# Appendix — Cabrera v. Hinsley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1762%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2003 - **Citation:** 540 U.S. 873 ## Text la APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 01-4002 WILLIAM G. CABRERA, Petitioner-Appellee, v. CHARLES L. HINSLEY, WARDEN,* Respondent-Appellant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 2990—Joan H. Lefkow, Judge. ARGUED JANUARY 9, 2003—DECIDED MARCH 31, 2003 Before RIPPLE, ROVNER, and EVANS, Circuit Judges. EVANS, Circuit Judge. The district court granted William G. Cabrera’s petition, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus as to convictions in the circuit court of * Our docket was modified on January 6, 2003, to reflect that Warden Charles L. Hinsley, and not Warden George C. Wel- born, now has custody of Mr. Cabrera. Se ee TT en 2a Cook County, Illinois, for burglary, robbery, and murder. The State appeals. | The present petition concerns convictions in 1983, as a result of which Cabrera received sentences of 60 years im- | prisonment for murder and 14 years each for robbery and | burglary, the latter two reduced to 7 years by the Illinois Ap- | pellate Court. People v. Cabrera, 480 N.E.2d 1170 (Ill. App. 1985). All sentences run concurrently. In addition, Cabrera is serving a natural life sentence for an unrelated murder conviction. Because of the separate murder conviction, the relief in this case was conditioned on “the invalidation of the other, presumptively lawful, sentences authorizing his con- tinued confinement.” The evidence at trial showed that on the night of February 10, 1981, the office of the Assyrian National Foundation in Chicago was broken into, money was stolen, and Yoel A. Keena, a 74-year-old man staying as a guest at the Founda- tion, was killed by strangulation and battery with a blunt in- strument. At the crime scene, detectives found a receipt for traveler’s checks issued in Keena’s name. Later, the detec- tives learned that the checks were used to purchase clothing at a store in Chicago the next day. They questioned Derrick Moore, the assistant sales manager of the store, and learned that three men had come into the store at about 8 p.m. on February 11. A man later identified as Ruben Lopez, using Keena’s traveler’s checks, purchased a red jacket, a white shirt with a Popeye logo, and a necktie. Moore saw the men go into another store and emerge with more merchandise. On February 23, Moore looked through police mug shots and identified a photograph of Cabrera as one of the men with | Lopez when he cashed the check. The police arrested | Cabrera at his home without a warrant, and a search of his | home at the time of his arrest came up dry. Cabrera waived | his Miranda rights, however, and gave a series of contradic- tory statements. 3a With the consent of his mother and sister, the police searched Lopez’s apartment, where a shirt with a Popeye logo was found. They also found an identification card that Moore (the fellow from the store) said Lopez used in cashing the traveler’s checks. Later the red jacket was found as well. On February 26 Cabrera made another Statement, telling the detectives that he and Lopez had entered the F oundation through a broken window. Lopez told Cabrera to search the front of the building. Cabrera found a metal cash box, which he pried open. He took the $40 which was in the box. While Cabrera was in the front Office, Lopez went to the back, where he found Keena. Cabrera saw Lopez strike Keena twice. Cabrera then searched Keena’s pockets, where he found the traveler’s checks. Lopez took the checks and Cabrera kept the $40. After making this statement, Cabrera consented to a search of his apartment, where the police found two pairs of pants Lopez had bought for him. Cabrera was convicted of murder, robbery, and burglary. After exhausting his state court remedies, Cabrera filed the present petition, which included the two claims before us: whether probable cause existed for Cabrera’s warrantless ar- rest (which led to several incriminating statements) and whether the prosecution proved beyond a reasonable doubt that he was guilty of burglary. The Illinois courts found that probable cause existed for the arrest and that the evidence Supported the burglary conviction. As we said, the district court conditionally granted the writ. ‘i Section 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA) under which this peti- tion was brought, provides that habeas relief may not be granted unless the state court proceeding (1) resulted in a decision that was contrary to, or in- — volved an unreasonable application of, clearly estab- lished Federal law, as determined by the Supreme Court of the United States; or 4a (2) resulted in a decision that was based on an un- reasonable determination of the facts in light of the evidence presented in the State court proceeding. However, Cabrera’s claim regarding his arrest faces a pre- liminary hurdle. Fourth Amendment claims are subject to the strictures set out in Stone v. Powell, 428 U.S. 465 (1976). And those claims, we have recently said, are outside the scope of the statute: The AEDPA’s changes to § 2254(d) apply only to cases within the scope of § 2254(a) ... and Stone is based on an interpretation of § 2254(a) that treats inaccurate administration of the exclusionary rule as outside the scope of that statute. Hampton v. Wyant, 296 F.3d 560, 563 (7™ Cir. 2002). Stone limited the role of the federal courts in evaluating Fourth Amendment claims of state prisoners who, relying on the exclusionary rule, contend that allegedly unconstitution- ally seized evidence should not have been used against them. The Court noted that the exclusionary rule, whose purpose is deterrence of illegal police conduct, actually hampers the central purpose of a criminal trial, which is determining the guilt or innocence of a defendant. The Court reasoned that in the context of habeas petitions, the benefit of the exclusion- ary rule is minimal compared to the substantial societal costs of applying it. Therefore, “where the State has provided an opportunity for full and fair litigation of a Fourth Amend- ment claim, a state prisoner may not be granted federal ha- beas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” At 494. It sounds simple but has, in fact, caused consider- able consternation over what exactly “full and fair” means.' ' See, e.g., Janecka v. Cockrell, 301 F.3d 316 (5th Cir. 2002); Sanna v. Dipaolo, 265 F.3d 1 (1st Cir. 2001); Machacek v. Hof- bauer, 213 F.3d 947 (6th Cir. 2000); Ortiz-Sandoval v. Gomez, 81 5a The only help in Stone is a footnote to a prior case: “Cf. Townsend v. Sain, 372 U.S. 293 (1963).” And of course the value, generally, of “Cf.” citations is often only revealed in the eye of the beholder. Recently, we have waded again into the debate in an at- tempt to clarify some of our earlier cases. Our traditional formulation was that a petitioner had a full and fair opportu- nity to litigate if (1) he has clearly informed the state court of the fac- tual basis for that claim and has argued that those facts constitute a violation of his fourth amendment rights and (2) the state court has carefully and thor- oughly analyzed the facts and (3) applied the proper constitutional case law to the facts. Pierson v. O'Leary, 959 F.2d 1385, 1391 (7 Cir. 1992). This test spawned many arguments, including one that the litigation was “full and fair” only if the state court decided the issue correctly. This erroneous interpretation of Stone was pretty clearly sent packing by our decision last year in Hampton. In Hampton we observed that the Pierson ap- proach nullifies the holding of Stone and leads to collateral relief whenever the search violates the fourth amendment. Even an egregious error would not by itself justify habeas relief: [A] blunder, no matter how obvious, matters only in conjunction with other circumstances that imply re- fusal by the state judiciary to take seriously its obli- gation to adjudicate claims under the fourth amendment. F.3d 891 (9th Cir. 1996); Willett v. Lockhart, 37 F.3d 1265 (8th Cir. 1994); Capellan v. Riley, 975 F.2d 67 (2d Cir. 1992); Boggs v. Bair, 892 F.2d 1193 (4th Cir. 1989); U.S. ex rel. Petillo v. New Jersey, 562 F.2d 903 (3d Cir. 1977). 6a 296 F.3d at 564. Unsatisfied by this formulation, the State wants us to take this opportunity to further clarify the standard. The concern is that Hampton’s focus continues to be on the quality of the hearing. The State says that a focus on the quality of the hearing cannot be what Stone envisioned; rather, the excep- tion must turn on whether the State provides a mechanism under which to litigate a Fourth Amendment claim. If it does, Stone precludes habeas review. Unlike the State, we do not read Hampton as implying federal courts must examine in any significant detail the quality of the hearing. Quality, after all, is a word which can lead us right back to confusion as to whether the state judge had to arrive at the right decision in order for the hearing to pass muster. But it is true that Hampton stops just short of what the State urges. Hampton means that even if the State provides a mechanism under which to litigate a claim, Stone would not block habeas review if the mechanism was in some way a sham. For instance, Stone would not block ha- beas review if the judge had his mind closed to the necessity of a hearing, or was bribed, or decided, as Hampton says, that probable cause is not required in Illinois, or was sleepwalk- ing (another example from Hampton), or in some other obvi- ous way subverted the hearing. Hampton does not mean, however, that federal courts will examine whether the judge seemed to have done some quality preparation for the hearing - or had a perfect understanding of the fine points of search and seizure law. Absent a subversion of the hearing process, we will not examine whether the judge got the decision right. But we continue to believe that we would be wrong to close our eyes entirely to possible abuses and to say simply that Stone applies if the State allows motions to suppress evi- dence to be brought, never mind that a particular judge un- dermined the process in some disturbing way. In short, “full and fair” guarantees the right to present one’s case, but it does not guarantee a correct result. —— ee er OEY 2a PSOE at Ta We also note in passing that Cabrera’s case is an example of Stone’s concern with limiting the exclusionary rule to its intended purpose of deterring police misconduct. Cabrera’s crime was committed 22 years ago, in 1981; he was con- victed in 1983. One could certainly argue that the deterrent effect of overturning his 19-year-old conviction is out- weighed by the damage to society which could flow from reopening the suppression hearing issues which were re- solved so long ago. Viewed from this perspective, our case illustrates what Stone was talking about when it said that the exclusionary rule “if applied indiscriminately ... may well have the opposite effect of generating disrespect for the law and administration of justice.” At 491. Applying the Hampton standard to this case, we find that Cabrera had a full and fair opportunity to litigate his claim that his arrest was illegal. He raised the issue in a suppres- sion hearing prior to trial; the Illinois Appellate Court, Cabrera, 480 N.E.2d 1170, and the Illinois Supreme Court, People v. Cabrera, 508 N.E.2d 708 (1987), also considered the issue. There is no indication that these courts were care- less of Cabrera’s right to present his claim. Cabrera contends that the fact that the basis of the decision changed from one court to another shows that the determinations did not meet the test for a full and fair hearing. Particularly, he points out that the Illinois Supreme Court assumed that the police were aware of his criminal record, a finding he says the evidence did not support. Whether there was anything in the record which would ailow the inference that the police knew of his record is subject to debate. What is clear, however, is that a finding that there was, even if erroneous, does not support a piercing of Stone to send a federal court sifting through the evidence to see whether the Illinois courts were, in its view, correct in determining that probable cause existed. The other issue before us—whether the evidence is suffi- cient to sustain the burglary conviction—is within the ambit of § 2254(a) and (d), which means that habeas relief may be 8a granted only if the state court proceeding resulted in a deci- sion which was contrary to, or an unreasonable application of, established federal law as determined by the Supreme Court, or was based on an unreasonable determination of the facts. Before we launch into an analysis of this issue, we admit some bewilderment about being asked to evaluate the bur- glary conviction because, on the surface at least, it would seem to be an exercise in futility. We understand that the Supreme Court determined in Benton v. Maryland, 395 U.S. 784 (1969), that a habeas petition is not made moot by the existence of a concurrent sentence (which would mean that release from custody is not possible even were the petition granted). But here, Cabrera has three other concurrent sen- tences—two murder convictions and a robbery conviction. If he had prevailed on his Fourth Amendment argument in this petition, one of the murder convictions, the robbery convic- tion, and the burglary conviction would all have been set aside. If that had happened, only one conviction would have | stood between him and freedom, making it reasonable to consider the Fourth Amendment claim in the current petition. But it is also true that if he had prevailed on his claim that his arrest was invalid, there would be no reason to discuss the burglary conviction separately. And now that he has failed (before us) on the Fourth Amendment claim, it is hard to see, in the real world, how setting aside his burglary conviction does him any good. No doubt he has served his time. His was a 7-year sentence imposed 20 years ago. And the possi- | bility of realistic collateral consequences from the burglary : a conviction are remote at best and probably, more accurately, nonexistent. What we find even more bewildering is what the State | has to gain by resisting this claim. The claim is highly fact- specific, and granting the writ in this case seems unlikely to | change the course of Illinois law. Be RS ey SP pe ee ee Oe ee oe eee ee en ey ee i & eee 9a To explain: In Illinois, burglary is defined as knowingly entering a building “with the intent to commit therein a fel- ony or theft.” The information (the charging document in Illinois) alleged that Cabrera “committed the offense of bur- glary in that he, without authority, knowingly entered into a building, to wit: the dwelling of Yoel Keena with the intent to commit the offense of robbery therein.” Robbery, then, is the felony that Cabrera is charged with intending to commit when he entered the building. The problem is that the build- ing was not a residential building and there was no evidence that Cabrera and Lopez knew Keena or anyone else was liv- ing there when they broke in. Therefore, Cabrera’s argument is that he could not have had the intention to commit robbery when he entered the building, and without that intention, he cannot be guilty of burglary as it was charged. During the trial, the prosecutor asked that the Jury be instructed that Cabrera could be convicted of burglary if he intended to enter the building with the intent to commit robbery or theft. The judge refused—we can’t understand why—and the jury was instructed that a person commits burglary when he enters a building to commit robbery. The jury was instructed that robbery was the taking of property from a person or the pres- ence of another by the use of force or threatened force. The jury convicted Cabrera of burglary (as well as robbery and murder). Cabrera’s constitutional claim in the present petition is that the evidence of his intent to commit robbery was insuffi- cient to sustain the burglary conviction. In fact, he says it was nonexistent. The district court granted the petition with regard to this claim, saying that the decision of the state court was “either “contrary to’ Jackson [v. Virginia, 443 U.S. 307 (1979)], or, if we assume that its standard was functionally-equivalent to Jackson’s, it was an unreasonable application of it.” 10a The Jackson standard is that a petitioner is “entitled to habeas corpus relief if it is found that upon the record evi- dence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” At 324. The Illinois Supreme Court said that the determination of the jury “will not be disturbed on review unless the evidence is so improbable as to cast reasonable doubt on the guilt of the defendant.” 108 Ill.Dec. 397, 508 N.E.2d at 716. Is the latter “contrary to” the former? Cabrera does not explain in any detail how the two are meaningfully different. The Illinois court was using the right burden of proof even though the phrase from Jackson was not parroted. We do not see this standard as contrary to Jackson. So the question becomes whether the determination by the Illinois Supreme Court that the evidence was sufficient to sustain the burglary conviction is an unreasonable determina- tion of the facts. The Illinois courts recognize that evidence of intent is usually not direct. For that reason, it may be proved circumstantially by inferences reasonably drawn from the circumstances of the defendant’s conduct. People v. McKinney, 631 N.E.2d 1281 (Ill. App. 1994). Those circum- stances include “the time, place and manner of entry into the premises, the defendant’s activity within the premises, and any alternative explanations offered for his presence.” Peo- ple v. Richardson, 470 N.E.2d 1024, 1027 (1984). The application of this principle can be seen in People v. Zuniga, 425 N.E.2d 1094 (Ill. App. 1981). The defendant entered a church basement through a broken window. A priest noticed the broken window and entered the church, where he encountered the defendant. The defendant struck the priest with a metal rod and demanded his money. Zuniga made the argument which Cabrera makes here—that he did not enter the church with the intent to commit robbery—and the court found that the requisite intent could be inferred by what happened inside the church. The issue was one for the jury. Pe EG ee Ra he ia - ae lla On the other hand, intent could not be inferred from the defendant’s actions in People v. Toolate, 461 N.E.2d 987 (1984). Toolate was charged with burglary with intent to commit a felony—in this case rape. The sole issue was whether he intended to commit rape when he knowingly and without authority entered a woman’s home. Because he did nothing inside the home that pointed toward rape, the court found the evidence insufficient: Strange as Toolate’s behavior was, the record con- tains no evidence whatever that he used force against or that he intended to have sexual inter- course with Debbie Sue. The best evidence that Toolate did not intend to engage in sexual activity by force is that there was no force and no threat of force, no sexual activity and no threats, promises, or Suggestion of any kind. The defendant had no weapon. He did not harm or threaten to harm either Debbie Sue or the children. There was no sexual contact here. Presumably Debbie Sue was clad in no more than night-clothes, but the record is silent on this point. Whatever she was or was not wear- ing, Toolate did not ask her to undress, and did not attempt to undress her. He was fully clothed, in- cluding a jacket, and he did not remove any of his own clothing. He did not caress or fondle her, or begin any sexual activity. At 989. In Cabrera’s case, on the other hand, there is unques- tionably evidence of robbery. From that, a jury could rea- sonably conclude that Cabrera and Lopez entered the building with the intent to commit any number of offenses, including robbery. On this issue, we decide only whether the Illinois Su- preme Court decision was based on an unreasonable determi- nation of the facts in light of the evidence presented at trial. 12a We cannot say it was. Therefore, the decision of the district court is REVERSED and the case is REMANDED to the dis- trict court for entry of an order denying Cabrera’s petition for a writ of habeas corpus. 13a APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF ) AMERICA ex rel. ) WILLIAM CABRERA, ) ) Petitioner, ) No.97C 2999 ) v. ) Judge Joan H. Lefkow ) THOMAS F. PAGE, ) DOCKETED Warden, ) Oct. 31 2001 ) Respondent. ) M UM OPINION AND RDER Petitioner William Cabrera challenges his convictions for murder, robbery and burglary entered in the Circuit Court of Cook County, Illinois. The court grants the writ. tence may be set aside. Benton y,. Maryland, 395 U.S. 784, 788-91 ( 1969). Benton’s reasoning is questionable in light of l4a LEGAL STANDARDS Under 28 U.S.C. § 2254(d), a federal court may not grant a prisoner’s habeas corpus petition unless the state court’s adjudication of the claim either “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Su- preme Court of the United States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceed- ing.” When considering the § 2254 petition, this court will presume that any state court factual determinations are cor- rect unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Before reviewing the state court’s decision, however, this court must determine whether the petitioner fairly pre- sented his federal claims to the state courts, as any claim not presented to the state’s highest court is deemed procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); Wilson v. Briley, 243 F.3d 325, 326 (7™ Cir. 2001); Bocian v. Godinez, 101 F.3d 465, 468 (7" Cir. 1996). A fed- eral court may not grant habeas relief on a defaulted claim unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman Spencer v. Kemna, 523 U.S. 1 (1998), and the Court’s more restrictive view of the “case or controversy” requirement. Nevertheless, while the Court in Spencer declined to extend “our presumption of collateral consequences (or our willing- ness to accept hypothetical consequences),” id. at 12, to pa- role revocations, id. at 14, it left the presumption intact with respect to criminal convictions. See Diaz v. Duckworth, 143 F.3d 345 (7th Cir. 1998). 15a v. Thompson, 501 U.S. 722, 750 (1991); Anderson v. Cowan, 227 F.3d 893, 899 (7" Cir. 2000). PROCEDURAL HISTORY On April 13, 1983, a jury convicted Petitioner of murder, burglary and robbery. On May 5, 1983, the trial judge imposed extended sentences for all three offenses, 60 years for murder and 14 years in prison for burglary and rob- bery, all sentences to run concurrently. The Illinois Appel- late Court affirmed Petitioner’s conviction on June 20, 1985, but found the trial court erred in imposing extended term sen- tences for the burglary and robbery convictions and short- ened them to seven years each. People y. Cabrera, 134 Ill.App.3d 526, 480 N.E.2d 1170 (1st Dist. 1985) (“Cabrera I”). The Illinois Supreme Court affirmed on April 16, 1987. People v. Cabrera, 116 Ill.2d 474, 108 Ill.Dec. 397, 508 N.E.2d 708 (1987) (“Cabrera IT’). The United States Su- preme Court denied certiorari November 2, 1987. Cabrera v. Illinois, 484 U.S. 929 ( 1987). Petitioner filed a pro sé post-conviction petition which was dismissed as untimely on May 28, 1992. The IIli- nois Appellate Court affirmed the denial of the post- conviction petition on December 31, 1992, and the Illinois Supreme Court denied Petitioner leave to appeal on June a» 1993. On August 14, 1992, Petitioner filed his first federal habeas corpus petition, which was dismissed without preju- dice for failure to exhaust state court remedies on October 29, 1993, apparently on the mistaken belief that Petitioner’s post-conviction proceedings were still pending. The present petition for habeas corpus was received April 24, 1997.> The * As the Seventh Circuit held in Jones v Bertrand, 171 F.3d 499 (7th Cir. 1999), that pro se petitions filed by incarcerated persons receive the benefit of the “mailbox rule” of Houston v. Lack, 487 US. 266 (1988), this petition is 16a petition was originally assigned to Judge Alesia of this court. On January 22, 1998, it was reassigned to Judge Andersen and on September 5, 2000 to the undersigned. EVIDENCE AT TRIAL Evidence at trial showed that on the night of February 10, 1981, the offices of the Assyrian National Foundation in Chicago were broken into, money was stolen, and Yoel A. Keena, a 74-year old man staying as a guest at the Founda- tion, was killed as a result of strangulation and battery with a blunt instrument. At the crime scene detectives found a receipt for trav- elers’ checks issued in Keena’s name. Tracing Keena’s checks, they learned that they had been used to purchase clothing at the “Different Circle” store in the Century Mall in Chicago. The police questioned the assistant sales manager, Derrick Moore, and learned that three men had come into the store together at about 8 p.m. on February 11 and a man later identified as Ruben Lopez purchased a red jacket, a white shirt with a Popeye logo, and a necktie using a traveler’s check, and an identification card bearing Lopez’ picture had been used. Moore watched the men go together to another store and emerge with more merchandise. On February 23, after looking through police “mug shots,” Moore identified a photograph of Petitioner as one of the men present with Lopez when he cashed the check, and the police arrested Petitioner in his home. After waiving his Miranda rights, Petitioner then gave a series of statements, deemed filed within the “grace period” announced by Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), rev’d on other grounds, 521 U.S. 320 (1997), and exempt from the one-year limitations period of 28 U.S.C. § 2244(d) enacted by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). first denying any knowledge of the cashing of the check or the murder, then later telling the detectives that Lopez had approached him with the checks, saying that he had found Searching Lopez’s apartment with the consent of his mother and sister, police found a white shirt with a Popeye logo which Petitioner identified as one of the items pur- chased with the stolen traveler’s checks. Continuing the search, the police found an identification card that Derrick On February 26 Petitioner made yet another even more incriminating Statement, telling the detectives that the night before the checks were cashed he and Lopez had en- tered the Foundation through a broken window in the office. tioner then went to the back room and searched the victim’s pockets, finding the traveler’s checks. He and Lopez then left the premises, Lopez taking the traveler’s checks and the defendant keeping the $40 Petitioner stated that on the fol- lowing day, Lopez told him that he was going to cash the traveler’s checks; if Petitioner came along, Lopez would buy something for him. Petitioner agreed, and several items of clothing were purchased with the checks, including a red jacket. Petitioner then signed a written statement to this ef- fect, and signed a consent to search his apartment again, 18a where the police found the two pairs of pants Lopez had bought for Petitioner. PETITIONER’S CLAIMS Petitioner raises six claims: (1) Petitioner was denied the right to trial by a fair and impartial jury because post- conviction juror polling indicated possible dissent; (2) the state failed to prove beyond a reasonable doubt that Peti- tioner entered the building where the crime occurred with an intent to commit robbery; (3) probable cause did not exist for Petitioner’s warrantless arrest; (4) the Illinois legislature failed to provide Petitioner with adequate and meaningful notice of changes in Illinois’ post-conviction relief statute, thereby denying Petitioner due process of law, and also de- prived Petitioner of access to the courts in violation of the First Amendment; (5) ineffective assistance of appellate counsel; and (6) Petitioner was denied due process of the law because the Illinois felony murder statute holds a person re- sponsible for another’s actions without proof of the elements of first degree murder. Respondent concedes that Petitioner has exhausted all state court remedies, but asserts that Peti- tioner has procedurally defaulted his fourth and sixth claims. 1. Trial By A Fair And Impartial Jury While polling the jury after the guilty verdict, the fol- lowing exchange occurred: THE COURT: I’m going to ask you this question, and I want you to pay attention to it. Was this and is this now your verdict, Miss Cancinelli [sic]? MS. CANCINELLI’ [sic] [juror]: Can I say what I have to say, or do I have to give a yes, or no answer? THE COURT: I want a yes or no answer. Was this and is this now your verdict? * The correct spelling of this juror’s surname is Ciancanelli. PS att ES Te tet Te ee ee “ss Ai in LEON ERG I GES 8 ee on OE AIRE A 19a ~ MS. CANCINELLI [sic]: I found in my own person mind— THE COURT: I said I want a yes or no answer. Was this and is this now your verdict? MS. CANCINELLI [sic]: Yes. Cabrera I, 480 N.E.2d at 1172. Petitioner argues that the trial court’s refusal to provide this juror with an opportu- nity to express any possible disagreement with the verdict calls the jury’s unanimity into question. Petitioner notes that after the polling was complete, the trial_court denied his counsel’s request that Ms. Ciancanelli’s statements be put on the record, and that Ms. Ciancanelli gave a sworn Statement, in the presence of a court reporter, stating that at the time of the polling she had wished to recant her guilty verdict. Both the Illinois Appellate and Supreme Courts found Petitioner’s claim without merit. The Illinois Appellate Court first noted that the Sixth Amendment of the United States Constitution guarantees a trial by an impartial jury, and that “[e]ssential to that guaran- tee is the requirement that the verdict reached be freely ar- rived at by each juror.” Cabrera I, 480 N.E.2d at 1172-73. The court then distinguished this case from Cases in which Illinois courts found that a trial judge did not properly ex- plore a juror’s hesitant, ambivalent, or dissenting response when polled. The court found that Ms. Ciancanelli’s re- sponse did not indicate any hesitancy or ambivalence and further determined that it would not second-guess the trial court’s observations regarding the juror’s demeanor and tone of voice. Moreover, the court held that Ms. Ciancanelli’s later statement was neither admissible nor reviewable by the court, as it went to the deliberation process and was taken after the verdict had been read and the jury had already been polled and discharged. The Illinois Supreme Court agreed. 20a The Sixth Amendment, as applied to the states through the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” Morgan v. Illinois, 504 U.S. 719, 726-27 (1992). See also Sullivan v. Louisiana, 508 U.S. 275, 277 (“The Sixth Amendment pro- vides”); Porter v. Gramley, 112 F.3d 1308, 1315 7" Cir. 1997). Petitioner does not argue that the state court decisions were contrary to, or involved an unreasonable application, of clearly established federal law. Instead, Petitioner argues that “[t]he refusal of the trial court to provide juror, Ms. Ci- ancanelli, with an opportunity to express any possible dis- agreement she had with the verdict’s [sic] raises doubt as to the unanimity of the jury” and that “[t]he Appellate Court, in holding that the juror’s replies did not indicate ambivalence or hesitancy in her answer, misconstrued the facts of the case at bar.” (Pet. at 29.) Petitioner therefore appears to claim that the state court decisions were based on an unreasonable determination of the facts presented. The court disagrees. At most, the colloquy between the trial court and Ms. Cianca- nelli indicated that she wanted to further explain why she de- cided on her verdict, not that her verdict was erroneous. With respect to Ms. Ciancanelli’s later statement, the state court ruling was completely consistent with federal law as determined by the Supreme Court. The Supreme Court has stated that by the beginning of the twentieth century, there existed a firmly established common-law rule that “flatly prohibited the admission of juror testimony to im- peach a jury verdict” and that unless there was evidence of outside influence on the jury, juror testimony impeaching a verdict is inadmissible. Tanner v. United States, 483 U.S. 107, 117 (1987) (citing, among other cases, McDonald v. Pless, 238 U.S. 264, 267 (1915)). Cf. Fed. R. Evid. 606(b). Petitioner does not argue that Ms. Ciancanelli’s proffered Ca) nF eae ee oe rs VS, fw Te eee een eee ee BEER IRE EN Cy nS ROS RS Rc a at ERIE Retest in aS SS Raney pee Rahn 2 yn 2la recantation falls into the extraneous influence exception. Pe- titioner is not entitled to habeas corpus relief based on his first claim. 2. Failure To Prove Burglary Beyond A Reasonable Doubt Petitioner was found guilty by a jury of murder, bur- glary, and robbery. The evidence at trial showed that Lopez, rather than Petitioner, actually killed Keena. Nevertheless, under Illinois law, “a person is legally accountable for the conduct of another when ... either before or during the com- mission of an offense, and with the intent to promote or fa- cilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commis- sion of the offense.” Ill.Rev.Stat.1981, ch. 38, par. 5-2© (now codified at 720 ILCS 5/5-2©). A reasonable jury could have found Petitioner accountable for Lopez’s acts. Peti- tioner did not challenge the sufficiency of the evidence with respect to his convictions for murder and robbery. authority he knowingly enters ... a building ... with intent to commit therein a felony or theft.” Cabrera I, 480 N.E.2d at 1175 (quoting Ill. Rev. Stat. 1981, ch. 38, par. 19-1(a)). The evidence showed that Petitioner had entered a building with- out authorization and his intent to commit a theft could rea- sonably be inferred from this, absent another explanation for his presence there. Nevertheless, Petitioner was not charged with enter- ing a building with intent to commit a theft; he was charged with entering a building with the intent to commit robbery. The information charged that Petitioner “committed the of- fense of burglary in that he, without authority, knowingly entered into a building, to wit: the dwelling of Yoel Keena 22a with the intent In this the trial judge may have erred. Under Illinois law, jury instructions may depart from the charging docu- ment to correspond to the evidence “as long as the variance does not mislead the defendant in the presentation of his de- fense, does not expose him to double jeopardy, and as long as there was ample evidence presented to the jury to permit it to find the defendant guilty of the charged crime beyond a rea- 23a The jury was accordingly instructed: “a person com- mits the offense of burglary when he enters a building when he, without authority, knowingly enters a building with intent to commit therein the offense of robbery.” Tr. at 2128. Peti- tioner was separately charged with robbery, and the jury in- structions correctly defined robbery as “[taking] property from the person or presence of another by the use of force or by threatening the imminent use of force.” Tr. at 2127. These instructions were recapitulated at Tr. 2130-31, in which the elements of burglary and robbery were set forth. The burglary instruction again stated that an element of bur- glary was the intent to commit robbery. Despite the lack of evidence of Petitioner’s intent to commit robbery at the time he entered the building, the jury convicted him of burglary anyway. On appeal, Petitioner argued that his conviction for burglary should be reversed because there was no evidence showing that either he or Lopez had reason to know that any- one was in the building when they entered it, hence no evi- dence of intent to commit robbery, the felony upon which the burglary charge was predicated. In response, the state feebly sought to find supporting evidence in the record, arguing that the violence of the assault supported an inference of an origi- sonable doubt.” Jenkins v. Nelson, 157 F.3d 485, 498 (7th Cir. 1998), cert. denied, 527 U.S. 1039 (1999); citing, inter alia, People v. Foster, 103 Ill.App.3d 372, 431 N.E.2d 430 (1982), and People v. McEvoy, 33 Ill.App.3d 409, 337 N.E.2d 437 (1975). Here Petitioner did not take the stand, and his intent at the time he entered the Foundation was pri- marily to be inferred from his statements to police. His coun- _ Sel attempted to argue that his statements were coerced and unreliable. It is doubtful that charging him with the intent to commit theft, rather than robbery, would have affected his defense. es 24a nal intent to rob, and noting that Petitioner had lived a short distance away from the Assyrian National Foundation. Ans. Exh. (e) at 41-44. Alternatively, the state argued that Peti- tioner had not been prejudiced, mischaracterizing Petitioner’s argument as an attack on the charging information. The Illinois Appellate Court either misunderstood or ignored Petitioner’s argument. The court stated that Peti- tioner’s intent to commit a theft could be inferred from the evidence, ignoring the fact that this was not what the jury was instructed to find. Cabrera I, 480 N.E.2d at 1175. The Illinois Supreme Court, in contrast, recognized that Petitioner had been specifically charged with unauthorized entry with intent to commit robbery, but stated that “it was the province of the jury to determine the question of intent, and that de- termination will not be disturbed on review unless the evi- dence is so improbable as to cast reasonable doubt on the guilt of the defendant.” Cabrera II, 508 N.E.2d at 716. The Illinois Supreme Court followed People v. Zuniga, 99 Ill.App.3d 396, 425 N.E.2d 1094 (1st Dist. 1981) The facts of Zuniga were indeed similar, and equally prob- lematic. The defendant had broken into a church basement, and a priest saw evidence of the break-in and went into the church to investigate. When the priest confronted the defen- dant, the defendant attempted to rob him. The defendant, like Petitioner, was charged with breaking into the church intending to commit robbery. (The opinion in Zuniga does not state whether the jury instructions followed the charge; presumably they did.) The defendant’s conviction was af- firmed, the court likewise stating that it was for the jury to determine the defendant’s intent. The court did not explain how the jury could have found that the defendant broke into an unoccupied church basement with the intent to commit robbery. 25a In each case the jury ignored their instructions in fa- vor of their common sense. In common understanding, a sonable doubt on the guilt of the defendant ” Cabrera II, 508 N.E.2d at 716. This is not equivalent to the Clearly estab- lished constitutional Standard, “whether, after viewing the evidence in the light most favorable to the Prosecution, any of the crime beyond a reasonable doubt.” Jackson vy. Vir- ginia, 443 U.S. 307, 319 (1979). If specific intent is an ele- ment of the crime, as it is of burglary, and there is no thing “improbable” about the evidence presented. A Teason- able application of the Jackson test requires some discussion of how the evidence, viewed in the light most favorable to 26a the prosecution, supports the jury’s finding as to the elements of the crime. The conclusion that Petitioner was properly convicted of burglary is either “contrary to” Jackson because the Illinois Supreme Court applied a different standard, or, if we assume that its standard was functionally equivalent to Jackson’ s, it was an unreasonable application of it. In its answer to the habeas petition, the state takes the position of the Illinois Appellate Court, that because the jury could properly have found Petitioner entered the Foundation with the intent to commit a theft, the Jackson test is met. This is not the rationale of the Illinois Supreme Court, how- ever, nor could it be in light of prior cases. In People v. Toolate, 101 I1l.2d 301, 461 N.E.2d 987 (1984), the Illinois Supreme Court reversed a conviction for burglary where the defendant had broken into a house, went to the complaining witness’s bedroom and meved some fur- niture around. When the complainant awoke and saw him, she was able to chase him out of the house without resis- tance. The defendant was charged and convicted of residen- tial burglary with intent to commit rape. The [Illinois Supreme Court reversed the conviction because there was no evidence that the defendant intended to commit rape. The court acknowledged that in the absence of inconsistent cir- cumstances, intent to commit theft can be inferred from proof of unlawful breaking and entering. Nevertheless, proof of breaking and entering was not sufficient to establish the in- tent to commit another felony; if so, the requirement of spe- cific intent to commit that other felony would be meaningless. Jd., 461 N.E.2d at 308. The court concluded: The defendant in this case was not charged with bur- glary with the intent to commit theft, and cannot, therefore, be convicted of that offense. Because the State has failed to prove beyond a reasonable doubt . that Toolate entered the dwelling with the intent to commit a rape, the only offense with which he was 27a charged, the conviction and the appellate court’s af- ce are reversed. Petitioner’s case recognized that his burglary conviction de- pended on proof of his intent to commit robbery, and could tended to commit robbery at the time he entered the building. Petitioner’s burglary conviction accordingly cannot stand. 3. Probable Cause For Arrest Petitioner contends here, as he contended before the Stone v. Powell, 428 U.S. 465, 482 (1976), held that “where the State has provided an opportunity for full and fair 28a a petitioner has received it.. Virtually the only elucidation was footnote 36, which appeared with the recapitulation of the language quoted above. That footnote read, in full: “Cf Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).” Stone, 428 U.S. at 494 n. 36. Townsend addressed whether a federal district court must hold an evidentiary hearing to determine whether a con- fession had been coerced in violation of the Fifth Amend- ment. The Court stated: Where the facts are in dispute, the federal court in ha- beas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evi- dentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts. Townsend, 372 U.S. at 312-13 (footnote omitted). While declining to “overly particularize” this test, the court continued: We hold that a federal court must grant an evidentiary hearing to a habeas applican: under the following cir- cumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact- finding procedure em- ployed by the state court was not to afford a full and fair hearing; (4) there is a tial allega- tion of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full Id. at 313. 30a finding of probable cause for Petitioner’s arrest is supported by the record, mindful of the requirement “that a state court’s factual determinations are due a ‘high deference.” Weber, 15 F.3d at 694 (citing Sumner v. Mata, 455 U.S. 591, 598 (1982)).’ If not, Stone v. Powell does not bar consideration of this claim. At the time of Petitioner’s trial and appeal, as today, it was clearly established that preme Court recognized in Stone as a very narrow ex- ception to the general rule that a habeas petitioner may not bring Fourth Amendment claims. We have consistently held that a claim is Stone-barred if the petitioner simply argues that the state court made a mistake in applying Fourth Amendment law.... In- stead, habeas review of Fourth Amendment claims is reserved for instances where the state court made an egregious error (e.g., failed to apply Supreme Court precedent directly on point after the argument was clearly presented), thus effectively depriving the peti- tioner of the ability to vindicate his federal rights in state court. This is consistent with the understanding of “opportunity for full and fair litigation” adopted by several courts.... The Weber standard is not more than a restatement of the narrow exception set out in Stone, and we therefore decline Indiana’s request to revisit our definition of “opportunity for full and fair litiga- tion.” ’ Weber was decided prior to the enactment of the Antiter- rorism and Effective Death penalty Act of 1996. Congress has since made explicit Weber’s “high deference” standard by stating that factual findings “shall be presumed to be cor- rect,” and “[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evi- dence.” 28 U.S.C. § 2254(e)(1). 3la (w]hether [an] arrest was constitutionally valid de- pends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it—whether at that moment the facts and circum- Stances within their knowledge and of which they had reasonably trustworthy information were suffi- cient to warrant a prudent man in believing that the petitioner had committed or was committing an of- fense. Beck v. Ohio, 379 U.S. 89, 91 (1964); see also Hunter y. Bryant, 502 U.S. 224, 228 (1991) (same). It was also estab- lished that probable cause is not transferred by association— that simply being in the company of a person suspected of crime is not probable cause to search or arrest. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“a person’s mere propin- quity to others independently Suspected of criminal activity does not, without more, give rise to probable cause to search that person”); Sibron v. New York, 392 U.S. 40, 62-63 (1968) (no probable cause to believe individual seen talking to a number of narcotics addicts was engaged in drug trafficking). Lopez’s negotiation of checks stolen from the victim clearly established probable cause as to him, but merely being seen in Lopez’s company would not establish probable cause as to Petitioner. The Illinois Supreme Court in Cabrera II implicitly conceded this rule of law, but believed that the record showed something more: that the arresting officers were aware of Petitioner’s recent burglary convictions.® If the po- lice had known Petitioner was @ proven burglar, his follow- , According to publicly available records kept by the Illinois ent of Corrections, Petitioner was on probation fol- lowing convictions for burglary and attempted burglary at the time of the offenses in question. 32a an inference that he had something to do with the theft. But in a strong dissent Justice Seymour Simon pointed out that nothing in the record showed that the police were aware of Petitioner’s criminal history at the time they went to his home to arrest him. Because the dispute is critical, we will recapitulate it in detail. In determining that probable cause existed for Peti- tioner’s arrest, the Illinois Supreme Court noted the follow- ing: The defendant seriously misstates the issue when he says it is simply whether the defendant’s be- ing with a person who purchased merchandise with a stolen traveler’s check gave probable cause to arrest. It seems clear that the police had other significant in- formation from which probable cause to arrest was reasonably inferred. Derrick Moore, from the “Different Circle” store, looked through approximately 200 police pho- tographs before identifying a photograph of the de- fendant as one of the men who was present at the time the purchase was made with the stolen traveler’s check. Too, Moore told the detectives that the defen- dant had a large scar on his neck; a scar that was not visible in the photograph. At trial prior to identifying the defendant’s picture, Moore testified that, after speaking with the investigating officers, he had gone to a police station and “looked through pictures, mug shots.” The defendant’s attorney moved for a mistrial on the ground that the reference to “mug shots” was prejudicial. The motion was denied. Later when the prosecution was moving for the admission of various exhibits, including the police photograph of the de- fendant that Moore had picked out, Mr. Lyster, the defendant’s attorney, objected to the photograph’s admission. The record reads: “MR. RAAB [Prosecutor]: People’s Exhibit Number 43 for identification, having been identi- fied as a colored photograph of the defendant, 33a William Cabrera, being identified by Derrick Moore at Area 6 Violent Crimes vicinity on the 23" of February, 1981; and also having been identified by Detective Thomas Sappanos as the photograph that was in fact identified by Derrick Moore on that day and at that place. MR. LYSTER: Your Honor, I will object to that. That is the mug shot. Of course, it has his breastplate in front of him, indicating his RIWR number on January 21, 1980. I think, obviously, it would be prejudicial for it to be admitted, even if it is altered or modified, or clipped, because you would further focus atten- tion on the bottom photo by even covering it. In other words, if we covered the bottom of it with any kind of piece of paper. Obviously, you don’t have to be—you know, all you have to do is be a Sam Spade to know what this Photo is.” (Empha- sis added.) The trial court, after telling the prosecutor, who was arguing for admission of the photograph, that the jury would be shown whatever exhibits were Detective Thomas Sappanos and Thomas Keane were the principal officers in the murder inves- tigation, but at least two other officers were assigned to the investigation, Sappanos testified. Sappanos testified, too, that he prepared about four investigative reports prior to the defendant’s arrest on February 24 and that he made a specific report on the identifica- tion of the defendant before he and Keane arrested him at 5523 North Kenmore Avenue in Chicago. It is apparent that the police, from the defendant’s mug 34a shot with his name and the police identification num- ber, were able to examine the Chicago police depart- ment reports regarding the defendant and could ascertain his record and address. Thus, they were able to arrest him at his apartment at 5523 North Kenmore Avenue in Chicago. As stated, Detective Sappanos testified that he prepared a report on the identification of the defendant before his arrest. He certainly would have examined the Chicago pence department records of the defendant. At the time of the defendant’s arrest, it must be reasonably concluded that the detectives had knowledge of the defendant’s entering and leaving the store with Lopez, the man who cashed the murder victim’s check; that his Chicago police department mug shot, with his police identification number, had been identified by Moore; and that from the mug shot they ascertained the information appearing in the —— police department records regarding the de- endant. That information included a record of the de- fendant’s convictions for burglary and attempted bur- glary. At the hearing on the defendant’s motion to quash arrest and suppress evidence the State intro- duced copies of these convictions for burglary and at- tempted burglary. Other information in the police department re- cords which was available through the defendant’s so-called “rap sheet” or criminal record appears in the record before us in the presentence investigation re- port. It discloses other burglary arrests, including one on January 21, 1980, which date the defendant’s at- torney said appeared on the defendant’s mug shot to- gether with his police department identification number Cabrera II, 508 N.E.2d at 712-713 (emphasis in original). The problem, as Justice Simon pointed out, is that no one testified that the police ever looked up Petitioner’s police 35a record. Because Sappanos prepared investigative reports, the majority opinion Stated, he “certainly would have examined the Chicago police department records.” But Sappanos did not testify that he did, nor even that it was standard procedure to do so. Justice Simon pointed out that there is actually some evidence in the record Suggesting that the police did not con- the last entry the police officers would have seen prior to Pe- titioner’s arrest showed him living at 1230 W. Argyle, not 553 North Kenmore where he was arrested. Cabrera IT, 508 N.E.2d at 713. Of course, this does not preclude the possibil- ity that the officers reviewed Petitioner’s criminal history and obtained his current address from another source. But the fact remains that nothing in the record indicates that the ar- resting officers knew of Petitioner’s criminal history when he was arrested. Petitioner. Jd. at 718. This is consistent with the State’s brief in the Illinois Supreme Court, which relied solely on the supposed to have been aware of it. The State’s primary ar- EES'S'SCS'S be w "rs 36a We respectfully disagree with the Illinois Supreme Court majority and find that the existence of probable cause is not supported by the record. The “record” cannot be un- derstood to include plausible assumptions. It might be plau- sible to assume that a burglar with an extensive record would be known to every member of a small-town police depart- ment, but for a court to make that kind of assumption in the absence of testimony would derogate the Fourth Amendment. Because we find that the finding of probable cause is not supported by the record, Stone v. Powell does not bar consideration of Petitioner’s third claim, and this conclusion also requires that the petition be granted. Although the IIli- nois Supreme Court correctly identified the governing legal rule as set forth in Beck, it applied it unreasonably to the facts. See Williams v. Taylor, 529 U.S. 362, 407-408 (2000). The record shows only that the arresting officers knew that Petitioner had been identified by a store clerk as having ac- companied someone who had purchased items with the vic- tim’s traveler’s checks. This evidence is even less than in Beck, where the Supreme Court stated: The record is meager, consisting only of the testi- mony of one of the arresting officers, given at the hearing on the motion to suppress. As to the officer’s own knowledge of the petitioner before the arrest, the record shows no more than that the officer “had a police picture of him and knew what he looked like,” and that the officer knew that the peti- tioner had “a record in connection with clearing house and scheme of chance.” Beyond that, the officer testified only that he had “information” that he had “heard reports,” that “someone specifically did relate that information,” and that he “knew who that person was.” There is nowhere in the re- nois Supreme Court reached the merits, that argument is irrelevant in this court. 37a _ cord any indication of what “information” or “reports” the officer had received, or, beyond what has been set Out above, from what source the “information” and “reports” had come.... Beck, 379 U.S. at 94. The Court concluded that “[njo decision of this Court has upheld the constitutional validity of a warrantless arrest with Support so scant as this record Presents.” Jd. 379 U.S. at 95. As it was established that simply being in the company of one who is a Suspect. does 4. Post-Conviction Relief Petitioner’s fourth claim takes issue with the dis- missal of his petition for post-conviction relief. First, Peti- tioner argues that the Illinois legislature failed to provide him 10 “At the time of Petitioner’s conviction the limita- tions provision of the Post-Conviction Act, Ill.Rev.St. ch. 38 { 122-1(c), read as follows: 38a timely post-conviction petition was the result of being denied access to a law library “near the time of the filing deadline,” Pet. at 47, and because the Department of Corrections twice confiscated the papers of a “law clerk” assisting him with the petition, denying him his First Amendment right of access to the courts. Petitioner concludes by stating: “Based upon pe- titioner’s inability to obtain state review of his post convic- tion petition as a result of ‘direct arbitrary state’ activity, this Court must hear the issues raised in petitioner’s post- conviction petition.” (Pet. at 48.) These are not in themselves claims for habeas relief, since they have nothing to do with the lawfulness of Peti- tioner’s conviction or sentence, but are offered as reasons for this court to consider the claims contained in Petitioner’s un- timely post-conviction petition.'’ Accepting these allegations as true, they do not permit the court to review the defaulted claims. alleges facts showing that the delay was not due to his culpable negligence. Effective January 1, 1984, the 20-year period from date of conviction was shortened to 10 years. P.A. 86-1210, ap- proved Aug. 30, 1990, reduced the limitations period to 3 years, effective January 2, 1992. '! Petitioner asserted the following claims in his post- conviction petition: (1) ineffective assistance of trial coun- sel; (2) the trial court improperly considered a factor in ag- gravation when imposing an extended sentence; (3) ineffective assistance of appellate counsel; (4) petitioner was convicted based on evidence seized in an unlawful arrest; and (5) the trial court did not sentence petitioner with the objec- tive of restoring him to useful citizenship. 39a If state courts refuse to review a petitioner’s claims as @ consequence of the petitioner’s failure to comply with a State procedural rule that is independent of the federal ques- tion and adequate to Support the judgment, those claims are procedurally defaulted. Coleman y. Thompson, 501 U.S. 722, 729 (1991). Failure to comply with the limitations pe- riod of the Illinois Post Conviction Act is such an independ- ent and adequate State ground. Barksdale y. Lane, 957 F.2d 379, 382 (7™ Cir. 1992), cert. denied sub nom. Barksdale vy. Peters, 506 U.S. 890 (1992). A federal court may not review a defaulted claim unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to con- sider the claims will result in a fundamental miscarriage of justice. Coleman, 501 US. at 750. A “fundamental miscar- riage of justice” is not the violation of a constitutional rule, but the probability that an innocent person has been con- victed. As it requires persuasive new evidence of actual in- nocence, it is inapplicable here. Schlup v. Delo, 513 U.S. 298, 316 (1995). Petitioner has not show acceptable cause for his default. approved August 30, 1990, but only became effective Janu- ary 1, 1992. Petitioner cannot argue that the statute was un- constitutionally retroactive. After August 30, 1990, 1998). The Seventh Circuit’s opinion in Barksdale, 957 F.2d at 382-83, addressed the 1984 reduction of the limitations 40a period from twenty years to ten, holding that it did not con- stitute “cause” excusing the petitioner’s failure to file a timely post-conviction petition. That holding is dispositive here. Petitioner cannot avoid default by stepping back and alleging that he had good cause for failing to file on time. As Barksdale pointed out, the Illinois Post-Conviction Act per- mits a petitioner to avoid the limitations bar if the petitioner “alleges facts showing that the delay was not due to his cul- pable negligence.” In finding Petitioner’s post-conviction petition untimely, the Illinois courts necessarily found that Petitioner had not made allegations that, if true; would estab- lish his lack of culpable negligence. This finding is itself an independent determination under state law and binding on this court. Barksdale, 957 F.2d at 383-84; see also Starks v. Welborn, No. 99 C 1117, 1999 WL 674754 (N.D. Ill. 1999) (Castillo, J.) at *4. Further, “cause” “must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753. Because there is no right to coun- sel in post-conviction proceedings, the failings of a post- conviction attorney are attributed to the petitioner; an attor- ney’s mistakes or blunders in failing to file on time do not constitute “cause.” Coleman, 501 U.S. at 752-53. Neither do the mistakes of a prison law clerk. United States ex rel. Wil- liams v. Cowan, No. 98 C 3204, 2001 WL 800085 (Grady, J.). Petitioner alleges that acts of the State, in keeping him from the law library for a time and confiscating papers used by the inmate law clerk, constitute an independent con- stitutional violation and so should not be subject to the same rule. But Petitioner does not allege that either action was in- tended to prevent his access to the court, and accidental dep- rivations that result in interference with an inmate’s access to RENNER siete toc aaeet 4la the courts are not constitutional violations. See Kincaid v. Vail, 969 F.2d 594, 602 (7" Cir. 1992), cert. denied sub nom. Sceifers v. Vail, 506 U.S. 1062 (*993). In the absence of a showing of intentional interferen ‘¢ with a petitioner’s access to the courts, or a showing that it was impossible (not merely more difficult) for the petitioner to have prepared the petition without state assistance (as in the case of a petitioner who access to the law library for a Significant amount of time. Cf Tellez v. Gilmore, No. 97 C 3228, 1998 WL 89336 (N.D. Ill. period, Petitioner had slightly more than four years to prepare and file his post-conviction petition, and cannot claim the State prevented him from filing. 5. Ineffective Assistance of Appellate Counsel Petitioner raises as a Claim for habeas relief the inef- appellate counsel. Like the forego- appeal. Petitioner raises at least one such claim. In his con- curring opinion in Cabrera II, 508 N.E.2d at 717, Chief Jus- tice Clark noted that Petitioner’s conviction was tainted by a separate Fourth Amendment violation: apart from the al- leged lack of probable cause, petitioner’s arrest in his home without a warrant was unlawful under Payton v. New York, 445 U.S. 573 (1980). Chief Justice Clark concurred in the 42a court’s opinion, however, because the Payton issue had been waived by failing to raise it on appeal. in his post-conviction petition, Petitioner claimed that failing to raise the issue amounted to ineffective assistance of appellate counsel. Had the issue of ineffective assistance of appellate counsel been preserved, Petitioner could have raised it in this court, and a finding that his appellate counsel had been ineffective would have permitted this court to reach the underlying Payton claim. However, our finding that the claims Petitioner sought to raise in his post-conviction peti- tion are defaulted dooms this claim as well. 6. The Illinois Accountability Statute Petitioner argues that the Illinois statutory provision by which a person may be held accountable for the acts of another is unconstitutional. That provision, formerly II. Rev. Stat. 1981, ch. 38, par. 5-2©, now codified at 720 ILCS 5/5-2©, states that “[a] person is legally accountable for the conduct of another when.... © Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or atiempts to aid, such other person in the planning or commis- sion of the offense.” Illinois decisions have interpreted this to mean that a person who joins with another in a “common design” to commit an unlawful act is accountable for any crimes that occur in furtherance of that design, whether spe- cifically intended by the co-participant or not. See People v. Cooper, 194 Ill.2d 419, 743 N.E.2d 32 (2000); People v. Taylor, 164 Ill.2d 131, 646 N.E.2d 567 (1995); see also Brumley v. DeTella, 83 F.3d 856, 863 (7" Cir. 1996). Petitioner cites no authority for the proposition that the Illinois accountability statute is unconstitutional. While the Constitution requires the state to prove a defendant guilty beyond a reasonable doubt of all elements of a criminal of- fense, defining the offense is a matter of state law for state- ee 43a legislatures and state courts. Burris v. Farley, 51 F.3d 655, 659-60 (7 Cir. 1995). The state produced evidence from which the jury could find that Lopez committed murder and that Petitioner had the requisite relationship to him to be held responsible for it. In any event, this claim was never pre- sented to the Illinois courts and is accordingly defaulted. CONCLUSION All of Petitioner’s claims are defaulted, meritless, or both, except his claim that the police lacked probable cause for his arrest and his claim that the jury could not properly have found him guilty beyond a reasonable doubt of bur- glary. These are “errors that undermine confidence in the sentences authorizing his continued confinement. Peti- tioner’s 1983 convictions for murder, robbery and burglary are declared to be void and of no effect unless the State of Illinois retries petitioner within 120 days of this order. IT IS SO ORDERED Date: October 30, 2001 Enter: /s/Jo . Lefkow ———/s/Joan H. Lefkow an JOAN HUMPHREY LEFKOW United States District Judge 44a APPENDIX C Supreme Court of Illinois. The PEOPLE of the State of Illinois, Appellee, v. William CABRERA, Appellant. No. 62357. April 16, 1987. Rehearing Denied June 5, 1987. Justice WARD delivered the opinion of the court: The defendant, William Cabrera, was found guilty of murder, robbery and burglary by a jury in the circuit court of Cook County (Ill.Rev.Stat.1981, ch. 38, pars. 9-1(a\(1), 18-1, 19-1) and was sentenced to a term of 60 years for murder and to extended-term concurrent sentences of 14 years for bur- glary and robbery. The appellate court affirmed the convic- tions but reduced the defendant’s sentence for burglary and robbery to seven years. (134 Ill_App.3d 526, 89 Ill. Dec. 427, 480 N.E.2d 1170.) We granted the defendant’s petition for leave to appeal (103 Ill.2d R. 315). On this appeal the defendant claims (1) the trial court erred in finding that the police had probable cause to arrest him; (2) he was denied the right to be tried by a fair and im- partial jury; (3) the State failed to prove him guilty of bur- glary beyond a reasonable doubt; and (4) the trial court abused discretion in imposing a 60-year extended-term sen- tence. On February 12, 1981, Yoel A. Keena, a 74-year-old man, was found dead in a back room of the Assyrian Na- tional Foundation (the Foundation) at 1475 West Balmoral Street in Chicago, where he had been temporarily living. In- vestigating Detective Thomas Sappanos found that entry had cash box broken into. Sappanos also discovered a receipt for Thomas Cook traveler’s checks with the name of the victim; however, no checks were found. The next day, February 13, Sappanos spoke with Dr. Shaku Teas concerning the results of the autopsy she performed on the victim and was informed that the cause of death was “[s]trangulation and subdural hemmorrhage [, bleeding underneath the fibrous membrane forming the outermost layer covering of the brain,] due to blunt trauma.” Learning that some of the victim’s traveler’s checks had been used to make purchases of clothing, Detectives pez) in the purchase of a red jacket, a white shirt with a Pop- the three men leaving that store carrying two shopping bags, one with the name “Different Circle,” the other with “Satur- On February 23 Moore, after looking through ap- Proximately 200 police photographs or “mug shots” at the Chicago Area 6 police station, identified a photograph of the as picture of one of the men present in the store tite 46a at the cashing of the check. Moore also told the detectives that the defendant had “a large scar going from his ear down in a diagonal line towards his neck” which was not shown in the photograph. That evening, Sappanos and Keane went to the defendant’s apartment at 5523 North Kenmore in Chi- cago, but he was not there. The next day at about 5:30 p.m., Sappanos received a telephone call at the police station from a clerk-receptionist at the defendant’s apartment house, informing him that the defendant had just returned. Sappanos and Keane, without an arrest or search warrant, immediately went to the defen- dant’s apartment, knocked at his. door and identified them- selves. The defendant, wearing only gym shorts and looking as though he had just taken a bath or a shower, opened the door. When he did, the detectives observed the scar on his neck and informed him that he was under arrest. They gave him the Miranda rights and told him that they “were investi- gating a homicide, [and] the fact that he had been identified as a person being involved in cashing the [traveler’s] checks from the homicide.” Upon the defendant’s consenting, the detectives made a cursory search of the apartment; nothing was taken. The defendant later claimed that the officers unlawfully entered his apartment, came into his bathroom while he was taking a bath, and told him he was under arrest for murder and burglary. While he was dressing, the detec- tives searched his apartment without his consent, taking three photos of his girlfriend, the title to his car, his driver’s li- cense, and his social security card. The detectives denied these allegations. The defendant was then taken to the Area 6 police station, where, at approximately 6:30 p.m., he was placed in an interview room. In the room, Detective Keane again in- formed the defendant of his Miranda rights. Sappanos then questioned the defendant about the stolen traveler’s checks and the murder, but the defendant denied knowledge of either 47a incident. The detectives then left the defendant in the inter- view room, returning at approximately 9 p.m. with a sand- 48a ture of Lopez had been affixed, that was later identified by Derrick Moore as the card used by Lopez in cashing the trav- eler’s checks. Sappanos, Keane and Grogman went back to the station, and two other detectives completed the search. They found the red jacket that had been purchased at the “Different Circle” store. Early on February 26, after providing the defendant with a sandwich and soda, Sappanos and Keane gave the de- fendant his Miranda rights another time. Again the defen- dant told the detectives that he had not been totally truthful about the homicide incident. He told them that on the night before the checks were cashed he-and Lopez had entered the Foundation by going through a broken window in the office. Once inside, Lopez told him to “search in the front” of the Foundation. There, he found a metal cash box, pried it open, and took $40 which was in the box. The defendant said that, while he was in the front office, Lopez went to the back of the Foundation where he found the victim, who had been awakened by the intrusion. The defendant saw Lopez strike the victim twice; however, the weapon was not described. (The autopsy referred to “strangulation” and “blunt trauma.”) The defendant then went to the back room and searched the victim’s pockets, where he found the victim’s traveler’s checks. He and Lopez then left the premises, Lopez taking the traveler’s checks from the defendant, and the defendant keeping the $40. The defendant stated that on the following day Lopez told him that he was going to cash the traveler’s checks and that if he, the defendant, would come along, he would buy something for him (the defendant). The defendant said he agreed and then gave Lopez $20 of the $40 dollars taken from the cash box. The defendant stated that several items of clothing were purchased with the checks, including a red jacket. After the defendant’s statement to them, the detec- tives called in an assistant State’s Attorney to take the con- pair of purple and black dress pants that he had pointed out to Lopez in the “Different Circle” store. (Apparently the defen- dant erred in this, as the record indicates that the pants were purchased from the “Saturday’s Generation” Store.) Later that morning, the defendant signed his confession, initialed each of its pages and Corrected an error in the transcription of it. A few hours later, the defendant Signed another consent form, agreeing to a second search of his apartment. That search produced, as Sappanos testified, the two pairs of pants Lopez had bought for the defendant. The defendant first argues that the trial court erred in denying the motion to quash his arrest for lack of probable 50a passed the traveler’s check belonging to the deceased,” is in direct contradiction to Derrick Moore’s trial testimony that the defendant was not the person who made the purchase with the victim’s traveler’s check. The State, citing People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856, argues that the defendant has waived the issue of probable cause by failing to raise it at trial or in his post-trial motion for a new trial. We consider, however, that the record adequately shows that the defendant preserved, for review, the issue of probable cause. We need not address the defendant’s argument that the trial court erred in stating that the defendant made the purchase with the victim’s check, for there was probable cause to arrest on wholly independent grounds. “Probable cause exists in the objective sense if” * * * the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable cau- tion in believing that an offense has been committed and that the person arrested has committed the offense.”” [Citations.] This standard requires more than mere suspicion, but it does not require the arresting officers to have in their hands evi- dence sufficient to convict the defendant. The courts, in striking a balance between the need to protect citizens from invasions of their privacy at the whim of police officers and the countervailing need to allow leeway for efficient en- forcement of the laws, are sensitive to the fact that policemen must often make their decisions to arrest or not to arrest un- der ambiguous circumstances and must exercise their judg- ment, at the risk of making a mistake. ‘In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ [Citation.]” People v. Moody (1983), 94 Ill.2d 1, 7-8, 67 Ill. Dec. 795, 445 N.E.2d 275. Sn Sla to arrest unless that finding was manifestly erroneous. Peo- 612, 426 N.E.2d 937; People v, Calderon (1980), 85 Ill.App.3d 1030, 1036, 41 Ill.Dec. 342, 407 N.E.2d 840. the investigating Officers, he had gone to a police station and “looked through Pictures, mug shots.” The defendant’s at- torney moved for a mistrial on the ground that the reference to “mug shots” was Prejudicial. The motion was denied. various exhibits, including the police Photograph of the de- fendant that Moore had picked out, Mr. Lyster, the defen- dant’s attorney, objected to the Photograph’s admission. The record reads: “MR. RAAB [Prosecutor]: People’s Exhibit Number 43 for identification, having been identified as a colored pho- tograph of the defendant, William Cabrera, being identified 52a by Derrick Moore at Area 6 Violent Crimes vicinity on the 23” of February, 1981; and also having been identified by Detective Thomas Sappanos as the photograph that was in fact identified by Derrick Moore on that day and at that place. MR. LYSTER: Your Honor, I will object to that. That is the mug shot. Of course, it has his breastplate in front of him, indicating his RIWR number on January 21, 1980. I think, obviously, it would be prejudicial for it to be admitted, even if it is altered or modified, or clipped, because you would further focus attention on the bottom photo by even covering it. In other words, if we covered the bottom of it with any kind of piece of paper. Obviously, you don’t have to be—you know, all you have to do is be a Sam Spade to know what this photo is.” (Emphasis added.) The trial court, after telling the prosecutor, who was arguing for admission of the photograph, that the jury would be shown whatever exhibits were admitted in evidence, de- nied its admission. Thus, the officers had a Chicago police department mug shot of the defendant with an identification board, and as his attorney complained, the mug shot indi- cated his Chicago police department identification number and referred to January 21, 1980. Detective Thomas Sappanos and Thomas Keane were the principal officers in the murder investigation, but at least two other officers were assigned to the investigation, Sap- panos testified. Sappanos testified, too, that he prepared about four investigative reports prior to the defendant’s arrest on February 24 and that he made a specific report on the identification of the defendant before he and Keane arrested him at 5523 North Kenmore Avenue in Chicago. It is appar- ent that the police, from the defendant’s mug shot with his name and the police identification number, were able to ex- amine the Chicago police department reports regarding the That information included a record of the defendant’s convictions for burglary and attempted burglary. At the hear- We cannot say that the trial court’s finding of prob- able cause was manifestly erroneous. | Secondly, the defendant contends that he was denied the right to be tried by a fair and impartial jury because, dur- ing the polling of the jurors, the trial court did not question a 54a juror, Ms. Ciancanelli, when she asked whether she had to answer yes or no to the court’s question whether the verdict of guilty was her verdict. After the jury announced its verdict finding the de- fendant guilty of murder, burglary and robbery, the trial court, at the defendant’s request, polled the jurors. The court questioned juror Ciancanelli: “THE COURT: Was this and is this now your ver- dict, Miss Cancinelli [sic]? MS. CANCINELLI [sic]: Can I say what I have to say, or do I have to give a yes, or no answer? . THE COURT: I want a yes or no answer. Was this and is this now your verdict? MS. CANCINELLI [sic]: I found in my own person mind— THE COURT: I said I want a yes or no answer. Was this and is this now your verdict? MS. CANCINELLI [sic]: Yes.” Upon completion of the polling, the defendant asked the court to inquire of Ms. Ciancanelli, saying it was “obvi- ous she wanted to say more than a yes or no answer.” The trial court denied the defendant’s request, agreeing with the State that it is not the duty of the court to delve into the ju- rors’ decision- making process, and that the court had given the jurors sufficient opportunity to state whether they were in agreement or disagreement with the jury’s verdict. The defendant later moved for a mistrial on the ground that the trial court erred in not allowing Ms. Ciaca- nelli to explain her verdict. The defendant argued that a “I think the record is clear, and ] would, without a moment's hesitation, declare a mistrial if ] thought that that “The polling of a jury is intended “to ascertain whether any juror had been coerced into agreeing upon a verdict—coerced by his associate jurors.” [Citation.] While polling the jury, a trial Court must be careful not to hinder a juror’s expression of dissent.’ [Citation.]” (People v. Wil- liams (1983), 97 Ill.24 252, 307, 73 Ill.Dec. 360, 454 N.E.2d 835; People v. Herron (1975), 30 ILApp 3d 788, 792. 332 N.E.2d 623.) A trial court’s determination as to a juror’s 56a Ill.Dec. 934, 363 N.E.2d 881; People v. Gardner (1976), 40 Ill.App.3d 700, 352 N.E.2d 448. It cannot be said that the determination of the trial judge here that the juror voluntarily assented to the verdict and did not wish to repudiate it is clearly unreasonable. When Ms. Ciancanelli understood that she was to respond with a yes or no answer, she unequivocally answered yes when the judge inquired: “Was this and is this now your verdict?” The situations in People v. Kellogg (1979), 77 Ill.2d 524, 34 Ill.Dec. 163, 397 N.E.2d 835, and People ex rel. Paul v. Harvey (1972), 9 Ill.App.3d 209, 292 N.E.2d 124, which decisions the defendant cites, clearly are distin- guishable. In Kellogg the juror inquired ofthe court as to whether she might change her vote, and in Harvey the juror, when asked if the verdict was his, responded: “Well, it wasn’t exactly, no.” The defendant also contends that thy statement of Ms. Ciancanelli taken after the dismissal of *x1e jury should have been considered by the trial court. We consider, however, that the trial court’s conduct was unquestionably correct. It is clear that a statement by a juror, taken after the jury has rendered its verdict, has been polled in open court, and has been discharged, will not be admitted to impeach a juror’s verdict. (People v. Preston (1979), 76 Ill.2d 274, 288-89, 29 Ill.Dec. 96, 391 N.E.2d 359.) In Preston this court stated that United States v. Schroeder (8th Cir. 1970), 433 F.2d 846, cert. denied (1971), 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224, was pertinent, and said: “There a juror signed an affidavit stating that he did not believe that the defendant was guilty and had voted for conviction against his will, although the juror had answered in the affirmative when polled on his guilty verdict. A claim that the verdict against the defendant was not unanimous was rejected by the court. It stated: 57a stances of this case, the verdict must stand unimpeached.’ (433 F.2d 846, 851.)” People v, Preston (1979), 76 Ill.2d 274, 288-89, 29 Ill. Dec. 96, 39] N.E.2d 359. Even if we Section 19-3(a) of the Criminal Code of 196] (Ill.Rev.Stat.1981, ch. 38, par. 19-1(a)) provides in part: “A person commits burglary when without authority he knowingly enters * * * a building * * * with the intent to commit therein a felony or theft.” of the offense of burglary “in that he, without authority, knowingly entered into a building, to wit: the dwelling of therein.” Section 18-1(a) of the Criminal Code (Ul.Rev.Stat.1981, ch. 38, par. 18-1(a)) provides, 58a “A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” To commit burglary there must be an unlawful entry into a building with the intent to commit a felony or theft. (People v. Peck (1963), 29 Ill.2d 480, 484, 194 N.E.2d 245; People v. Scott (1969), 43 Ill.2d 135, 144, 251 N.E.2d 190.) “The felonious intent of an accused may be inferred from his words, action, violence and other conduct and it is within the province of the jury to consider all the facts and circum- stances of the case in determining the question of intent.” (People v. Maffioli (1950), 406 Ill. 315, 320, 94 N.E.2d 191; People v. Soznowski (1961), 22 Ill.2d 540, 543, 177 N.E.2d 146.) Circumstances inciude “the time, place and manner of entry into the premises, the defendant’s activity within the premises, and any alternative explanations offered for his presence.” People v. Richardson (1984), 104 Ill.2d 8, 13, 83 Ill.Dec. 604, 470 N.E.2d 1024. Contentions similar to those of the defendant were made in People v. Zuniga (1981), 99 Ill.App.3d 396, 54 Ill.Dec. 877, 425 N.E.2d 1094. There the defendant, in the early evening hours, entered a church basement through a broken window. A priest, noticing the broken window, en- tered the church and went to the basement. The defendant struck the priest with a metal rod and demanded his money. The priest managed to elude the defendant and call for help. On appeal, the defendant in Zuniga argued that his burglary conviction should be reversed as the State failed to prove that he had entered the church with the intent to com- mit armed robbery. Th» court stated that the offense of bur- glary was complete upon the defendant’s entry into a building with the requisite intent; and that the elements of the offense, including the defendant’s intent, could be inferred from the facts and circumstances in evidence. (People v. 59a Zuniga (1981), 99 Ill.App.3d 396, 400, 54 Ill.Dec. 877, 425 N.E.2d 1094.) The court, in affirming the defendant’s con- viction, held that the testimony presented was sufficient to create a question for the jury and that the evidence “was not so palpably contrary to the verdict or so unreasonable, im- probable, or unsatisfactory as to create a reasonable doubt of defendant’s guilt.” People v. Zuniga (1981), 99 Ill. App.3d 396, 400, 54 Ill.Dec. 877, 425 N.E.2d 1094. The evidence here resembles what occurred in People v. Zuniga. As stated above, it was the province of the jury to determine the question of intent, and that determination will not be disturbed on review unless the evidence is so improb- able as to cast reasonable doubt on the guilt of the defendant. People v. Stewart (1984), 105 Ill.2d 22, 66, 85 Ill.Dec. 241, 473 N.E.2d 840; People v. Zuniga (1981), 99 Ili. App.3d 396, 400, 54 Ill.Dec. 877, 425 N.E.2d 1094; People v. Davis (1977), 54 Ill.App.3d 517, 524, 12 Ill.Dec. 362, 369 N.E.2d 1376. . The final argument of the defendant is that the trial court abused discretion in imposing an extended-term sen- tence of 60 years, as the victim’s murder was not “accompa- nied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill.Rev.Stat.1981, ch. 38, par. 1005-5- 3.2(b)(2). We recently observed in People v. Barrios (1986), 114 Ill.2d 265, 277, 102 Ill.Dec. 522, 500 N.E.2d 415, that this court has consistently held that “‘where it is claimed that the punishment imposed is excessive, although within the limitations prescribed by the legislature, that sentence should not be disturbed unless it is greatly at variance with the pur- pose and spirit of the law or manifestly in excess of the pro- Scriptions of section 11 of article II of the [1870] Illinois constitution which requires that all penalties should be pro- portioned to the nature of the offense. The trial court is nor- 60a mally in a superior position during the trial and the hearing in aggravation and mitigation to make a sound determination as to the punishment to be imposed than are courts of review.’ [Citations.]” Unless there has been an abuse of discretion by the trial court, we will not disturb the defendant’s sentence. People v. Perruquet (1977), 68 Ill.2d 149, 154, 11 Ill.Dec. 274, 368 N.E.2d 882. Sections 5-5-3.2(b)(1) and (b)(2) of the Unified Code of Corrections provide: “(T]he following factors may be considered by the court as reasons to impose an extended term sentence under Section 5-8-2 upon any offender who was at least 17 years old on the date the crime was committed: (1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts; or (2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by excep- tionally brutal or heinous behavior indicative of wanton cru- elty; * * *.” (Ill-Rev.Stat.1981, ch. 38, pars. 1005-5- 3.2(b)(1), (b)(2).) An extended-term sentence that may be imposed for murder upon consideration of the statutory factors is a term of not less than 40 years and not more than 80 years. Ill.Rev.Stat.1981, ch. 38, par. 1005-8-2(a)(1). The trial court, in imposing an extended-term sen- tence here, stated: 6la “On the murder, I’m finding that the defendant has previously been convicted of [fJelonies and that this particu- lar murder was accompanied by exceptionally brutal or hei- nous treatment indicative of wanton cruelty. The court specifically recalls the pictures that showed the blood splat- tered on the wall, on the floor and I specifically recall the condition of the victim’s body, therefore, I’m sentencing the defendant to a term of incarceration with the Illinois Depart- ment of Corrections of 60 years * * +” For the reasons given, the judgment of the appellate court is affirmed. Judgement affirmed Justice GOLDENHERSH took no part in the consideration or decision of this case. Chief Justice CLARK, specially concurring: I write separately because | believe that the police il- legally arrested the defendant in his home, without first seek- ing an arrest warrant, and without a Showing of exigent 62a Under Payton v. New York (1980), 445 U.S. 573, 574-75, 602-03, 100 S.Ct. 1371, 1374-75, 1388, 63 L.Ed.2d 639, 643-44, 660-61, the police may not, absent exigent cir- cumstances, enter a suspect’s home to arrest the suspect without a warrant for his arrest and reason to believe that he is within his home. According to the majority’s own account of the facts, the police went to the defendant’s apartment, knocked on the door, identified themselves, and then arrested the defendant when he opened the door to them. There is no showing that the defendant consented to their entry into his apartment prior to his arrest. This was an at-home arrest. It was not justified by exigent circumstances. An un- necessary and unjustified delay of at least 24 hours elapsed between the time the police supposedly obtained probable cause from Derrick Moore, on February 23, and their arrest of the defendant on the evening of February 24. Under Payton, the police need not obtain a search warrant to enter the defendant’s residence if they possess an arrest warrant for the defendant and probable cause to believe that the defen- dant is within the premises. (United States v. Clifford (8th Cir. 1981), 664 F.2d 1090, 1093.) Thus the police in this case could have obtained a warrant for the defendant’s arrest at any time between obtaining probable cause to arrest on Februa. y 23, and arresting the defendant on the evening of February 24. Nothing excuses their failure to do so. Moreover, it seems clear to me that the defendant’s statements and consents were not given of “sufficient free will as to purge the primary taint of the unlawful arrest.” (Brown v. Illinois (1975), 422 U.S. 590, 600, 95 S.Ct. 2254, 2260, 45 L.Ed.2d 416, 425.) The length of the defendant’s confinement, the lack of food and denial of sleeping accom- modations would all tend to suggest that the statements and consents were derived from the exploitation of the defen- dani’s illegal arrest. 63a In this bicentennial year, it is important to remember that the protections granted all of us under the Bill of Rights They are not meaningless roadblocks thrown in the path of the police. Unless and until this court gives a Strong signal that it will not tolerate such illegal activity, the police may continue to ignore the clear letter of the law. The majority’s silence with respect to the absence of a warrant in this case Justice SIMON, dissenting: I dissent because the constitutional requirements for a Showing of probable cause have not been satisfied here. In- Stead, the majority’s rationale introduces to Illinois an inno- vative concept of appellate review. In determining whether there has been a showing of probable cause, reviewing jus- tices may now speculate as to what they would have done had they been the investigating officers, leaving for defen- dants the task of proving that the real-life Police did other- wise. That type of review makes it easier to justify a warrantless arrest than it is to obtain an atrest warrant: for a warrant to issue the State must allege sufficient facts to estab- lish probable cause, while in the case of a warrantless arrest such facts may, under the majority’s sanction, merely be pre- sumed. To avoid discouraging the use of arrest warrants, however, the Supreme Court has said that the standards ap- plicable to judgi & warrantless arrests must be “at least as Stringent as the standards applied with respect to the magis- trate’s assessment.” (Whiteley v. Warden (1971), 401 U.S. 560, 566, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306, 312.) The 64a majority’s standard of review is irreconcilable with that ad- monition. Disregarding the State’s admission during oral argu- ment before this court that “it is not in the record what police officer[s] actually knew at the time [they] arrested the defen- dant,” the majority substitutes as a basis for its decision what the officers might have known. It thus ignores the funda- mental rule of warrantless arrests, that the existence of prob- able cause must be proved by facts within the arresting officers’ knowledge at the time the defendant was seized. “Whether that arrest was constitutionally valid de- pends in turn upon whether, at the moment. the arrest was made, the officers had probable cause to make it—whether at that moment the facts and circumstances within their knowl- edge and of which they had reasonably trustworthy informa- tion were sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense.” (Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145; see People v. Wright (1968), 41 [ll.2d 170, 174, 242 N.E.2d 180.) In so doing, the majority rebuffs the previously well- established rule that in cases of warrantless arrest the State carries the burden of establishing probable cause (People v. Kraman (1981), 96 Ill.App.3d 390, 51 Ill.Dec. 838, 421 N.E.2d 346; People v. Moncrief (1971), 131 Ill.App.2d 770, 268 N.E.2d 717; see United States v. Allen (D.C.Cir. 1980), 629 F.2d 51; United States v. Guana-Sanchez (7" Cir. 1973), 484 F.2d 590; State v. Edwards (1974), 111 Ariz. 357, 529 P.2d 1174; People v. Tufts (Colo.1986), 717 P.2d 485; Pal- migiano v. Mullen (1977), 119 R.I. 363, 377 A.2d 242; Rob- erts v. State (Tex.Crim.App.1977), 545 S.W.2d 157), and it requires defendants to produce evidence in the trial court to disprove a theory of probable cause which is only revealed after resolution by the reviewing court. 65a The defendant claims that there was no probable cause for his arrest because all that the arresting officers knew at the time of his arrest was that the defendant had been in the company of another man who used Mr. Keena’s (the victim’s) checks to purchase clothing. The trial court found from one of the arresting officer’s misleading testimony (that the defendant was “involved” in using the stolen check) that the defendant passed Mr. Keena’s check; but Derrick Moore, assistant sales manager at the Different Circle, cantradicted that officer’s testimony. (The other arresting officer’s testi- mony contained no additional information tending to estab- lish probable cause.) Moore testified at trial that the defendant came into his store with two other men, and that the defendant browsed through clothing while one of the other two made the purchase at issue. Moore’s testimony has been accepted by the State as an accurate account; thus the State now agrees that prior to the defendant’s arrest there was no reason to believe that he had made a purchase with, or en- gaged in a transaction concerning, the victim’s check. According to the majority, however, the defendant mischaracterizes the issue because the police had “other sig- nificant information” (116 Ill.2d at 485- 86, 108 Ill.Dec. at 401, 508 N.E:2d at 712) tending to establish probable cause. First, the majority finds significance in Moore’s identifica- tion of the defendant after viewing some 200 photographs and in Moore’s description of a scar which the identifying photograph did not depict. True, that information bolsters the certainty of Moore’s identification, so the court is able to conclude with greater assurance that the defendant was the man whom Moore observed in his store while somebody else made a purchase with the victim’s check. But the defendant has never contested the sufficiency of Moore’s identification. Whether the defendant’s presence alone provides probable cause is the question presented, a question for which the cer- tainty of Moore’s identification is hardly “significant.” 66a The crux of the majority opinion is not what the po- lice could infer from Moore’s identification, but what they might make of the identifying photograph. From the exis- tence of defendant’s mug shot the majority reaches for a con- clusion which the record does not support: that the police were aware of the defendant’s earlier burglary convictions. The majority opinion first states—without support in the re- cord—that from the mug shot police could locate defendant’s “rap sheet” between the time that Moore identified the de- fendant’s picture and the time of the defendant’s arrest. Next it presumes—also without benefit of evidence—that since police officers could review the defendant’s criminal history, they in fact did so. “It is apparent that the police, from the defendant’s mug shot * * *, were able to examine the Chi- cago police department reports regarding the defendant and could ascertain his record and address * * * and that from the mug shot [the arresting officers] ascertained the information appearing in the Chicago police department records regard- ing the defendant.” (Emphasis added.) 116 Ill.2d at 487, 108 Ill.Dec. at 402, 508 N.E.2d at 713. In this manner the majority conjures up additional evidence to support a conclusion which the known facts do not. But the illusion is transparent, particularly as the major- ity calls upon two equally flawed assumptions to detract from the absence of any supportive evidence. The first is that police arrested the defendant at the address supplied on his rap sheet, thereby demonstrating that they had read the rap sheet and were familiar with its con- tents and the defendant’s criminal conduct recounted therein. In its brief the State claims: “The last entry on this document [defendant’s criminal history] lists defendant’s address at 5523 North Kenmore, which is exactly where the police went to arrest defendant.” Accepting the State’s crude misstate- ment of the record, the majority reasons: the police were able to aScertain the defendant’s address from his record, and a 67a “[t]hus, they were able to arrest him at his apartment at 5523 North Kenmore Avenue in Chicago.” 116 Ill.2d at 487, 108 Ill.Dec. at 402, 508 N.E.2¢ at 713. The flaw in this reasoning is that prior to the defen- dant’s arrest for this crime, his record did not indicate an ad- dress on Kenmore Avenue, so the officers’ knowledge of defendant’s address does not by inference or in any other way establish their knowledge of his burglary record. The defendant’s criminal history (appended to this dissent as it appears in the record) indicates for all entries save the last an address of “1230 W. Argyle.” The last entry does indicate “3523 N. Kenmore,” but what the State’s argument and ma- jority opinion have overlooked is that the last entry was made in connection with the arrest at issue in this case. The second assumption is that because one of the ar- resting officers testified to having written a police report re- garding Moore’s identification Prior to the defendant’s arrest, “[h]e certainly would have examined the Chicago police de- partment records of the defendant.” (Emphasis added.) (116 Ill.2d at 487, 108 Ill.Dec.at 402, 508 N.E.2d at 713.) That presumption is also baseless. The fact that a report was writ- ten about the identification proves nothing itself; its rele- vance to the question of what the arresting officers knew can only be uncovered by knowing what information the report contains. Since the State never offered the report in evi- dence, an inference arises that its contents are not beneficial to the prosecution. See Massa v. Department of Registration & Education (1987), 116 Ill.2d 376, 386, 107 Ill.Dec. 661, 507 N.E.2d 814. By stating that police officers would “certainly” ex- amine the defendant’s criminal history, the majority imagines what an experienced detective would investigate and that de- tectives in this case performed their investigation in accor- dance with the majority’s hypothetical standard. Considering 68a the arresting officer’s own lack of precision 1n testifying as to the defendant’s “involvement” in using the victim’s trav- eler’s checks, and the extent to which that imprecision has been the cause of this protracted search for probable cause, there is no reason to blindly rely upon the unproved assump- tion that he took care to examine the defendant’s criminal record before making his arrest. More disturbing, however, is the implication that in every future case the court will as- sume that the actual investigation was a model of good police work, and since unlawful arrests are inconsistent with good police work, probable cause must exist. — Contrary to the majority’s opinion, the record here suggests that prior to the defendant’s arrest, the arresting of- ficers knew that the victim had been murdered sometime on the 11" or 12" of February, that one of the victim’s traveler’s checks had been used on February 11 to purchase merchan- dise from the Different Circle store in Chicago, that the de- fendant had been identified as one of two individuals who accompanied a third man to the Different Circle when the third man passed that check, but nothing more. Derrick Moore described those three men to police, but other than the identification of the defendant the record does not indicate what descriptions Moore gave, their depth of detail, or whether the victim matched Moore’s description of the man who actually used the traveler’s check. Therefore, from what the record shows to have been within the arresting officers’ knowledge at the time of the defendant’s arrest, the victim himself might have been alive and in the company of the de- fendant at the Different Circle store, only to be murdered later that night in an unrelated occurrence. Even stepping beyond the evidence of record to pre- sume that Moore’s initial description of the person who ne- gotiated the victim’s traveler's check excluded that possibility, all that the arresting officers knew was that the defendant had been in the company of a man for whom prob- - 69a able cause to arrest existed by virtue of his possession of the victim’s property. That information was insufficient to jus- tify the defendant’s arrest; “a person’s mere propinquity to others independently Suspected of criminal activity does not, without more, give rise to probable cause” for his arrest. (Ybarra v. Illinois (1979), 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238, 245: Sibron vy. New York (1968), 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917, 934-35.) From what the officers knew prior to his arrest, the defendant’s conduct was, like that of the appellant in United States v. Di Re (1948), 332 US. 581, 68 S.Ct. 222, 92 L.Ed. 210, insufficient to justify an arrest because his mere pres- ence while the check was negotiated did not establish his connection to any crime. “The argument that one who ‘accompanies a criminal to a crime rendezvous’ cannot be assumed to be a bystander, forceful enough in some circumstances, is farfetched when the meeting is not secretive or in a suspicious hideout but in broad daylight, in plain sight of passers-by, in a public street of a large city, and where the alleged substantive crime is one which does not necessarily involve any act visibly criminal. If Di Re had witnessed the passing of papers from hand to hand, it would not follow that he knew they were ration cou- pons, and if he saw that they were ration coupons, it would not follow that he would know them to be counterfeit.” 332 U.S. 581, 593, 68 S.Ct. 222, 228, 92 L.Ed. 210, 219-20. Notwithstanding the majority’s attempt to bolster the record with presumptions of good police work, the evidence Supports but a single conclusion: that the defendant was ar- rested solely for having been in the company of another who possessed and used the victim’s property. The case is thus similar to People v. Creach (1980), 79 Ill.2d 96, 37 Ill.Dec. 338, 402 N.E.2d 228, where this court found probable cause lacking for the arrest of Thomas Ruppert. Though he had traveled in the victim’s car with Creach to Ohio shortly after 70a the murder, Ruppert’s arrest was found to have been made unlawfully, regardless of the legality of Creach’s arrest, be- cause “probable cause to arrest a particular individual does not arise merely from the existence of probable cause to ar- rest another person in the company of that individual.” 79 Ill.2d 96, 102-03, 37 Ill.Dec. 338, 402 N.E.2d 228; see Peo- ple v. Carnivale (1975), 61 Ill.2d 57, 329 N.E.2d 193. The majority appears to distinguish Creach on the ba- sis of “other significant information” supposedly known by the arresting officers. Since the record, as I have demon- strated, does not lend support to the majority’s rationale, the distinction is invalid, and I do not see how Creach can sur- vive the holding in this case. Neither do I believe that the majority opinion is consonant with constitutional safeguards. Moore’s identification might have ignited suspicion of the defendant’s involvement, but “suspicion is not enough for an officer to lay hands on a citizen.” Henry v. United States (1959), 361 U.S. 98, 104, 80 S.Ct. 168, 172, 4 L.Ed.2d 134, 139. There can be little doubt that “guilt by association” is a fallacious notion which can never legitimate an arrest made without other specific information providing probable cause. (People v. Feltch (1971), 174 Colo. 383, 387, 483 P.2d 1335, 1337 (an “arrest based upon the theory that birds of a feather flock together, cannot be sustained”); Smith v. State (Okla.Crim.App.1974), 525 P.2d 1251, 1253.) The majority is in apparent agreement, finding it necessary to draw upon matters not of record to uphold the legality of the defendant’s arrest, but the majority never explains whether or why “pro- pinquity” plus supposed knowledge of prior convictions forms probable cause. The prosecutors were given ample opportunity to offer evi- dence in the trial court supporting the legality of the defen- dant’s arrest, and misleading testimony by the arresting 7la officers was the best they could produce. That deception re- vealed, the majority’s opinion tries to uphold the arrest by its own sleight of hand. It succeeds, but only to a degree. Al- though the arrest haz been approved, it has not been legiti- mated. 72a APPENDIX D Appellate Court of Illinois, First District, Fourth Division. The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William CABRERA, Defendant-Appellant. No. 83-1293. June 20, 1985. Rehearing Denied July 24, 1985 JOHNSON, Justice: In a jury trial in the circuit court of Cook County, William Cabrera, defendant, was found guilty of murder, burglary, and robbery. He was sentenced to a term of 60 years for murder and to a term of 14 years for burglary and robbery, the sentences to run concurrently. On appeal, de- fendant argues that (1) he was denied a fair trial and an im- partial jury; (2) the trial court’s findings that the arresting officers had probable cause to arrest him is manifestly erro- neous; (3) the trial court abused its discretion in giving him extended sentences for the convictions; (4) the 60-year sen- tence for murder is excessive; and (5) the State failed to prove beyond a reasonable doubt that he had a specific intent to commit a burglary. We affirm as modified. The facts reveal that on the night of February 10, 1981, at approximately 11:30 p.m., defendant Caberera and 73a Ruben Lopez, his accomplice, gained unauthorized entry, through a window, into the offices of the Assyrian National Foundation, located at 1475 West Balmoral Avenue, in Chi- cago. Once inside the building, defendant stole money from the foundation and killed a man by strangling him and hitting him with a blunt instrument. Before leaving the premises, defendant and Lopez robbed the victim of traveler’s checks. Several days later, defendant, with two other persons, went to the Century Mall in Chicago. While there, one of the indi- viduals who accompanied defendant purchased clothes and paid for them with the stolen traveler’s checks. On February 23, 1981, police detectives Sappanos and Keane went to the Century Mall and interviewed Derrick Moore, the owner of the store where the stolen traveler’s checks had been used. Moore informed the officers that he remembered the men who had used the checks. Moore viewed police department photographs and identified defen- - dant as one of the persons who was with the individual who bought merchandise with the traveler’s checks. Detectives Sappanos and Keane went to defendant’s house the next day and arrested him for murder. The Officers did not have an arrest warrant. Defendant consented to a search of his house. Prior to trial, defendant moved to quash his arrest and to sup- Defendant argues that he was denied his right to a fair trial and an impartial jury when, after the verdict, the first juror polled by the trial judge indicated possible dissent from the verdict and the trial court failed to inquire as to that dis- sent. The following colloquy occurred: “THE COURT: Is it your desire to have the jury polled, Mr. Lyster? 74a MR. LYSTER [counsel for defendant]: Yes. THE COURT: I’m going to ask you this question, and I want you to pay attention to it. Was this and is this now your verdict, Miss Cancinelli [sic]? MS. CANCINELLI [sic] [juror]: Can I say what I have to say, or do I have to give a yes, or no answer? THE COURT: I want a yes or no answer. Was this and is this now your verdict? MS. CANCINELLI [sic]: I found in my own person mind— THE COURT: I said I want a yes or no answer. Was this and is this now your verdict? MS. CANCINELLI [sic]: Yes.” A defendant in a criminal case is guaranteed a trial by an impartial jury. (U.S. Const. Amend. VI; Ill. Const.1970, art. 1, § 8; Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.) Essential to that guarantee is the re- quirement that the verdict reached be freely arrived at by each juror. (Martin v. Morelock (1863), 32 Ill. 485, 488.) Defendant’s right to individually poll jurors after a verdict is one method of safeguarding defendant’s right to be tried by an impartial jury. (People v. DeStefano (1965), 64 Ill.App.2d 389, 408, 212 N.E.2d 357, 367.) Defendant argues that Peo- ple v. Kellogg (1979), 77 Ill.2d 524, 34 Ill.Dec. 163, 397 N.E.2d 835, and People ex rel. Paul v. Harvey (1972), 9 Ill.App.3d 209, 292 N.E.2d 124, are controlling on the issue 75a of juror dissent. He complains that the holding and reasoning of both cases require a reversal of his murder conviction. In Kellogg, the jurors were polled and each juror was asked, “Was this then and is this now your verdict?” Eleven jurors replied, “Yes.” The following colloquy occurred be- tween the court and the remaining juror: ““THE COURT: Susan M. Vesecky, was this then and is this now your verdict? JUROR VESECKY: Yes. Can] change my vote? THE COURT: The question is, was this then and is this now your verdict? JUROR VESECKY: (No response.) THE COURT: Was this then and is this now your verdict? JUROR VESECKY: Yes, Sir.” (77 Ill.2d 524, 527, 34 Ill.Dec. 163, 397 N.E.2d 835.) The court held there was nothing wrong with the. __ double-barrel question used in the colloquy, “Was this then and is this now your verdict;” nevertheless, it held if a juror indicates some hesitancy or ambivalence in his answer, it is the trial judge’s duty to ascertain the juror’s present intent by affording the juror the Opportunity to make an unambiguous reply as to his present state of mind. (77 Ill.2d 524, 528, 34 Ill.Dec. 163, 397 N.E.2d 835.) The court reversed defen- dant’s conviction in Kellogg because the trial court failed to follow this duty. In People ex rel. Paul v. Harvey (1972), 9 Iil.App.3d 209, 210, 292 N.E.2d 124, 125-26, the following colloquy occurred at trial between the court and a juror during polling: 76a “* “THE COURT: Is this and was this your verdict? -JUROR: Well, it wasn’t exactly, no. THE COURT: Did you sign this? JUROR: Yes, I did. THE COURT: Then it’s your verdict.’” The court held that the juror indicated possible dis- sent, and the trial court, therefore, had a duty to inquire as to that dissent. Harvey, at 212, 292 N.E.2d 124. Defendant’s case is distinguishable from Kellogg and Harvey because, unlike the jurors in those cases, Ms. Cianca- nelli did not indicate ambivalence or hesitancy in her reply. We do not interpret her replies, “Can I say what I have to say or do I have to give a yes, or no answer?” and “I found in my Own person mind,” as indicating ambivalence or hesitancy in her answer. In Kellogg and Harvey, it was clear to the re- viewing court that the jurors had reservations about their de- cision. Here, Ms. Ciancanelli never indicated to the trial court that her vote as reached during deliberation did not ac- curately reflect her decision as to defendant’s guilt. The primary purpose of jury -polling is to determine that the jury’s verdict accurately reflects each juror’s vote as reached during deliberations and that the juror’s vote was not the result of force or coercion. (People v. Williams (1983), 97 Ill.2d 252, 307, 73 Ill.Dec. 360, 386, 454 N.E.2d 220, 246.) A judge must be careful to determine the juror’s pre- sent intent in the polling. (People v. Kellogg (1979), 77 Ill.2d 524, 529, 34 Ill.Dec. 163, 166, 397 N.E.2d 835, 838.) It is for the trial court to determine whether a juror has freely assented to the verdict. It not only hears the juror’s response, it also observes the juror’s demeanor and tone of voice. (77 77a _‘Ill.2d 524, 529, 34 Ill.Dec. 163, 397 N.E.2d 835.) We can only second-guess at this Stage on those factors considered by the trial court. We, therefore, conclude that unless it is clear to the reviewing court that a juror indicated possible dissent, we will not reverse on jury dissent grounds. Since Ms. Ciancanelli’s response indicated no ambivalence or hesi- tancy, there was no cause for the judge to further question her as to possible dissent. Thus, we hold the trial court had no duty to inquire as to her possible dissent. Defendant also contends that a Statement given by Ms. Ciancanelli 2 hours after the jurors were dismissed indi- cates that she wanted to dissent from the verdict and change her vote. A statement which goes to the deliberation process and is taken after the verdict has been read, and the jury has been polled and discharged, is not admissible (People v. Pre- ston (1979), 76 Ill.2d 274, 288, 29 Ill.Dec. 96, 103, 391 N.E.2d 359, 366), and therefore not reviewable by this court. Accordingly, after the jurors were discharged, Ms. Cianca- nelli’s change of mind or claim that she was mistaken or un- willing in her asseni to the verdict comes too late. 76 IIl.2d 274, 288, 29 Ill_Dec. 96, 391 N.E.2d 359. Before trial, defendant motioned the court to quash his arrest for lack of probable cause and to Suppress the evi- dence recovered as a consequence of the illegal arrest. He contends the trial court’s findings of probable cause to arrest was manifestly erroneous because it was based entirely on defendant’s presence with another person who used traveler’s checks stolen from the murder victim. Probable cause to arrest exists where the facts and circumstances known to the police would justify a man of reasonable caution to believe that a crime has been commit- ted by the individual he intends to arrest. (People v. Miller (1980), 91 Ill_App.3d 1031, 1037, 47 Ill.Dec. 533, 538, 415 N.E.2d 538, 543.) It is something less than evidence neces- 78a sary to result in conviction. (People v. Frye (1983), 113 Ill.App.3d 853, 859, 69 Ill.Dec. 630, 634, 447 N.E.2d 1065, 1069.) In determining the existence of probable cause, the courts are concerned with probabilities derived from factual and practical consideration of everyday life by reasonable, prudent men—not legal technicians. People v. Creach (1980), 79 Ill.2d 96, 102, 37 Ill.Dec. 338, 341, 402 N.E.2d 228, 231. The ruling of a trial court regarding a motion to sup- press will not be overturned unless it is-manifestly erroneous. (People v. Tribett (1981), 98 Ill.App.3d 663, 671, 53 Ill.Dec. 897, 903, 424 N.E.2d 688, 694.) In support of his contention that the trial court erred, defendant cites to People v. Carni- vale (1975), 61 Ill.2d 57, 329 N.E.2d 193, People v. Lumpp (1981), 113 Ill.App.3d 694, 69 Ill.Dec. £28, 447 N.E.2d 963, and People v. Creach (1980), 79 Ill.2d 96, 37 Ill.Dec. 338, 402 N.E.2d 228. He states that the court in those cases rea- soned that probable cause to arrest a person does not arise merely from the presence of that person in the company of another. Even assuming, arguendo, that defendant is correct in his reasoning, this case is distinguishable from those cited; here, the arresting officers had more facts available to them than that defendant was merely present with another suspect. In the present case, the officers knew that defendant had been twice convicted of burglary in the past 6 months. Moreover, they knew defendant’s past burglaries had occurred in the same general area as the murder and burglary they were in- vestigating, and that defendant lived in the general area where the murder and burglary occurred. Defendant was arrested at his home after being identi- fied by a store owner as one of three individuals who pur- chased clothes and paid for them with the victim’s traveler’s checks. The store owner also told the officers that defendant had a large scar on his neck. With this information and what they knew of defendant’s past burglaries in the general area 79a where the murder and burglary occurred, the officers went to defendant’s house without an arrest warrant and placed him under arrest. Based on this information, we hold the trial court’s finding of probable cause was not manifestly errone- ous. Defendant complains that he was improperly given an extended sentence for each of the offenses for which he was convicted. He argues that the murder of the vi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1762%3A2. Public record. Not legal advice.