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People v. Legear

JUNE 30, 1975.




APPEAL from the Circuit Court of McHenry County; the Hon. CHARLES S. PARKER, Judge, presiding.


After a jury trial the defendant was found guilty of the offense of theft exceeding $150 in value and was found not guilty of burglary. He was sentenced to 2-6 years' imprisonment. He appeals, contending for reversal that he was not proved guilty beyond a reasonable doubt and contending, alternatively, that various trial errors require reversal and remand.

The charges arose from a theft of a coin collection owned by John Rossiter from his car located in a barn on the Rossiter property on Cold Springs Road in McHenry County. The police were advised that the items were missing at approximately 9:30 A.M. on June 10, 1971. At about 4 P.M. Officer Hendle, while on patrol with Captain Madsen in an unmarked car, observed a car parked at Cold Springs Road approximately one and one-half blocks from the Rossiter home. As the officers approached they saw a person running from a hedge at the east side of the road and saw him get into the passenger side of the parked car. He was observed carrying two or three brown paper bags. They blocked the vehicle with the squad car, Hendle going to the passenger side, Madsen going to the driver side. From the outside of the car Hendle observed defendant holding two brown paper bags containing assorted tubes and assorted paper and coin folders holding coins; and he saw plastic tubes lying outside of the car, one of which contained coins. The man behind the driver's seat was Arthur Ippolito, an indicted co-defendant. There were two women and a baby in the back seat.

The items found in the car were identified as those taken from the Rossiter property without permission and the value established at more than $150.

Captain Madsen substantially corroborated the testimony of Hendle and stated that defendant made no attempt to hide the bags.

Officer Cropp of the McHenry County Sheriff's Department testifying for the State said that on June 3, 1971, a week prior to the theft he observed a car parked at the same place on Cold Springs Road and saw defendant coming out of the field and walking to the car. At that time defendant told the officer that the car had overheated and that he was visiting a friend at the Rossiter home who was the daughter of Mrs. Rossiter. The officer verified this fact and the fact that defendant and the daughter of Mrs. Rossiter were good friends.

Arthur Ippolito testified for the defendant. He stated that he had been jointly indicted with defendant, had pleaded guilty to theft charges after negotiation and as a result the burglary charge had been dropped. He said he was, however, guilty of the burglary. He testified that on June 9, 1971, by a prior arrangement one Adam Pena drove a car and dropped him off at the Rossiter barn where the burglary and theft were committed; that Pena was to wait in the car to pick him up but did not arrive and that he hid the coins next to a tree off the road and walked to Crystal Lake and took a train home. The next day he called another man first and then the defendant. He said he told defendant that he had to go to Woodstock "to pick up something," that he asked if defendant wanted to make $20 to go with him and that defendant agreed. On inquiry it appeared that defendant had no car and Ippolito arranged with his wife's girl friend to borrow a car, but that she insisted on going with the car. The witness drove, the defendant was in the passenger seat and defendant's wife, 6-month-old baby, and the car owner were in the rear.

Ippolito testified that he had told defendant on the way about the burglary and the theft the previous day; that when he reached the place where he had hidden the coins he asked defendant to go out and get them, explaining in court that he did not want to be stranded again. As he was ready to pull away the police came and Ippolito said that he immediately confessed and told the police that no one else was involved. However, after extensive questioning for more than 2 hours in the police station, during which he was told that unless he implicated defendant, his wife would go to jail and his child would be placed in a foster home, he said he told them to write down anything as long as they permitted his wife to go free but that he would not sign any statement.

He admitted on cross-examination, however, that he had told the police that he, defendant and Pena had been involved in the burglary and theft the preceding night, that defendant had actually been with him in the Rossiter barn and that the information as to the presence of the coin collection had come from the defendant. He also testified that he had told his attorney William Caldwell that defendant was not involved, and he further testified on cross-examination that he had told his probation officer some 9 months after the crime that defendant was implicated and was to share equally in the proceeds. Ippolito also testified that Mr. Caldwell, his lawyer, told him at the time he entered his plea that he would not be given probation unless he implicated the defendant. He further stated that a few days before trial there was a meeting between Mr. Caldwell and Captain Madsen and he at which the State's Attorney was also present and that after Mr. Caldwell left both the State's Attorney and Madsen threatened revocation of probation unless he testified against defendant.

In rebuttal, the State called Attorney Caldwell who testified over objection that Ippolito had, at no time, informed him that defendant was innocent; and that he at no time had told Ippolito that he would not get probation unless he implicated the defendant. Upon cross-examination Caldwell recalled that on one occasion he was a party to a conference between the prosecutor, Ippolito and himself about 3 days prior to this trial and at that conference Ippolito had stated that defendant was not involved.

Both Officer Hendle and Captain Madsen were permitted to testify in rebuttal, over objection, that Ippolito repeatedly implicated defendant during the questioning at the station the day after the crime and that Ippolito never stated that defendant was not involved. They also said that no threats were made to Ippolito regarding his wife and child at any time.

Defendant first argues that the evidence is insufficient to prove him guilty beyond a reasonable doubt of the offense of theft. (Ill. Rev. Stat. 1971, ch. 38, par. 16-1(a) (1).) He reasons that the evidence is circumstantial; that the possession of the recently stolen coins in defendant's lap in the car with no attempt to conceal them, in view of the in-court testimony of Ippolito, does not exclude every reasonable hypothesis of innocence both as to defendant's guilty knowledge and intent, citing People v. Berg (1968), 91 Ill. App.2d 166, and therefore that the conviction must be reversed.

Defendant concedes that if the State had proceeded under section 16-1(d)(1) of the Criminal Code ("[o]btains control over stolen property knowing the property to have been stolen by another * * *" (Ill. Rev. Stat. 1971, ch. 38, par. 16-1(d)(1)), a different conclusion "perhaps" could be reached. However, as the State responds, there is no substantial variance in the requirement of proof under the compared sections of the Criminal Code. Subsection (d), commonly termed "receiving stolen property," does not state a separate offense but one which is included in a broad definition of theft in subsection 16-1(a)(1). See Ill. Ann. Stat., ch. 38, § 16-1, Committee Comments (Smith-Hurd 1970); People v. Marino (1970), 44 Ill.2d 562, 576; People v. McCormick (1968), 92 Ill. App.2d 6, 11-13.

• 1 The exculpation of defendant by Ippolito at trial does not of itself establish a reasonable hypothesis of innocence. The jury was not required to accept the testimony of Ippolito at the trial and reject his prior statements. But even if they accepted Ippolito's trial testimony it established that defendant knew before he obtained or exerted any control over the coins that the coins had been stolen. Further, the jury could choose to believe that Ippolito was telling the truth in his original statements. This could establish that defendant, in fact, personally participated in the burglary and theft or that he planned it, in view of his access to knowledge of the coin collection and substantial circumstantial evidence to indicate that he had informed Ippolito about it. It is also clear that defendant had recent and exclusive possession of stolen property from which an inference of guilt might be based, if not satisfactorily explained. The explanation, in the form of the testimony of the indicted co-defendant Ippolito which was inconsistent with his ...

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