People v. Spicer

516 N.E.2d 491, 163 Ill. App. 3d 81, 114 Ill. Dec. 336, 1987 Ill. App. LEXIS 3483
Appellate Court of Illinois·Decided October 27, 1987·No. 86-0636·Published·Cited by 20 cases

Opinion

JUSTICE BILANDIC

delivered the opinion of the court:

Following a bench trial, defendant, Donald Spicer, was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), (a)(2), (a)(3)), armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A—2), and attempted armed robbery (Ill. Rev. Stat. 1985, ch. 38, pars. 8—4, 18—2). Defendant was sentenced to concurrent terms of 40 years for three counts of murder and 15 years for attempted armed robbery. 1 On appeal, defendant contends: (1) eyewitness lineup identification evidence should have been suppressed as the fruit of an illegal arrest; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the trial court erred in failing to appoint substitute counsel and in failing to conduct a hearing on defendant’s pro se motion for new trial alleging ineffective assistance of trial counsel; and (4) the trial court erred when it entered judgment and imposed sentence on three counts of murder where only one death occurred. For the following reasons we affirm in part and vacate in part.

The evidence shows that William Davis was shot and killed during the commission of an attempted armed robbery. On October 28, 1983, at approximately 4 p.m., two black men were “buzzed” into the premises of Venus Lingerie by the owner, William Davis. Employees Ruth Sanders, Mr. Davis’ sister, and Pearl Jordan were there when the men entered.

Both men pulled guns as soon as they entered the premises. The men told Ms. Sanders and Ms. Jordan to place their purses on their desks and then asked what was in the back room. The women later told the police that one man was short and stocky and the other was tall and slender. Defendant was identified as the short man.

The tall man directed the women into the back room and ordered them to lie face down on the floor. When he noticed that Ms. Jordan was on her side, he kicked her. Both women were then tied with telephone cords.

The short man was with Mr. Davis in the entrance area and then followed him into the back office where the women were. As Davis came into the room, he saw the women tied up and said, “I don't believe you guys got bullets in those guns.” Defendant responded that they did and then shot Davis.

Mr. Davis picked up an office chair and backed the two men out of the office area, out of the women’s view. The women heard a struggle in the hallway, then a shot and then silence.

Shortly thereafter, Davis called to the women and told them that the men had left. The women freed themselves and went to Davis’ aid. They found Davis sitting in the hallway bleeding and immediately phoned the police. Mr. Davis died while at the hospital.

Both women went to the police station that evening and described the assailants. One was a dark-skinned black man, short, stocky, and approximately 35 to 40 years old. The other was a black man with a medium complexion, tall, slender, and approximately 35 to 40 years old. Both men wore dark clothing but neither wore a mask. The office was well lighted and both women got a good look at the men. They told the police that they could identify the assailants but did not see either of the assailants in any photographs given to them that evening.

On November 4, 1983, seven days after the murder, detectives took a group of six photographs to Ms. Sander’s home. There is conflicting testimony as to when the police took the photographs to Ms. Jordan’s home for her viewing, but it was about the same time. Both women immediately identified the defendant from the photographs.

The evidence shows that the police selected this particular group of photographs, including the defendant’s, because they knew that these six men associated with each other. There was also testimony that these six men, including defendant, had been acquitted in an unrelated case.

The police issued a “stop order” on defendant as a result of the eyewitness identification. The “stop order,” issued November 4, 1983, directed law enforcement officials to notify detectives if the defendant was picked up for any violation. Detective DiGiacomo testified that one of the witnesses gave him the defendant’s address at this time. The record is unclear as to how the witness knew defendant’s address.

Sometime between 9 and 10 p.m. on November 15, 1983, 11 days after detectives knew defendant’s address, Detectives DiGiacomo and Solecki went to defendant’s apartment without a warrant. There is no evidence that the officers received any new information during these 11 days.

Defendant answered his door and allowed the detectives to enter. Four guests, two females and two males, were at defendant’s apartment at this time. The defendant and the two detectives stepped into a room to talk. The detectives told the defendant that he had been identified from photographs shown to witnesses involved in a robbery and requested that he accompany them to appear in a lineup.

The defendant became “loud and abusive” and told the detectives that there was no way he was going anywhere with the officers. At this time, defendant backed the officers out of the apartment and locked the door behind them.

Detective Solecki went to call for assistance while Detective DiGiacomo remained in the hallway to guard the door. Defendant peeked out the door of his apartment a few minutes later to see if the officers were still there and promptly locked the door again.

About 10 or 15 minutes later, six to eight more officers arrived. Some of them remained on the street to watch the windows of defendant’s apartment. The others knocked on defendant’s door, announced who they were, and told the defendant that if he did not open the door they would break it down.

When defendant did not open the door, the officers went to a nearby fire station, got a pry bar and a sledgehammer and forced the door open.

Everyone in the apartment was arrested and taken to the station. The testimony indicates that no weapons were seen or recovered from the apartment and no attempts to flee or escape were made.

Ms. Sanders and Ms. Jordan independently positively identified defendant from a lineup conducted the following day at the station.

While in custody, defendant told an assistant State’s Attorney that on the day of the murder he was doing chores with Claude Jones from about 8 a.m. until 1 p.m. He took a nap in the afternoon and woke up at about 7 p.m. He said that his girlfriend, Etta Jones, could verify this. Ms. Jones was contacted but could not recall the events of the day of the murder. She was seriously ill and died shortly thereafter.

Claude Jones told the police that he remembered being with the defendant but could not recall the specific date. The day after he told this to the officers, Mr. Jones phoned the station to inform them that he remembered being with the defendant the day of the murder. They did errands and went to lunch on that day.

At the bench trial, defendant gave a detailed account of his whereabouts on the day of the murder.

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People v. Spicer, 516 N.E.2d 491, 163 Ill. App. 3d 81, 114 Ill. Dec. 336, 1987 Ill. App. LEXIS 3483 (Ill. Ct. App. 1987).

516 N.E.2d 491 (People v. Spicer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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