People v. Alexander

• Decision Date: 23 April 1991
• Docket Number: No. 1-89-0827,1-89-0827
• Citation: 157 Ill.Dec. 56,571 N.E.2d 1075,212 Ill.App.3d 1091
• Parties: , 157 Ill.Dec. 56 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Osborne ALEXANDER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1075

571 N.E.2d 1075

212 Ill.App.3d 1091, 157 Ill.Dec. 56

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Osborne ALEXANDER, Defendant-Appellant.

No. 1-89-0827.

Appellate Court of Illinois,

First District, Second Division.

April 23, 1991.

Michael J. Pelletier, Deputy Defender, Chicago (Marc Davidson, Asst. Appellate Defender, of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty., Chicago (Renee Goldfarb, James E. Fitzgerald, and Jean T. McGuire, Asst. State's Attys., of counsel), for plaintiff-appellee.

Presiding Justice SCARIANO delivered the opinion of the court:

Osborne Alexander appeals from his convictions by a jury for armed robbery and unlawful use of a weapon, claiming that illegally-obtained evidence was admitted during his trial, that the prosecution prejudiced the jury and denied him a fair trial through improper questioning and closing arguments, and that he was denied the effective assistance of counsel--all amounting to a denial of due process of law. He seeks reversal of his convictions and a remand of his case to the circuit court either for a new trial or for a hearing to determine the admissibility of the evidence which he contends was illegally obtained.

Alexander moved prior to his trial to suppress evidence which he contended was illegally seized by Chicago police officers. He claimed that he was arrested without probable cause and that police lineups in which he participated were unconstitutionally suggestive of his guilt. He testified at the hearing on the motion that he was arrested while at home with his wife and that the police who entered after his wife answered the door displayed no warrant authorizing their entry or his arrest. He also testified that after being taken to the police station and fingerprinted he asked to be allowed to contact an attorney, but that request was denied.

After so testifying, Alexander was asked by his attorney whether he was informed of his right to see an attorney. The court sustained the State's objection to the question on the ground that Alexander's motion did not ask for suppression of statements to the police, and that therefore questions dealing with his rights under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were irrelevant to the motion.

Following his fingerprinting, Alexander was informed that he was being charged with "several robberies." He repeated his request to see an attorney and to make a phone call, and was again denied. During the next two days, Alexander participated in several lineups, but was allowed to contact only his wife, who was also in custody. He was still not specifically informed of the charges against him.

Alexander testified during cross-examination that prior to participating in the police lineups he met briefly with an attorney, Ernest Powell, with whom he did not request a meeting, but who witnessed the first few lineups in which Alexander participated.

The hearing recessed after Alexander's testimony. Following the recess, Alexander's attorney filed an amendment to the original motion to suppress evidence. The amendment noted Alexander's testimony during the hearing which had indicated that he had been arrested without a warrant, that he had not been properly advised of his rights under the United States and Illinois Constitutions and that he had undergone custodial interrogation for three days during which he had not been afforded counsel of his choice. Consequently, he sought to suppress all evidence resulting from the investigations, lineups and interrogation that took place following his arrest.

In response to the amendment, the court noted that it had been "filed [by Alexander's attorney] after your client has testified." The court further stated that Alexander's attorney had had at least ninety days to file such a motion, and that if the facts to which his client had testified were true they would have been known to the attorney before he testified. Declaring that "it smacks too much of collaboration now that your client has testified," the judge denied the motion to amend.

Following this ruling, Chicago Police Detective John Paladino testified for the State. At the time of Alexander's arrest, Paladino was involved in an investigation of a string of robberies, including the one with which Alexander was charged--the robbery of Video Supreme Rentals (Video Supreme) on March 23, 1985. He learned of Alexander's arrest on the afternoon of its occurrence, met with him that evening and engaged him in conversation. Paladino also observed attorney Powell with Alexander on the night of April 8, prior to a series of lineups in which Alexander was involved, and testified that Powell made suggestions to him about how the lineups should be conducted. During one of the lineups that evening Edgar Stimage, the victim of the robbery at Video Supreme, identified Alexander as the perpetrator of the crime. Neither Paladino nor the other State's witness, Chicago Police Detective Robert Flood, testified as to whether Alexander was advised of his Miranda rights.

Following the hearing, the court ruled that while the police had sufficient probable cause to arrest Alexander, they had no right to search his home as extensively as they did, and thus could not introduce as evidence any items recovered from his apartment, but the judge refused to exclude the lineup identification by Stimage, holding that the lineup was not unconstitutionally defective. Finally, as to Alexander's claim that he was not given his Miranda warnings prior to his being questioned by the police, the court noted that there was testimony during the hearing that he had been informed of his rights; and, finding that it had no reason to disbelieve the officers, the court declined to suppress the statements Alexander made to the police following his arrest.

Stimage testified for the State at Alexander's trial. At the time of the robbery he was working as the Assistant Manager of Video Supreme, and was alone on the afternoon of March 23, 1985 when two men entered the store. Stimage made an in-court identification of Alexander as the taller of the two men. They asked Stimage questions about movie machines and about renting movies, then began to leave. Before leaving, however, they turned around and pulled out guns; Alexander held a small handgun, while the shorter man pulled out a shotgun, which was about 13 inches long and did not have a handle.

The men told Stimage to sit down, and Alexander checked to see whether anyone was in the back room. Alexander then began to open filing cabinets that contained video cassettes and grabbed Stimage's duffel bag from under the counter, into which he began to put adult movie cassettes. After the shorter man disabled the telephone by pulling out its connecting line, Alexander requested that Stimage open the cash register. Alexander took money from the register's tray, lifted the tray, and pocketed the money that was underneath. He then took thirty dollars from Stimage's wallet before the two men left, the shorter man threatening to kill him if he moved toward the door. Approximately $285 was taken from the cash register, along with ten to twelve movies; the robbery took approximately 15 minutes.

After the police arrived, Stimage observed them lifting fingerprints from the counter and the cash register. He identified the taller of the two men as being about six feet two inches tall and weighing 150 pounds and having a moustache. He identified Alexander in a police lineup about 15 days after the robbery and testified that no suggestions were made to him about whom he should pick; he later identified Larry Williams as the shorter of the two men who robbed him.

Paladino testified at trial that he spoke with Alexander on the evening of April 7, 1985, and in the presence of his partner, Detective Frank Glynn, he advised Alexander "of his constitutional rights" and questioned him about the armed robbery of the video store. He testified further, over defense counsel's objections, that Alexander admitted to him that he had committed the armed robbery. Alexander also told him that he was with Williams and one James Grace at the time of the robbery, and that he had a sawed-off shotgun, while Williams had a handgun. Under cross-examination, Paladino admitted that there was no written record of Alexander's statements to him and that neither the stolen tapes nor the money was recovered. While two sawed-off shotguns were recovered from Grace's apartment, Paladino did not know whether they were used in the robbery, and no forensic evidence linked the guns to Alexander.

During the State's redirect examination of Paladino, he testified that he was participating in the investigation of 22 separate armed robberies during the time he was investigating the Video Supreme case, and that the investigation involved, among others, Alexander, Grace and Williams.

John Olejniczak, a latent fingerprint examiner for the Chicago Police Department, testified that he identified two of four prints lifted from Video Supreme as being from Alexander. Later testimony by Chicago Police Sergeant Milford Robinson established that these prints, taken immediately after the police arrived to investigate the robbery, were lifted from the cash register drawer and from the file cabinet at Video Supreme. On cross-examination, Olejniczak testified that the average finger would have 125 to 175 points of identification. While a match can be made with as few as ten points of identification, he had found fourteen points of match with Alexander's left middle finger and eleven points of match with his left index finger. He admitted that some experts might not feel qualified to say they have matched a fingerprint with eleven or fourteen points of identification, but explained that the standards were up to individual fingerprint examiners, depending upon their experience. He also stated that...