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People v. Rand

JUNE 30, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

TIMOTHY RAND, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. G.W. UNVERZAGT, Judge, presiding. MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

The defendant appeals from a jury verdict finding him guilty of the burglary of a building occupied by Gossage, Inc. He was sentenced to serve a term of 2 to 6 years in the penitentiary.

Because of the results reached, we will address only one of the issues raised by the defendant, i.e., did the trial court err when it allowed witnesses to testify to alleged oral statements made by the defendant.

The burglary occurred on the night of November 16, 1971. Evidence revealed that initial entry was gained by knocking down a board that covered a window opening in the exterior wall of the building and, thereafter, a hole was knocked through the fiberboard wall of an inner office. There was $295 on the desk in that office; in the desk was a gun. Only the money was taken. On the morning after the burglary, a latent fingerprint was lifted from the interior wall of the inner office, next to the entry hole. Through the State's expert, it was established that a later comparison disclosed that defendant's thumbprint matched the latent fingerprint.

Prior to arrest, defendant was interrogated by Detective Lowe, in the presence of Detective Tanke. Subsequent to arrest and arraignment, the court, on May 17, 1972, ordered the State to deliver by May 30, any written statements made by the defendant or a list of witnesses present at the time of any oral statements, together with the substance of such oral statements. In response, the State filed pleadings which, in all, contained a list of 14 witnesses whom it expected to call to testify. Lowe and Tanke were on this list but were not designated as witnesses to any statements. The State's response also contained a notation, "Defendant Rand's statements to come."

On August 28, 1972, the State sent the defendant a four-page police report signed by Detectives Lowe and Tanke. The relevant portion stated:

"13. Gossage Grill Villa Park

Rand, Cookson, Lippman received a large amount of money. All arrested on the above. This was set up by Lenny Peterson employee."

At trial, on October 10, 1972, the State, in opening statements, informed the jury that Detective Lowe would testify that the defendant had admitted commission of the crime charged. In the case in chief, Detective Lowe testified that, in the presence of Detective Tanke, defendant had told him. "* * * that the money was in envelopes on top of the desk and that he [defendant] had seen a gun there but * * * didn't take it." The defendant's objection on the grounds that the State failed to comply with the discovery order was overruled. The defendant took the stand. He denied having made the statement and denied ever having been in the building housing Gossage, Inc. The defendant's girlfriend testified that Detective Lowe told her on January 4, 1972, that the defendant was held in jail during Christmas because he would not give a statement.

In rebuttal, the State called Detective Tanke whose version of the defendant's alleged statement was as follows:

"He [defendant] stated * * * that it was — what they call an easy score; that when he had gone down into the office downstairs, the money was neatly stacked as if bills were going to be paid. There was a gun in the desk which he removed because he has a fear of guns * * *. He stated who it was committed with * * *. After the burglary was committed, they split the proceeds."

Defendant again objected on the grounds that the State failed to comply with the discovery order, but the objection was overruled. For impeachment purposes, the State then introduced defendant's previous conviction for burglary.

The defendant contends that the trial court erred in allowing witnesses to testify to the defendant's alleged "admissions of fact" when the State had failed to comply with a discovery order requiring notice as to the witnesses present at defendant's "oral confession." As authority, defendant cites section 114-20 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, § 114-10) and cases interpreting that section.

• 1 We first ascertain if the statements attributed to the defendant amount to a confession. A confession is a voluntary acknowledgment of guilt. An admission is a statement made by the accused from which guilt may be inferred but from which guilt does not necessarily follow. People v. Stanton, 16 Ill.2d 459, 466 (1959); People v. Saunders, 132 Ill. App.2d 421, 427 (1971).

The essence of the crime of burglary is breaking and entering with the intent to commit a theft. The statements attributed to the defendant acknowledge the fact that he entered the office, committed the burglary in company of others with whom he split the proceeds. This was an admission of the ultimate fact that he was guilty of the crime charged and thereby constituted a confession. (See People v. Sleezer, 9 Ill.2d 57, 61 (1956).) This being the case, the ...


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