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People v. Ellis

SEPTEMBER 4, 1975.




APPEAL from the Circuit Court of Macon County; the Hon. ALBERT G. WEBBER, III, Judge, presiding.


Defendant, Dennis Ellis, appeals from his conviction following a jury trial for the offense of burglary and from a sentence imposed of 1 to 3 years' imprisonment. The only issue raised is whether the trial court erred in giving a confession instruction to the jury.

On July 1, 1973, Jim Putnam and Associates, a Decatur, Illinois, commercial art firm, was broken into and a composer typewriter was stolen.

Gerald Hunk, a police detective, testified that he advised defendant of his Miranda rights, and his testimony regarding the interrogation was as follows:

"Q. What did Mr. Ellis tell you?

A. He stated that he was at his home at 430 West Marietta, I believe, the night of July 1st, when a person he knows as Gary Clay came over to the house, and he was telling Gary Clay about this particular office building which was Putnam and Associates, he was telling him that this was an easy hit, an easy place for a burglary. He said that he had learned this from people over on the east end of town, which he was unable to identify either by name or address, and he said that this happened about two hours prior to himself being arrested. He said that this Gary Clay left for a while and returned to the same address, and he asked Dennis Ellis to go with him to burlgarize this particular office building, and he said that he told Clay that he would not go along with him. Clay left the house, went across the street and went in the back door of this particular office building. He said that he later walked over to the back door, as he was, quote, drawn to the place, and he said he stood by the back fence while Gary Clay was inside. He said while standing there he saw a black and white police car coming down the street, and about this same time Gary Clay came out of the office building carrying a typewriter. He told Gary at that time, quote, you're busted, end of quote, and he himself stood by a tree as the patrol car went by. After this particular patrol car went by he ran over to his house across the street, this was Ellis, and he said that he ran inside the house, took off his trousers and began cooking some spaghetti that he had on the stove. He said he did this to divert the — if the police came, and it would look like he hadn't been across the street or been involved in the burglary. He said later police officers did come in the house, ask for him, and later did arrest him for burglary. He said he gave the officers a hard time during this, also to divert, that he was not involved in the burglary itself. He said at that time he was taken down to police headquarters and was booked for burglary and incarcerated.

Q. Did he tell you anything else about his involvement in this?

A. He was asked what his role in this particular burglary was, and he stated that if standing in the back door while Clay was inside was considered a look-out then this was what he was."

Hunk stated on cross-examination that either he or another officer had first used the term lookout during the interrogation. At the close of all the evidence the court gave to the jury, over defendant's objection, an IPI Criminal Instruction No. 3.07 which read as follows:

"You have before you evidence that the defendant confessed that he committed the crime charged in the indictment. It is for you to determine what weight should be given to the confession. In determining the weight to be given to a confession, you should consider all of the circumstances under which it was made."

An accountability instruction was also given. The jury returned a verdict of guilty of burglary, and defendant was later sentenced to 1 to 3 years' imprisonment.

• 1, 2 Defendant contends that the trial court erred in giving the confession instruction because the statements given were exculpatory. We do not agree. A confession is a "direct acknowledgment of guilt on the part of the accused, either by a statement of the details of the crime or an admission of the ultimate fact." (People v. Nitti, 312 Ill. 73, 92, 143 N.E. 448, 455; People v. Allen, 413 Ill. 69, 107 N.E.2d 826, 830.) We find the statement here to be a direct acknowledgment by the defendant of his guilt, and find the language of Justice Smith in People v. Rollins, 119 Ill. App.2d 116, 131-32, 255 N.E.2d 471, 478, to be extremely appropriate here:

"Defendant argues that there was no confession — rather, what he told the police was a `statement,' and that a statement is not an acknowledgment of guilt, whereas a confession is. This differentiation is correct. A confession is a comprehensive admission of guilt or of facts which necessarily and directly imply guilt. Defendant says that what he told the police was not a confession because he told the officer that he stood by while others entered the house and removed the television. But as we have seen from our discussion of accountability, one can stand off in the wings, as it were, and yet be held accountable for the action center stage. What he told the police was indeed a confession as we have just defined it. There is a reasonable inference from what he told the police officer that he committed the crime with which he was charged. That his answers were not couched in the terms of the statutes on accountability or burglary is hardly remarkable — it would have been remarkable if they had been. The facts he recounted to the police reasonably and directly implied guilt, hence the characterization was proper." (Emphasis added.)

In the instant case then the statements of defendant that he told Clay that the Putnam office was an easy hit, the statements that place him outside the office at the time of the burglary, the statements that he was a lookout, and the statements that he tried to hide his involvement from the police amount to voluntary declarations of his agency and participation ...

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