author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Nickson, Defendant-Appellant.
    (No. 58325;
    First District (5th Division)
    September 13, 1974.

      James J. Doherty, Public Defender, of Chicago (James N. Oramenos, Edward Nemetz and William Pearlman, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Perry L. Fuller, Dennis J. Horan, and E. Michael Kelly, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant was found guilty of possession of a controlled substance in violation of Ill. Rev. Stat. 1971, ch. 56V2, par. 1402(b), and sentenced to a term of 3 to 8 years.

On appeal, defendant argues that (1) the petition to quash his arrest and suppress evidence should have been granted, because the arrest and search were made without warrants and were based upon information supplied by an informer whose reliability was not proved; (2) the informer should have been required to appear at the hearing on the petition to quash the arrest and suppress evidence; (3) a statement should have been made by the court as to the findings of fact and conclusions of law upon which it based its denial of defendant’s motion to suppress; (4) the evidence did not sufficiently establish the substance recovered was a narcotic; and (5) the evidence failed to establish his guilt beyond a reasonable doubt.

The following facts were testified, to at the hearing on the petition to quash the arrest and to suppress evidence: On August 23, 1971, at approximately 12 P.M., an unidentified informer voluntarily came to police headquarters and gave information to Officers Jackson and Mitchell concerning the activities of one “Greasy Bob”, later identified as defendant, a drug seller operating in the area of 43rd and King Drive. Jackson testified that he had known this informer for approximately 14 months and had received information from him on four prior occasions concerning narcotics activity. On each of these occasions narcotics were recovered and arrests were made, which resulted in one conviction and three pending cases in court. Jackson also testified that pursuant to an arrangement with the informer, he and Mitchell met the informer at approximately 2:30 P.M. in the vicinity of 44th and Vincennes, where the informer told them he had purchased a quantity of heroin from Greasy Bob about 45 minutes earlier. The informer was not searched and did not display any narcotics, because he said he had used the purchase. He told the officers that Greasy Bob still had heroin in his possession in a “Stanback” package.

The officers and the informer then cruised the immediate area in a squad car and, after a period of time, at 45th between Vincennes and King Drive, the informer pointed out Greasy Bob. Jackson testified that he and Mitchell left the car and followed Greasy Bob to 4346 King Drive, where he entered the basement of a two-story building by the side entrance. The basement door was open, and as he and Mitchell entered, he called out, “Greasy Bob,” and announced his office. At that point, Jackson stated defendant dropped a small package to the ground. Subsequent examination revealed the package to be a Stanback package containing two tinfoil packages with a white powdered substance inside (later established to be heroin). Defendant was then arrested.

Officer Mitchell testified he had known the informer for only about a week prior to August 23, 1971, and had never previously received any information from him. When he and Jackson met the informer at 44th and Vincennes, it was approximately 11:45 A.M. The informer told them he had purchased heroin from Greasy Bob 45 minutes earlier and that Greasy Bob was carrying more heroin in a Stanback package. They drove until approximately 2:30 P.M., at which time the informer pointed out Greasy Bob. He and Jackson walked toward defendant, who turned into a gangway at 4346 King Drive and then into the basement of that building, pushing the door behind him. As they followed him inside, Mitchell, who had his badge in his left hand and his weapon in his right hand, announced his office and showed his badge and then séarched him.

Defendant testified he lived in the basement of a four-story building at 4346 King Drive, when he stated people were mostly moving out because the electricity had been shut off for about a month. The lock on the basement door had been knocked off and, after he entered, he pushed the door shut and started into a little room when he heard someone say, “Hold it,” and felt something cold against the back of his neck. Thereafter, the officers searched him and his room, and Officer Jackson then said he recovered a package.

The court denied defendant’s petition to quash the arrest and suppress evidence without making any written or oral statement as to its findings.

At trial it was stipulated, subject to cross-examination, that the testimony of Jackson would be the same as on the motion to suppress. Jackson then, on cross-examination, described the basement of the building as follows: “When you first walk into the basement there is like a large room. Then there is a little hallway leading to the room where Mr. Nick-son was living at the time.” Two young ladies, whose names he did not obtain, were in defendant’s room at the time Jackson entered the basement, and when he entered he was about 10 to 15 feet behind defendant. He did not conduct a search of defendant because when he called to him, defendant dropped the Stanback container to the floor and a tinfoil package came out of it. Jackson picked up both, and on looking inside the Stanback container he saw another tinfoil package. Both tinfoils contained a white powder. He knew from his experience as a police officer that narcotics are usually wrapped in tinfoil. He made the arrest after he retrieved the Stanback container. At that point, he told defendant he was under arrest for possession of narcotics.

Defendant, when called upon to testify, stated that the Stanback package belonged to him and, in a colloquy on direct examination, made the following admission:

“Q: Mr. Nickson, on August 23, 1971, were you in possession of any heroin?
A: No.
Q: You see this Stanback package that was previously marked as part of the State’s Exhibits?
A: Yes.
Q: Did you ever see that before?
A: Yes.
Q: Where have you seen that before?
A: I had it in my pocket.
Q:. Was there any heroin in there?.
A: Yes.”

After the close of all the evidence, the court found defendant guilty of possession of a controlled substance.

OPINION

Defendant first contends that the motion to quash his arrest and suppress the use as evidence of the heroin, the Stanback container and the tinfoil packages, should have been granted because the informer’s reliability was not proved and there being no other showing of probable cause for an arrest without a warrant, his arrest and the search of his person and his room were unlawful.

The validity of an arrest without a warrant depends on whether there was reasonable cause to believe the person to be arrested has committed a criminal offense (People v. Wright, 42 Ill.2d 457, 248 N.E.2d 78. See also Ill. Rev. Stat. 1971, ch. 38, par. 107 — 2(c).) Such reasonable cause may be furnished by an informer of established reliability. People v. Hampton, 14 Ill.App.3d 427, 302 N.E.2d 691.

In recent years, the Illinois Supreme Court has reviewed a number of cáses concerning the adequacy of the proof of an informer’s reliability. Among these are People v. Wilson, 45 Ill.2d 581, 262 N.E.2d 441, and People v. Wright, supra. In Wilson, an informer was considered by tire court to be reliable where his information over a number of years had produced many arrests and a number of convictions. In that case, the informer had also purchased narcotics from defendant and informed the police of the area in which defendant conducted his activities. In Wright, an informer gave a description of defendant and said he was in a specified restaurant with narcotics in his possession. Defendant was subsequently arrested in the restaurant and a search of his person revealed the narcotics. The court held that evidence of 14 arrests and 10 convictions from information previously provided, together with the accurate description given, adequately established the informer’s reliability.

•. Defendant urges that People v. McClellan, 34 Ill.2d 572, 218 N.E.2d 97, is controlling. In McClellan, an add'ct approached a stopped police car and, as defendant passed the car and entered a restaurant, the addict stated, “That dude is dirty.” The officers entered the restaurant, questioned defendant, arrested him, and then found heroin in his coat pocket. An officer testified the addict had furnished information on three prior occasions which resulted in arrests. The court held that to establish the reliability of the informer, the accuracy of his prior information should have been shown and, where the only testimony in this regard was that arrests had resulted, there was an insufficient showing of such accuracy.

The question of an informer’s reliability should be determined on a case-to-case basis and, in this regard, we note Officer Jackson’s testimony that information was given by the informer on four different occasions with narcotics recovered and arrests made in each instance. One of these arrests resulted in a conviction, with cases pending against the others, and he testified he would, if required, provide the names of those four persons. We note also that the informer initially told the officers where defendant conducted his narcotics activity and that it was in this area that ■he eventually pointed out defendant. In addition, he informed the officers that defendant still had heroin in his possession which he carried in a Stanback container.

It was for the trial judge to determine the credibility of Officer Jackson, as well as the other witnesses, and then to decide if the acceptable facts justified police reliance on the informer. (People v. McCray, 33 Ill.2d 66, 210 N.E.2d 161, aff'd, 386 U.S. 300, 18 L.Ed.2d 62, 87 S.Ct. 1056.) We believe that the facts here are distinguishable from those in McClellan, relied upon by defendant, and are more closely aligned with Wilson and Wright, and we find no reason to overturn the trial court’s favorable determination of the credibility of Officer Jackson. The reliability of the informer having thus been established, we hold that he furnished reasonable grounds for defendant’s arrest.

Having so determined, it would make no difference whether the arrest occurred as argued by defendant, at the time the officers entered the basement and announced their office, one with gun drawn, or, as the State contends, after the tinfoil package fell from the Stanback container dropped by defendant. Furthermore, we believe that the evidence showed that the arrest did not take place in defendant’s dwelling or room, as suggested by defendant, but that it occurred in a common area in the basement. Officer Jackson testified he and Officer Mitchell were 10 to 15 feet behind defendant as they followed him through an open door to a common area in the basement of the building and that the arrest and search took place there. Officer Mitchell’s testimony differed only in that he said defendant pushed the door shut behind him. Defendant stated people were moving out of the building, because the electricity had been shut off for a month prior thereto, and that he lived in a small room off the basement of the four-story building. He stated there was no lock on the basement door but that he pushed the door shut and had just “started in the little room” when Officer Jackson said to hold it.

Moreover, as we view the testimony of defendant, the package of heroin was obtained from a search after his arrest. Officer Mitchell was not asked and made no statement concerning the recovery of the Stan-back container and tinfoil packages, and Officer Jackson stated that the heroin was obtained not from a search but as a result of defendant dropping the container to the floor. In any event, the search was incident to a lawful arrest. Such a search is an exception to the Fourth Amendment requirement of a warrant. United States v. Robinson, 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467. See also Ill. Rev. Stat. 1971, ch. 38, par. 108 — 1.

In view of the foregoing, we are of the opinion that the trial court properly denied the motion to quash defendant’s arrest and to suppress the use of the heroin as evidence.

Defendant next argues that the informer should have been required to appear at the hearing on the motion to quash and suppress because of alleged inconsistencies in the testimony of the police officers, which he contends created a situation which comes within the special circumstances rule of People v. Clifton, 42 Ill.2d 526, 250 N.E.2d 649. We disagree. In Clifton, there were unusual circumstances which raised a doubt in the mind of the trial judge, and the supreme court held that the trial judge properly ordered that the informer be produced to dispel that doubt.

Neither the alleged testimony inconsistencies nor any other special circumstances appeared to have created any doubt in the mind of the trial judge here. We believe that People v. Hampton, supra, is controlling. There, the court stated at page 435:

“[Wjhere the issue is not one of guilt or innocence but, as here, a question of probable cause for arrest, the police need not disclose the informant’s identity if the trial judge is convinced that the police relied in good faith upon credible information supplied by a rehable informant.”

Here also, the question was one of probable cause for arrest, and we believe the trial judge was justified in finding that the officers had placed good faith reliance upon the information supplied by the informer. Thus, it was not necessary that the informer be required to appear at the hearing.

We turn now to the contention of the defendant that the trial court acted contrary to the law in failing to state his findings of fact and conclusions of law when he denied defendant’s motion to quash and suppress. It is time that section 114 — 12(e) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 12(e) provides that the order denying or granting a motion to suppress shall state the findings of fact and conclusions of law upon which the order is based. However, in People v. Sullivan, 7 Ill.App.3d 417, 287 N.E.2d 513, it was held that while it is preferable that there be such findings and conclusions, their absence does not require a reversal if it can fairly be said that the record and evidence would sustain the ruling of the trial court, notwithstanding the absence of such findings. At page 421, the court stated:

“The trial court in denying the motion to suppress obviously based its ruling upon his finding of a lawful arrest.”

In People v. Haskell, 41 Ill.2d 25, 241 N.E.2d 430, the court stated at page 30:

“[H]is denial of the motion to suppress implies that he must have discredited the testimony of the defense witnesses since that testimony demands a contrary ruling on the motion. [Citation.] It follows that we are bound to accept the testimony given by the police detectives as true because it cannot be said that it is clearly unreasonable.”

In the case at bar, defendant’s motion was predicated on the ground that the officers acted without probable cause in arresting and searching him. At the hearing, defendant testified that the officers searched him and the room. There was testimony by Jackson that he searched the basement and by Mitchell that he searched defendant. The briefs do not inform us nor are we able to determine from the record whether anything was obtained from any of these searches. The trial court evidently, and we believe justifiably, considered Jackson’s testimony, that the Stanback container was seized when it was dropped by defendant, to be reasonable.

We have previously found the arrest to be lawful, and we hold that under the circumstances here, there is sufficient basis in the record to sustain the trial court’s order denying defendant’s motion to quash and suppress, notwithstanding the fact that the court did not state its findings of fact and conclusions of law.

We turn now to the contention of defendant that the State did not sufficiently establish as a matter of law that the substance recovered was a narcotic. In this regard, we note that the prosecutor stated on the record the parties had stipulated that the substance and containers identified as an exhibit were the same substance and containers delivered to the crime laboratory by Officer Jackson. The record discloses that defense counsel stipulated to this statement. The prosecutor then continued to state on the record a further stipulation that the police chemist, if called, would testify that the substance in the exhibit contained 3.6 grams of heroin. Defendant’s counsel did not indicate whether or not he agreed thereto, and defendant now contends that this statement of the prosecutor was self-serving and insufficient to establish that the substance was in fact an unlawful narcotic. We disagree. We note that defense counsel made no comment as to this statement, nor did he make any objection or motion to strike when it was read into the record, and he indicated his agreement with the entire stipulation by providing the age of defendant to complete a portion of the stipulation as follows:

“Finally, it would be stipulated that the defendant is of the age of?
Mr. Schwartz (defense counsel): Fifty-five.
Mr. Romano (prosecutor): Fifty-five years old.”

Immediately thereafter, the substance and the containers were offered and received in evidence without objection. Under those circumstances we believe that the trial court properly considered the findings of the police chemist, and the failure on the part of defense counsel to object to the statement of the prosecutor concerning those findings had the effect of waiving any error. (People v. Dukett, 56 Ill.2d 432, 308 N.E.2d 590.) Moreover, at the trial defendant admitted that the Stanback container, one of the exhibits admitted into evidence, was in his pocket on the day of the arrest and that it contained heroin. In view thereof, we believe that there was a proper showing that tire substance recovered contained heroin.

Finally, defendant asserts that he was not proved guilty beyond a reasonable doubt. He argues that the police officers’ testimony was contradictory in that (1) Jackson stated that the alleged street meeting with the informer occurred around 2 P.M. or 2:30 P.M.; whereas, Mitchell testified it was at 11:45 A.M. and that they drove around with the informer from that time until 2:30 P.M., when the informer pointed out defendant; (2) Jackson stated that after they saw defendant, the officers drove the informer a short distance away, where he alighted from the car; whereas, Mitchell testified the informer left the car when he observed defendant; (3) Jackson stated defendant entered the building from the side; whereas, Mitchell testified that defendant turned into a gangway; (4) Jackson stated tire basement door was open; whereas, Mitchell testified defendant pushed the door shut behind him; and (5) Jackson stated that after announcing his office and calling out, “Greasy Bob”, defendant dropped a package to the ground; whereas, Mitchell testified that he announced his office and then conducted a search of defendant. The consideration of contradictory testimony and determination of credibility of witnesses and the weight to be accorded their evidence are matters for the trier of fact, and a reviewing court will not disturb a trial judge’s finding except where the evidence is so unsatisfactory as to raise a reasonable doubt as to defendant’s guilt. (People v. Thomas, 127 Ill.App.2d 444, 262 N.E.2d 495.) We have heretofore noted that on direct examination, defendant admitted carrying the Stan-back container which was received in evidence, and he admitted that it contained heroin. It was this package that Jackson testified he saw fall from defendant’s hand to the ground. Taking into consideration all of the facts here, we believe that the discrepancies in the officers’ testimony are not so grave as to raise a reasonable doubt as to defendant’s guilt.

For the reasons above stated, the judgment is affirmed.

Affirmed.

BARRETT and DRUCKER, JJ., concur.

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source: Caselaw Access Project

author: Mr. JUSTICE BURMAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Art Bravieri, Defendant-Appellant.
    (No. 57924;
    First District (4th Division)
    September 25, 1974.

      Edward M. Genson and James J. Cutrone, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Art Bravieri, was charged by a complaint with battery. Following a bench trial, he was found guilty and sentenced to 30 days in the House of Correction. On appeal he contends that the complaint is insufficient in that it fails to name or identify the victim of the offense, that he was not proven guilty beyond a reasonable doubt, and that his sentence is excessive.

The complainant, Bruno L. Rybicki, a Chicago police officer, testified that on February 20, 1971, he was at the scene of a collision involving a car driven by Joseph Bravieri, brother of the defendant, and one driven by a Jack Combs, He placed both drivers in his squad car while he filled out an accident report. Combs got out of the car and was attacked by a gang of 15 or 20 youths. Rybicki put in a call for help and then tried to get out of his car; however, he was pushed back in by the defendant and Albert Vena, a co-defendant, with such force that his hat and glasses were knocked off. The defendant told him to “get back in that car, you pig, or we will kill you.” He was detained in his car until another squad car arrived. He then got out of his car and saw Combs lying on the sidewalk unconscious with a bloody face. He saw the defendant standing nearby and placed him under arrest. After being arrested, the defendant swung at him with his fist and hit him on the cheek. The defendant denied all of these allegations and testified that he only went up to the squad car to see if his brother had been injured in the collision. When his brother complained of chest pains and an injured eye, the defendant asked Rybicki to take him to a hospital.

The complaint charging the defendant with battery reads as follows:

“BRUNO L. RYBICKI, complainant, now appears before the Circuit Court of Cook County, and in the name and by the authority of the People of the State of Illinois states that ART BRAVIERI has on or about 20 February at 2226 W. Ohio committed the offense of BATTERY in that he INTENTIONALLY AND KNOWINGLY WITHOUT LEGAL JUSTIFICATION CAUSED BODILY HARM BY STRIKING A POLICE OFFICER IN THE FACE KNOCKING OFF HIS GLASSES AND KNOCKING HIM TO THE GROUND WITH BRUNO L. RYBICKI in violation of Chapter 38 Section 12 — 3 Illinois Revised Statute And Against the Peace and Dignity Of The State of Illinois.
/s/ Bruno L. Rybicki
943 W. Maxwell
STATE OF ILLINOIS COUNTY OF COOK — ss
BRUNO L RYBICKI
being first duly sworn, on-oath, deposes and says that he has read the foregoing complaint by him subscribed and that the same it true.
/s/ BRUNO L. RYBICKI"

The defendant’s argument centers upon the phrase, “by striking a police officer in the face knocking off his glasses and knocking him to the ground with Bruno L. Rybicki.” He contends that no reasonable construction of this language will yield the conclusion that Bruno Rybicki was the subject of the alleged battery. If anything, he argues, it appears that Bruno Rybicki committed the offense along with the defendant and that the victim was an unidentified police officer. He stresses that the offense of battery must be committed upon an individual (see Ill. Rev. Stat. 1969, ch. 38, par. 12 — 3), and therefore that the identity of the victim is a material element of the offense.

We find this argument unpersuasive. The function of a complaint is to permit the defendant to prepare his defense, to prevent surprise at trial, and to establish such a record as would permit him to plead a conviction or an acquittal in bar of a subsequent prosecution. (People v. Mahoney (1974), 18 Ill.App.3d 518, 310 N.E.2d 36.) In determining the sufficiency of a complaint it is to be viewed as a whole. People v. Williams (1967), 37 Ill.2d 521, 229 N.E.2d 495.

We agree that the language in the present complaint is unclear, but we are of the opinion that, when viewed as a whole, it did not prejudice the defendant. Bruno Rybicki is identified as the complainant, and the complaint is signed and verified by him. This was sufficient to inform the defendant that Rybicki was the police officer referred to. (See People v. Grey (1973), 14 Ill.App.3d 310, 302 N.E.2d 473.) Moreover, the defendant never moved to quash the complaint in the trial court or otherwise questioned its sufficiency. Indeed, his principal defense was to deny specifically Rybicki’s allegations, indicating that he was fully aware of the identity of the victim of the alleged offense and the nature of the charge against him. We hold therefore that any confusion resulting from the language complained of was inconsequential and that the complaint was sufficient.

The defendant" also argues that he was not proven guilty beyond a reasonable doubt because there was no evidence that his contact with Officer Rybicki caused bodily harm. Section 12 — 3(a) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 3(a)) provides that:

“A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.”

The complaint in the present case charged that the defendant had committed battery by causing bodily harm to an individual. Thus, the defendant contends, the State was required to prove beyond a reasonable doubt that his actions resulted in some bodily harm to Rybicki.

As we have indicated, Officer Rybicki testified that the defendant pushed him back into his squad car with such force that his glasses and hat were knocked off and that the defendant struck him on the cheek with his fist. In our view it is self-evident that these attacks involved the infliction of bodily injury. Therefore Rybicki’s testimony provided a sufficient basis for the court to find that the defendant inflicted bodily injury upon Rybicki.

Finally the defendant argues that his sentence of 30 days in the House of Correction is excessive. The record reveals that a hearing in aggravation and mitigation was held in which it was brought out, among other things, that the defendant had been convicted previously of possession of burglary tools and sentenced to 5 years probation. In setting sentence, the court owes a duty to the public as well as to the accused and must weigh and consider the nature of the offense and the attending circumstances. (People v. Hubbard (1969), 107 Ill.App.2d 79, 246 N.E.2d 44.) In the present case the court considered all factors material to the sentence in the hearing in aggravation and mitigation, including the defendant’s prior conviction and the seriousness of his attack on a police officer, and then entered a sentence of 30 days in the House of Correction. We find nothing in the record to indicate that the court abused its discretion in so doing.

For the foregoing reasons the judgment of the circuit court of Cook County is affirmed.

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lester Davenport, a/k/a Leroy Smith, Defendant-Appellant.
    (No. 58653;
    First District (4th Division)
    September 25, 1974.
    James J. Doherty, Public Defender, of Chicago (Harold A. Cowen, of counsel), for appellant.
    Remard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and William F. Linkul, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

In this appeal the defendant-appellant pleaded guilty on July 21, 1972, to the charges of murder and attempted murder contained in indictment '71-2163. On June 27, 1972, in an unrelated case the defendant had been found guilty in a bench trial of the offenses of attempted murder, attempted robbery and aggravated battery. These latter charges were contained in indictment 71-2164. Defendant received a sentence of from 15 to 30 years on indictment 71-2163 and from 10 to 14 years on indictment 71-2164. The sentences were to run concurrently. The sole issue raised by the defendant is that his guilty plea was invalid and did not comply with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402) because he was not admonished as to the maximum sentence that could be imposed since he was not informed of the possibility of consecutive sentences where such possibility existed. We do not agree.

On July 21, 1972, the defendant was before the trial court for the purpose of making a motion for a new trial in regards to the charges contained in indictment 71-2164. The motion was denied and before the trial court proceeded to impose a sentence on indictment 71-2164, the court was informed by the assistant State’s Attorney that he had had a discussion with defendant’s counsel and that the defense requested a conference in regards to indictment 71-2163. The trial court asked the defendant if he had authorized his attorney to engage in such a conference between himself on defendant’s behalf, the assistant State’s Attorney and the court. The defendant responded affirmatively.

After the conference had been held, the defendant’s attorney informed the trial court that he had advised the defendant of the results of the conference and that the defendant wished to withdraw his previously entered plea of not guilty to indictment 71-2163 and enter a plea of guilty. The trial court was informed that the change of plea was based on the conference. Defendant’s attorney also stated that he had advised the defendant as to the consequences of a guilty plea and that he thought the defendant fully understood them. Defense counsel further stated that based on that full understanding the defendant stood on his decision to withdraw his plea of not guilty and enter a plea of guilty to the charges contained in indictment 71-2163.

The trial court advised the defendant as to the nature of the charges contained in indictment 71-2163 and the minimum and maximum sentence that could be imposed for murder. The trial court informed the defendant that if he pleaded guilty he waived his right to a trial by jury and his right to be confronted with witnesses against him. Defendant was also admonished by the court that he had a right to plead not guilty or that he could persist in his plea of guilty. The trial court asked the defendant, “Are you pleading guilty because in fact you are guilty of the charges contained in this indictment?” and defendant responded, “Yes.”

The trial court asked the defendant if he understood that there had, been a conference and that the court had indicated that upon a plea of guilty to indictment 71-2163 the sentence would be a minimum of 15 years and a maximum of 30 years. The defendant responded affirmatively. The trial court inquired as to whether any force, threats or promises were used to induce, persuade or compel defendant to plead guilty and defendant replied, “No.” The trial court then accepted the defendant’s plea of guilty and after both sides stipulated to certain evidence and a hearing in aggravation and mitigation was held, the defendant was sentenced to 15 to 30 years on indictment 71-2163 and 10 to 14 years on indictment 71-2164. As stated previously, the sentences were to run concurrently.

The defendant maintains that his guilty plea is invalid because the trial court in sentencing the defendant on the two unrelated indictments failed to admonish him as to the possibility of consecutive sentences. The defendant contends that the trial court violated Supreme Court Rule 402(a)(2) which requires that a defendant be informed prior to acceptance of a guilty plea of the “minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; * * * ” While we agree with the defendant that the trial court did not admonish him as to the possibility of consecutive sentences, we do not agree that defendant’s guilty plea is therefore invalid. A literal compliance with Supreme Court Rule 402 is not necessary but what is required is that the mandates of the rule be substantially followed. (People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30 (1971).) As our supreme court stated in Mendoza, at page 374:

“The fact that defendant was not specifically admonished by the court, on the record, as to each and every consequence of his plea does not sufficiently demonstrate that he was, in fact, unaware of these consequences.”

In order to determine if there has been substantial compliance with Supreme Court Rule 402, it is necessary to examine the circumstances of each case and determine whether the defendant understood the consequences of his plea. People v. Charleston, 14 Ill.App.3d 452, 302 N.E.2d 687 (1973).

The record in the case at bar indicates that the trial court was most concerned with the defendant’s awareness of the consequences of pleading guilty and that he was doing so understandingly, knowingly and voluntarily. The trial court comprehensively informed the defendant of the nature of the charge; the minimum and maximum penalty for murder; his right to plead not guilty; and his rights to a trial by jury and to confront the witnesses against him. In addition the trial court assured itself that no force, threats or promises were used to induce the defendant to plead guilty. The only failure of the court was in not informing the defendant that the sentences on indictment 71-2163 and indictment 71-2164 could be imposed consecutively. However, the court inquired of defendant whether he was aware of the fact a conference had been held and that the court had agreed to a sentence of 15 to 20 years if a plea of guilty was entered, The defendant indicated knowledge of these facts. Furthermore, defendant’s counsel informed the court that he had fully advised the defendant as to the results of the conference and the consequences of a guilty plea. It is evident from the record that there was substantial compliance with Supreme Court Rule 402.

The instant case is in agreement with this court’s decision in People v. Reed, 3 Ill.App.3d 293, 278 N.E.2d 524 (1971). In Reed, the trial court had also failed to admonish the defendant as to the possibility of imposing consecutive sentences. However, in Reed, there had also been a negotiated plea and the record indicated the defendant knew in advance what the sentences would be. We found in Reed that there had been substantial compliance with Rule 402 and that the defendant had not been prejudiced in any manner. We make a similar finding in the case at bar. The record indicates that the defendant was thoroughly admonished as to the consequences of his plea of guilty and knew exactly what his sentence would be. The defendant’s guilty plea was entered understanding^, knowingly and voluntarily and is not invalid.

The defendant places considerable reliance on People v. Zatz, 13 Ill.App.3d 322,300 N.E.2d 16 (1973), and maintains that his case falls within the decision in Zatz which reversed a conviction on a guilty plea because the defendant had not been advised of the possibility of consecutive sentences. However, in Zatz there was no negotiated plea nor any indication in the record that the defendant knew what sentence would be imposed. Indeed the court in Zatz distinguished our decision in Reed when it stated at page 324:

“Reed is distinguishable from Zatz in that Zatz did not enter negotiated pleas nor is there any indication in the record that he knew of the sentence to be recommended by the State’s Attorney.”

Defendant has also cited People v. Flannigan, 131 Ill.App.2d 1059, 267 N.E.2d 739 (1971), but it is distinguishable from tire defendant’s posit"on on the same grounds as Zatz and in Flannigan consecutive sentences had been imposed.

During oral argument in this case the defendant made a motion for leave to cite additional authorities which was granted and defendant cited the cases of People v. Zboralski, 15 Ill.App.3d 343, 304 N.E.2d 484 (1973); People v. Fairchild, 133 Ill.App.2d 875, 272 N.E.2d 445 (1971); People v. Buck, 7 Ill.App.3d 758, 288 N.E.2d 548 (1972); and People v. Spicer, 10 Ill.App.3d 390, 294 N.E.2d 72 (1973). These cases are cited in support of tire defendant’s contention that a negotiated plea case should not be treated differently from a non-negotiated plea case in determining whether a court’s admonishments sufficiently comply with Supreme Court Rule 402. What was at issue in Zboralski, Fairchild and Buck was not the trial court’s failure to admonish the defendant as to the possibility of consecutive sentences but utilization of the phrase “an indeterminate number of years” in describing the maximum penalty that could be imposed. This language has been held insufficient (People v. Terry, 44 Ill.2d 38, 253 N.E.2d 383 (1969)) and the courts held that the fact that the pleas were negotiated did not make a difference. The concern of the courts in these cases was that the phrase “an indeterminate number of years” did not apprise a defendant of the fact that the maximum penalty could be life imprisonment. The Spicer case also held that a neogtiated plea is not removed from Rule 402 but what was at issue was the trial court’s total failure to advise the defendant of the minimum and maximum sentence that could be imposed. While these cases are helpful to the defendant’s position, they are not directly in point.

We agree with the defendant that a negotiated plea case should not be treated differently from a non-negotiated case but the fact that negotiations have taken place and the results spread across the record cannot be overlooked. The constitutional standard to determine the validity of a guilty plea was adequately set forth in People v. Hartman, 6 Ill.App.3d 543, 285 N.E.2d 600 (1972). The court there stated at page 544:

“The constitutional standard in Illinois since 1948, both pre and post-Boykin (Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed,2d 274), by which validity of a plea of guilty is to be determined is that it be intelligent and voluntary. Boykin does not alter or modify this standard, but only adds the requirement that if a guilty plea is to withstand appellate of post-conviction review the record must affirmatively disclose it was entered intelligently and voluntarily. (People v. Reeves, 1971, 50 Ill.2d 28, 276 N.E.2d 318.)”

A reviewing court’s talcing into consideration the fact that negotiations were entered and that the record establishes that the defendant knew of the negotiations and the results does not mean the court is treating a negotiated plea case differently than a non-negotiated case. The consideration of the negotiations and the defendant’s knowledge of them applies to the question whether or not the plea was entered intelligently and voluntarily. When the record in the case at bar is read in a practical and realistic manner, it is evident that the defendant knew the consequences of a guilty plea and entered the plea understandingly, knowingly and voluntarily. We are of the opinion that there was substantial compliance with Supreme Court Rule 402.

For the reasons herein stated the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BÜRMAN and JOHNSON, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Isaac Thomas, Junior, Defendant-Appellant.
    (No. 59096;
    First District (4th Division)
    September 25, 1974.
    Paul Bradley and Lynn Sara Frackman, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Bernard. Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was found guilty of murder and sentenced to a term of 35 to 60 years in the Illinois State Penitentiary.

The issues presented on appeal are (1) whether the prosecutor’s reference to the defendant as a “criminal” constituted prejudicial error; (2) whether the State’s comment on the defendant’s failure to produce certain alibi witnesses, when combined with the prior reference to defendant as a criminal, constituted prejudicial error; (3) whether the trial court erred in denying defendant’s motion to suppress his statement made to the police; (4) whether the identification of the defendant was sufficient to prove him guilty beyond a reasonable doubt; and (5) whether the defendant’s sentence was excessive.

In the early morning hours of April 11, 1971, Mr. Alexander Dumas, Jr., the owner of Dumas Liquors, was shot as he waited on customers in his store. Mr. Dumas died as a result of the shooting. A few minutes before the shooting occurred, Miss Karen Hodge passed by a man entering the store as she was leaving. Miss Hodge was able to observe the man for 5 to 6 seconds. After she had walked a few feet down the street, Miss Hodge heard a shot. She turned and saw the same man running out of the store with a gun in his hand. Based on these two observations, Miss Hodge identified the defendant, Isaac Thomas, Jr., as the man she saw entering Dumas Liquors as she was leaving, and as the man she saw a few seconds later running out of the store.

On May 16, 1971, Miss Hodge was riding in a police car with Officers Donald Buffington and Robert Dudak, in an attempt to locate the defendant. Miss Hodge spotted the defendant and indicated to the police officers he was the man who killed Alexander Dumas. The officers immediately stopped the defendant and arrested him. He was placed in the squad car until a police squadrol arrived and transported him to Area Headquarters. At the police station defendant was questioned and he subsequently gave the police a statement regarding his whereabouts on April 11,1971.

On June 21, 1972, a pre-trial hearing was held on defendant’s motion to suppress the statement given to the police. Officer Buffington testified that prior to questioning the defendant at Area Headquarters he fully informed the defendant of his constitutional rights, and the defendant acknowledged that he understood those rights. Officer Buffington further testified that he was the first policeman to enter the interrogation room where defendant had been placed. Officer Dudak subsequently entered the room and remained there with the defendant for 5 or 10 minutes after Bullington left. Officer Bullington stated that to his knowledge no one else entered the room during the questioning of defendant. Officer Dudak was not present at the pre-trial hearing.

The defendant testified at the hearing that Officer Dudak was the only police officer who obtained a statement from him. The defendant stated he was not informed of his constitutional rights until after he had made his statement. The defendant also testified that when Officer Dudak first entered the interrogation room he took the defendant’s billfold, looked through it, and then left the room. At that time, another policeman, not Officer Bullington, came into the room and told the defendant: “Boy, you know you could get the electric chair for what you did.” The officer subsequently poked the defendant in the face when the defendant refused to tell him what his name was. When Officer Dudak returned to the interrogation room, defendant made a statement regarding his whereabouts on April 11,1971.

Defense counsel moved that defendant’s statement to the police be suppressed, on the ground that the State, in not calling Officer Dudak to testify, failed to produce a material witness. Defendant’s motion was denied by the trial court.

During the actual trial, Officer Bullington testified that after arresting the defendant he proceeded to defendant’s home where he recovered two photographs of the defendant. When counsel for the defendant inquired whether the defendant consented to the search, the assistant State’s Attorney stated in the presence of the jury that “this officer does not have to ask a criminal permission for anything.” Defendant moved for a mistrial but his motion was denied. The State then rested its case.

Willie Thomas, Isaac Thomas’ younger brother, testified he and his cousin, Isaac Foster, and Robert Leonard were with the defendant on the night of April 10, 1971. In the closing argument by the State, the assistant State’s Attorney commented on defendant’s failure to call Isaac Foster and Robert Leonard as alibi witnesses. The jury subsequently returned a verdict of guilty as charged, and defendant was sentenced to a term of 35 to 60 years in prison.

The defendant first contends the prosecutor’s reference to defendant as a “criminal” during the course of the trial constituted prejudicial error. Defense counsel, during cross-examination of Officer Bullington, was informed that the officer made a warrantless search of defendant’s premises after his arrest. Defense counsel then inquired of Officer Bullington whether he had asked the defendant’s permission to search his home. At this point the assistant State’s Attorney interjected: “Objection, your Honor. This officer doesn’t have to ask a criminal permission for anything.”

The prosecutor’s remark was improper and highly prejudicial. The defendant had no prior record and had not yet presented his defense. The reference to defendant as a criminal, before he had presented his own case, irretrievably prejudiced him in the minds of the jury as a man with a prior record, more likely than others to commit the instant offense. It is clearly reversible error for a prosecutor to suggest to a jury that a defendant has committed other offenses unrelated to the one for which he is being tried, even when the jury is instructed to disregard the comment. (People v. Brown (1972), 3 Ill.App.3d 1022.) In no event may a prosecutor comment on facts which are not in evidence, nor may he inject into the case, in argument or otherwise, extraneous and inflammatory material. (People v. Donaldson (1956), 8 Ill.2d 510.) Although the jury was instructed by the court to disregard the word “criminal,” the prejudicial effect of the statement could not be eradicated. As stated in People v. Deal (1934), 357 Ill. 634, the prejudicial effect of an improper statement may not always be wiped from the minds of the jurors by an instruction or retraction. Further, the State’s reference to the defendant as a criminal indicated to the jury the prosecutor’s personal belief in the guilt of the defendant. It is well settled that it is improper for a prosecuting attorney to state his own individual opinion or belief of the defendant’s guilt. People v. Hopkins (1970), 124 Ill.App.2d 415.

The defendant secondly contends the State’s comment on the defendant’s failure to produce certain alibi witnesses, when combined with the reference to defendant as a criminal, constituted prejudicial error. The defendant testified at trial that he and his brother, Willie Thomas, along with Isaac Foster and Robert Leonard, had been drinking together in Annette’s Lounge at the time of the shooting on April 11, 1971. Willie Thomas corroborated this testimony at trial, but Foster and Leonard, both of whom were enlisted in the Navy, were not present at the trial to testify. The State knew or should have known that these men were on Naval duty at the time of the trial. In the State’s closing argument, die assistant State’s Attorney commented:

“Let’s talk about the alibi, because that is what it is. That is what it is called in law, an alibi * * *. Now I don’t know where the defendant’s cousin [Isaac Foster] and Robert Leonard were. I do know that the defendant has no burden to call them. The defense is under no burden to present any evidence under the law, but I do know that of that group there was only one person that really would have been impartial, really would have been fair and that was Robert Leonard. And I do know that he did not testify.”

Such comment by the State on defendant’s failure to produce all his alibi witnesses was highly prejudicial. It created the inference these men were not called because they would not support the defendant’s alibi defense. It is a well recognized principle of law that the prosecution’s argument to a jury which comments on the defendant’s failure to call witnesses on his own behalf is improper and prejudicial. (People v. Moore (1972), 9 Ill.App.3d 231.) The comment by the State on defendant’s failure to produce alibi witnesses, when combined with the State’s prior reference to defendant as a criminal, in effect shifted the burden of proof onto the defendant to establish his innocence. Such conduct amounts to reversible error.

Defendant next contends the trial court erred in denying defendant’s motion to suppress an involuntary statement. Defense counsel moved the statement be suppressed on the ground that Officer Robert Dudak, one of the arresting officers in the case, did not testify at the pre-trial hearing. The State informed the court that Officer Dudak was on vacation in Florida at the time of the hearing.

When the voluntary nature of a confession is brought into question by a motion to suppress, the State must produce all material witnesses connected with the taking of the statements or explain their absence. (People v. Armstrong (1972), 51 Ill.2d 471.) In Armstrong, as in the case at bar, the State failed to produce an interrogating officer and explained his absence by stating he was on vacation. The supreme court held in Armstrong, and we agree, that the State had failed to meet its burden of producing all witnesses material to the making of the statements or explaining their absence. As stated in People v. Wright (1962), 24 Ill.2d 88, 92, “[t]he burden of proving that a confession is voluntary is one which the State must assume when the admissibility of a confession is questioned on the grounds that it was coerced.” Officer Dudak’s testimony at the hearing in the instant case was just as necessary as the missing testimony in Armstrong, and because his vacation will not excuse his absence, the State failed to sustain its burden of proving voluntariness, and the defendant’s statement should have been suppressed.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed and remanded for a new trial. The question of defendant’s identification is a matter of credibility of the witnesses and can be determined by the jury in a new trial. Likewise, we need not consider the defendant’s sentence.

Reversed and remanded.

ADESKO, P. J., and BURMAN, J., concur.


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Was et al., Defendants-Appellants.
    (No. 58494;
    First District (2nd Division)
    September 24, 1974.

      James J. Doherty, Public Defender, of Chicago (Vincent M. Gaughan, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Roger L. Horwitz, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendants, Michael Was and Richard Talkowski, were charged by indictment with robbery. (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 1.) A .jury found defendants guilty as charged. Defendant Was was sentenced to a term of 1 to 5 years in the penitentiary, and defendant Talkowski was sentenced to a term of 5 to 15 years. On appeal defendants contend that their convictions were based solely upon the erroneous admission of hearsay evidence. Alternatively, defendant Talkowski contends that his sentence is excessive.

The victim of the robbery, Walter Rozanecki, died of unrelated causes prior to trial. The sole eyewitnesses who testified at trial were two police officers.

Chicago Police Officers Ralph Scavone and Salvatore Sorci testified that at approximately 3 A.M. on May 10, 1971, while on patrol in their squad car, they observed defendants sitting on a park bench near Ash-land, Milwaukee, and Division Avenues. Defendants were known by the officers to be “troublemakers.” At approximately 3:30 A.M. the officers again observed defendants who were now standing near the comer of Ashland and Division. The officers parked their squad car on Division, approximately one-half a block west of Ashland, and proceeded to observe defendants who continued standing near the southwest comer of Ashland and Division. At approximately 4 A.M. the officers observed Walter Rozanecki exit a tavern at 1549 Division (near the southeast comer-of Ashland and Division). Rozanecki proceeded to walk west on Division toward Ashland; then he tamed the comer and walked south on Ashland.

At this point the officers observed, defendants cross Ashland and walk hurriedly toward Rozanecki. The officers drove their squad, car to the southwest corner of Ashland and Division to enable them to observe defendants following Rozanecld. When Rozanecki reached an alley located near the middle of the block, defendants grabbed him and forcibly pulled him into the alley. At this point the officers turned the corner onto Ash-land and proceeded toward the alley. Both- officers observed Talkowski holding Rozanecld in a “bear hug” while Was was going through the pockets of Rozanecld. s sports coat. As the officers pulled into the alley, defendants pushed Rozanecki down onto the ground and ran in opposite directions. Officer Scavone pursued Was and apprehended. him twenty feet from the scene of the attack; Officer Sorci pursued Talkowski but was unable to apprehend him, and returned to the scene to aid Officer Scavone in the apprehension of Was.

Officer Scavone then testified, over objection, that, when he brought Was to the squad car, the victim Rozanecki observed him and stated that he had just been robbed by Was. Officer Sorci also testified that Rozanecki stated “He robbed me.” The officers sent out a radio message for the arrest of Talkowski and then drove the victim and Was to the 13th District Police Station. Soon afterward Talkowski was brought into tire station. The officers were permitted to testify, again over objections, that, when Talkowski was brought into the interrogation room, Rozanecki stated “Richie, he’s the other one.” Officer Scavone also testified that Was was searched and $4 and a pack of Winston cigarettes were found on his person. The cigarettes were returned to Rozanecki and the $4 was inventoried.

The officers admitted on cross-examination that they did not observe defendants remove currency or any other property from the victim’s pockets. They had no personal knowledge of the amount of money Rozanecki had been carrying prior to being accosted by defendants, and they had no personal knowledge of whether Rozanecki had any money after the attack. Objections were sustained to the officers’ testimony that “they determined” that $4 and a pack of cigarettes were taken from Rozanecki during the incident. Again, on redirect examination of Officer Sorci, the following colloquy ensued:

“Prosecutor: How much did you find out he had?
Defense Counsel: I am going to object, your Honor, to the form, unless there is a foundation laid.
Court: Lay the foundation first.
Prosecutor: When did you have a conversation with the complainant about money or what possessions he had on him at the robbery?
Answer: When we brought him into the 13th District.
Prosecutor: Who was present for that conversation?
Answer: Myself, my partner, the defendants.
Prosecutor: And, do you remember the time, the approximate time?
Answer: It had to be about 4:20.
Prosecutor: And, at that time did the complainant tell you anything was taken from his person?
Answer: Yes, sir, he did.
Prosecutor: What did he tell you?
Answer: $4 and a pack of cigarettes.
Prosecutor: And, were the $4 recovered?
Answer: Yes, sir, they were.
Prosecutor: From whom, if you know?
Answer: From Mr. Was.
Prosecutor: And, how about the cigarettes?
Answer: Yes, sir.
Prosecutor: Who were the cigarettes recovered from?
Answer: Mr. Was, also.
Prosecutor: What happened to those cigarettes?
Answer: I returned them to complainant.”

Police Officer Richard Okrasinski then testified as to Talkowski's arrest: He received a radio message at approximately 4 A.M. and within 10 minutes thereafter he observed Talkowski walking down the street approximately 3V2 blocks from the scene of the incident. He immediately arrested Talkowski and transported him to the 13th District Station.

At the conclusion of this testimony, the prosecutor introduced into evidence the $4 recovered from defendant Was, and thereafter the State rested.

The sole defense witness was Helen Falk, an acquaintance of the victim, Walter Rozanecki. The witness testified that on February 1, 1972 she and Rozanecki had had a conversation in a tavern, during which Rozanecki related to her that Thomas Flosi and Ziggy Talkowski (defendant Talkowski’s brother) were the persons who had robbed him. Rozanecki further stated that he was afraid of the police and was fearful that, if he testified that Flosi and Ziggy Talkowski were the robbers, he would be forced to leave the city. On cross-examination the witness admitted having had a telephone conversation on February 29, 1972, with an assistant State’s Attorney at which time she related that she and Rozanecki had been in a tavern and two boys had entered and offered to buy drinks for Rozanecki and her. Rozanecki refused the offer, stating that the two boys were the ones who had robbed him. The witness denied that she had told the assistant State’s Attorney that the two boys were the two defendants; she insisted that they were Flosi and Ziggy Talkowski.

The State then called in rebuttal William Gibson, an investigator for the State’s Attorney. He testified that he was with Helen Falk on February 29, 1972 when she had a phone conversation with an assistant State’s Attorney. Gibson overheard Miss Falk relate her conversation with Rozanecki. Miss Falk stated that defendants entered and offered to buy them drinks, and that Rozanecki refused because they were the persons who had robbed him.

The jury found defendants guilty of robbery and judgment was entered thereon.

The gist of the offense of robbery, and the elements which the prosecution must prove beyond a reasonable doubt, are: (1) tire taking from a person of a thing of value; and (2) the use of force or intimidation. (Burke v. People, 148 111. 70, 35 N.E. 376; People v. Niemoth, 409 Ill. 111, 98 N.E.2d 733.) It is well-established that in a robbery prosecution it is not necessary to prove the particular identity or value of the property taken, but it must be shown that it was the property of the victim and that it had a value. (People v. Lawler, 23 Ill.2d 38, 177 N.E.2d 183.) Defendants contend that the prosecution did not establish, by competent evidence, that property was, in fact, taken from the victim, and that therefore their convictions must be reversed.

In the instant case we are confronted with a situation where the victim of an offense has died of unrelated causes prior to trial. The officers admitted that they had no personal knowledge of any property of the victim taken by defendants. They relied solely upon the statements of the victim. It cannot be disputed that the testimony of Officer Sorci as to the property taken from the victim is hearsay. Where a witness has no knowledge of the facts but his knowledge is derived entirely from information given by another, his testimony is incompetent and inadmissible as hearsay. (People v. Turner, 91 Ill.App.2d 436, 235 N.E.2d 317; People v. Colegrove, 342 Ill. 430, 174 N.E. 536.) The State acknowledges that the testimony of Officer Sorci in this regard was hearsay, but argues that evidence of the property taken from the victim was properly admissible.

Initially the State contends that the $4 recovered from defendant Was was introduced into evidence, without objection, as the money taken from the victim. Our perusal of the record indicates that Officer Scavone identified the $4 as the money recovered from Was; not, as the State argues, as the property taken from the victim. At the close of the State’s case, this money was introduced into evidence. The introduction of this evidence, alone, does' not establish that it was taken from the victim. The sole evidence in the record indicating that it was the property of the victim is the hearsay testimony of Officer Sorci on his redirect examination.

Secondly, the State contends that the statements made by the victim at the police station are admissible under the “spontaneous declaration” exception to the hearsay rule. Officer Sorci testified that at the police station, approximately 20 minutes after the occurrence, the victim stated that he was robbed of $4 and a pack of cigarettes. A statement is admissible as a spontaneous declaration under certain conditions: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Poland, 22 Ill.2d 175, 174 N.E.2d 804.) We are of the. opinion that the statements of the victim made at the police station in the course of a routine police investigation, cannot be said to have been a spontaneous reflection upon the occurrence as to fall within the spontaneous declaration exception to the hearsay rule. See People v. House, 69 Ill.App.2d 324, 217 N.E.2d 566.

The State next contends that any error in the admission of the hearsay testimony as to the property taken from the victim was waived by defendants. During the State’s case the prosecutor endeavored to elicit this hearsay testimony in redirect examination of Officer Scavone on two occasions and from Officer Sorci on one occasion. Each time defense objections were sustained. Finally, Officer Sorci was again questioned as to the victim’s statement, and defense counsel objected on the grounds that tile State had not laid a “foundation.” The witness then testified as to where and when the victim made the statement and who were present at the time of the statement, and proceeded to relate, without objection, the victim’s statement that $4 and a pack of cigarettes were taken from his person. The State refers us to cases which hold that an objection based upon a specific ground waives all grounds not specified. People v. Canaday, 49 Ill.2d 416, 275 N.E.2d 356; People v. Washington, 23 Ill.2d 546, 179 N.E.2d 635.

We have carefully studied the record in this case and we note that defense counsel repeatedly objected to testimony relating to statements made by the victim as to the identification of defendants. The trial judge in each instance overruled these objections for the reason that each defendant was present when the statements were made. This was error. As stated by the supreme court in People v. Carpenter, 28 Ill.2d 116, 121, 190 N.E.2d 738:

“The fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered. While the administration of an oath and the right of confrontation are also spoken of as necessary elements, the essential feature, without which testimonial offerings must be rejected, is the opportunity for cross-examination of the party whose assertions are offered to prove the truth of the act asserted. [Citations.] If this requirement is met, 6 6 * the presence or absence of the defendant is immaterial.”

In view of the fact that the trial judge apparently believed that statements of the victim were admissible if made in the presence of defendants, it would seem to have been futile for defense counsel to again have objected to the testimony of Officer Sorci on grounds of hearsay. By objecting on the grounds that a “foundation” had not been laid (that the officer had not testified that defendants were present at the time of the statement by the victim), defense counsel, in our view, was merely acceding to the court’s interpretation of the rules of evidence and we cannot in all fairness hold defendants to have waived objection to this hearsay testimony.

Finally, the State asserts that assuming, arguendo, that the victim’s statement was improperly introduced into evidence, the officers’ testimony, alone, is sufficient to sustain defendants’ convictions. The officers testified that they observed defendants forcibly drag the victim into an alley, and they observed defendant Was rifling through the victim’s pockets while defendant Talkowski held him. This testimony is sufficient to establish the identity of the victim’s attackers and is sufficient to prove beyond a reasonable doubt that force was employed by defendants. However, this testimony, alone, does not establish that property was taken from the victim. Moreover, the statement of the victim at the scene that defendant Was “robbed him” is not sufficient to prove that property of value was taken. Because hearsay testimony was the sole evidence as to an essential element of the crime or robbery, we are constrained to conclude that defendants were not proven guilty beyond a reasonable doubt of the offense of robbery.

However, the competent evidence offered by the police officers does establish that defendants are guilty beyond a reasonable doubt of the offense of attempt robbery. (Ill. Rev. Stat. 1971, ch. 38, par. 8 — 4.) Pursuant to the power vested in this court by Supreme Court Rule 615 (b)(3) we reduce defendants’ convictions to attempt robbery. (Ill. Rev. Stat. 1971, ch. 110A, par. 615(b)(3); People v. Borden, 84 Ill.App.2d 442, 228 N.E.2d 248.) In view of our disposition of this appeal we remand this cause to the trial court for resentencing of defendants.

Judgments modified; remanded with directions.

LEIGHTON and DOWNING, JJ., concur.

       We agree with the State that the statement of the victim at the scene (that defendant Was had robbed him) falls within the spontaneous declaration rule, and was properly admissible. We also note that the victim’s identification of defendant Talkowski at the police station does not fall within this rule, and that the officers’ testimony as to this statement by the victim was inadmissible hearsay. (People v. Dial, 95 Ill.App.2d 345, 238 N.E.2d 122.) However, in view of the fact that both police. officers identified defendant Talkowski as one of the persons they observed accosting the victim, we are of the opinion that defendant Talkowski was not unduly prejudiced by the introduction into evidence of this particular hearsay testimony.


author:
      Mr. PRESIDING JUSTICE HAYES
      Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Palmer, Defendant-Appellant.
    (No. 57756;
    First District (2nd Division)
    September 30, 1974.
    James J. Doherty, Public Defender, of Chicago, (Marilyn Dershem Israel, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

In order to present the fact situation involved in this warrantless, pat-down, pre-arrest search of defendant’s person for weapons, incident to a traffic stop of defendant for the observed traffic violation of driving without State license plates (Ill. Rev. Stat. 1971, ch. 95%, par. 3 — 701(1)), the following narrative account collates the total testimony of both the arresting officer and the defendant taken during the hearing on a motion to suppress the physical evidence, at the trial, and at the hearing in aggravation and mitigation. There was no direct conflict in their testimony as to the details of the incident.

Defendant curbed his car on Ogden Avenue (a heavily travelled street) in Chicago at 11:10 A.M. on 12 October 1971 and parked it. In the front passenger seat was a lady (who was a friend of defendant’s cousin) with a baby. Defendant was driving the lady and the baby to a doctor’s office, and the place where defendant parked was in front of the doctor’s office. When defendant parked his car, the arresting officer was in a car behind defendant’s car, and the officer then observed that defendant’s car had no rear State license plate. Defendant helped as the lady got out of the car with the baby; then he closed the car door and pulled away from the curb. The officer did nothing until defendant had pulled away from the curb, whereupon the officer in his car stopped defendant in his car, solely for the personally observed traffic violation of driving without State license plates.

The officer got out of his car and went to defendant’s car to question defendant. He asked defendant how long it had been since defendant had bought his car. Then he asked to see defendant’s driver’s license. Defendant could not produce the license. At the time defendant could not produce the license, defendant was standing outside his own car, going through his wallet. Defendant did not in fact have a driver’s license, but he allegedly did have a “yellow slip” showing that he had applied for a driver’s license (which “yellow slip” was presumably an official temporary driver’s license pending the issue of the license applied for), and he was going through his wallet trying to find and produce the “yellow slip”. The officer testified that defendant had been completely cooperative throughout the questioning, other than appearing nervous, and had given the officer no undue cause for alarm or cause to fear for his safety.

. It was at this point that the officer made a “pat-down” search of defendant’s person for weapons. He felt a metallic object in defendant’s right rear trouser pocket. He then removed from the pocket a pouch containing the metallic object which he had felt. The pouch resembled a tobacco pouch and had a zipper which was partially open. When the officer looked at the pouch, he saw the butt of a pistol protruding from the unzippered part of the pouch. He removed the pistol from the pouch and observed that it was a ,25-caliber pistol loaded with four live cartridges. He promptly arrested defendant for the offense of unlawful use of weapons. Defendant offered no resistance whatever. The officer then gave Miranda warnings and advice to defendant, whereupon defendant refused to answer any questions. The officer asked defendant to produce a State firearms identification card, but defendant did not do so. The officer then asked defendant to produce a Chicago owner’s registration card, but defendant did not do so.

Defendant was charged with unlawful use of weapons (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(4)), failure to produce a State firearms identification card (Ill. Rev. Stat. 1971, ch. 38, par. 83 — 2(a)), and failure to produce a Chicago owner’s registration card. At trial, defendant testified that, immediately after he had closed the car door upon the departure of the lady with the baby and as he was preparing to drive off, he had seen the pouch on the floor of the front seat of his car. The pouch was not his; he had never seen it before, nor had he ever seen either the lady or his cousin with it. He did not know what was in the pouch, either when he saw it or when he put it into his right rear pants pocket. He did not own the pistol, nor did he own any weapons. Because he did not own the pistol, he had neither a State firearms identification card nor a City owner’s registration card.

During the hearing in aggravation and mitigation, defendant stated that he had applied for State license plates and a City vehicle sticker 2 days after he got his car, but had not received either at the time of the incident, because he had forgotten to put his social security number on the applications, so the applications had been returned to him.

• On the basis of the testimony of the arresting officer at the hearing on the motion to suppress the pistol as evidence because it had been obtained by means of an illegal search of his person, the trial judge denied the motion. That testimony was then stipulated to at the trial, which immediately followed the hearing on the motion, and further' testimony of the officer plus the testimony of defendant was then given at the trial. The trial was a bench trial on pleas of not guilty to aU three charges.

On the basis of the total testimony, the trial judge found defendant guilty of the offenses of unlawful use of weapons and of failure to have a State firearms identification card, but not guilty of failure to have a city owner’s registration card (owing to defendant’s testimony that he did not own the pistol and owing to the absence of any testimony that he did own it). Defendant was sentenced to 60 days in the House of Correction on each of the two charges on which he had been found guilty, the sentences to run concurrently. Defendant appeals from the convictions, urging that the trial court erred in denying his motion to suppress.

The recent decisions of the United States Supreme Comt in United States v. Robinson (1973), 414 U.S. 218, and Gustafson v. Florida (1973), 414 U.S. 260, are not in point. Those cases involved thorough searches of the person following a warrantless but valid custodial arrest for an allegedly “minor” traffic offense personaUy observed by or known to the arresting officer. The searches disclosed items other than weapons and urn-elated to the traffic offense for which the custodial arrest had been made, which unrelated items then became the basis for the offense for which the arrested person was ultimately charged and tried. The holdings were that the valid custodial arrest justified the thorough warrantless search of the person for any item which might conceivably be a weapon.

In the instant case, the search was a warrantless, pre-arrest, pat-down search for weapons, which disclosed a weapon. The fact that the search for weapons disclosed a weapon (which thereupon became the basis for offenses for which the defendant was ultimately charged, tried, and convicted) might appear to justify the search, but the fact that the search was a pre-arrest search requires that it meet the standards for such searches established in Terry v. Ohio (1968), 392 U.S. 1, and Sibron v. New York (1968), 392 U.S. 40, as subsequently codified in Illinois. (Ill. Rev. Stat. (1971), ch. 38, pars. 107 — 14 and 108 — 1.01.) The sole issue, therefore, which we decide on this appeal is whether the warrantless, pre-arrest, pat-down search of the person of appellant for weapons, following a routine traffic stop for the violation of driving without State license plates plus the later discovered violation of driving without being .in the immediate possession of a valid driver’s license or permit, was proper when measured by the Terry, Sibron, and Illinois statutory standards.

In Terry v. Ohio, supra, a police officer with considerable law enforcement experience observed three men walking back and forth in front of a store. It appeared to the officer from their actions that these three men were contemplating a daylight robbery, an offense frequently associated with the use of weapons. When the officer stopped the men for questioning, he conducted a pat-down of their clothing for weapons, which disclosed that two of the three men were armed. In affirming the conviction of Terry for carrying a concealed weapon, the Court held that, when the facts indicate to an officer that criminal activity may be ■afoot and that the persons whom he is investigating may be armed and presently dangerous, it is proper to conduct a limited pat-down search for weapons. The officer’s conduct is to be assessed against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief that the action taken was appropriate.” The persuasive facts justifying the search in Terry were the suspicious conduct of the three individuals and the fact that it would be likely for a daylight robbery to involve weapons.

The defendant in Sibron, supra, was convicted of the unlawful possession of heroin. At the hearing on the motion to suppress, the arresting officer testified that, while he was patrolling his beat, he observed defendant for a period of 8 hours, during which time he saw defendant in conversation with six to eight known narcotic addicts. He did not overhear any of the conversations. After approaching defendant, the officer told him, “You know what I am after,” whereupon defendant placed his hand in his pocket. Simultaneously, the officer placed his hand in the same pocket and discovered small packages of a white substance alleged to have been heroin. The officer did not claim that, when Sibron put his hand in his pocket, he (the officer) reasonably believed that Sibron was going for a weapon or that he (the officer) was acting in self-defense when he placed his hand in Sibron’s pocket. The Court reversed the conviction saying:

“The police officer is not entitled to seize and search every person whom he sees On the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” (392 U.S. at 64.)

Not only did the officer not have grounds to search for weapons, his search went beyond the limited pat-down approved by Terry.

The thrust of both Terry and Sibron is that a warrantless, pre-arrest, pat-down search for weapons is justified only when the officer has reasonable grounds to fear for his safety or for the safety of others. This is also the thrust of the Illinois statutes governing this situation, which were enacted following the decisions in Terry and Sibron. See People v. Lee (1971), 48 Ill.2d 272, 269 N.E.2d 488. Section 107 — 14 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 107 — 14) authorizes a police officer to temporarily question an individual without arrest. Section 108 — 1.01 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 108 — 1.01) deals with searches during temporary questioning. That section provides in part:

“When a peace officer has stopped a person for temporary questioning * * * and reasonably suspects that he or another is in danger of attack, he may search the person for weapons.”

Having reviewed the record in the case at bar in light of these standards, it is our opinion that defendant’s conviction must be reversed,

The testimony of both the officer and of defendant demonstrates that, during the temporary questioning following the traffic stop at 11 o’clock in the morning on a heavily travelled street for the observed offense of violating section 3 — 701(1) of the Illinois Vehicles Code (Ill. Rev. Stat. 1971, ch. 95V2, par. 3 — 701(1)), defendant was completely cooperative, and the officer’s own testimony was that defendant gave him no cause for alarm. In the instant case, the mere facts that license plates were missing and that the individual then cannot produce a driver’s license or permit, without more, do not afford a reasonable basis for believing that that individual is aimed and dangerous, nor did the officer in fact so believe. We emphasize that here the pat-down search came before any arrest for the observed traffic violation or for the failure to produce the drivers license. This fact, coupled with the absence of facts warranting the officer reasonably to suspect that he was in danger of attack, rendered the search improper.

For the foregoing reasons, defendant’s convictions are reversed.

Reversed.

DOWNING, J., concurs.

Mr. JUSTICE LEIGHTON

specially concurring:

This case involves the most common kind of police-citizen confrontation in our motorized society: the occasion when a peace officer has reason to believe that a motorist has committed a minor traffic violation. Statistics tell us that minor traffic violations occur millions of times each year in our community. And when they do, they bring the police arid the citizen into contact in a way that increases the importance of constitutional guarantees against unreasonable searches and seizures. Therefore, 1 concur in all that' has been said by Mr. Justice Hayes for the court, but add these words of my own to emphasize what, to me, is the guiding rule of our decision.

- The traffic violation which Officer Vuko thought defendant was committing on October 12, 1971, was punishable by a fine of not more than $100 or imprisonment for not more than 10 days. (Ill. Rev. 1969, ch. 95%, par. 3-833.) If was an offense for which the law did not require custodial arrest; and in this community, by a practice of long standing, Officer Vuko would have given defendant a traffic ticket, fhe equivalent of a civil summons.

What is more important, however, is that according to Officer Vuko, he had no intention of making an arrest; nothing had been done by defendant to cause Vuko alarm or make him fear for his safety. Notwithstandirig, Vuko decided to “pat-down” defendant’s person. This, or fhe “frisk,” as it is sometimes called, was a search. (Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868.) And, since by Vuko’s own testimony it was without justification, it was illegal. “Under our system suspicion is not enough for an officer to lay hands on a citizen.” (Henry v. United States (1959), 361 U.S. 98, 104, 4 L.Ed.2d 134, 80 S.Ct. 168.) Therefore, fhe gun which Officer Vuko said he found on defendant’s person was not admissible in evidence; it should have been suppressed by the trial court.

~ For these reasons, I would emphasize that when a peace officer stops a motorist for a traffic violation which does not require custodial arrest and fhe peace officer does not intend to make one, the “pat-down,” “frisk,” search or touching of the motorist by the officer is illegal, unless there is,some act or conduct, or some fact or circumstance which causes the peace officer reasonably to believe it necessary to “pat-down,” “frisk,” search or touch the motorist in order to protect himself or those around him. People v. Watson, (1972), 9 Ill.App.3d 397, 292 N.E.2d 457; compare People v. Evans (1973), 13 Ill.App.3d 588, 301 N.E.2d 106.

       The record does not disclose whether in fact defendant did or did not have the "yellow slip” in his wallet or otherwise in his immediate possession, or whether in fact he ever displayed it to the officer or indeed whether in fact such a “yellow slip” had in fact been issued to defendant. The failure of defendant to have the “yellow slip” in his immediate possession and to display it to the officer on the officer’s demand would have been a violation of section 6 — 112 of the Illinois Vehicle Code (Ill. Rev. Stat, 1971, ch. 95%, par. 6 — 112). Had no such “yellow slip” been issued to defendant, defendant would have been in violation of section 6 — 101(a) of the Code (Ill. Rev. Stat. 1971, ch. 95%, par. 6 — 101(a)).

       We are aware of the decision of the First Division of the First District of this Court in People v. Cannon (1974), 18 Ill.App.3d 781, 310 N.E.2d 673, holding that the Robinson and Gustafson decisions of the United. States Supreme Court were applicable to the facts of that case so that the warrantless search of the car in that case did not violate the fourth amendment rights of the defendant. But the Cannon case is distinguishable from the instant case in that in Cannon the Court expressly found that the search of that area of the car which was in the immediate proximity of the defendant-front-seat-passenger was essential to insure the safety of the arresting officer, whereas in the 'instant case the officer himself testified that he had been given no cause to fear for his safety nor had he in fact had any such .fear.