Appeal from the Circuit Court of Cook County. No. 98 CR 6588 Honorable James D. Egan, Judge Presiding.
The opinion of the court was delivered by: Justice O'brien
Defendant, William Metcalfe, appeals his convictions for, attempted armed robbery, attempted aggravated robbery and his sentence of 10 years in prison. On appeal, defendant argues that: (1) the circuit court erred by denying his motion to quash arrest and suppress evidence; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) defendant was denied his right to a fair trial where one of the jurors indicated during voir dire that she was unable to be fair and impartial; (4) the circuit court erred by failing to properly instruct the jury; and (5) the circuit court erred by denying defendant's requests for appointment of counsel to represent him on his posttrial motions and at sentencing. We reverse and remand for a new trial.
At trial, Jerry Dudek testified that at about 3:30 p.m. on January 8, 1998, he was using an automatic teller machine (ATM) in the Citibank branch located at 222 West Adams when defendant approached him and asked for money. Mr. Dudek said "no." Defendant again asked for money. Mr. Dudek again declined. Defendant then brushed up against Mr. Dudek, stuck his left hand in his pocket, and said "I have got a gun. I want your money." Mr. Dudek begged defendant not to hurt him. Defendant responded by bumping Mr. Dudek and stating, "I want your f----ing money."
Mr. Dudek screamed for help. Defendant took a step back, then reached for Mr. Dudek's wallet, which was on a ledge underneath the ATM. Mr. Dudek grabbed defendant's left arm and prevented him from taking the wallet. Defendant then walked to a revolving door and attempted to exit the bank. Mr. Dudek put his foot against the door and trapped defendant inside.
Several bank employees, including an armed security guard, reached the scene. Mr. Dudek told them that defendant had tried to rob him. One of the bank employees ran outside through another door and held the revolving door from that side, preventing defendant from escaping. Mr. Dudek left for a work-related appointment and later spoke with Officer Halloran and signed a complaint against defendant.
Officer Halloran testified that at about 3:40 p.m. on January 8, 1998, he received a call of a robbery in progress at the Citibank at 222 West Adams. Upon arriving at the scene, Officer Halloran observed two people (including Mr. Dudek) detaining defendant in the bank's revolving door. Officer Halloran also observed that defendant's left hand was in his left coat pocket.
Some of the people at the scene yelled that defendant had a gun. Officer Halloran asked defendant to take his hand out of his pocket. Defendant complied and exited the revolving door. Officer Halloran then handcuffed him and conducted a pat-down search. Officer Halloran found a sharpened meat cleaver in defendant's left coat pocket.
Defendant testified that at about 3:40 p.m. on January 8, 1998, he approached Mr. Dudek at the ATM machine inside the Citibank and asked him for some change. Mr. Dudek did not respond. Defendant again asked for money. Mr. Dudek grabbed defendant by the arm and yelled for security. Defendant then attempted to leave the bank through the revolving door, but Mr. Dudek held onto the door and prevented him from leaving.
A security guard rushed over with his gun drawn. Defendant told the guard that he had done nothing wrong. The police arrived shortly thereafter, and defendant explained to them that there had been a misunderstanding and that Mr. Dudek appeared to have been drunk.
The officers handcuffed defendant, patted him down, and placed him under arrest. As the officers were putting defendant into the squad car, they frisked him again and discovered a meat cleaver in his back pocket. Defendant explained that he used the meat cleaver to scrape ice off windshields and to open pop cans.
The jury found defendant guilty of, attempted armed robbery and, attempted aggravated robbery. The circuit court merged the attempted aggravated robbery conviction into the attempted robbery conviction and, sentenced defendant to 10 years in prison. Defendant filed this timely appeal.
First, defendant argues that the circuit court erred by denying his pretrial motion to quash arrest and, suppress evidence based on lack of probable cause. Probable cause to arrest exists where the facts and circumstances known to the police officer at the time of the arrest, are sufficient to warrant a person of reasonable caution to believe that an offense had been committed and that the offense was committed by the person arrested. People v. Sims, 192 Ill. 2d 592, 614 (2000). The existence of probable cause is determined by the totality of the circumstances at the time of the arrest. Sims, 192 Ill. 2d at 615. A determination of probable cause is governed by commonsense, practical considerations, and not by technical legal rules. Sims, 192 Ill. 2d at 615. Since both parties here accept the testimony of the arresting police officer, our standard of review is de novo. Sims, 192 Ill. 2d at 615.
Officer Halloran testified at the hearing on the motion to suppress, that when he arrived at the scene, he observed defendant being "detained" in the revolving doors by a security guard and Mr. Dudek. Several bank employees were screaming that defendant had a gun, and both Mr. Dudek and the security guard told Officer Halloran that defendant had tried to rob Mr. Dudek. The security guard also told Officer Halloran that defendant claimed to have a gun in his pocket.
Defendant argues that probable cause was lacking because Officer Halloran did not have a "first-hand" statement from the victim, Mr. Dudek, as to defendant's criminal behavior. Defendant's argument is not well-taken because (as discussed above) Officer Halloran testified that Mr. Dudek made a statement at the scene that defendant had attempted to rob him.
Defendant also argues that probable cause was lacking because Officer Halloran failed to inquire into the veracity and reliability of the security guard and the bank employees and otherwise failed to corroborate their statements as to defendant's attempt to rob Mr. Dudek. In effect, defendant argues that Officer Halloran should have conducted a mini-trial at the bank, cross-examining the witnesses until defendant's guilt was proven beyond a reasonable doubt. However, the evidence relied upon by the arresting officers does not have to be sufficient to prove defendant's guilt beyond a reasonable doubt (Sims, 192 Ill. 2d at 615); rather, as discussed above, the totality of the circumstances must be such as to warrant a person of reasonable caution to believe that defendant committed an offense. Here, Officer Halloran was confronted with an identified victim and defendant, statements from bank employees as to defendant's possession of a gun, and a statement from both the victim and the bank security guard that defendant had tried to rob Mr. Dudek. Under the totality of these circumstances, Officer Halloran had probable cause to arrest defendant, as a person of reasonable caution could believe that defendant had attempted to commit armed robbery.
Defendant argues that Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), and Recznik v. City of Lorain, 393 U.S. 166, 21 L. Ed. 2d 317, 89 S. Ct. 342 (1968), compel a different result. In Gates, the United States Supreme Court held that an informant's veracity is a relevant consideration in the totality of the circumstances analysis guiding probable cause determinations. Gates, 462 U.S. at 230-34, 76 L. Ed. 2d at 543-45, 103 S. Ct. at 2328-30. In Recznik, the United States Supreme Court held that statements from unknown "people on the street" concerning defendant's alleged criminal activity was not sufficient to establish probable cause. Recznik, 393 U.S. at 169, 21 L. Ed. 2d at 321, 89 S. Ct. at 344-45.
Neither Gates nor Recznik compels a result different from the one reached here, where Officer Halloran's information regarding defendant's criminal activity came, not from unknown people on the street, but from an identified victim and the bank security guard, and where defendant concedes that Officer Halloran had no reason to doubt the credibility of defendant's accusers.
Next, defendant argues that the State failed to prove him guilty beyond a reasonable doubt. When presented with a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Smith, 321 Ill. App. 3d 669, 673 (2001).
The jury convicted defendant of attempted armed robbery. A person commits an attempt when, "with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." 720 ILCS 5/8-4(a) (West 1996). A person commits armed robbery when he commits robbery (taking property from another by the use of force or by threatening the imminent use of force (720 ILCS 5/18-1(a) (West 1996)) while carrying on or about his person, or otherwise being armed with, a dangerous weapon. 720 ILCS 5/18-2(a)(West 1996)).
Here, Mr. Dudek testified that defendant demanded his money, bumped him, told him he was carrying a gun, and attempted to grab his wallet. Officer Halloran testified that defendant possessed a sharpened meat cleaver on his person. Viewing the evidence in the light most favorable to the State, any rational trier of fact could find that defendant took a substantial step toward robbing Mr. Dudek while carrying a dangerous weapon on his person. Accordingly, the State proved defendant guilty of armed robbery beyond a reasonable doubt.
Defendant argues that his conviction should be reversed because he never "physically manifested" the dangerous weapon (the meat cleaver) during the commission of the crime. In People v. Addison, 236 Ill. App. 3d 650 (1992), the First District Appellate Court rejected the argument that the weapon must be displayed during the commission of an armed robbery. The court reasoned that the "plain language of the Criminal Code [of 1961 (Ill. Res. Stat. 1985, ch.38, par.18-2)]states that an armed robbery occurs when a person carries or possesses a dangerous weapon during a robbery. The statute does not require that the dangerous weapon be displayed or used." Addison, 236 Ill. App. 3d at 655. We follow the well-reasoned opinion in Addison and hold that defendant was not required to display or use his dangerous weapon to sustain his conviction for attempted armed robbery.
Next, defendant argues that he was denied his right to a fair trial where one of the jurors indicated during voir dire that she was unable to be fair and impartial. Defendant waived review by failing to object at trial. People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, because the issue affects the constitutional right to a fair trial, we consider defendant's contention under the plain error exception to the waiver rule. See 134 Ill. 2d R. 615(a); People v. Wilson, 303 Ill. App. 3d 1035, 1041 (1999).
The federal (U.S. Const. amends. VI, XIV) and state constitutions (Ill. Const. 1970, art. I, §8) guarantee a criminal defendant the right to trial by an impartial jury. This right is so basic that a violation thereof requires reversal. People v. Stone, 61 Ill. App. 3d 654, 666-67 (1978). An impartial jury is "'one made up of persons prepared to exercise their personal judgment, favoring neither prosecution nor accused, standing indifferent to both, and guided only by law and the evidence in the performance of their duties.'" Stone, 61 Ill. App. 3d at 667, quoting People v. Hobbs, 35 Ill. 2d 263, 270 (1966). Impartiality must be ascertained from the statements made by the prospective jurors. Stone, 61 Ill. App. 3d at 667.
The pertinent voir dire examination of the juror is as follows:
"Q: And you have not been an accused, complainant or witness in a criminal case?
A: I have not been an accused. I have ...