People v. Ruple

• Decision Date: 04 April 1980
• Docket Number: No. 78-315,78-315
• Citation: 403 N.E.2d 129,38 Ill.Dec. 114,82 Ill.App.3d 781
• Parties: , 38 Ill.Dec. 114 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy RUPLE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 129

403 N.E.2d 129

82 Ill.App.3d 781, 38 Ill.Dec. 114

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy RUPLE, Defendant-Appellant.

No. 78-315.

Appellate Court of Illinois, Third District.

April 4, 1980.

Frank W. Ralph, Asst. State Appellate Defender, Robert Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.

Michael M. Mihm, State's Atty., Peoria County, Peoria, Rita F. Kennedy, John X. Breslin, State's Attys. Appellate Service Com'n, Ottawa, for plaintiff-appellee.

STENGEL, Justice:

Timothy Ruple was tried before a jury upon charges of robbery and armed robbery, and following his conviction for both, he was sentenced to imprisonment for a term of four years to four years and one day. On appeal, defendant contends that a knife and his confession were the products of an illegal arrest and should not have been admitted into evidence and that his right to a speedy trial was violated. Neither issue was raised in the trial court.

According to the evidence presented at trial, James Hammett was sitting in his parked camper-truck in Eckwood Park in Peoria during the early morning hours of October 22, 1977, when he was approached by three young men, who were later identified as Leroy Krus, James Thomas and defendant. Krus got into the truck and negotiated with Hammett for the price of a deviate sexual act. The two men were unable to agree upon a price, and thereafter, Krus, Thomas, and defendant pulled Hammett from the truck. Krus punched Hammett, and both Krus and Thomas threatened him with a knife which Thomas took from the dashboard of the truck. Defendant removed a shotgun and CB radio from the truck and unlocked the camper from which Krus removed a tool box. Then they locked Hammett in the camper and departed with the stolen items in their own car. Hammett later escaped from the camper by breaking a window. He gave the police a description of the car and the men involved.

Later that same day, Officers Melvin Little and Larry Layman were told at roll call that Leroy Krus was suspected of an armed robbery and was driving a 1964 or 1965 blue Mercury with red stripes down the sides. About 3:30 p. m. the officers saw a car matching that description. They stopped the car and identified Krus as the driver and defendant as his passenger. Both men were placed under arrest and searched. A knife, later identified as belonging to Hammett, was found in defendant's boot. Defendant and Krus were taken to the police station and interviewed by Detective Charles Cannon to whom defendant gave first an oral and then a written statement describing the robbery.

Defendant said that he and a group of friends had been drinking beer since 8 or 9 p. m. on October 21. In the early morning hours of October 22, having no money to buy more beer, one of the girls suggested that they could "roll a queer" to get money. Defendant, Krus, Thomas, and two girls drove to Eckwood Park. When the three men got out to approach Hammett's truck, the two girls drove away and circled the park until the men signaled for them to return. Defendant described the events of the robbery after which he said they returned to his apartment, divided the items taken, and went to bed. About 7 a. m. he and Krus went to a gas station where Krus sold the shotgun for $25. They parked the car at the station and went to sleep. At about 12 noon, a friend of Krus came into the station, and Krus sold him the CB for $20. Krus and defendant were arrested later the same day and jointly charged with robbery and armed robbery.

On January 20, 1978, defendant's motion for separate counsel and his motion for severance were allowed. His request for a continuance was granted, and the cause was set for trial on February 20, 1978. By agreement, the cause was continued to February 22, on which date the Assistant State's Attorney orally moved for another continuance with the following statement:

"Your Honor at this time due to a change in circumstances, that being an anticipated plea now being rejected by the Defendant I am compelled to move for a continuance since acting in reliance on the anticipated plea agreement I have released my witnesses from their obligation to be present here today and I have been unable to get them all back into Court."

The trial was then set for April 10, 1978.

On the day of trial, the court first heard defendant's motion to suppress his confession which alleged that his confession was the result of physical or mental coercion and that he was not informed of all of his rights. Detective Cannon testified that he gave defendant his rights and that defendant did not appear to be intoxicated or tired at the time of his statement. One of the arresting officers also testified that defendant's condition was normal, not intoxicated, at the time of his arrest.

Defendant testified that at the time of his arrest he had not slept for 48 hours, that he had consumed 24 cans of beer and 1 1/2 fifths of whiskey, and had smoked some marijuana since 8 p. m. the night before, that he was tired and intoxicated, that Officer Cannon slapped him 15 times and cut his arm with a tab from a can of pop, that he was not given his Miranda warnings, and that he was told he could go to sleep if he gave a written statement.

A police secretary, called in rebuttal, corroborated Officer Cannon's testimony and contradicted defendant's version of the interview. The trial judge announced that he believed the secretary, and the motion to suppress was denied.

At trial the victim James Hammett identified defendant as one of the men who robbed him but said defendant had long blond hair and a mustache at that time. Defendant apparently was clean shaven with long brown hair at trial. Officer Little testified to the circumstances of the arrest. On cross-examination, he indicated that, at the time he stopped the car and when he searched defendant, he had no reason to suspect that defendant had been involved in the robbery. He said that the search was made after defendant was arrested. Defense counsel then asked, "Why did you place him under arrest?" The prosecutor requested a side bar conference, and after that conference, defense counsel asked no new questions. The knife and confession were admitted into evidence without objection.

At the close of the State's case, defendant took the stand to testify that he was intoxicated, tired and physically abused by police at the time he gave his statement. Both Officer Cannon and the police secretary testified in rebuttal that defendant did not appear tired or intoxicated when he was questioned and that he was not slapped or cut. Officer Cannon pointed out that defendant said in his confession that he went to bed after the robbery and that he slept in the car at the gas station after selling the shotgun. The jury returned a verdict of guilty of robbery and guilty of armed robbery.

On the date set for sentencing, May 26, 1978, defendant's trial counsel was allowed to withdraw because defendant had accused him of incompetency in failing to call witnesses for an alibi defense and for proof that Hammett's knife was found in the car, not defendant's boot. When questioned by the court, defendant admitted that he never told his attorney that he had an alibi or that his confession was false. Later at the sentencing hearing, the court observed that defendant was merely an aider and abettor as to the armed robbery and so he was given the minimum sentence of four years to four years and one day in prison. No post-trial motion was filed, but defendant has appealed.

Defendant first contends that the knife and confession were erroneously admitted into evidence because, by Officer Little's own admission, he lacked probable cause for defendant's arrest and the arrest was, therefore, unlawful. Both the knife found in defendant's boot and the confession he gave at the police station are said to have been the fruits of the unlawful arrest. Defendant acknowledges that no such objection was made at trial, but he suggests that the erroneous admission of evidence would affect substantial rights so as to be plain error within Supreme Court Rule 615(a) (Ill.Rev.Stat.1977, ch. 110A, par. 615(a)).

Rule 615(a) provides that a reviewing court may consider plain errors or defects affecting substantial rights although they were not brought to the attention of the trial court. However, the rule is not invocable in every case and has been said to allow the court, as a matter of grace, to take notice of errors which deprived the accused of a substantial means of enjoying a fair and impartial trial. (People v. Killebrew (1973), 55 Ill.2d 337, 303 N.E.2d 377.) Here defense counsel, after a sidebar conference out of the hearing of the jury and the court reporter, abandoned his previous line of questioning Officer Little as to the probable cause for defendant's arrest. Under the circumstances we think counsel chose to forego a challenge to the lawfulness of the arrest as a matter of trial strategy. A similar situation arose in People v. Morgan (1st Dist.1976), 39 Ill.App.3d 588, 350 N.E.2d 27, affirmed (1977), 67 Ill.2d 1, 7 Ill.Dec. 69, 364 N.E.2d 56, cert. denied 434 U.S. 927, 98 S.Ct. 411, 54 L.Ed.2d 287, where the defendant contended that his arrest was not based upon probable cause and that as a consequence his subsequent statement was inadmissible. The appellate court held that this issue had been waived and could not be asserted for the first time upon appeal. See also, People v. Hutchison (3d Dist.1977), 55 Ill.App.3d 716, 13 Ill.Dec. 506, 371 N.E.2d 201; People v. Williams (1st Dist.1976), 37 Ill.App.3d 1006, 347 N.E.2d 368.

As this court noted in People v. Guynn (3d Dist.1975), 33 Ill.App.3d 736, 338 N.E.2d 239, the waiver rule is based upon the necessity of an error being brought to the attention of the trial court so the court can have an opportunity to correct itself. (Accord, People v. Griffith (2d Dist.1976), ...