People v. Gant

• Decision Date: 01 June 1967
• Docket Number: Gen. No. 50795
• Citation: 228 N.E.2d 582,84 Ill.App.2d 208
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie GANT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 582

228 N.E.2d 582

84 Ill.App.2d 208

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie GANT, Defendant-Appellant.

Gen. No. 50795.

Appellate Court of Illinois, First District, Third Division.

June 1, 1967.

Gerald W. Getty, Public Defender of Cook County, Frederick F. Cohn, James J. Doherty, Asst. Public Defenders, of counsel, Chicago, for appellant.

Daniel P. Ward, State's Atty., Cook County, Elmer C. Kissane, James Klein, Dan Miroballi, Asst. State's Attys., of counsel, Chicago, for appellee.

SCHWARTZ, Justice.

In a nonjury trial the defendant was convicted of unlawful use of a weapon ¹ and sentenced to the penitentiary for a term of two to four years. He contends that the weapon introduced in evidence was the product of an illegal search and seizure and that the failure of his attorney to move to suppress the evidence was a denial of his right to competent representation of counsel. He further contends that the State failed to prove his guilt beyond a reasonable doubt. The facts follow.

Defendant was arrested while riding with another man in the back seat of a taxicab operated by one Leon Looper. The arresting officer Charles Wright testified that he and his partner Aubly Policky, were driving east on 51st Street in Chicago when Looper's cab pulled in front of their squad car; that they noticed that at each intersection the defendant or the man with him would turn around and look at the police car; that they believed that this suspicious activity warranted investigation; and that they curbed Looper's vehicle after switching on their dome light. Wright further testified that Looper got out of the cab; that he (Wright) approached the cab on the driver's side and that Policky advanced on the other side; that he heard a thud from inside the cab; that he opened the rear door on the driver's side and found a .32 caliber pistol on the floor between defendant's legs.

On cross-examination Wright testified that he observed defendant and the other man in the taxicab drinking from a bottle, but that he could not tell whether it contained an alcoholic beverage. He stated that defendant was Not arrested on suspicion of drinking in a public vehicle. Upon further questioning by defense counsel, Wright testified that he recalled making the following statement at a hearing conducted prior to the trial:

'THE COURT: Who had the pistol?

OFFICER WRIGHT: Willie Gant dropped it as I came up to the side of the car. He had his hand over the front seat and The gun was in his hand and as I walked up with my gun, he dropped it.' (Emphasis ours.)

Wright stated that if he were asked the same question again, his answer would be the same; that is, that he saw the gun in Gant's hand. On further cross-examination however he contradicted his earlier statements and testified that he did not recall if the gun was in defendant's hand or whether he had only heard it drop to the floor.

The law is well settled in Illinois that the failure to move to suppress an item which is later introduced in evidence waives the right to object on appeal to the admission of said evidence. People v. Riley, 31 Ill.2d 490, 202 N.E.2d 531; People v. Sotos, 26 Ill.2d 460, 187 N.E.2d 245; People v. Ikerd, 26 Ill.2d 573, 188 N.E.2d 12. Defendant concedes that the question of admissibility cannot be raised directly on this appeal, but he contends that under the circumstances of this case the failure to make a motion to suppress was a vital error and revealed such incompetency as was equivalent to deprivation of his right to counsel. Hence, he argues, he should not be considered to have waived the issue of admissibility.

The Illinois Supreme Court in People v. Reeves, 412 Ill. 555 107 N.E.2d 861, quoted the opinion of Justice Minton in United States ex rel. Feeley v. Ragen, 166 F.2d 976 (7th Cir. 1948), as follows:

'Whenever the court in good faith appoints or accepts the appearance of a member of the bar in good standing to represent a defendant, the presumption is that such counsel is competent. * * * The best of counsel makes mistakes. His mistakes, although indicative of lack of skill or even incompetency, will not vitiate the trial unless on the whole the representation is of such low caliber as to amount to no representation and to reduce the trial to a farce.' (pp. 562--563, 107 N.E.2d pp. 865.)

Generally, the Illinois Supreme Court has adhered to the principles set forth in the Reeves opinion, People v. Stephens, 6 Ill.2d 257, 128 N.E.2d 731; People v. Clark, 7 Ill.2d 163, 130 N.E.2d 195; People v. Dean, 31 Ill.2d 214, 201 N.E.2d 405; People v. Green, 36 Ill.2d 349, 223 N.E.2d 101. It might be argued however that certain language used by the court in a recent decision involving court appointed counsel (People v. Robinson, 33 Ill.2d 391, 211 N.E.2d 697) indicates a less stringent rule where counsel is not of the defendant's own choosing. In that case the court held that to sustain a contention of incompetency of counsel, 'the defendant must clearly establish actual incompetency and substantial prejudice resulting therefrom.' In the instant case defendant's attorney at the trial was the Public Defender of Cook County, a court appointed counsel, but it is unnecessary to determine whether a different standard has been formulated with respect to such counsel for under either test the attorney in this case was not incompetent.

Prior to defendant's trial this court had decided in People v. DeFilippis, 54 Ill.App.2d 137, 203 N.E.2d 627, that an individual was required to allege a possessory interest in items which he sought to suppress from evidence, and this was the law in Illinois at the time of defendant's trial. The DeFilippis decision was subsequently reversed by the Supreme Court of Illinois, People v. DeFilippis, 34 Ill.2d 129, 214 N.E.2d 897, (Justice Underwood dissenting) on the basis of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Our decision in DeFilippis however was supported at that time by the decision in United States v. Konigsberg, 336 F.2d 844 (3d Cir. 1964), cert. den. Celso v. United States, 379 U.S. 933, 85 S.Ct. 334, 13 L.Ed.2d 344 (1964),...