motion to quash the arrest and suppress the evidence. At the suppression hearing, Officer McNulty testified that at about 4:15 a.m. on July 27, 1992, he and two other officers were in an unmarked squad car when they noticed a white 1985 Oldsmobile Cutlass with a broken taillight. They followed the vehicle for about one mile during which time they ran a license plate check on the Cutlass and determined it to be registered to Orville Jackson, a 73-year-old man who had not reported the car stolen. Officer McNulty testified that the Cutlass stopped at a gas station at 71st and Halsted. He testified that the officers pulled up parallel to the Cutlass, one or two feet away on the passenger side. He stated that he observed defendant, who he ascertained to be younger than 73 years old, in the driver's seat. He also testified that the car was still running although there was no key in the ignition, the steering column was peeled, the driver's side window was broken out, and a screwdriver and a mallet were on the floor of the vehicle. Officer McNulty also testified that defendant did not know the license plate number of the car. The officers then took defendant out of the car and placed him under arrest.

Defendant's testimony at the suppression hearing was inconsistent with that of Officer McNulty on only a few points. Defendant testified that the officers stopped their car about 50 feet away from the Cutlass and approached the driver's side of the Cutlass when he walked toward the cashier. Defendant also testified that he was arrested away from the Cutlass and that he was unsure whether or not the taillight was broken.

The trial judge denied the defendant's motion to quash the arrest and suppress the evidence, and the case proceeded to trial. Oliver Jackson, the owner of the Cutlass, testified that he lent the car to his daughter on July 26. He also testified that he had not given permission to anyone else to use the car and, specifically, that he had not given the defendant permission to use the car. He stated that he received a telephone call from Officer McNulty at about 5 a.m. on July 27, and that he met Officer McNulty at the police parking lot later that day. He testified that the driver's side window was shattered, the taillight was broken, the glove compartment was broken, and a screwdriver and a mallet that he did not own were in the car.

Officer McNulty testified as to the sequence of events surroundingthe defendant's arrest in essentially the same way as he testified in the suppression hearing. He also testified that in order to start a vehicle without a key, it is necessary to bypass the locking mechanism and that this is usually done by peeling the steering column. As he explained the process of peeling a steering column, he used a peeled steering column manufactured by General Motors to demonstrate the process. Defendant objected, and the trial court allowed the peeled column to be used for demonstrative purposes, but would not allow it into evidence.

The jury found defendant guilty of possession of a stolen motor vehicle and criminal trespass to a vehicle. Defendant's motion for a new trial was denied. At the sentencing hearing, the State argued that a Class X sentence was mandatory because defendant had been previously convicted of four Class 2 felonies within the past 10 years. Defendant argued in mitigation that he was 44 years old, single, and supporting a 16-year-old child. He also argued that he was just short of obtaining an associates degree, that he had high blood pressure, that he has never committed any violent crime, and that he was seeking treatment for alcohol, crack cocaine and heroine abuse.

The trial court sentenced the defendant to 15 years in prison, citing his habitual criminal activity.

The State concedes that criminal trespass to a vehicle is a lesser included offense of possession of a stolen motor vehicle. ( People v. Owens (1990), 205 Ill. App. 3d 43, 46, 563 N.E.2d 75, 77, 150 Ill. Dec. 488.) Therefore, defendant's conviction for criminal trespass to a vehicle is vacated.

Defendant contends that the officers who arrested him lacked probable cause to believe that he committed a crime and, therefore, that the trial court erred in refusing to quash the arrest and suppress the evidence. The critical task in deciding whether probable cause exists is to determine what facts were known to the arresting officer at the time of the arrest. ( People v. Adams (1989), 131 Ill. 2d 387, 396, 546 N.E.2d 561, 565, 137 Ill. Dec. 616.) Probable cause sufficient to make a warrantless arrest exists if the information known to the arresting officer at the time of the arrest, "taken in its totality, and interpreted not by technical legal rules but by factual and practical commonsense considerations, would lead a reasonable and prudent person to believe that the person stopped had committed an offense." ( Adams, 131 Ill. 2d at 396-97, 546 N.E.2d at 565.) There need not be evidence sufficient to establish guilt beyond a reasonable doubt. ( People v. Jones (1990), 196 Ill. App. 3d 937, 954, 554 N.E.2d 516, 526, 143 Ill. Dec. 581.) Ordinarily, the decision of the trial court in ruling on a motion to quash an arrest will not be disturbed absent a finding of clear error. People v. Foskey (1990), 136 Ill. 2d 66, 76, 554 N.E.2d 192, 197, 143 Ill. Dec. 257.

In this case, the arresting officers were aware of the following relevant facts: the car was running, although there was no key in the ignition; the steering column was peeled; the car was registered to a 73-year-old man, but the defendant was clearly younger than that; the defendant did not know the license plate number of the car; the driver's side window was shattered; and, according to Officer McNulty, a screwdriver, a rubber mallet, and pieces of the steering column were on the floor of the car. Furthermore, the arresting officers were assigned to the automobile theft section of the Chicago police department. They were aware that peeling the steering column in order to bypass the locking mechanism is a very common way to steal a car and that a screwdriver and a mallet are the tools most often used. We agree with the trial court that a reasonable and prudent person applying common sense and with knowledge of these facts would believe that defendant had stolen the car.

Defendant next contends that the trial court erred in denying the motion of defendant's counsel to withdraw. Before trial, defendant filed a complaint against the public defender with the Attorney Registration and Disciplinary Commission (ARDC) alleging that the assistant public defender assigned to represent him neglected his case by only visiting him in jail once. Defendant argues that his continued representation at trial by the public defender's office after he filed this ARDC complaint constituted a per se conflict of interests and that he should have been assigned a bar association attorney at ...


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