People v. McGee, 1-05-3020.

• Citation: 869 N.E.2d 883
• Decision Date: 21 May 2007
• Docket Number: No. 1-05-3020.,1-05-3020.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul Victor McGEE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

869 N.E.2d 883 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Paul Victor McGEE, Defendant-Appellant. No. 1-05-3020. Appellate Court of Illinois, First District, First Division. May 21, 2007. Rehearing Denied June 25, 2007.

[869 N.E.2d 885]

Office of the State Appellate Defender, Chicago (Shobha L. Mahadev, of counsel), for Appellant.

State's Attorney, Cook County, Chicago (James E. Fitzgerald, John E. Nowak, Liam F. Reardon, of counsel), for Appellee.

Justice ROBERT E. GORDON delivered the opinion of the court:

Following a jury trial, defendant Paul McGee was found guilty of burglary and sentenced to a term of 15 years' imprisonment as a Class X offender. On appeal, defendant argues that (1) the trial court erred by denying his motion to quash arrest and suppress evidence due to a lack of probable cause; (2) the State failed to prove him guilty beyond a reasonable doubt, where purportedly the only evidence against him was his possession of the proceed from the burglary; and (3) trial counsel was ineffective by (a) failing

869 N.E.2d 886

to raise objections to Illinois Pattern Jury Instructions, Criminal No. 3.15(b)(4th ed.2000)(hereinafter IPI Criminal (4th No. 3.15)), (b) failing to object to the admission of the victim's identification testimony, and (c) failing to object to testimony identifying the defendant in a police show up procedure.

BACKGROUND

Prior to trial, defendant moved to quash his arrest and suppress evidence, specifically a Palm Pilot portable computer that was seized from his person during a custodial search following his arrest. Defendant argued that the police officers lacked probable cause to make an arrest. At the hearing, Officers Lance Lopez and George Gonzalez, as well as the victim, Darren Taylor, testified. Officer Lopez testified that on April 24, 2003, at 10:15 p.m., he was on duty in Evanston Township and was notified over the police radio that there was a burglary of an automobile in progress in the 1200 block of Wesley Avenue. He was also informed that Taylor was in pursuit of the possible offender, described as a male subject wearing dark clothes and carrying a white bag. Officer Lopez testified that he headed to the scene of the burglary but was redirected by the dispatcher to a location three blocks north of the 1500 block of Wesley. Upon arriving at that location, Officer Lopez spotted a suspect who matched the description provided over the police radio. The suspect was wearing dark clothes consisting of a corduroy jacket and a "do-rag" (a simple piece of cloth tied at the back, used to cover the head) and carrying a white bag. Officer Lopez was also informed that Taylor, who had been following the suspect, was nearby. Officer Lopez was under the impression that Taylor was an occurrence witness and had been following the suspect from the scene of the burglary.

Officer Lopez approached defendant and shined a light on his face in order to allow Taylor the opportunity to clearly view and identify the suspect. Taylor made a positive identification of the suspect while sitting in his automobile from 75 feet away. Defendant was placed under arrest, and Officer Lopez performed a custodial search of defendant's person and found he was in possession of a Palm Pilot taken from Taylor's vehicle. Officer Lopez never brought defendant to Taylor or asked Taylor to get out of his automobile to identify him.

Taylor testified that on the night of April 24, 2003, at approximately 10:10 p.m. he was in bed with his wife at his home at 1245 Wesley Avenue in Evanston, when he heard a crash and his auto alarm go off. His wife went to the bedroom window, while he grabbed his cell phone and his wife's car keys and ran outside. While he was outside, his neighbor Margaret Froh "Peggy" Asseo ran toward him. His wife as well as Asseo yelled that they saw a man running north on Wesley wearing a dark parka, tight hat, and carrying a white bag. Taylor looked into the front seat of his Ford Explorer and saw that his briefcase was missing from the front passenger seat. The only thing of value in his briefcase was his Palm Pilot. Taylor took his wife's car and headed north on Wesley, crossing Dempster Street, and turned into the alley north of Dempster when he saw a man wearing a dark coat, tight hat and carrying a white bag. Taylor then called his wife to obtain a further description of the man she had seen. She told him that the man had a dark coat, tight hat, and white bag. He did not see anyone else in the area matching this description. Defendant was not carrying a brief case. Taylor then called 911 and provided a description of defendant and his location. An officer arrived, approached defendant, and shined a light on defendant's face. Taylor gave a "thumbs up" from his wife's

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auto approximately 75 feet from the suspect. Defendant was arrested. A custodial search revealed that a Palm Pilot was on defendant's person.

After the search an officer approached Taylor with the Palm Pilot, which Taylor positively identified as his Palm Pilot taken from his vehicle.

On cross-examination, Taylor testified that while pursuing the suspect, he lost sight of him and thought that he may have gone into a vehicle. Taylor told the dispatch that he was not sure that he was following the right person, but his wife had seen a man with a ski hat and the neighbor had seen someone carrying a white bag. This information was never transmitted to the police on the scene because at that point the defendant had already been stopped by the police. However, on redirect examination, Taylor confirmed that the suspect arrested was the same person he had been following.

Officer George Gonzalez's testimony corroborated Officer Lopez's testimony regarding the arrest of defendant and the identification by Taylor. The trial court was presented with the tape recordings of all 911 calls and radio communications between the police. The 911 tape and transcript were admitted into evidence by stipulation that the tape contained two separate channels running simultaneously, but dubbed sequentially. Consequently, the arresting officer may not have been privy to the 911 call from Taylor to dispatch. The trial court also noted that some sections of the transcript of the radio communications were missing and out of order. The 911 tape consisted of phone calls made by Taylor's wife, as well as Taylor. Immediately after the burglary occurred, Mrs. Taylor called 911 and, based in part on Ms. Asseo's description, described the suspect of the burglary as wearing a parka, being 5 feet 10 inches tall and slender, and carrying a white bag. Mrs. Taylor could not identify the race of the suspect. Taylor also called 911 while in pursuit of defendant and informed the dispatch on several occasions that he was unsure if he was following the person who had broken into his vehicle, but he had been following the person his wife saw near his vehicle at the time of the break in. Officer Lopez additionally testified that certain car-to-car communications between the police officers were not on the tape recordings. Upon hearing the testimony and reviewing the transcripts of the 911 calls and radio communications, the judge denied defendant's motions to quash the arrest and suppress the evidence seized during the custodial search.

At the conclusion of the suppression hearing, the trial judge noted, "It's clear to me the police were never told that Darren [Taylor] wasn't an occurrence witness to this case." The trial judge held the description provided to the police officers was sufficient to stop defendant. Specifically, the trial court distinguished the present case from People v. Lawson, 298 Ill.App.3d 997, 233 Ill.Dec. 24, 700 N.E.2d 125 (1998), a case which affirmed a quashing of an arrest and suppression of evidence where the officer issuing the police bulletin did not possess facts sufficient to establish probable cause. However, in this case, the trial court held that the dispatch issuing the bulletin relied on the description provided by Mrs. Taylor as well as Darren Taylor, and the arresting officer also relied on the fact that Darren Taylor had followed defendant and was near the scene of the arrest. Additionally, the trial court held that there was no other person in the area and the suspect was stopped three blocks from the burglary 5 to 10 minutes after the break-in. The trial court concluded that the officers made a valid Terry stop. Terry v. Ohio, 392 U.S.

869 N.E.2d 888

1, 31, 88 S.Ct. 1868, 1885, 20 L.Ed.2d 889, 911 (1968).

After the identification by Taylor's "thumbs up," the trial court held that "[a]t that point it is clear to me they had a full blown probable cause to arrest him." The trial court relied on People v. Hubbard, 341 Ill.App.3d 911, 916, 275 Ill.Dec. 932, 793 N.E.2d 703 (2003), which held that time and proximity to the commission of the crime are major factors to consider in deciding whether one can make a stop. The trial court also held that the transcript of the radio communications was complete enough to draw a conclusion that there was probable cause to believe that a crime had been committed and that this defendant, who was stopped within close temporal and geographical proximity, fitting the same general description, committed that crime.

The case then proceeded to a jury trial. At trial, Mrs. Taylor testified that at 10:15 p.m. on April 24, 2003, she and her husband were in bed watching television when she heard a loud smashing sound and then the sound of her husband's auto alarm being activated. She looked out of the bedroom window and saw that the passenger side window of her husband's Ford Explorer had been broken. She saw a man walking away from the Explorer, and described him as a man wearing a dark jacket and a tight dark hat and carrying a white bag. He headed northbound. Mrs. Taylor did not see or hear any vehicles speeding away. She dialed 911 and her husband...