People v. Jackson

• Decision Date: 01 June 1981
• Docket Number: No. 79-1597,79-1597
• Parties: , 52 Ill.Dec. 514 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond JACKSON and Gregory Holmes, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 195

422 N.E.2d 195

96 Ill.App.3d 1057, 52 Ill.Dec. 514

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond JACKSON and Gregory Holmes, Defendants-Appellants.

No. 79-1597.

Appellate Court of Illinois, First District, First Division.

June 1, 1981.

Ralph Ruebner, Deputy State Appellate Defender, Barbara Kamm, Asst. State Appellate Defender, Chicago, for defendants-appellants.

Richard M. Daley, State's Atty. of Cook County, Marcia B. Orr and Richard F. Burke, Asst. State's Attys., Chicago, for plaintiff-appellee.

McGLOON, Justice:

Raymond Jackson and Gregory Holmes were charged by indictment with attempt armed robbery, burglary, and armed violence. After a bench trial, both were found guilty of all charges and sentenced to the Illinois Department of Corrections for concurrent terms of nine years for armed violence, six years for attempt armed robbery, and four years for burglary. Defendants appeal.

On appeal defendants argue that (1) their motion to quash their arrests and suppress evidence should have been granted; (2) they were not proved guilty of armed violence beyond a reasonable doubt; and (3) their convictions for burglary should be reversed because burglary is a lesser included offense of armed violence.

We affirm in part and reverse in part.

The crimes for which defendants were tried occurred at approximately 5:15 a. m. on May 31, 1978 at the rectory of Our Lady of Angels Church. Defendants were arrested later that morning at another location after police responded to a burglary report.

Officer Vivirito testified at the hearing on defendants' pretrial motion to quash their arrests and suppress evidence. He testified that on May 31, 1978 at approximately 7:30 a. m., he responded to a call of a burglary in progress at 1917 North Pulaski. After questioning the residents at this address, it was learned that they had no knowledge of any crime. He then saw the defendants exit a basement apartment at 1925 North Pulaski. The apartment door was left open. When defendants saw Officer Vivirito, they walked away. Vivirito ordered defendants to stop, but defendants began to run. They halted only after Vivirito drew his revolver and threatened to shoot.

The officer further testified that he returned to the apartment from which defendants had exited. He conducted a protective search and examined the apartment. Gifts and packages were strewn about the room and the apartment looked "ransacked". Vivirito suspected that the apartment was occupied by a couple he knew. When he looked into the apartment, his suspicion grew since he knew that the couple had recently received gifts at a wedding shower. Vivirito called for assistance. When other officers arrived, defendants were handcuffed and searched a second time.

The trial court denied defendants' motion to quash the arrest and suppress evidence. It found the officer's belief that defendants may have been involved in the burglary was reasonable. Defendants thereafter waived their right to a jury trial and were tried together.

Father Nicholas Carsello, pastor of Our Lady of Angels Church, testified that he was awakened at approximately 5:15 a. m. on May 31, 1978, by a noise in the study adjacent to his bedroom. As he entered the study, he saw a person leaving through another door. He encountered defendants in his bedroom. Jackson grabbed the priest's arm and placed a hunting knife with a six-inch blade to his neck. Holmes repeatedly demanded money and threatened to strike Father Carsello with a large ash tray.

Defendants accompanied Father Carsello downstairs to Father Reardon's room. They held the knife to Father Carsello. When Father Reardon verbally responded to Father Carsello's knocks, defendants fled.

When Father Carsello entered the dining room, he saw broken glass and part of a screen in the doorway. After the police arrived, he discovered that two watches which he had left in the study the night before were missing. That evening, the police showed him photographs. Father Carsello identified the defendants. He also viewed a line-up and again identified the defendants.

Assistant State's Attorney Thomas Sullivan testified that he spoke to each defendant individually. Each was given Miranda warnings. Although defendants initially denied involvement in the crime, they subsequently admitted participating.

Officer Wright, an evidence technician, testified that he compared a fingerprint from an ash tray in the rectory with Holmes' fingerprints. He found them to be identical.

Mary Davis, Jackson's mother, testified that she woke her son at 4:50 a. m. on May 31, 1978, and drove Jackson and Holmes to work at 5:40 a. m. Canzdy Holmes, defendant Holmes' mother, testified that she woke her son at 5 a. m. on the morning in question. He then was driven to work by Mary Davis. Holmes and Jackson each denied being involved in the crime and making inculpatory statements to the assistant State's Attorney.

Following the denial of defendants' motion for a new trial, an agreement was made regarding the pending charge of burglary based on the occurrence at the scene of their arrest. The State withdrew its request for consecutive sentences in exchange for guilty pleas. The court was to consider the guilty pleas only in aggravation of the total sentences.

First defendants argue that the trial court erred in denying their motion to quash the arrests and suppress evidence obtained as a result of the arrests. Defendants contend that the arrests occurred when Vivirito ordered them to stop and that at this time, there was no probable cause to arrest.

We disagree with defendants' characterization of Vivirito's actions at the time of the stop as an arrest. The elements of an arrest are: (1) the authority to arrest; (2) the assertion of that authority with the intent to arrest; and (3) the restraint of the person arrested. (People v. Robbins (1977), 54 Ill.App.3d 298, 12 Ill.Dec. 80, 369 N.E.2d 577.) The evidence presented does not indicate that Vivirito intended to arrest defendants. The officer returned to the apartment to investigate further. He conducted only a protective search and did not tell defendants that they were under arrest. The order to stop was not, under these circumstances, an indication of an intent to arrest. See People v. Clay (1971), 133 Ill.App.2d 344, 273 N.E.2d 254. A showing of actual or threatened force or coercion indicates only an intent to restrain. (People v. Kennedy (1978), 66 Ill.App.3d 267, 22 Ill.Dec. 905, 383 N.E.2d 713.) Restraint is involved in a stop (People v. Holdman (1978), 73 Ill.2d 213, 22 Ill.Dec. 679, 383 N.E.2d 155, cert. den., 440 U.S. 938, 99 S.Ct. 1285, 59 L.Ed.2d 496; People v. Kennedy, supra ) as well as an arrest.

Rather, we believe that Vivirito intended to stop defendants for investigatory purposes. A person may be stopped in a public place when an officer reasonably infers from the circumstances that a person is committing, is about to commit, or has committed an offense. (Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Basiak (1977), 50 Ill.App.3d 155, 8 Ill.Dec. 332, 365 N.E.2d 570.) The inferences must be based on specific articulable facts which warrant the intrusion. Terry, supra, Basiak, supra.

Here, Vivirito responded to the burglary report immediately. Vivirito was in uniform and had arrived in a marked squad car. He saw defendants exit the apartment, leaving the door ajar. When defendants saw him, they walked in the opposite direction and fled when he ordered them to stop. Defendants' flight alone required police pursuit and provided the articulable facts necessary to justify an investigatory stop. People v. Holdman (1978), 73 Ill.2d 213, 22 Ill.Dec. 679, 383 N.E.2d 155, cert. den., 440 U.S. 938, 99...