Appeal from the Circuit Court of Cook County. No. 07 CR 25841 Honorable John J. Moran, Jr., Shelley Sutker-Dermer, Judges Presiding.
The opinion of the court was delivered by: Justice Pierce
JUSTICE PIERCE delivered the judgment of the court, with opinion.
Presiding Justice Neville and Justice Hyman concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant Donnie Brown was convicted of burglary and sentenced as a mandatory Class X offender to six years' imprisonment. On appeal, defendant contended that his oral motion to quash arrest and suppress evidence, made at trial, should have been granted. We agreed, reversing his conviction. People v. Brown, No. 1-08-3158 (May 26, 2010) (Unpublished Order Under Supreme Court Rule 23). In denying the State leave to appeal, our supreme court issued a supervisory order directing us to vacate our judgment, remand for an evidentiary hearing on the motion to quash, and retain jurisdiction here. People v. Brown, 238 Ill. 2d 656 (2010). This court and the circuit court acted as directed. On remand, the circuit court, after hearing additional testimony, granted defendant's motion to quash arrest and suppress evidence. Defendant also contends that the evidence at trial was insufficient to convict him beyond a reasonable doubt. Lastly, he contends that his term of mandatory supervised release (MSR) should be the two years for his Class 2 felony offense rather than the three years for a Class X felony.
¶ 2 Defendant was charged with burglary in an indictment alleging that he and co-defendants Yarnell Brown and Christopher Evans entered a building owned by Daniel Diaz on November 27, 2007, without authority and with the intent to commit theft therein. In a separate bench trial, the court found defendant guilty, expressly finding the police testimony credible.
¶ 3 Immediately thereafter, the court noted that, in an earlier sidebar, defendant made an oral motion to quash based on the discrepancies in the police testimony regarding whether defendant had anything in his hands when he exited the building. The court stated that defendant would be allowed to argue the motion over the State's sidebar objection. Defendant then argued that there was no probable cause to arrest him when he was walking out the back door empty-handed as his co-defendants ran out the front door carrying stolen goods. The State made no argument on the motion. The court denied the motion, finding that the police had the requisite reasonable suspicion for "at least" a Terry stop of defendant based on him exiting the building during the "pandemonium" of the police response to the reported burglary and co-defendants' flight in the middle of the night.
¶ 4 Defendant filed a posttrial motion arguing insufficiency of the evidence and that his oral motion to quash should have been granted. The court denied the motion and proceeded to sentencing. The court found defendant to be subject to Class X sentencing, based on his prior felony convictions, and sentenced him to six years' imprisonment.
¶ 5 In defendant's initial appeal, we considered the motion to quash on its merits, though it was an oral motion at trial rather than a written pretrial motion, because defendant made the motion in light of the discrepancy between Officer Schwandt's trial testimony and the police report on the issue of whether defendant had anything in hand when he exited the building. In our order of May 26, 2010, we held that the motion to quash should have been granted and found that, without the now-suppressed evidence, the evidence against defendant was insufficient so that retrial would be futile. Accordingly, we reversed his conviction and did not address the two remaining issues he raised.
¶ 6 The supreme court later denied the State leave to appeal, in a supervisory order directing this court to vacate its judgment of May 26, 2010, remand to the circuit court for an evidentiary hearing on the motion to quash, and retain jurisdiction here. People v. Brown, 238 Ill. 2d 656 (2010). We so ordered.
¶ 7 Upon remand, the trial court conducted an evidentiary hearing involving further testimony regarding defendant's arrest. The trial court considered the original trial testimony along with the testimony presented at the evidentiary hearing and granted the motion to quash arrest and suppress evidence. The State's motion to reconsider was denied.
¶ 8 In our review of this case, we must first determine whether the trial court was correct in its finding that there was an unlawful arrest under Terry and, if so, whether the record, excluding evidence secured in violation of Terry, is sufficient to sustain defendant's conviction beyond a reasonable doubt. We have reviewed the trial and subsequent testimony in reaching our decision.
¶ 9 At trial before Judge John Moran, Jr., police officer Rich Yi testified that, at about 1:30 a.m. on the day in question, he and another officer responded to a report of a burglary in progress at the premises in question, a two-story apartment building with a store on the ground floor. As Officer Yi and his partner arrived at the premises, Officer Yi saw two men -- co-defendants -- running out the front door carrying various metal tools. When the men saw the officers, they dropped the tools and fled southbound. Officer Yi and his partner pursued them and arrested co-defendant Brown. Co-defendant Evans was later arrested by other officers. When Officer Yi returned to the premises, he found that co-defendants had dropped a circular saw, blades for such a saw, and a socket wrench. Officer Robert Schwandt gave Officer Yi a doorknob "among other items," which he brought with the tools to the police station. There, Diaz viewed the recovered objects and Officer Yi then inventoried them.
¶ 10 Officer Robert Schwandt testified that he and another officer also responded to the report of a burglary in progress, approaching the premises from the rear by the alley. Officer Schwandt saw defendant exit the building by the rear door, with his hands in his pockets. Officer Schwandt and his partner immediately placed defendant in custody, "because there was [sic] many people coming in and out of that building from the call." They handcuffed him and told him that he was in custody but not under arrest. As Officer Schwandt searched defendant, he received a radio report of Officer Yi's pursuit of co-defendants at the front of the building. The search recovered "several" doorknobs and a television remote control from one of defendant's jacket pockets, which Officer Schwandt later gave to Officer Yi. When Officer Schwandt went inside the building, he found that an interior door between the store and residential portions of the building had been pried open. The storage areas in the store corridor leading from that door were in disarray, with ...