Appeal from the Circuit Court of Cook CountyNo. 98 CR 20284 The Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Cahill
Following a bench trial, defendant Michael Vasser was found guilty of felony theft of a gas station where he was employed. He was sentenced to 18 months' probation. On appeal, defendant argues that he was: (1) denied effective assistance of trial counsel; (2) prejudiced by the admission of other crimes evidence; (3) prejudiced by the admission of the owner's testimony regarding past robberies at the store; and (4) not proven guilty of felony theft beyond a reasonable doubt. We affirm.
The State called three witnesses at trial: Claude Jones, Officer Carl Turner and Detective Frances Heslin. Claude Jones was the owner of the gas station. The food shop at the gas station was open 24 hours, but from approximately midnight to 6 a.m. the front door was locked and business was conducted through a window. The door to the food area was locked with an electronic switch. The safe for the store was behind a counter and underneath the cash register. The safe weighed about 300 pounds. When a cashier accumulated more than $350, the cash was placed in the safe. The security camera recorder at the station had been broken for months before April 1998.
Claude Jones testified that he hired defendant as a cashier around February 1998. On April 19, 1998, defendant was scheduled to work the night shift from midnight to 8 a.m. Jones himself had worked until 6 or 7 p.m. the night before. That morning around 6 a.m., Jones received a call at his home from defendant. Defendant told Jones that the store had been robbed and someone had taken the safe. Jones told defendant to call the police. When Jones arrived at the gas station around 7 a.m., the police were already there.
Jones estimated that the safe contained approximately $5,000. Jones said the gas station had been robbed about 10 times in 13 years. He was present for six of the robberies and the safe had never been taken. On cross-examination, defense counsel asked Jones to confirm that he had no problems with defendant. Jones denied this and said he had fired defendant in the past because of missing items, but rehired him as a favor to defendant's father. Over defense objection, Jones also testified that defendant returned to the store after the robbery. Jones said that he found drugs in the rafters of the store and called the police to take them away after defendant's arrest in this case.
Officer Carl Turner testified that, when he responded to a call about an armed robbery at a gas station around 7 a.m. on April 19, 1998, he saw defendant sitting behind the counter, holding his head. Defendant told Turner that three unknown black men wearing gloves entered the store, brandishing weapons. Defendant told Turner that, while two of the men grabbed him, the third man carried the safe to a car. Turner testified that defendant told him that the men struck him in the face and on his head before they left in a 1996 green Chevy.
Turner did not notice red marks or bruises on defendant's head or body, but defendant complained of a severe headache and appeared sluggish. Turner called an ambulance. Defendant was taken to the hospital for treatment.
Detective Frances Heslin testified that he conducted the follow-up investigation of the robbery. When Heslin arrived at the gas station on April 19, 1998, he interviewed Jones and defendant. Defendant told Heslin that two people robbed him and that they drove a "wreck." However, the original police report showed that defendant told the first responding officer that three people robbed him and that they drove a green vehicle. Heslin testified that he became suspicious because of these inconsistencies.
The trial judge then questioned Heslin about Heslin's suspicions. Heslin testified that he was suspicious because of two inconsistencies in defendant's statements and that the defendant did not appear to be truthful. The original report showed that defendant said three men were involved and that they drove a green Chevy. But defendant told Heslin there were two offenders in a red vehicle.
Heslin further testified that he read defendant his Miranda rights from a preprinted card and took him to the Area Two police station for further questioning. As Heslin placed defendant in an interview room at the station, defendant gave him a piece of paper with several telephone numbers. Defendant said that one of the numbers was for "Dre" and that "Dre" was one of the men who had robbed defendant. Heslin determined that one of the numbers belonged to Mondre Vining, who was nicknamed "Dre." Heslin locked defendant in the interview room while he tried unsuccessfully to locate Vining.
About two hours later, Heslin returned to the interview room and advised defendant that his Miranda rights still applied. Heslin pointed out the inconsistencies in defendant's statements. Defendant said he wanted to tell Heslin the truth. Defendant told Heslin that Vining approached him about staging a robbery. Defendant was reluctant. But when he was approached again, defendant agreed to go along because he was tired of doing household chores and wanted money to move out of the house.
Defendant and Vining agreed that the robbery should take place sometime after 6 a.m. on April 19, 1998. On that date, Vining and another man came to the station. The other man waited outside. As defendant stood watching, Vining picked up the safe and placed it in the backseat of his car. Vining then came back inside the store and punched defendant in the head. Heslin did not record defendant's statement.
After the State rested, defendant moved for a directed finding. The motion was denied. Defendant then testified in his own defense. He testified that he was a college student and lived at home with his parents. On April 19, 1998, around 6 a.m., Jones called and told defendant to unlock the front door for patrons on their way to church.
Defendant testified that, when he turned his back to stack newspapers, two men walked up behind him and told him it was a "stick-up." One of the men, who had a pistol, pushed defendant and told him they were taking everything out of the store. They threatened to kill him if he did not open the register. Defendant used the "No sale" key to open the register and the men removed the cash from the register. One of the men then noticed the safe located underneath the register. While one man held a gun to defendant, the other man carried the safe out of the store. Defendant stated that, after they took the money, one of the men hit him on top of the head with the handle of the gun.
Defendant called his boss and then called the police. Defendant told Officer Turner that two men in a 1996 green Chevy robbed him and that one of them had a gun. Defendant was taken to a hospital and received stitches for his head injury. After treatment, defendant went home. He testified that Jones' nephew, Charles, came to his house and punched him. Defendant and his father then went to the gas station and met with Jones.
Defendant stated that Charles struck him again in the presence of Detective Heslin. Heslin told defendant that he wanted to take him to the police station for further questioning. Heslin also told defendant's father that he would take defendant home after questioning.
Heslin then took defendant to the police station. Defendant was not handcuffed. At the station, defendant was in an interview room with Heslin for about 30 minutes. Heslin asked defendant to describe the men and their car. Then Heslin urged defendant to admit that he was part of the robbery and promised that he would only get probation. When defendant refused, Heslin slammed his hand on the desk and left defendant locked in the room for four to five hours. Defendant said that, during this time, he spoke to two other detectives who entered the room. An hour or so after the second conversation, defendant was taken for fingerprinting.
Defendant testified that he was not involved in the robbery and denied that he helped to set it up. On cross-examination, he also denied that he had been fired and rehired or that he had other problems on the job. He further denied knowing Mondre Vining or that he ever gave Detective Heslin a piece of paper with telephone numbers belonging to "Dre."
The parties stipulated that, if called to testify in rebuttal, Heslin would state that defendant never told him that Charles punched him at his house or at the gas station. Heslin would also testify that defendant admitted that he participated in the theft.
The trial court found defendant guilty of felony theft and sentenced him to 18 months' probation. Defendant appeals.
Defendant first argues that his trial counsel was ineffective in three ways: (1) he failed to file a motion to suppress defendant's statements on the ground that he was arrested without probable cause; (2) he elicited damaging evidence on cross-examination that defendant had been fired from his job; and (3) he failed to object to alleged hearsay testimony about the amount of money in the safe.
Claims of ineffective assistance of counsel are evaluated under the familiar standards set out in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Coleman, 168 Ill. 2d 509, 523, 660 N.E.2d 919 (1995). Under Strickland, a defendant is required to show that: (1) counsel's performance was deficient or fell below an objective standard of reasonableness; and (2) defendant suffered prejudice as a result of counsel's deficient performance. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.
The court need not decide whether counsel's performance was deficient if it decides that the defendant suffered no prejudice from the alleged errors. People v. Foster, 168 Ill. 2d 465, 475, 660 N.E.2d 951 (1995). Prejudice is shown when there is "a reasonable probability that, but for [counsel's ineffectiveness], his sentence or conviction would have been reversed." People v. Mack, 167 Ill. 2d 525, 532, 658 N.E.2d 437 (1995).
Defendant first contends that counsel was ineffective when he failed to move to suppress defendant's statement because he was arrested without probable cause.
We first consider the State's contention that it is inappropriate for this court to review the issue of probable cause because there was no suppression hearing conducted and the State might have presented further evidence to establish probable cause if required to do so.
The State argues that, where defense counsel has failed to file a motion to quash arrest or suppress evidence, a reviewing court cannot be confident that it has before it all the facts surrounding the search or seizure. The State argues that it may be unable to present evidence at trial justifying an arrest or search because evidence supporting probable cause for an arrest or search may be irrelevant or inadmissible at trial. See People v. McCray, 273 Ill. App. 3d 396, 653 N.E.2d 25 (1995); People v. Singletary, 273 Ill. App. 3d 1076, 652 N.E.2d 1333 (1995).
We agree that in some cases the trial record is insufficient to assess the validity of an arrest or search when a defendant challenges his trial counsel's failure to file a motion to quash arrest or suppress evidence. "[T]he prosecution is ordinarily not required to make proof of the reasonableness of the seizure of evidence that it introduces unless that question is raised by a defense motion to suppress." People v. Mitchell, 78 Ill. App. 3d 851, 853, 397 N.E.2d 569, 570 (1979).
Where the record is uncertain, "[w]e cannot say what the full evidence might have been had a defense motion to suppress required the State to justify the search and seizure." Mitchell, 78 Ill. App. 3d at 853. In such a case, "we will not speculate as to whether the admission of evidence was plain error on the basis of an incomplete record." People v. Calderon, 101 Ill. App. 3d 469, 476, 428 N.E.2d 571, 575 (1981).
But here, we need not reach the reviewability issue because we find the evidence at trial sufficient to establish a finding of probable cause. Probable cause exists when facts and circumstances within the arresting officer's knowledge are sufficient to warrant a reasonable person's belief that the person to be arrested has committed an offense. People v. Tisler, 103 Ill. 2d 226, 236-37, 469 N.E.2d 147 (1984). This analysis is based on practical and common-sense considerations and requires an examination of the probabilities. People v. Moody, 94 Ill. 2d 1, 7-8, 445 N.E.2d 275 (1983). Although police officers need not possess evidence sufficient to convict, something more than a mere "hunch" or suspicion is required. People v. Ellis, 131 Ill. App. 3d 639, 642, 476 N.E.2d 22 (1985).
Here, Heslin testified that the following inconsistent statements by the defendant aroused his suspicions at the gas station: (1) defendant first reported that two men held him as a third carried out the safe but later said that only two men robbed him; and (2) defendant first told Officer Turner that the perpetrators drove off in a green Chevy but later told Officer Heslin that it was a "wreck" or red car. Heslin testified that he became aware of a third inconsistency in defendant's story once at the police station and before defendant was locked in the interview room. Officer Heslin testified that, once at the station:
"As I was placing Mr. Vasser in an interview room, he handed me a piece of paper with several telephone numbers.
I asked him what this was and he stated it was telephone numbers of Dre and that Dre was one of the guys that robbed him."
Defendant had said earlier that the perpetrators were three unknown black men. Defendant relies on People v. Reynolds, 94 Ill. 2d 160, 445 N.E.2d 766 (1983), to argue that mere inconsistent statements do not establish probable cause for arrest.
Reynolds involved a theft and burglary where a police officer stopped a station wagon pulling a trailer with inoperative taillights. As the officer approached the vehicle, he noticed several cartons in the trailer with the word "Magnavox" printed on them. When he questioned the three occupants of the vehicle about where they had acquired the equipment, their responses differed, ...