People v. Poole

• Decision Date: 23 February 1988
• Docket Number: No. 84-0197,84-0197
• Citation: People v. Poole, 520 N.E.2d 1017, 167 Ill.App.3d 7, 117 Ill.Dec. 666 (Ill. App. 1988)
• Parties: , 117 Ill.Dec. 666 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard POOLE, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 1017

520 N.E.2d 1017

167 Ill.App.3d 7, 117 Ill.Dec. 666

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard POOLE, Defendant-Appellant.

No. 84-0197.

Appellate Court of Illinois First District, Second Division.

Feb. 23, 1988.

[117 Ill.Dec. 667] [167 Ill.App.3d 9] Steven Clark, Chicago (Bruce Mosbacher, of counsel), for defendant-appellant.

Richard M. Daley, Chicago (Thomas V. Gainer, Jr., James E. Fitzgerald, Theresa M. Gray, of counsel), for plaintiff-appellee.

Justice SCARIANO delivered the opinion of the court:

Richard Poole was charged by information with armed robbery and was convicted thereof by a jury. The trial court sentenced him to life in prison as a habitual offender, as provided in Ill.Rev.Stat.1983, ch. 38, par. 33B-1.

Prior to the trial, which took place in November of 1983, defense counsel tendered two questions to the trial court to be asked during voir dire regarding Poole's entitlement to a presumption of his innocence. In lieu of putting the proffered questions to the prospective jurors, the trial judge apprised the venire of this right of the defendant in his preamble to the voir dire. In addition, he inquired of each potential juror, "As you sit there, can you think of any reason why you couldn't be fair?"

The evidence adduced at trial was as follows. On March 1, 1983, at approximately 10:15 p.m., Carlene Moldenhauer was approaching her apartment at 671 W. Wrightwood, in a well-lighted area in Chicago, and upon hearing someone walking behind her, she turned around and saw a man, whom she subsequently identified as Poole, pointing a gun at her from approximately one foot away.

Poole said, "This is it, give me the money." When Moldenhauer told him that she had none and began screaming, he ordered her to calm down and repeated his demand. Moldenhauer reiterated that she did not have any money, but finally admitted that she had a dollar bill and gave it to him. Poole wanted to enter the building, but Moldenhauer informed him that she had a roommate who was at home. He next demanded her jewelry, but after refusing, she turned and ran up the stairs of the building.

The first set of doors, which led into a well-lighted vestibule, was open and she entered, but the second set was locked. Moldenhauer began ringing all the door bells, and as Poole entered the vestibule, she turned around. When he realized what Moldenhauer was doing, Poole fled. Moldenhauer then used her key to enter the second set of doors, ran upstairs to her landlady's apartment, told her what had happened, and immediately thereafter called the police.

Within about one minute two officers arrived at the apartment. Moldenhauer described Poole to them as a black man of medium complexion, approximately 30 years of age, about 6'1"' or 6'2"', about 160-180 pounds, with a full beard and mustache and who was wearing a navy blue stocking cap, dark pants, and a brownish leather waist-length jacket. She also described the gun Poole had used as a large, silver threaded screw-type weapon.

Officers Kern and DeJesus were on patrol when they received a radio report that an armed robbery had just occurred at 671 W. Wrightwood; the report also gave Moldenhauer's description of Poole. Moments later, only several blocks from the scene of the crime, the policemen saw a man driving towards them who fit the robber's description. At that time he was only four feet away from the officers; consequently, they turned on their siren and overhead lights and followed the automobile.

Poole was apprehended after a high speed chase during which Officer Kern saw him bend down as if reaching toward the floor. Kern approached Poole's car, and when he asked him for his license, Poole produced a traffic citation. The officer then required Poole to exit the car and gave him a pat-down search, which revealed nothing. Kern then handcuffed Poole and looked beneath the driver's seat of the car, where he found a loaded .38 caliber gun with a silver threaded barrel tip. Poole was brought forthwith to the scene of the robbery, where Moldenhauer identified both Poole and the gun.

Motions to quash arrest and suppress evidence and identification were denied. The jury found Poole guilty and he was sentenced to prison for the rest of his natural life in accordance with Ill.Rev.Stat.1983, ch. 38, par. 33B-1.

OPINION

I

Poole contends that the trial court erred by refusing to ask in voir dire the questions he proposed regarding the presumption of his innocence; instead, the trial court in its preamble to the prospective jurors generally explained to them the applicable law and asked them whether they knew of any reason why they could not be impartial. Poole strenuously argues that the appellate court's opinion in People v. Zehr (3rd Dist.1982), 110 Ill.App.3d 458, 66 Ill.Dec. 155, 442 N.E.2d 581, which was affirmed in 1984 by the Illinois supreme court (103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062), should have been followed by the trial court. The appellate court in Zehr had ordered that the cause be remanded on other grounds and instructed the trial court that on re-trial it should allow questions in voir dire regarding the State's burden of proof, the presumption of innocence in defendant's favor, and his right not to testify in his own behalf, although the court recognized that these directions conflicted with accepted interpretation of Illinois law. E.g., 107 Ill.2d R. 234; People v. Lowe (1975), 30 Ill.App.3d 49, 54, 331 N.E.2d 639.

Our supreme court in People v. Britz (1986), 112 Ill.2d 314, 97 Ill.Dec. 768, 493 N.E.2d 575, held that its opinion in Zehr would apply prospectively only, since "Zehr represented a change in Illinois law * * *." (Zehr, 112 Ill.2d at 319, 97 Ill.Dec. 768, 493 N.E.2d 575.) Accordingly, the trial court in the case at bar was not required to follow the appellate court's ruling in Zehr on the conduct of voir dire, because the appellate court's opinion in that case conflicted with the governing law on this subject (see People v. Bradley (1st Dist.1981), 97 Ill.App.3d 1100, 53 Ill.Dec. 620, 424 N.E.2d 33), in this, the first district. Bradshaw v. Pellican (2d Dist.1987), 152 Ill.App.3d 253, 105 Ill.Dec. 342, 504 N.E.2d 211. ¹

Assuming arguendo that the appellate court's decision in Zehr did apply to the case at bar, we conclude that the trial court did not commit error. The People note that the discretion of the trial court concerning the conduct of voir dire should not be disturbed absent an abuse of discretion. (People v. DeSavieu (1983), 120 Ill.App.3d 420, 427, 76 Ill.Dec. 104, 458 N.E.2d 504.) In a recent opinion, we declared that "a trial judge need not turn the process of selecting a jury into a catechetical exercise * * *." (People v. Williams (1987), 159 Ill.App.3d 527, 532, 111 Ill.Dec. 131, 512 N.E.2d 35.) In the instant case, the trial judge discussed Poole's presumption of innocence in his preamble to the venire, and later asked them to signify if they believed they were unable to apply the law fairly in the case before them. This opportunity for the jurors to respond satisfies the requirements of Zehr by allowing prospective jurors to indicate whether they feel they can impartially apply the law as explained to them by the trial judge. Accordingly, the trial court did not err in its conduct of the voir dire.

II

This court will not set aside a trial court's disposition of a motion to suppress unless its decision thereon is manifestly erroneous. (People v. Stewart (1985), 105 Ill.2d 22, 41, 85 Ill.Dec. 241, 473 N.E.2d 840; People v. Harland (1982), 111 Ill.App.3d 984, 987, 67 Ill.Dec. 399, 444 N.E.2d 635.) Poole contends that the police officers who arrested him did not have probable cause to believe he had committed a crime. Probable cause has been defined by our supreme court as follows: "Probable cause for arrest exists when facts and circumstances within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. [Citations.]" (People v. Lippert (1982), 89 Ill.2d 171, 178, 59 Ill.Dec. 819, 432 N.E.2d 605.) In Lippert, one suspect was described as about 5 feet 11 inches in height with medium length blond hair, and another as having bushy brown hair and wearing a blue jacket. ( Lippert, 89 Ill.2d at 175, 59 Ill.Dec. 819, 432 N.E.2d 605.) Although the police officers apprehended the suspects approximately one half hour after the crime and several miles from the scene thereof, the court held that they had probable cause for the reason that the descriptions previously afforded them matched their own detailed observation. ( Lippert, 89 Ill.2d at 181, 59 Ill.Dec. 819, 432 N.E.2d 605.) Thus, Lippert is apposite, as is People v. Mills (1968), 98 Ill.App.2d 248, 240 N.E.2d 302, in which the court held that an officer had probable cause to arrest an individual based on his proximity to the scene of the crime and the description of the suspect as "a male Negro about 30 to 40 years old, between 5-9 and 5-11, 145 to 165 pounds, medium complexion and wearing a dark hat and a dark coat." ( Mills, 98 Ill.App.2d at 252, 240 N.E.2d 302.) The description given in Mills fit the suspect's physical features and attire, as was the case here with Poole. Based on the reasoning of the opinions in Mills and Lippert, Officer Kern clearly had probable cause to arrest Poole.

Poole cites In re People v. Woods (1974), 20 Ill.App.3d 641, 314 N.E.2d 606, but this case affords him not even tepid help in regard to the issue of probable cause. In Woods, the suspect was described as approximately eighteen years of age, weighing approximately 150 to 160 pounds, and about 5'8"' tall. ( Woods, 20 Ill.App.3d at 643, 314 N.E.2d 606.) The court held that this general description of the defendant was insufficient, especially since he lived in the neighborhood, thus making valueless the factor of his...