Woods, In re
| Decision Date | 21 June 1974 |
| Docket Number | No. 59652,59652 |
| Citation | 20 Ill.App.3d 641,314 N.E.2d 606 |
| Parties | In the Interest of Salvador WOODS, Minor-Respondent. PEOPLE of the State of Illinois, Appellee, v. Salvador WOODS, Appellant. |
| Court | United States Appellate Court of Illinois |
Bernard Carey, State's Atty., Chicago, for appellee (Patrick T. Driscoll, Jr., and William F. Linkul, Asst. State's Atty., of counsel).
This is an appeal from a judgment terminating a stay of mittimus and finding respondent to be delinquent.
In September, 1972, after a previous finding that respondent was delinquent, a stay of mittimus was ordered which was in effect in March, 1973, when he was again arrested and a supplemental petition was filed charging him with robbery. A hearing was held in August of 1973, and he was found to have violated the stay of mittimus and to be delinquent on the supplemental petition. He was committed to the Juvenile Division of the Department of Corrections.
On appeal, respondent contends that (1) the court improperly refused to suppress the identification testimony of complainant; (2) the evidence was insufficient to prove him guilty of robbery beyond a reasonable doubt; and (3) improper cross-examination deprived him of a fair and impartial trial.
At the hearing on the supplemental petition, complainant Joan Poskozan, called by the State, testified that at about 11:00 A.M. she was walking on Pierce Avenue, just off Damen Avenue, on her way home from school, when she passed two boys. A moment later She was struck in the middle of her back and pushed to the ground, face forward. Her wallet, some identification cards and photographs were taken from her. She saw the faces and noticed the clothing of her attackers. When she got up, a police car approached, which she stopped. She informed its occupant, Officer Fabian, of the incident. After she went home, she was called outside by the police and was shown two boys in a car.
At this point in her testimony, when she was asked to identify respondent, a motion to suppress her identification was made and, at the hearing held on this motion, she testified as follows: Her assailants fled across Pierce to Hoyne, and she described them to Officer Fabian as being black, both about 18 years of age, weighing approximately 150 to 160 pounds and about 5 8 tall, although one may have been shorter. She noticed that one wore a long, dark red coat and that the other wore a short jacket. Later, when called from her house by Officer Fabian, she was asked in the presence of Officers Zito, Dugan and Fabian and respondent's mother to look in the back seat of the unmarked vehicle, and in response to the officers' questions, 'Do you know them?'; 'Do you recognize them?'; she answered, 'It looked like the two who could have robbed me.' After looking at the boys in the car, she could have moved her head laterally from right to left and left to right, although she did not remember doing so. When she saw respondent in the car, he was wearing a long, red coat and a brown felt hat.
Jessie Mae Woods, respondent's mother, called by him, testified she saw him in front of her apartment in a marked police car with Officer Fabian, who told her that an incident had occurred and that her son was being taken to be viewed by some people. An unmarked car arrived, and respondent was moved into that vehicle and driven about a block away. She followed in her car and was present when a young girl was brought out to the other car and she saw the girl look inside the car and, after looking at an officer, the girl shook her head from left to right in a lateral movement. She then approached Officer Zito and asked why they were holding respondent, after the girl had failed to identify him. Zito said she could take him home, but as her son started to walk away, Zito searched his pockets and found a hard card in his wallet, having the name of 'Grey', and Zito then said, 'We have to take your son to the station for further questioning.'
Officer Fabian, called by the State, testified that in response to a radio call received at about 11:00 A.M., he took information concerning the robbery from complainant and then drove to the corner of Schiller and Hoyne, where he parked to write out his report. There he noticed two youths, one walking north on Hoyne and the other walking east on Schiller. He stopped them and put them in the car 'because at that time in the morning, it looked like they were out of school.' Later, about 11:40 A.M., when Officers Zito and Dugan arrived, the youths were transferred to their unmarked car and driven to complainant's home for possible identification. When he observed the two boys, respondent was westbound on Schiller, and the other boy was northbound on Hoyne. Brown, brimmed hats and maxi-coats were not unusual apparel for black youths living in that area.
Officer Gregory Zito, called by the State, testified that he was northbound on Hoyne with Dugan when he observed two male Negro youths running from a fallen girl. His view was clear and unobstructed. One was a little taller than the other--with the short one wearing a maroon maxi-coat and a brown, brimmed hat, and the other wearing a black leather jacket. They gave chase, but the boys disappeared down an alley. Shortly thereafter, he received a call from Officer Fabian, who stated he had two boys in his car, and when he and Dugan arrived, he saw they were the same boys he had seen running away earlier. The youths were taken to the complainant, and she identified them as her attackers. He later identified respondent as one of the youths he had seen running from the fallen girl. When he saw the youths running from the fallen girl, she was on the ground on the north side of Pierce.
The court denied the motion to suppress complainant's identification and, when the hearing on the supplemental petition resumed, she testified respondent was one of the persons that she identified in the police car. She also stated that from the middle of the block on Pierce one could not see to the middle of the block on Hoyne. (Police Officer Zito had testified that when traveling on Hoyne, he saw two boys running from a girl who had fallen on Pierce.)
Richard Johnson, called by the State, testified that at about 11:00 A.M. he was standing on the corner of Hoyne and LeMoyne when he saw two boys running down the street, one running south on Hoyne and the other west on LeMoyne. He identified respondent as one of the boys. Subsequently, he talked with Officer Zito and told him he had seen two boys running down the street.
Officer John Dugan, called by the State, testified that he was with Officer Zito and saw a woman had been knocked down and that two men started to run away from her. He identified respondent as one of them.
Respondent testified that he was not involved in the robbery and was not on Pierce Avenue on that day. As we read his testimony, at the time of the robbery (about 11:00 A.M.) he was either in the Tuley High School lunchroom or in a dice game in a building next to the school. His sister testified that she saw him in the lunchroom about 11:05 A.M., and Herbert Weston testified that respondent was in the dice game at 10:35 A.M. and that he did not see him leave until 11:35 A.M. Respondent also testified that he was arrested as he was about to enter his house and that he did not see Thomas Spencer (apparently the other boy arrested with him) on that day until after he was stopped by the policeman when Spencer walked up to them. Spencer did not testify.
OPINIONRespondent presents several theories in support of his contention that the court erred in denying the motion to suppress the identification testimony of complainant. In one of these, he argues that the identification was the result of an illegal arrest and detention.
In this regard, we note that a law enforcement officer may, without a warrant, take a minor into temporary custody where, with reasonable cause, the officer believes the minor to be delinquent, otherwise in need of supervision, neglected, or dependent (Ill.Rev.Stat.1973, ch. 37, par. 703--1), and that a minor otherwise in need of supervision is any minor subject to compulsory school attendance who is habitually truant (par. 702--3(b)).
Officer Fabian testified he stopped the two boys Respondent argues that although Fabian may have believed he was truant, there is no evidence in the record indicating that Fabian believed he was neglected, dependent, delinquent, or an habitual truant and, under those circumstances, he contends that Fabian lacked the reasonable cause required by statute for the initial custodial detention.
The State contends that Fabian had probable cause. In its brief here, it states 'his attention was drawn to them (the two boys) initially because it was a school day and they were not in school.' The brief goes on to say, 'In addition, they matched the description given by the victim of her assailants and so Fabian stopped them and placed them in his squad.'
As we view the record, it appears that Fabian did have a description of the two attackers when he first observed respondent and the other boy, who were walking towards each other on intersecting streets. However, in his testimony, he stated that he stopped them because 'it looked like they were out of school.' Thus, it appears that the original detention was not the result of the descriptions in his possession but rather, because of his belief that the two boys should have been in school. The only indication in the record in support of the State's contention that the descriptions might have had some relation to the detention appears in the cross-examination of Fabian when, in answer to the question, 'Now, what led...
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