People v. Moore

• Decision Date: 27 December 1977
• Docket Number: No. 77-96,77-96
• Citation: 13 Ill.Dec. 499,55 Ill.App.3d 706,371 N.E.2d 194
• Court: United States Appellate Court of Illinois
• Parties: , 13 Ill.Dec. 499 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James MOORE, Defendant-Appellant.

Page 194

371 N.E.2d 194

55 Ill.App.3d 706, 13 Ill.Dec. 499

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James MOORE, Defendant-Appellant.

No. 77-96.

Appellate Court of Illinois, Third District.

Dec. 27, 1977.

Mark W. Burkhalter, Asst. State App. Defender, Robert Agostinelli, Deputy State App. Defender, Ottawa, for defendant-appellant.

George W. Chabalewski, Asst. State's Atty., Edward Petka, State's Atty., Joliet, for plaintiff-appellee.

ALLOY, Presiding Justice:

Defendant James Moore appeals from a conviction of rape in the Circuit Court of Will County following a jury trial. Defendant was sentenced to a term of 15 to 30 years imprisonment. On appeal in this Court defendant argues simply that the identification of defendant by the rape victim should have been suppressed as being the fruit of an illegal stop.

We note from the record that on October 16, 1975, the Will County Grand Jury returned an indictment charging defendant Moore with the offense of rape in violation of par. 11-1 of the Criminal Code of 1961 (Ill.Rev.Stat.1975, ch. 38, par. 11-1). Prior to the trial, defendant filed a motion to suppress identification testimony, upon which a hearing was held. Testimony at the suppression hearing established that on August 26, 1975, Juannelle Ritchie was the victim of an armed robbery at her place of employment, an office in a four-store-front shopping center in Lockport, Illinois. On the night of the robbery, Ritchie described the black male robber to police officers. She also related to the investigating officers that she observed the robber at or near her place of employment on three occasions within two weeks prior to the robbery.

It appears that about two weeks prior to the robbery, the perpetrator of the robbery entered Ritchie's office at about 10:40 P.M. and requested to speak with a salesman, and then left without giving his name. On the second occasion, the man approached the locked office door shortly after 8:00 P.M. and Ritchie informed him that if he would return the next day he could speak with a salesman. On the night prior to the robbery and shortly after Ritchie's purse had been stolen, Ritchie observed the robber sitting in an automobile in the parking lot outside her office at approximately 10:50 P.M. Ritchie was able to view the back and passenger sides of the automobile and the profile of its occupant, whom she stated she recognized as a man who had earlier approached her office. Because she was nervous, Ritchie looked out of her office window three or four times to see if the car and its occupant remained in the lot. While she was unfamiliar with automobile models, Ritchie described the vehicle occupied by the robber as a late model reddish orange car, similar to a Vega, with silver hubcaps and two broad white stripes running down the trunk area, each stripe being seven or eight inches wide and with the stripes located about one-half inch apart. Ritchie did not see the vehicle on the night of the armed robbery.

The evidence at the suppression hearing also established that on September 8 or 12, 1975 at about 6:00 P.M., Will County Sheriff's Deputies Pavnica, in one squad car, and Kontos and Simpson, in another squad car, were on patrol near Route 171 in Lockport, when Deputy Pavnica, who had interviewed Ritchie regarding the armed robbery, observed an automobile matching the description of the vehicle associated with the armed robber. It appears that the orange Vega sighted by Pavnica had an 18 inch wide stripe running down the back, with a one inch wide stripe on either side, and that the vehicle was being driven by a black male. Due to the fact that Pavnica knew that there were not many cars of similar description in the area driven by black males, Pavnica proceeded to pursue and stop the vehicle. Prior to making the stop, the officer noted the vehicle license number of the Vega. Officers Kontos and Simpson assisted Pavnica in making the stop. Pavnica then checked the identification of defendant, who was the driver of the car. Pavnica noted that defendant matched Ritchie's description of the robbery suspect. Defendant, however, was not placed under arrest, but was requested to go to the police station to be photographed. Defendant agreed to do so and proceeded in his own car to the police station, where his photograph was taken. Deputy Pavnica testified, also, that a check on the license number of defendant's vehicle revealed that the vehicle was registered to defendant, and that the Will County Sheriff's files contained a picture of defendant dated November 29, 1973. The testimony of Joanne Harrison, the victim of the rape offense with which we are concerned, indicated that on September 19, 1975, she viewed the photograph taken of defendant Moore (following the stop by the Will County Sheriff's deputies) and that from that photograph she recognized defendant as her assailant. At the conclusion of the suppression hearing, the trial court denied defendant's motion, and found that the stop of defendant by the officers had not been illegal, and that defendant had consented to having his picture taken.

The evidence at the jury trial on the rape charge established that on the morning of September 18, 1975 Joanne Harrison, while in her mother's house in Joliet, answered the door and encountered a black man who pulled a gun on her and entered the house. The man tied Harrison's hands and forced her to submit to sexual intercourse. Subsequently, the man tied Harrison's legs and gagged her, and left the house taking with him Harrison's automobile, purse, wallet and driver's license. Harrison identified defendant at trial as her assailant. It also appears that Joliet police executed a search warrant on defendant's apartment on September 19, 1975, and discovered in the apartment, Harrison's driver's license, a hand gun and some rope. Following presentation of the evidence, the jury found defendant guilty of rape, and, following a sentencing hearing, the trial court sentenced defendant to a term of from 15 to 30 years imprisonment.

Defendant argues on the instant appeal that the identification testimony of Harrison should have been suppressed as the fruit of an illegal stop of defendant, for the reason that the officers stopping defendant did not have sufficient cause to make the stop. As this court stated in People v. Ussery (3d Dist. 1974), 24 Ill.App.3d 864, 867-868, 321 N.E.2d 718, 720:

"The curbing of a car is not an arrest of the driver. An arrest involves three elements: (1) authority to arrest; (2) assertion of that authority with intention to effect an arrest; and (3) restraint of the person to be arrested. (Citations omitted.) When one is approached by a police officer to be questioned about her...