People v. Brexton, 2-01-1118.

Decision Date19 September 2003
Docket NumberNo. 2-01-1118.,2-01-1118.
Citation343 Ill. App.3d 322,798 N.E.2d 111,278 Ill.Dec. 264
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James A. BREXTON, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

G. Joseph Weller, Deputy Defender, and Thomas A. Lilien (Court-appointed), Office of the State Appellate Defender, Elgin, for James A. Brexton.

Michael P. Bald, Stephenson County State's Attorney, Freeport, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Robert J. Biderman, Kathy Shepard, State's Attorneys Appellate Prosecutor, Springfield, for the People.

MODIFIED UPON DENIAL OF REHEARING

Justice BOWMAN delivered the opinion of the court:

In 2001, following a jury trial, defendant, James A. Brexton, was convicted of escape (720 ILCS 5/31-6(c) (West 2000)). Because his conviction qualified as a Class X felony, the court sentenced him to six years' imprisonment. He now appeals his conviction.

The following was adduced at trial. On June 3, 2001, in Freeport, police officer Fred Cass responded to a dispatch indicating that a suspected shoplifter was on a bicycle behind the local K mart store. When Cass arrived on the scene, he saw defendant standing behind the store with a bicycle between his legs. He then observed defendant putting something, later discovered to be a DVD player, into an Aldi shopping bag. Cass arrested defendant for retail theft.

Following the arrest, Cass turned defendant over to police officer Aaron Dykema to transport him to the Freeport police department. After handcuffing defendant and bringing him to the station, Dykema commenced the usual booking procedures.

After booking defendant, Dykema placed defendant in a holding room. He left defendant in the room by himself and walked across the hall to obtain a Miranda waiver form, because he intended to ask defendant to make a statement. When he returned to the holding room, defendant was not there. Defendant had left the station. About a week later, Officer Cass saw defendant and a foot chase ensued. Cass arrested him and defendant was subsequently charged with escape.

At trial, defendant's counsel attempted to question Cass regarding his reasons for arresting defendant. After the State's objection, defendant's counsel argued that it was necessary to elicit Cass's reasoning to determine if probable cause existed to take defendant into custody. The court sustained the State's objection, ruling that the determination of whether probable cause existed was a question of law for the court to decide. Then, during closing arguments, defendant's counsel attempted to argue that the State was required to prove that defendant was in custody for the commission of a felony. The court again upheld the State's objection, ruling that it was not an element of the offense of escape.

On appeal, defendant contends that the court erred by denying him the opportunity at trial to question Officer Cass regarding the existence of probable cause to effectuate an arrest. He also argues that the State was required to prove as an element of the crime of escape that defendant was in custody for the commission of a felony. Last, he asserts that he was denied a fair trial because the jury saw him in leg irons before he took the stand to testify. We affirm.

Defendant was convicted of escape under section 31-6(c) of the Criminal Code of 1961 (Code) (720 ILCS 5/31-6(c) (West 2000)). Section 31-6(c) states:

"A person in the lawful custody of a peace officer for the alleged commission of a felony offense and who intentionally escapes from custody commits a Class 2 felony; however, a person in the lawful custody of a peace officer for the alleged commission of a misdemeanor offense and who intentionally escapes from custody commits a Class A misdemeanor." 720 ILCS 5/31-6(c) (West 2000).

Because defendant challenges the court's construction of section 31-6(c), our review in this matter is de novo. People v. Hart, 313 Ill.App.3d 939, 941, 246 Ill.Dec. 737, 730 N.E.2d 1202 (2000)

.

First, defendant argues that the phrase "lawful custody" in section 31-6(c) requires the State to show that the arresting officer possessed probable cause to take defendant into custody. He maintains that the element of "lawful custody" is synonymous with probable cause and that proving this element of escape requires a jury finding of the existence of probable cause. Thus, he believes that his counsel should have been allowed the opportunity to question Officer Cass regarding his reasons for arresting defendant.

Defendant did not challenge the legality of his arrest by filing a motion to suppress. We note that defendant has not asked us to decide if his arrest was illegal. Moreover, we have not been asked to decide whether defendant's conviction would be void as a consequence of an illegal arrest on the underlying offense of retail theft. Rather, defendant has raised a more limited set of questions, namely, whether the State had a burden to demonstrate that probable cause existed when defendant was taken into custody for retail theft and if it was within the province of the jury to make a determination that the State had met this purported burden.

Under section 107-2(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/107-2(c) (West 2000)), a police officer may arrest a person when he has reasonable grounds to believe that the person is committing or has committed an offense. Our supreme court has held that the "reasonable grounds" standard is synonymous with probable cause. People v. Holveck, 141 Ill.2d 84, 95, 152 Ill.Dec. 237, 565 N.E.2d 919 (1990). "Probable cause exists when the totality of the facts and circumstances known to the officer making the arrest is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime." People v. Miller, 212 Ill.App.3d 195, 201, 156 Ill.Dec. 480, 570 N.E.2d 1202 (1991). The language of section 31-6(c) does not state that probable cause is required to find that a defendant is in "lawful custody." 720 ILCS 5/31-6(c) (West 2000). Moreover, the existing case law interpreting section 31-6 leads us toward a conclusion that probable cause is not an underlying element of escape.

In People v. Kosyla, 143 Ill.App.3d 937, 951, 98 Ill.Dec. 823, 494 N.E.2d 945 (1986), a defendant charged with escape under section 31-6(c) argued that the police never established "custody." There, police responding to a neighbor's complaint about disorderly conduct confronted a belligerent defendant, who was playing his music too loudly. Kosyla, 143 Ill.App.3d at 951-52, 98 Ill.Dec. 823, 494 N.E.2d 945. The police officer told the defendant that he was under arrest. In response, the defendant ran toward his house saying he was going to call his lawyer. Instead, he ran behind his house and climbed over his fence to elude police. He was later arrested after the police secured a warrant. Kosyla, 143 Ill.App.3d at 952, 98 Ill.Dec. 823, 494 N.E.2d 945. We stated that "[b]ased on these facts, the defendant was not yet in the lawful custody of a peace officer as that phrase is used in section 31-6(c)." Kosyla, 143 Ill.App.3d at 952, 98 Ill.Dec. 823, 494 N.E.2d 945.

Later in People v. Lauer, 273 Ill.App.3d 469, 474, 210 Ill.Dec. 443, 653 N.E.2d 30 (1995), a defendant argued that he was not proven guilty beyond a reasonable doubt "because his arrest was never completed and he was never in the lawful custody" of a police officer. In Lauer, the court stated that, in contrast to Kosyla, the police did more than just announce the defendant was under arrest. Lauer, 273 Ill.App.3d at 474, 210 Ill.Dec. 443, 653 N.E.2d 30. The officer had restrained the defendant and physically moved him from the back to the front room of a house before the defendant broke free and ran out the back door of the house. Lauer, 273 Ill.App.3d at 474, 210 Ill.Dec. 443, 653 N.E.2d 30. As a result, the court held that this was sufficient evidence for the jury to convict the defendant of escape. Lauer, 273 Ill. App.3d at 474, 210 Ill.Dec. 443, 653 N.E.2d 30.

We extract two important points from Kosyla and Lauer. First, both cases define "lawful custody" by looking at the control exercised by the police over the defendant. Second, neither case searches for the existence of probable cause to determine if the "lawful custody" element of section 31-6(c) has been satisfied under the given factual situation.

Other cases have held that, even if an underlying charge or indictment is found to be invalid, the escape charge is unaffected. In People v. Hill, 17 Ill.2d 112, 115, 160 N.E.2d 779 (1959), the defendant attempted an "attack upon the sufficiency of the proof to establish his guilt beyond a reasonable doubt, on the theory that because the indictment [for burglary] was defective there was no competent proof that he was lawfully held in custody." The supreme court decided that, even if the indictment under which the defendant was held was invalid, its validity could not be challenged in that case. Hill, 17 Ill.2d at 116,160 N.E.2d 779. The court stated that more orthodox procedures than escape are available to procure release of those who are unlawfully held in custody. Hill, 17 Ill.2d at 116,160 N.E.2d 779. The court later reaffirmed this position in People v. Nastasio, 30 Ill.2d 51, 58, 195 N.E.2d 144 (1963).

Usually, the method to challenge any alleged illegality of a defendant's arrest is through a motion to quash arrest and to suppress evidence. See 725 ILCS 5/114-12 (West 2000); People v. Moore, 307 Ill.App.3d 107, 113, 240 Ill.Dec. 257, 716 N.E.2d 851 (1999). A defendant filing such a motion has the initial burden to establish a prima facie case that the police lacked probable cause to arrest. People v. Riszowski, 22 Ill.App.3d 741, 746, 318 N.E.2d 10 (1974).

Thus, given that (1) section 31-6 does not mention probable cause, (2) the case law is contrary to defend...

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