People v. Rose, 1-87-2645

• Decision Date: 06 December 1989
• Docket Number: No. 1-87-2645,1-87-2645
• Citation: 548 N.E.2d 548,191 Ill.App.3d 1083
• Parties: , 139 Ill.Dec. 163 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James ROSE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 548

548 N.E.2d 548

191 Ill.App.3d 1083, 139 Ill.Dec. 163

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

No. 1-87-2645.

Appellate Court of Illinois First District, Third Division.

Dec. 6, 1989.

Randolph N. Stone, Public Defender of Cook County, Chicago (Hugh Stevens, of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty. of Cook County, Chicago (Inge Fryklund, Paula Carstensen and Catherine A. Bernard, of counsel), for plaintiff-appellee.

Presiding Justice FREEMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, James Rose, was convicted of voluntary manslaughter (Ill.Rev.Stat.1985, ch. 38, par. 9-2) and sentenced to 12 1/2 years' imprisonment in the Illinois Department of Corrections. Defendant appeals, contending that the trial court (1) erred in denying his motions to quash his arrest and to suppress evidence, (2) abused its discretion by discharging one of the jurors, and (3) considered improper factors in sentencing him. We affirm.

At the hearing on the motions to quash the arrest and suppress evidence, Detective George Carey testified that on July 23, 1986, at about 3 a.m., he and his partner, Detective Al Grefsheim, were assigned to investigate a homicide at an apartment building located at 5641 South Michigan Avenue in Chicago. The victim, Earl Grigsby, had been stabbed. Prior to arriving at the scene, beat officers had informed the detectives that there were two offenders involved and that one of them was Keith Allen. Carey obtained the address for Allen from the police arrest files. Upon arriving at that address, which was down the street from the crime scene, the detectives found it to be a vacant lot. The detectives then proceeded to 5641 South Michigan where they interviewed witnesses concerning the homicide.

Carey interviewed Sharon Collins who stated that the stabbing was the result of an altercation which had occurred on the weekend prior to July 23. On that weekend, there had been a fight in front of the building between a man named Tyrone Russell and a man known only as James. The victim attempted to break up the fight. After Russell knocked out James, the victim gave shelter to Russell in his apartment. Later, James came upstairs and knocked on the door of victim's apartment in search of Russell. The victim told James that he did not know where Russell was and James said that if he ever found Russell, he would kill him.

Carey further testified that Sharon told him that on the evening of the twenty-third, she was with Janice Collins and Denise Dunmore in the victim's apartment. The victim had gone out to the store. When she heard the downstairs doorbell continuously ringing, she walked out onto the balcony of the apartment and a woman across the street yelled to her that someone had just stabbed one of their (Collins') boyfriends. Sharon ran out of the apartment and opened the vestibule door. The victim was standing there with blood on him, stating that James had done it. She let the victim inside and he walked upstairs to the apartment, where he subsequently collapsed on the bedroom floor. Sharon then went across the street, in search of the woman who had yelled to her. The woman told her that two men were fighting the victim and she gave Sharon a description of one of the men. Based on the woman's description, Sharon recognized one of the men involved to be Keith Allen. Information gathered from Janice Collins and Denise Dunmore corroborated that of Sharon's.

Carey also interviewed Edward Green, the janitor of the building across the street. According to Green he had witnessed the fight at the building on the preceding weekend. One of the men in the weekend fight was involved in the stabbing. Green advised the detectives to speak with Denise Johnson, because she had been closer to the crime scene than he was and she would be better able to tell them about the stabbing.

The detectives then proceeded to the home of Tyrone Russell, whose address they had obtained from Collins. Russell informed them that he had been involved in the fight with James over the weekend. After the fight, Russell was in the victim's apartment when James came looking for him. Russell heard James say that if he ever found Russell, he would kill him. Russell stated that he did not know who James was, what his last name was, or where he lived, but that the detectives should know because they had recently arrested James's brother, Tyrone Sims, for murder.

Grefsheim had handled the Sims case and he knew that Sims lived with his mother. The detectives proceeded to the Sims address where they met with Sims' mother. When asked whether Tyrone had a brother named James, the mother responded that he did, that his last name was Rose, and that he lived in an apartment on the third floor of the building. By this time, it was about 5:15 a.m.

The detectives went to the third floor of the building, knocked on the door and Portes Harris, who appeared to have been awakened by the knock, answered. The detectives identified themselves, told Harris that they were looking for James Rose, and asked Harris whether Rose lived there. Harris responded in the affirmative, said that he was Rose's uncle, then stood back and told the detectives to come inside. The officers followed Harris down a hallway to a bedroom, Harris opened the door, and defendant was found sleeping there. The detectives did not have a warrant.

The detectives awakened defendant and informed him that they believed that he had been involved in the stabbing of Earl Grigsby. Defendant denied any involvement. Carey told defendant to come with them, and the detectives returned, with defendant, to the crime scene. Upon their arrival, Sharon Collins, Janice Collins, and Denise Dunmore started yelling that defendant was the James who had been in the fight over the weekend. The detectives took defendant out of the car, to make certain that the ladies' identification was correct. Defendant was then placed under arrest, handcuffed, placed in the car and given his Miranda warnings.

At about 6 a.m., defendant was transported to the police department and placed in an interview room. Defendant was again given Miranda warnings. Defendant admitted that he had stabbed the victim, described the knife that he had used, and told the detectives that he thought that the knife could be found in the apartment, under his mattress.

Carey, Grefsheim and a third police officer, Swistowicz, returned to defendant's apartment. Harris again answered the door. The detectives told Harris that they were looking for defendant's knife and that defendant had told them that the knife was under his mattress. When they asked if they could come in and get it, Harris said "yes." The officers went into defendant's bedroom and looked under the mattress for the knife, however, it was not there. Carmella, defendant's girlfriend, was in the room at the time. She told the detectives that she did not know where the knife was, but that they could look around. Officer Swistowicz found the knife in the kitchen, on top of a radiator. Carmella identified the knife as being that of defendant's.

The detectives returned to the police station, and at about 3 p.m., Carey, along with assistant State's Attorney Kevin Horan, interviewed defendant. Defendant was again given his Miranda warnings and he subsequently gave a court-reported statement confessing to the stabbing.

Detective John Markham testified that at about 8 p.m., on that same evening, he conducted a line-up which was viewed by Denise Johnson and Edward Green, occurrence witnesses. There were five people in the line-up, including defendant. The witnesses identified defendant as the offender.

Portes Harris testified in rebuttal. He stated that he lived at 125 East 57th Street, with defendant, his (defendant's) mother and his siblings. According to Harris, on the morning of the twenty-third, there were four or five officers at the door. When he answered the door the officers asked for James Rose. Harris did not know whether James was at home, and he told the detectives that he would go to his room to check. Before Harris could get to defendant's bedroom, the officers were coming in the door. The detectives did not say that they wanted to arrest defendant, they said that they wanted to talk to him. Harris stated that he did not give the officers permission to come inside.

Later, at about 4 or 5 p.m., two or three officers returned to the apartment. They knocked on the door, Harris again answered, and the officers told him that they wanted to search defendant's room for a knife. Harris stated that he did not give the officers permission to search the apartment, and he did not know whether they had found anything as a result of their search.

On cross-examination, Harris stated that he had been with defendant's mother for eight years. He stated that he did not tell the police that he was defendant's uncle, but rather that he was his stepfather. According to Harris, Tyrone Sims was defendant's cousin, not his brother. He also testified that the police were polite each time that had come to the apartment and that they did not have their guns drawn. Further, Harris stated that had the detectives asked for permission to enter the apartment, he would have granted it.

At the close of the evidence, the trial court asked to hear argument concerning consent or exigent circumstances to enter the apartment to make a warrantless arrest. The court also heard argument concerning consent to enter the apartment to search for the knife. Based on the evidence and the arguments of the parties, the court stated that it found that there was probable cause to arrest and that there had been consent to enter the apartment to search for the knife. The court denied defendant's motions to quash his arrest and to suppress the evidence.

At trial, Sharon...