People v. Kite

• Decision Date: 29 June 1981
• Docket Number: No. 79-551,79-551
• Citation: 97 Ill.App.3d 817,423 N.E.2d 524,53 Ill.Dec. 140
• Parties: , 53 Ill.Dec. 140 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Shelly KITE and Fidelmar "Omar" Tello, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 524

423 N.E.2d 524

97 Ill.App.3d 817, 53 Ill.Dec. 140

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Shelly KITE and Fidelmar "Omar" Tello, Defendants-Appellees.

No. 79-551.

Appellate Court of Illinois, Fifth District.

June 29, 1981.

Martin N. Ashley, Deputy Director, Raymond F. Buckley, Staff Atty., State's Attys. Appellate Service Com'n., Mount Vernon, William G. Schwartz, State's Atty., Murphysboro, for plaintiff-appellant.

John H. Reid, Deputy State Appellate Defender, Jeffrey M. Plesko, Asst. State Appellate Defender, Mount Vernon, for defendants-appellees.

KASSERMAN, Presiding Justice:

Pursuant to Supreme Court Rule 604(a)(1) (Ill.Rev.Stat.1979, ch. 110A, par 604(a)(1)), the State appeals from the pretrial orders of the Circuit Court of Jackson County quashing the arrests of defendants Shelly Kite and Fidelmar "Omar" Tello and suppressing their subsequent statements. The State also appeals the trial court's order denying its motion to introduce into evidence the preliminary hearing testimony of an absent witness.

Defendants, Shelly Kite and Omar Tello, were charged with home invasion, burglary, and kidnapping. The events giving rise to these charges occurred on October 19, 1978, according to the victim, John O'Brien. O'Brien's testimony at the preliminary hearing was substantially as follows. He related that he was asleep at his home in Makanda when he was awakened around 10 p. m. by a blow to the back of his head. When he awakened he saw three people standing around his bed, one of whom was holding a machete-type knife. He testified that he recognized Omar Tello, Michael Jamison and one "Pedro" as his assailants. The three men dragged O'Brien out of bed, threw him against a dresser and questioned him about a burglary of Tello's shop in Carbondale. O'Brien advised his assailants that he had no knowledge of the burglary. He then related that his wrists were tied and he was taken to a car parked in front of his house. He testified that he recognized Shelly Kite as the driver of the car. O'Brien testified that he was taken to Murphysboro, although he was unsure of the actual address. According to O'Brien, on the drive to Murphysboro he was struck in the face and mouth and beaten with the flat side of the machete. He testified that after they arrived in Murphysboro he was taken into a house where all five of them remained until 4 o'clock in the morning. O'Brien related that the three men kicked and beat him while he was being held at the house. He also testified that they threatened to kill him and that at about 4 or 4:30 a. m., everyone except Ms. Kite left the house and went to Tello's shop where the three men questioned him further concerning the robbery of the store. O'Brien related that after approximately one hour, Tello left and that he remained in the shop with the other two men until Tello returned about an hour later. According to O'Brien, shortly thereafter a man from the shop next door entered and persuaded Tello to return O'Brien to his own home. O'Brien further recalled that he told the three men they could look through his house and car to convince them that he did not know about the robbery. The four men then drove out to O'Brien's. O'Brien stated that upon arriving, he told his girlfriend to call the police. She left the house to go call the police; however, the three men left before the police arrived, according to O'Brien.

On October 20, 1978, O'Brien reported the incident to the Jackson County sheriff's department; and search warrants for the car, Tello's shop, and the house where O'Brien was taken were issued as a result of his complaint. The police determined from O'Brien's directions that the address of the house was 1933 Minton Street in Murphysboro. Thereafter, Ms. Kite and Tello were arrested and both made statements to the police.

Prior to trial, both Ms. Kite and Tello moved to quash their arrests and to suppress their statements to the police and the evidence seized from the car, the shop, and the house. A hearing on the motions was held on August 27, 1979.

Deputy Sheriff Kenneth Akins testified at the hearing that on October 20, 1978, he went to O'Brien's home and took a report from O'Brien concerning the occurrences of October 19 and 20. He related that he and O'Brien then went to the office of the State's Attorney in order to obtain a search warrant. While at the Jackson County State's Attorney's office, Akins testified that the Murphysboro police were contacted and told to watch the residence at 1933 Minton Street and the car at that address.

James Nesler, a deputy sheriff for Jackson County, testified that while search warrants were being obtained, he called the Murphysboro police and asked for assistance in maintaining surveillance of the house and car. He testified that subsequently the Murphysboro police radioed the Jackson County sheriff's department and informed them that the car was leaving the house at 1933 Minton. Nesler testified that he told the Murphysboro police department dispatcher to "stop and hold that vehicle for us and the person driving it." He also testified that he told the Murphysboro police department that the vehicle and driver were wanted for investigation in connection with charges of home invasion, burglary, and unlawful restraint. Nesler related that Ms. Kite was stopped by the Murphysboro police at Green's IGA around 3 p. m. and that he arrived approximately five or ten minutes later and arrested her. Nesler stated that when he arrived at Green's IGA, he had neither an arrest warrant for Ms. Kite nor a search warrant for the car. Gregg Gillen, a deputy sheriff for Jackson County, arrived at Green's IGA shortly after Nesler. Nesler testified that he turned Ms. Kite over to Gillen who turned her over to Detectives Coughlin and Berkowitz of the Carbondale police department. Nesler testified that Gillen returned around 4 p. m. with a search warrant for the car.

Curt Graff, a police officer for Murphysboro, testified at the hearing that he and another officer, Brown, were watching the residence at 1933 Minton Street. He testified that they saw Ms. Kite leave the house and that they then contacted the sheriff's department. He stated that he and Brown were told to stop Ms. Kite and hold her for the sheriff's department, which they did. Graff testified that at the time Ms. Kite was stopped she was not violating any laws. He stated that he did not have an arrest warrant for Ms. Kite or search warrant relating to her.

Shelly Kite testified that she left the house at 1933 Minton Street and was driving to Green's IGA when the police approached her car and motioned for her to pull over. She stated that the police officers told her she was under arrest after they asked her to pull over. She further testified that the police officers did not tell her the reason for her arrest and that when she asked, the police officers said they did not know. She stated that she was detained for about 20 minutes before being taken to the sheriff's office. Ms. Kite testified that she never saw an arrest warrant.

Gregg Gillen, chief deputy for the Jackson County sheriff's department, and Deputy Sheriff Nesler testified concerning the circumstances surrounding Tello's arrest at the hearing on the motion to quash Tello's arrest.

Nesler testified that at about 4:30 p. m. on October 20, 1978, he, Gillen, Larry Tincher and Russell Dutcher, of the Murphysboro police department, and Randy Johnson of the Jackson County sheriff's department went to Tello's residence at 1933 Minton Street with a search warrant for the house. Nesler stated that he had a reasonable belief that Tello would be at the house. He testified that they knocked on both the front door and the back door and stated that they were police officers and that they had a search warrant. They received no response. Nesler testified that the five of them then went in the unlocked back door of the house. He testified that Tello was asleep in the front bedroom when they entered the house. He related that he and Gillen woke Tello, showed him the search warrant and arrested him. After Tello was taken to the Jackson County jail, the police searched the house. Chief Deputy Gillen's testimony at the hearing was substantially the same as Nesler's except that he testified that he did not know whether or not Tello was going to be at the house.

Tello testified that he was at home asleep when the police arrived. He stated that he was never shown a warrant and that both the back and front doors to the house were locked at the time the police arrived.

Based on the testimony at Tello and Ms. Kite's hearings, the trial court entered an order on September 12, 1979, quashing both Ms. Kite's and Tello's arrests and suppressing their subsequent statements to the police.

With respect to Ms. Kite, the trial court found that the arresting officer had no knowledge as to why he was arresting her and that there were no exigent circumstances justifying the arrest. The court also found that the arresting officer could not be said to be carrying out the arrest based on "imputed information" since the request to arrest came from a different, independent police agency. The trial court concluded that the arresting officer did not have probable cause to arrest Ms. Kite and that her arrest must be quashed. Further, the trial court found, with respect to Tello, that the police entered Tello's residence and arrested him without a warrant and that there were no exigent circumstances justifying the arrest without a warrant. The court concluded that Tello's arrest must be quashed, in spite of the fact that the police had probable cause to arrest him. The court also suppressed both Ms. Kite's and Tello's statements to the police because they were made as the result of illegal arrests.

Additionally, the State moved to admit the transcript of the victim's preliminary hearing testimony at trial, the witness having...