People v. Davis, 56652

• Decision Date: 20 March 1974
• Docket Number: No. 56652,56652
• Citation: 18 Ill.App.3d 793,310 N.E.2d 682
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert L. DAVIS and Charles Anderson (otherwise called Floyd Andrew Smith)(Impleaded), Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 682

310 N.E.2d 682

18 Ill.App.3d 793

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert L. DAVIS and Charles Anderson (otherwise called Floyd Andrew Smith)(Impleaded), Defendants-Appellants.

No. 56652.

Appellate Court of Illinois, First District, Second Division.

March 20, 1974.

James J. Doherty, Public Defender, Chicago (Jean Essary, Asst. Public Defender, of counsel), for defendant-appellant Robert L. Davis.

Charles Locker, Chicago, for defendant-appellant Charles Anderson.

Bernard Carey, State's Atty., Chicago (Kenneth L. Gillis, Barry Rand Elden, Mark R. Harms, Asst. State's Attys., of counsel), for plaintiff-appellee.

DOWNING, Justice.

Defendants Robert L. Davis and Charles Anderson were found guilty by a jury on two counts of armed robbery. Defendant Davis was sentenced to two concurrent penitentiary terms of from 15 to 40 years; defendant Anderson was sentenced to two concurrent penitentiary terms of from 10 to 30 years. Defendants appeal from the judgments of conviction, and from the sentences imposed; they are represented by separate counsel on appeal.

Both defendants raise these issues on appeal:

1) whether defendants were deprived of due process of law in that their incourt identifications resulted from an unnecessarily suggestive pretrial lineup and were not established by independent origin; and

2) whether the prosecution's evidence in the court below established their guilt beyond a reasonable doubt.

In addition, defendant Davis presents these issues for review:

3) whether he was afforded a fair trial where he refused to testify in his own behalf owing to a claimed fear of prejudice founded upon the possible admission into evidence of a prior conviction;

4) whether, where police officers had hours to obtain warrants, but did not, a warrantless search was unreasonable and a warrantless arrest was without probable cause;

5) whether a claimed misstatement of facts during the closing argument by the State to the jury deprived him of a fair trial; and

6) whether the sentence imposed upon him was excessive.

At approximately 3:00 P.M. on September 12, 1969, defendant Anderson walked into an auto parts store owned and operated by Joe and Arnold Rubin, located at 8420 South Vincennes Avenue on Chicago's south side. Anderson inquired of Joe Rubin concerning an auto part, and then left the premises. Approximately 20 or 25 minutes later, Anderson returned to the store carrying a brown paper bag, made a further brief inquiry, and then pulled from the bag a sawed-off shotgun and announced a holdup. Anderson was followed in the front door of the store by a man later identified as defendant Davis, who brandished an automatic pistol with a 'clip' in the handle bottom, similar to those carried by Army officers. Thereupon, a third man appeared, coming in behind Davis, and he also carried a gun, characterized as a police-type revolver.

Defendant Davis ordered the Rubins to put their hands up, and then began to empty the store's cash register drawer, ultimately removing the entire cash tray from the drawer, which contained approximately $900 in paper currency and change. After further demands for money, the Rubin brothers handed over about $100 in cash and a $50 personal check from their wallets. The three men then left the store.

None of the three intruders were masks or gloves during the incident, which lasted approximately 5 to 6 minutes. The area in which the incident took place was brightly lit by fluorescent lighting, the tubes for which had been changed some few days earlier.

Immediately after the incident, the police were telephoned, and Officer William Lieber responded to the call. Officer Lieber testified that, upon his arrival at the scene, he spoke with the Rubins and obtained descriptions of the three men. The men were described as follows: all three were male negroes; one stood approximately 5 10 or 5 11 tall and weighed about 150 to 160 pounds; the second was 5 9 or 5 10 tall, of medium build, and wore a little goatee and a mustache--he was of a darker complexion than the other two; and the third was described as very slightly built and much shorter than the other two. Additionally, Lieber procured a description of a Cadillac convertible, bearing the license number KD 8819, which allegedly had been used by the three men. After having unsuccessfully combed the area for the auto, Officer Lieber sent out a radio flash message describing the auto to the police robbery detail, one of whom was James Doyle, a police investigator.

Investigator Doyle testified that, after having spoken with the Rubin brothers and Officer Lieber, and having obtained a description of the three men, the auto, and its license number, he checked the auto's registration through the Secretary of State's office, and, at approximately 6:50 P.M. on the day of the incident, he, along with three other police officers, proceeded to the vicinity of 21st Street and Springfield Avenue; that the officers placed the location of 2104 South Springfield--the address given him as that of the registrant, defendant Robert L. Davis, by the Secretary of State--under surveillance; that, at approximately 7:00 P.M., a Cadillac, bearing the license number KD8819, approached the area under surveillance; that the auto was occupied by three male that the auto was occupied by three male, negro passengers, two of whom rode in the front seat, the third in the rear seat; that the auto parked, and the driver, defendant Davis, got out of the driver's side and walked back to the trunk of the auto carrying a brown paper bag; that the four officers drove up to the auto, got out of their car, and that he, Doyle, went back to where Davis was opening the trunk of the Cadillac; and that, as Davis attempted to throw the brown paper bag, Doyle grabbed the bag, the bag split, and a shotgun fell out and onto the pavement.

Doyle went on to testify that he recovered the shotgun and two other weapons which were in the brown paper bag: a .32 caliber automatic pistol and a lightweight, snub-nosed 'Colt' revolver; that the auto's three occupants, Davis, defendant Anderson, who had been seated in the passenger side of the front seat, and a third man, who had occupied the rear seat, were arrested and searched; that a white paper bag containing $14 or $15 in nickels, dimes, quarters, and pennies was taken from Anderson's person; that a brown paper bag containing $20 to $25 was taken from the person of the third man in the rear seat; and that $43 in United States currency was taken from Davis's person.

Later in the evening of September 12, 1969, the Rubins were summoned to the police station and were asked to view, separately, a lineup of four male negroes, three of whom were the men arrested at the Springfield address. The fourth man in the lineup, who stood approximately 5 10 in height, weighed about 160 pounds, and had gray hair, was a Chicago police officer. Both Joe and Arnold Rubin identified the three suspects as the men who had earlier in the day robbed their auto parts store. Subsequent to the lineup and identifications, the Rubins identified the weapons confiscated by Doyle and his fellow officers as those which had been used by the three men during the holdup. During the course of their trial testimony, the Rubins again identified Davis and Anderson as two of the three men who had robbed them; the third man was not tried with the two defendants in the case at bar.

The brother of defendant Anderson testified that Anderson on September 12, 1969 and at the time of the trial, was six feet, one inch tall. Investigator Doyle, on rebuttal, testified that on September 12, 1969, defendant Anderson told him he was five feet, eleven inches tall and weighed 165 pounds. Thereafter, defendant Anderson stood before the jury upon the request of his attorney.

The record further shows that the recovered weapons, as well as the two bags of currency and coins which had been confiscated, were admitted into evidence; the $43 taken from defendant Davis's person was not admitted.

I.

Defendant Davis urges that because the police officers involved in his apprehension failed to obtain warrants for his arrest and search, his arrest was without probable cause and the search made unreasonable.

We have carefully examined the record presented here, and we find a complete lack of any objection to the admission of the evidence presented below on the ground that it had been obtained as the result of an illegal search or that Davis's arrest, itself, was illegal. Furthermore, the alleged errors were not included in defendant's written motion for a new trial, and, as this court said at page 664 of People v. Jennings (1st Dist. 1972), 5 Ill.App.3d 661, 284 N.E.2d 41, at page 43, 'When grounds for a new trial are stated in writing, a defendant on review is limited to the errors set out in the posttrial motion, and all others are regarded as having been waived. People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76; People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840; People v. Landry, 123 Ill.App.2d 86, 259 N.E. 604; People v. Harper, 127 Ill.App.2d 420, 262 N.E.2d 298.'

Because we find that neither defendant nor his counsel moved to suppress the allegedly illegally obtained evidence or the allegedly illegal arrest in the court below, we do not consider those questions here. People v. Harris (1965), 33 Ill.2d 389, 211 N.E.2d 693.

On oral argument, counsel for defendant Davis, for the first time in this appeal, called this court's attention to an alleged discrepancy in the testimony of Investigator Doyle. At the preliminary hearing, Doyle testified that three guns which he described, were on the front seat of the car at the time defendants were apprehended. He further said 'It was in a brown paper bag.' At the trial, Doyle testified that defendant Davis--when he got out of the car and proceeded to the trunk of the car--attempted to throw a brown paper bag, which then split,...