APPEAL from the Circuit Court of McLean County; the Hon. KEITH
CAMPBELL, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 21, 1974.
Defendant was charged with conspiracy, armed violence and burglary. A jury found him not guilty of armed violence and guilty of conspiracy and burglary. Sentence of 2 to 6 years was imposed upon the order of conviction for burglary only.
On appeal defendant urges that he was denied a fair trial as a result of prejudicial comments in the prosecutor's closing argument, that his motion to suppress certain evidence was improperly denied, and that it was error to deny his motions for discovery of police reports.
The prosecution was upon charges of the burglary of the Kohler residence in McLean County on the evening of January 9, 1971. On that evening and at approximately the time of the burglary, the defendant, who resided in Steger, Illinois, a southern suburb of Chicago, was observed in Bloomington in the presence of his co-conspirators and accomplices at the Howard Johnson Motel, approximately one-half mile from the Kohler home. The State's principal witness was Richard Stiles, an accomplice, the admission of whose testimony resulted from an allegedly erroneous ruling on defendant's motion to suppress.
Stiles testified that on January 7, 1971, two days prior to the burglary, he was residing with the defendant and Danielle Becker, at defendant's resident in Steger. Stiles related his discussion of the burglary plans with the defendant, and he testified that he had rented a car in which he and the defendant traveled to Bloomington where they stayed on the night preceding the burglary.
When the defendant and Stiles entered the Kohler home, law-enforcement officers who had been alerted to the possibility of the burglary were concealed in the house waiting for them. The burglars were confronted and ordered to "Freeze," whereupon a brief gun battle occurred during which Stiles was shot in the hand. Both defendant and Stiles escaped however, and fled to the residence of David Swafford, another accomplice, who that night, with his wife Carol, drove defendant and Stiles to defendant's residence in Steger.
The following day, January 10, 1971, Swafford gave a statement to the police indicating that he and his wife, Carol, had driven Stiles to the Chicago area. On January 11, 1971, a warrant for Stiles' arrest was issued from the McLean County Circuit Court, and both Swaffords accompanied law-enforcement officers to Steger, and indicated defendant's residence as the place to which Stiles had been brought on the night of the burglary. On the night of January 11, 1971, the police, with an arrest warrant for Stiles, entered into defendant's residence looking for Stiles, and in the process searched the premises and found various physical evidence, including a face mask, ammunition and a pistol with obliterated serial numbers. Stiles was not found in this search. After the search, while the police were leaving, defendant was observed walking toward his home in the company of Danielle Becker. The police returned to defendant's home and arrested him for aiding and abetting a fugitive. Shortly thereafter, Becker gave a statement to the police that ultimately led to the arrest of Stiles early on the morning of January 12, 1971, at the nearby suburb of Chicago Heights, Illinois.
In argument, the prosecutor made the following complained-of comments:
"It is unrebutted [sic] and unrefutted [sic] in this case that Salvatore Basile was in the Howard Johnson Motel approximately a half hour after this shoot-out * * *."
In closing argument, he said:
"It is unrefuted in this case that the two of them [Stiles and defendant] were residing at the Butler Street address in Steger. They came down here, did this act and left. They did it with three other people in this community, Stufflebeam, Swafford and Patrick. Mr. Walker [defendant's attorney] knows why those people aren't here, the other people that participated in that incident.
He told you during the course of this case he thought you would be interested to hear from them. I'd be interested in hearing from them too. None of us can hear from them at this point."
Such argument was not objected to when originally made in the trial court.
A motion and supplemental motion to suppress evidence were filed, and hearings were had on such motions. The motions seek to suppress among other things the testimony of Stiles and Becker, and physical evidence obtained in search of both defendant's residence and the location in Chicago Heights where Stiles was arrested. The motions were denied except as to physical evidence seized during the search of defendant's home. No physical evidence was introduced, and the only evidence introduced against defendant that was the subject of his motion to suppress was the testimony of Stiles. ...