People v. Dickerson

• Decision Date: 16 February 1979
• Docket Number: No. 77-1790,77-1790
• Citation: 69 Ill.App.3d 825,387 N.E.2d 806,25 Ill.Dec. 930
• Parties: , 25 Ill.Dec. 930 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher DICKERSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 806

387 N.E.2d 806

69 Ill.App.3d 825, 25 Ill.Dec. 930

PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Christopher DICKERSON, Defendant-Appellant.

No. 77-1790.

Appellate Court of Illinois, First District, Fifth Division Feb. 16, 1979.

As Modified On Denial of Rehearing April 12, 1979.

James J. Doherty, Public Defender of Cook County, Chicago, for defendant- appellant; Sam Majerowicz, Suzanne M. Xinos, Asst. Public Defenders, Chicago, of counsel.

Bernard Carey, State's Atty., County of Cook, Chicago, for plaintiff-appellee; Lee T. Hettinger, Pamela Louise Gray, Diane Michel Powell, Asst. State's Attys., Chicago, of counsel.

LORENZ, Justice:

Following a bench trial defendant was convicted of robbery (Ill.Rev.Stat.1973, ch. 38, par. 18-1) and sentenced to 120 days of periodic imprisonment and five years probation.On appeal he contends that the trial court erred: (1) in failing to suppress the complaining witness' identification of him where that identification was the direct result of an unlawful arrest, and (2) in failing to state its findings of fact and conclusions of law in denying his motion to suppress the identification.

The following pertinent facts were adduced at trial.

For the State

Adolph Tang

As he was walking south on Homan Avenue between Warren Boulevard and Madison Street at approximately 10:30 p. m. on May 17, 1974, "three individuals ran up behind" him.Just after he turned around to face them, they began to attack him.He identified one of these individuals as defendant.Although he could not recall the location of the nearest street light, he testified that the lighting was good and that he was able to observe defendant's face and clothing.Defendant who was wearing a black tuxedo, a silver hat and silver shoes, threw him to the ground and began to hit and kick him.The two other individuals also hit and kicked him "all over my body."During the attack one of the other individuals "snatched a bag" containing a new pair of shoes from him and ran north on Homan Avenue.Defendant and the third assailant continued to fight with him for "more than a minute" and then also ran north on Homan.The attack had lasted for "maybe a few minutes."He got up and ran after the three assailants, hollering for help and for the police.The assailants ran half a block north on Homan to Warren, turned the corner and proceeded east on Warren.He yelled for the police before the assailants had reached the corner of Homan and Warren and while they were still in his sight.When he reached the corner in pursuit a few seconds later, the police had defendant on the ground.A few minutes later the police returned his shoes to him.

On cross-examination he admitted that he lost sight of the assailants for a few seconds when they turned the corner at Homan and Warren and that he did not actually see the police stop them.Although he believed the police heard him call for help, he admitted that he did not actually have a conversation with the police concerning the attack prior to defendant's arrest.

Steve Kaplan, Chicago Police Officer

At approximately 10:30 p. m. on May 17, 1974, he and his partner, Officer Daniel Amidei, were in a Mobil gas station at the corner of Homan Avenue and Warren Boulevard.As he was talking on a phone in the gas station and looking south toward the intersection of Homan and Warren, he"heard a commotion" and observed three individuals running north on Homan across Warren.These individuals were turning in an easterly direction and appeared to be attempting to "cut through the Mobil gas station parking lot."Approximately two or three seconds later he observed Adolph Tang"running behind them yelling for the police and stating that he had been robbed."Tang was 10 or 15 paces behind these men.Defendant and a man identified as Grayland Bobo were running directly toward Kaplan.Tang "yelled to me that those men just robbed him" and pointed to defendant and Bobo.He then asked Tang, "These two?"When Tang replied affirmatively he ordered the two men to halt.At the time of his arrest, defendant was wearing a tuxedo and silver sequined platform shoes.

His partner pursued the third individual east on Warren and arrested him under a porch.This third individual was in possession of a pair of shoes which Tang identified as being seized from him.

On cross-examination he admitted that he did not actually see the robbery in progress and that before he stopped defendant and Bobo, Tang told him only "that they had robbed him."For the Defendant

Daniel Amidei, Chicago Police Officer

He basically corroborated the testimony of Officer Kaplan, his partner, concerning the incident at Homan Avenue and Warren Boulevard on the evening of May 17, 1974 adding that he was not actually present at the moment Kaplan arrested defendant.He admitted that he told a grand jury on July 19, 1974 that he had observed several individuals "fleeing from a porch" and that Tang thereafter announced that those individuals had just robbed him.This grand jury testimony was, he admitted, inaccurate since he did not actually see anyone flee from a porch and because "in the grand jury I wasn't sure of the time sequence."He explained, however, that he had "apprehended a subject underneath the porch" and believed "that's where the mistake came in" during his grand jury testimony.He also admitted that his police report was incorrect when it stated that before he and Kaplan pursued the three fleeing individuals Tang had told them that he had been attacked and robbed while walking home from the "L."In the police report he had stated that defendant was arrested at 15N. Homan.

Murray Greenberg, Investigator, Cook County Public Defender's Office

He visited the corner of Homan Avenue and Warren Boulevard and ascertained that the entrance to a day-care center is located at 15N. Homan while a Mobil gas station is located at 43N. Homan.

Christopher Dickerson on his own behalf

At approximately 10:00 p. m. or 10:30 p. m. on May 17, 1974, he was walking south on the east side of Homan Avenue and was just crossing Warren Boulevard when he observed "an incident take place" 10 or 15 feet away.At that time he observed a man later identified as Adolph Tang approach Officer Kaplan, shout "something about let me hit this guy" and state that he had been robbed.Two other men ran by him, one down Warren and the other down Homan.He started walking back north because "it looked like what was up ahead was lots of trouble."Although he was "moving kind of fast,"he was not running.He did not kick, beat or rob Tang.

On cross-examination he admitted that he was arrested about a half block east of Homan on Warren and that he was wearing a tuxedo and silver sequined shoes at the time of his arrest.

OPINION

Defendant first contends that the trial court erred in failing to suppress the complaining witness' identification of him.He argues that the identification was the direct result of an unlawful arrest and must, therefore, be suppressed.

The State initially responds that defendant's failure to raise this contention in his written motion for a new trial precludes review of the issue.It is generally true that where the grounds for a new trial are stated in writing only the errors alleged therein are preserved for appeal and all other errors are waived.(People v. Foster(1976), 43 Ill.App.3d 490, 2 Ill.Dec. 1, 356 N.E.2d 1288.)However, the waiver principle "is not an ironclad rule."(People v. Norris(1972), 8 Ill.App.3d 931, 935, 291 N.E.2d 184, 187.)In the instant casewe choose to relax the waiver rule.The issue concerning the witness' identification of defendant was adequately...