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People v. Culbertson

July 07, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAY V. CULBERTSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. Nos. 96--CF--3407, 96--CF--3583, 96--CF--3585, 96--CF--3598. Honorable James K. Booras, Judge, Presiding.

The opinion of the court was delivered by: Justice Thomas

JUSTICE THOMAS delivered the opinion of the court:

Defendant, Jay V. Culbertson, was charged in a multicount indictment with nine burglary offenses, which were tried concurrently in four separate cases before a jury. Defendant was convicted on all nine counts and was sentenced to concurrent sentences of 24 years' imprisonment. On appeal, defendant contends that his convictions should be reversed and the case remanded for a new trial because the trial court erred in denying defendant's motions to quash his arrest and suppress evidence and to suppress an unsigned typed statement.

The facts relevant to this appeal are as follows. Defendant was indicted along with Mark Didier and Shawn Lewey for nine counts of burglary to various businesses in Lake County. Prior to trial, defendant filed a motion to quash arrest and to suppress his confession in all of the cases. At the hearing on defendant's motion to quash his arrest and to suppress his statement, Detective Robert Maze of the Lake County sheriff's police testified that since October 1, 1996, he has been assigned to the Repeat Offenders Strike Force (ROPE) in Lake County. Maze said that a variety of investigators began to meet to discuss problems with commercial and business burglaries. In the latter part of October 1996, the group met with Detective Gary Bitler of the Round Lake Beach police department. Detective Bitler informed the group that a confidential informant had told him that defendant was the prime suspect in the burglaries, that the burglaries were done following rear entry of the businesses with a crowbar or a pry tool, that the burglaries involved commercial or strip mall sites, that the burglars drove to the strip mall but approached the target businesses on foot, and that the burglars might be armed with handguns during the commission of the burglaries.

Maze testified that ROPE then developed more information on the defendant, learning the make and model of his car, a 1988 two-door gray Chevrolet Beretta. The group also determined defendant's last known address in Gages Lake, Illinois, and learned his current address in Gurnee, Illinois. The group conducted two or three surveillance operations on defendant in the five or six weeks between the time that they talked with Detective Bitler and November 29, 1996. On November 29, 1996, two separate teams began surveillance of defendant at around 4 p.m. Maze and Detective Hansen of the Mundelein police department conducted surveillance of defendant's last known address and observed a maroon Saturn belonging to defendant's girlfriend in the driveway, and another team conduced surveillance of defendant's current address. Maze said that between 9:30 and 9:45 p.m., he and Hansen saw a man and a woman get into the maroon Saturn and drive to defendant's current residence. The man and the woman went into the building, and several minutes later a man came out of the building and got into defendant's Beretta. Maze and Hansen followed the car to a Denny's restaurant, where an agent confirmed that the individual in the Beretta was defendant. Maze testified that at this point he knew that defendant had prior arrests for burglary and had been in prison twice.

Defendant went into the Denny's restaurant and sat with two other men. The three men then left the restaurant in defendant's car. Around 10 to 12 officers followed defendant for 30 to 45 minutes, keeping in contact with one another via radio. Around 10:30 p.m., the car pulled into a strip mall in Buffalo Grove known as Woodland Commons. There were at least a dozen stores in the strip mall, but only a Dominick's grocery store was open. Defendant's car drove slowly from one end of the mall to the other and then back. The car then pulled into the street and drove toward the back of the Dominick's store. At that point, Maze could no longer see defendant's car, but the other officers said that it was crisscrossing side streets behind the strip mall. Detective Maze, followed by Sergeant Robert Kerkorian of the Waukegan police department, drove to the first street behind the strip mall, and both men got out of their cars. Maze was wearing jeans, a dark shirt, and a bulletproof vest and had his gold detective shield on his vest along with his service weapon and his handcuffs. Maze began putting on a jacket to cover his equipment and, as he and Kerkorian were walking up a driveway, they saw defendant's car coming down the street. Sergeant Kerkorian said, "They just made us." Maze heard defendant's car accelerate and leave the area at a high rate of speed. Maze and Kerkorian then got back into their cars and told the other officers what had happened.

Defendant's car eventually was stopped in Libertyville by two Libertyville police officers. Maze testified that there were three individuals in the car and that he recognized defendant sitting in the front passenger seat. Maze pointed his service weapon at defendant, then put it down to his side, opened defendant's door, identified himself as a police officer, and ordered defendant out of the car. Maze instructed defendant to put his hands on the roof of the car and patted him down for weapons. By this time, the other individuals were out of the car and had been patted down for weapons. Maze told defendant that he was a police officer and that several officers had been conducting surveillance of him throughout the evening because he had been targeted as the prime suspect in a burglary investigation. Maze also verbally advised defendant of his Miranda rights. Defendant then gave Maze consent to search the inside and the trunk of his car. Maze's search of the trunk revealed a box of tools, a two-foot long crowbar, and a black .45- caliber pellet gun. At this point, defendant had not been told that he was under arrest.

On cross-examination, Maze said that he did not ask Detective Bitler about the confidential informant's reliability. He also said that defendant's car was pulled over in part because of its speed but that it was not pulled over for a traffic offense. On redirect examination, Maze explained that, in addition to the car's speed, the officers had stopped defendant's car based upon what they had seen that evening. Defendant's car drove to a strip mall, which was the same type of strip mall that had been experiencing a lot of burglaries. Further, there were three individuals in defendant's car, and the officers had been told that three individuals were committing the burglaries. Also, the route taken by defendant and his companions was similar to what the detectives had been told about the route used by the suspects in the burglaries.

At the close of Detective Maze's testimony, defendant argued that there was no probable cause for his arrest, that the arrest should be quashed, and that all evidence seized as a result of the arrest should be suppressed. The State responded that the stop was a permissible Terry stop. The trial court held that it was clear that defendant and the others were casing the strip mall and then spotted Maze and Kerkorian and sped away. The trial court also held that Detective Maze was justified in drawing his weapon initially based upon the information that the suspects might be armed and noted that Maze's gun was holstered as soon as the officers determined that the individuals were not armed. Further, the trial court noted that the search of defendant's trunk was based on consent. The trial court therefore held that the initial stop was a Terry stop and, upon finding the pellet guns in the trunk, the officers' reasonable articulable suspicion developed into probable cause. The trial court therefore denied defendant's motion to quash his arrest.

A hearing then was held on defendant's motion to suppress his statement. Six officers testified concerning the events surrounding defendant's statement. Officer John Ward testified that he is a Gurnee police officer and also is a member of ROPE. Ward said that late in the evening of November 29, 1996, and into the morning of November 30, 1996, he had a conversation with defendant in an interview room at the Waukegan police department. Ward said that Sergeant Kerkorian also was present during the conversation and that Kerkorian read defendant his Miranda rights, following which defendant signed the Miranda form. Ward said that he left the interview room shortly after defendant was read his rights but that defendant did not ask to speak with an attorney and did not say that he wished to remain silent.

Officer Charles Kehr testified that he is employed by the Zion police department and also is assigned to ROPE. Around 2:45 a.m. on November 30, 1996, Kehr, along with Sergeant Kerkorian, conducted an interview of defendant that lasted around 45 minutes. Kehr said that it was a very "low-key" interview. During the interview, defendant never asked to speak to an attorney and never refused to answer any questions. Kehr said that at first defendant did not answer any questions and instead just listened to Kehr and Kerkorian talk. Later, Kehr typed up a statement that defendant refused to sign.

Investigator Joseph Bronge of the Mundelein police department testified that around midnight on November 29, 1996, he went to the Waukegan police department to meet with other officers from other departments concerning suspects that had been picked up in a burglary investigation. Around 4:25 a.m. on November 30, 1996, Detective Kehr took Bronge to the interview room and introduced him to defendant. Bronge spoke to defendant for around 20 minutes. Defendant never asked to speak to an attorney and never asked to remain silent. On cross- examination, Bronge said that Kehr had told him that defendant had received his Miranda warnings and had agreed to speak to the officers.

Officer Todd Williams of the Village of Vernon Hills police department testified that on November 30, 1996, he went to the Waukegan police department around 4 a.m. Williams and Detective Bell from the Libertyville police department interviewed defendant around 5:30 a.m. Williams and Bell told the defendant why they were there and verbally gave defendant his Miranda rights, which he waived. Williams interviewed defendant first, and then Bell interviewed defendant. During the interviews, defendant never asked for an attorney and never said that he did not want to talk to the officers. Defendant, however, told the officers that he would not write a statement and would not agree to give a taped statement.

Detective Craig Sommerville of the Antioch police department then testified that he arrived at the Waukegan police department at 4:30 a.m. on November 30, 1996. At 8:37 a.m., Sommerville and Officer Mason from the Fox Lake police department interviewed defendant. The first thing that Sommerville did upon arriving in the interview room was to advise defendant of his Miranda rights and give defendant a waiver sheet to read and sign. Sommerville then interviewed defendant for around 20 minutes concerning strip mall ...


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