People v. Davis

• Decision Date: 03 February 1981
• Docket Number: No. 80-32,80-32
• Citation: 93 Ill.App.3d 187,48 Ill.Dec. 657,416 N.E.2d 1179
• Parties: , 48 Ill.Dec. 657 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dale DAVIS, Defendant-Appellant. . First District, Second Division
• Court: United States Appellate Court of Illinois

Page 1179

416 N.E.2d 1179

93 Ill.App.3d 187, 48 Ill.Dec. 657

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dale DAVIS, Defendant-Appellant.

No. 80-32.

Appellate Court of Illinois First District, Second Division.

Feb. 3, 1981.

Rehearing Denied March 3, 1981.

Ralph Ruebner, Deputy State Appellate Defender and Phillip J. Zisook, Asst. Appellate Defender, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., County of Cook, Chicago (Marcia B. Orr, Iris E. Sholder and Armand L. Andry, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

HARTMAN, Presiding Justice:

On April 19, 1978, two police officers on patrol stopped defendant for questioning because he matched the description of an attempted automobile theft suspect. When defendant drew a pistol, he was arrested and charged by information with the unlawful use of a weapon. (Ill.Rev.Stat.1977, ch. 38, par. 24-1(a)(10).) Defendant was convicted thereof by a jury. He argues on appeal that: testimony given with respect to the attempted auto theft constituted improper "other crimes" evidence; a pair of handcuffs found tucked in defendant's waistband during the arrest were improperly admitted in evidence; the State made prejudicial comments in its closing argument; and the trial court unconstitutionally employed the extended term provision of the sentencing statute. For the reasons set forth below, we affirm.

Defendant's plea of guilty to the above-cited charge on October 25, 1978 resulted in a sentence of three years in the penitentiary, which was subsequently vacated on January 11, 1979, on defendant's motion. A trial ensued and concluded on April 2, 1979 with a hung jury, resulting in a mistrial. On November 16, 1979, defendant's second jury trial began. Defendant's motion in limine to preclude the prosecution from disclosing, first, that he was carrying a pair of handcuffs when he was arrested and, second, that the arresting police officers were investigating an attempted automobile theft prior to his arrest, was denied. The trial court did direct the prosecution not to inquire as to why defendant was carrying the handcuffs unless he first raised the subject.

At trial, Chicago Police Officers Thomas Patterson and Robert Roman both testified to substantially the same sequence of events. On April 19, 1978, while in uniform in a marked police squad car, they received a radio message at 3:30 p. m. of an automobile theft in progress at the intersection of 88th and State Streets. They drove west on 89th toward State. They saw a black male wearing a blue jean jacket and a black cap emerge from an alley east of State. Continuing to 88th and State, they met two other police officers who were talking to a third man next to a car with a screwdriver sticking out of its ignition. The offender was described by the officers to Patterson as a black male wearing a blue jean outfit and a black cap who had left the scene going toward 89th Street through the alley. Patterson and Roman returned to their squad car, drove southward in the alley, turned east on 89th Street, and about a block east of the alley they saw the same man they had seen earlier emerge from the alley. Both officers identified defendant in court as this man.

The officers pulled alongside defendant, stopped their car, and as they alighted defendant took a quick step forward. Officer Roman ordered defendant to stop and approached him with his hand extended. Defendant pushed Roman's hand away, stepped backwards, and placed his right hand into his right pants pocket. When Roman ordered defendant to take his hand from his pocket, defendant withdrew a Derringer pistol and pointed it at Roman. Both officers drew their own guns and aimed at defendant, who then threw his gun over his shoulder. Defendant was arrested. While searching him, the police discovered a pair of handcuffs in his waistband. Patterson retrieved defendant's pistol; its chamber contained two live rounds of ammunition. Defendant was taken to the police station where Patterson inventoried the Derringer, bullets and handcuffs. During questioning, defendant denied ever having possession of the gun. The gun was not forwarded to the fingerprint laboratory for analysis, but was given a ballistics test. No charges were placed against defendant for aggravated battery, attempt auto theft, or striking a police officer. The gun and the handcuffs were admitted into evidence without objection. Following their admission in evidence, a defense motion to exclude the exhibits from the jury's view was denied.

Defendant testified on his own behalf. On the day in question, he was seeking employment and had applied for a job at 90th and State Street. He saw the squad car approach him as he was walking down 89th Street, so he reached into his pocket, removed a quantity of marijuana and threw it over a fence. The squad car then pulled up next to the curb and both officers emerged from the car with their weapons drawn. One officer stood by the car and pointed his gun at him and the other approached with a gun pointed at his face. Defendant moved the officer's hand out of the way. The officer jumped back and told defendant to raise his hands, turn around, and stand against a fence. The officer searched defendant and found a pair of handcuffs in his pocket. The other officer looked for what defendant had thrown but came back empty-handed. He was placed in the squad car and questioned about different crimes in the area. When defendant asked what he was charged with, the officers said that they "would think of something." Defendant was then taken to the police station and placed in a small room. One of the arresting officers placed a gun on the table, which defendant identified as the Derringer admitted in evidence during the State's case-in-chief, and told defendant to touch it but defendant refused. On cross-examination, defendant again acknowledged that he was carrying handcuffs that day. The prosecutor then asked if defendant was a detective, and a defense objection thereto was sustained.

Over defendant's objection, the jury was allowed to take the gun and the handcuffs into the jury room with them to deliberate. Defendant was found guilty as charged. After a hearing in aggravation and mitigation, defendant was sentenced to 7 years under the extended term provisions of the Uniform Code of Corrections. Ill.Rev.Stat.1977, ch. 38, par. 1005-5-3.2(b)(1).

Defendant identifies trial court error in its having allowed the police officers to testify concerning the attempted auto theft because such testimony was immaterial, prejudicial and constituted impermissible "other crimes" evidence, requiring reversal. Evidence of other crimes committed by a defendant is inadmissible to show that the defendant has a propensity to engage in criminal activity; however, such evidence is admissible when relevant for other purposes. (People v. Baptist (1979), 76 Ill.2d 19, 27, 27 Ill.Dec. 792, 389 N.E.2d 1200.) Other crimes evidence has been held admissible if relevant to demonstrate knowledge, intent, motive, design, plan or identification (People v. Lindgren (1980), 79 Ill.2d 129, 137, 37 Ill.Dec. 348, 402 N.E.2d 238; People v. McDonald (1975), 62 Ill.2d 448, 343 N.E.2d 489), and has also been admissible when relevant to police investigation of the offense at issue where such investigatory procedures involved an integral part of the narrative of that arrest. People v. Morthole (1977), 51 Ill.App.3d 919, 932, 9 Ill.Dec. 349, 366 N.E.2d 606; People v. Schubert (1975), 28 Ill.App.3d 599, 604, 329 N.E.2d 23; People v. Longstreet (1974), 23 Ill.App.3d 874, 880-81, 320 N.E.2d 529; People v. Jackson (1968), 103 Ill.App.2d 209, 222, 243 N.E.2d 551, cert. denied (1969), 397 U.S. 957, 90 S.Ct. 948, 25 L.Ed.2d 142; McCormick, Evidence § 190, at 448 (2d ed. 1972); cf. People v. Smith (1976), 37 Ill.App.3d 1016, 347 N.E.2d 257.

In People v. Morthole, supra, defendant was charged with the possession of drugs discovered during an arrest. The arresting officer testified that he arrested and searched defendant that day because of an outstanding arrest warrant for an unrelated drug delivery charge. Such evidence was proper, although it suggested other criminal activity, because it was relevant to the circumstances of the arrest. Similarly, in People v. Longstreet, supra, evidence was admitted showing that the victim had identified his assailants from a photo display of prior armed robbery offenders. There, as in Morthole, the evidence suggested other criminal activity; however, it was properly admitted as an integral part of the investigatory procedure. At bar, it was within the trial court's discretion to admit other crimes evidence (People v. Walters (1979), 69 Ill.App.3d 906, 918, 26 Ill.Dec. 302, 387 N.E.2d 1230; People v. Gonzales (1978), 60 Ill.App.3d 980, 993, 17 Ill.Dec. 901, 377 N.E.2d 91), in order to permit the State to establish the reason for defendant's arrest. Without this testimony, the " * * * jury would have been faced with the unexplained fact that policemen suddenly appeared * * *" and stopped defendant that day. (People v. Lonzo (1977), 47 Ill.App.3d 939, 945, 8 Ill.Dec. 290, 365 N.E.2d 528.) This impetus could have been established, however, without some of the detail included within the officers' testimony. Specifically, it was unnecessary to comment upon the screwdriver protruding from the auto's ignition which could only have served to distract the jury from the offense at issue, unlawful use of a weapon. In light of the weight of the evidence against defendant, we find this error to be harmless. Defendant relies upon People v. Connors (1980), 82 Ill.App.3d 312, 319, 37 Ill.Dec. 771, 402 N.E.2d 773 in support of his position; however, there the police arrested defendant pursuant to a radio report of the crime with which he was charged and it was unnecessary for the arresting officer to testify concerning his knowledge of another...