The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable Gerald Rohrer, Judge Presiding.
A jury found defendant Sidney Robinson guilty of robbery and theft. Defendant was sentenced to 15 years in prison. In this appeal, defendant contends that: (1) defendant was illegally arrested and searched; (2) the trial court erred by dismissing the third panel of jurors; (3) impeachment evidence of defendant's prior convictions was error; (4) the trial court erred in failing to refer defendant for a Treatment Alternatives to Street Crime (TASC) evaluation at sentencing; (5) the trial court erred in sentencing defendant to 15 years in prison; and (6) defendant's theft conviction should be vacated. For the reasons that follow, we affirm.
On June 30, 1996, Isidro Orozco, the victim, was returning home. A man later identified as defendant walked towards him on the street and asked him for a cigarette. Mr. Orozco gave defendant a cigarette and continued walking home. Defendant followed and began gesturing for a light. Defendant then followed Mr. Orozco inside, and when Mr. Orozco reached the door of his apartment, defendant pushed him to the ground and ripped his wallet from his back pocket. Mr. Orozco's son immediately called the police, assisted by neighbor Sheryl Jans, who had observed the defendant following Mr. Orozco.
Mr. Orozco's neighbor, Sheryl Jans, testified that she was taking her dog out for a walk when she saw a black man wearing a yellow T-shirt, shorts and sandals standing behind Mr. Orozco asking him for a cigarette. She held the security door open and Mr. Orozco proceeded inside, followed by the defendant. About 10 minutes later, Ms. Jans was coming back in with her dog when she again noticed the defendant as he passed by her in the foyer of the apartment building. She testified that the foyer area was well lit.
Officers Ryan and Ruel received a radio message that a robbery occurred near Washington, Dee and Ballard in Des Plaines. The message described the victim as a black male wearing shorts, a yellow T-shirt and sandals. When the officers arrived, defendant was the only black male on the street and he otherwise matched the description from the radio communication. As the officers approached defendant, he told them, "I'm not the guy you're looking for, I didn't do anything." Defendant was patted down for weapons, handcuffed and placed in a squad car. A show-up was conducted, and Sheryl Jans identified defendant as the person she saw following Mr. Orozco just seconds before he was robbed. The victim testified at trial that the man he saw sitting in the back seat of the police car at the show-up was the man that took his wallet, and Ms. Jans also identified defendant in court. At the police station, pay stubs from the victim's employment were recovered during an inventory search of defendant's belongings.The jury found defendant guilty of robbery and theft, and the trial court sentenced defendant to 15 years in the Illinois Department of Corrections for robbery. Defendant appeals.
Defendant first contends that the identification of defendant and the introduction of the check stubs at trial were the products of an illegal arrest. A finding of probable cause to arrest will not be disturbed absent clear error, with due deference given to the trial court and arresting officers. Ornelas v. United States, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996). A de novo review applies where defendant files a motion to quash arrest and suppress evidence and the facts supporting the Judge's ruling on that motion are undisputed. Ornelas, 517 U.S. at 696-98, 134 L. Ed. 2d at 919-20, 116 S. Ct. at 1661-62. The prosecution maintains that defendant waived this issue for review by failing to file a motion to quash arrest and suppress evidence in the trial court. Waiver aside, the prosecution asserts that even if a motion to quash arrest had been filed, the officers had probable cause to arrest defendant for the robbery.
We will first address the State's contention that defendant's claim has been waived, barring review by this court. We recognize the defendant did not file a motion to quash arrest and suppress evidence in the trial court. As such, defendant has arguably waived the issue for review; however, a reviewing court may ignore the waiver rule in order to reach a just result. People v. Hoskins, 101 Ill. 2d 209, 219, 461 N.E.2d 941 (1984). Accordingly, we will review this issue. Section 107-2 of the Code of Criminal Procedure provides that a valid arrest may be made when there are reasonable grounds to believe that the person to be arrested has committed a crime. 725 ILCS 5/107-2 (West 1996). "Reasonable grounds" is synonymous with "probable cause." In re D.G., 144 Ill. 2d 404, 581 N.E.2d 648 (1991). In determining whether probable cause existed to effectuate a warrantless arrest, a court must look to the totality of the circumstances and make a practical, commonsense decision whether there was a reasonable probability that an offense was committed and that the defendant committed it. People v. Tisler, 103 Ill. 2d 226, 236-37, 469 N.E.2d 147 (1984).
Mere suspicion is inadequate to establish probable cause to arrest, but evidence relied upon by arresting officers need not be sufficient to prove guilt beyond a reasonable doubt or even be admissible at trial. People v. Wilson, 260 Ill. App. 3d 364, 632 N.E.2d 114 (1994). The determination, which considers only information available to officers before the arrest, must focus on the factual considerations upon which reasonable, prudent people, not legal technicians, act. People v. Henderson, 266 Ill. App. 3d 882, 640 N.E.2d 1344 (1994).
A general description of a suspect coupled with other specific facts and circumstances that would lead a reasonably prudent person to believe that the action taken was appropriate can constitute sufficient cause to stop or arrest. In People v. Wilson, 141 Ill. App. 3d 156, 490 N.E.2d 701 (1986), police received a description of a man with a gun walking north wearing a gray hat, maroon and gray striped sweater, black pants and a black coat. Police stopped the defendant who was walking north, and, after observing that his clothing matched the description of the suspect, searched a duffel bag the defendant had been carrying and found a gun. The defendant argued the officers did not have probable cause to arrest him and that the search was improper. The court noted that police saw defendant in the area described, his clothing matched the description given, and he was walking in the direction noted in the description. Wilson, 141 Ill. App. 3d at 158. The court held the police acted properly in stopping and arresting the defendant. Wilson, 141 Ill. App. 3d at 158.
Likewise, in People v. Starks, 190 Ill. App. 3d 503, 546 N.E.2d 71 (1989), a defendant convicted of attempted murder and armed robbery argued that he was improperly stopped and arrested by police. The description of the robbery suspect included his race, approximate height and weight, and color and type of clothing. The defendant was stopped and arrested in a vehicle approximately 20 minutes after the robbery and a block and a half from the scene of the crime, when a police officer noticed he matched the general description of the suspect and observed him slide down in the car seat upon seeing the officer. The court found the stop to be reasonable based on the general description of the suspect and the fact there was a closeness of time and place. Starks, 190 Ill. App. 3d at 508. The court held "an individual matching a general height, weight and racial description may be adequate to raise an articulable suspicion in a police officer if such sighting is not unreasonably removed in time and space from the crime." Starks, 190
In support of his argument, defendant cites People v. Washington, 269 Ill. App. 3d 862, 646 N.E.2d 1268 (1995), in which the court quashed a defendant's arrest. However, Washington can be distinguished from the case at bar since the only evidence introduced in Washington to explain the detention of the defendant was the arresting officers' testimony that the defendant matched the description of the offender. Washington, 269 Ill. App. 3d at 866. There was no evidence as to the specific description of the physical characteristics or clothing of the suspect, nor was there any evidence regarding the appearance or clothing of the defendant at the time he was stopped. Washington, 269 Ill. App. 3d at 866. The court also noted the record was silent as to the gender and race of the suspect.
The facts of Washington are in sharp contrast to the case at bar, in which police had a description of the offender, including his gender, his race and a detailed clothing description. Police stopped defendant shortly after the incident occurred and in close proximity to the scene of the crime. These factors serve to distinguish the present factual situation from that in Washington.
Further, in the present case, the officers temporarily detained defendant for an investigatory stop until the victim and eyewitness arrived on the scene. The officers not only had reasonable suspicion to make an investigatory stop of defendant, pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), but they also had probable cause to arrest defendant considering the totality of the circumstances. People v. Free, 94 Ill. 2d 378, 400, 447 N.E.2d 218 (1983).
We find, based on the record at trial, that the information relied upon by the officers before the arrest established that there was a reasonable probability that defendant committed the offense. Defendant matched the description the officers received, a black male wearing shorts, a yellow shirt, and sandals. Further, proximity in time and place to the robbery existed. Defendant was stopped near the scene of the robbery shortly after the crime occurred, within one half-hour. Moreover, defendant caused the suspicion of the police to escalate when, as they approached, he immediately blurted out, "I'm not the guy you're looking for. I didn't do anything." The historical facts known to the police at the time of their warrantless arrest amounted to probable cause to arrest defendant Robinson.
Defendant claims in the alternative that plain error exists and therefore the waiver rule should be relaxed because his attorney's failure to file a motion to quash arrest and suppress evidence was ineffective assistance of counsel.
To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate that his attorney's performance fell below an objective standard of reasonableness and that a reasonable probability exists that the result would have been different were it not for counsel's errors. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The scrutiny of counsel's performance must be highly deferential because of the inherent difficulties in making the evaluation and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.
We address defendant's specific assertion that his attorney was ineffective for failing to make a motion to quash his arrest and suppress evidence. The question of whether to file a motion to quash arrest and suppress evidence is traditionally considered a matter of trial strategy, an area left to trial counsel's discretionary judgment, and therefore one in which the court will not engage in a hindsight analysis to determine whether the decision was reasonable. People v. Bryant, 128 Ill. 2d 448, 539 N.E.2d 1221 (1989). To establish that trial counsel was ineffective for failing to file a motion to quash arrest and suppress evidence, the defendant must satisfy the following two-prong test: first, that the motion would ...