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People v. Rogers

SEPTEMBER 17, 1975.




APPEAL from the Circuit Court of McLean County; the Hon. WAYNE C. TOWNLEY, Judge, presiding.


A jury found defendant guilty of the charge of burglary of Elmer's Garage in Bloomington, Illinois. He was sentenced to a term of 2 years 4 months' to 7 years' imprisonment on this conviction, to be served concurrently with a 2- to 6-year sentence on another burglary conviction. Defendant contends that evidence of criminal activity subsequent to that charged in the indictment was improperly introduced against him; that he was not proved guilty beyond a reasonable doubt; that a pair of work shoes belonging to him were improperly admitted as exhibits; and that the sentence is excessive.

Elmer Thomas, owner of Elmer's garage, testified that he closed his garage about 10 o'clock on the evening of January 18, 1974. When he returned to open the station for business at approximately 7:15 a.m. on January 19, 1974, he noticed a window had been broken. His investigation revealed that the station had been burglarized and a TV set, numerous tools, and other items had been damaged or taken during the night. Investigation revealed a refrigerator in the station had also been opened and sandwich ingredients removed from it. Some of the contents of a quart jar of mustard kept in the refrigerator had been spilled on the floor.

John Adam Hull confessed to the burglary of Elmer's Garage, as well as a burglary of the Craft Texaco station in Bloomington on the same date. He testified there were others with him when he broke into these two garages, but he had no recollection as to who was with him because of intoxication. John Adam Hull's fingerprints were found on the jar of mustard in Elmer's Garage.

Defendant was arrested and tried on a burglary charge for each of the above burglaries. Separate trials on each count were held. The conviction for the Elmer's Garage offense is involved here.

At approximately 5 a.m. on January 19, 1974, Robert Hartnett, an employee of the Ramada Inn in Bloomington, was talking to the night desk clerk of the inn from a phone booth at the corner of Clinton and Locust Streets in Bloomington. At approximately 5:30 a.m., the sound of breaking glass called Hartnett's attention to the Craft Texaco station. The phone booth is located on the corner in front of the Craft station, which sits diagonally on the corner of Clinton and Locust Streets.

Hartnett observed two people near the soda machine in front of the station. One of these persons then entered the station, the other pacing back and fourth in front of it. Hartnett informed the person he was talking to that a break-in was in progress and asked that person to call the police. The police arrived a few minutes later. The person outside the station ran when the police arrived.

Hartnett testified that the area between the telephone booth and the front of the station was fairly well lit for pedestrian purposes, light being supplied by the soda machine lights, display lights shining through the front window of the station, and night lights from businesses located across the intersection. The individual on watch outside the station had walked back and forth in front of it, looking away from the station most of the time. Hartnett observed this individual from all sides and got his best view of the individual when the individual was standing directly in front of the soda machine. At one point in the individual's pacing, he got as close as 50 feet from the telephone booth in which Hartnett was located.

Hartnett made an in-court identification of defendant as being the individual outside of the Craft Texaco station. He had observed this individual for a considerable period of time and was able to give a fairly full description of him, a description that compared quite closely to the appearance of defendant.

Based on Hartnett's description, one of the investigating officers proceeded to the 1500 block of North Fell Street in Bloomington, a location six or seven blocks from the Craft Texaco station. About 15 minutes later, defendant entered the backyard of his North Fell Street residence. The officer apprehended him in the yard.

When brought to police headquarters, defendant had drops of a yellow substance on his shoe top. Officer Linskey of the Bloomington Police Department bent over and touched the substance with his finger. He described its appearance as being neither new nor old. Linskey testified it was some time after noticing the substance that he formed his opinion as to what it was. Upon reporting for duty his next shift after observing the yellow substance on defendant's shoes, Linskey read the police report of the Elmer's Garage burglary. The report mentioned a jar of mustard as being handled by the suspect. It was at this time that Linskey associated the yellow substance on defendant's shoe with mustard. At trial, Linskey described the substance as follows:

"Well, it was not real moist like some fresh mustard, and it was not real old and real cakey, like you would get some mustard if it sat out for quite a while. It was in between, it was kind of gritty-like."

Defendant introduced testimony that the shoes he was wearing when arrested were work shoes that he had worn while working at the Portable Elevator Company in Bloomington during the period of June 27, 1973, to August 27, 1973. Part of his duties at Portable Elevator Company was dipping pieces of equipment in yellow paint. This paint, as well as orange and green paint, got on his shoes and clothes in spots. Defendant's mother testified that his shoes still had yellow paint on them on January 18, 1974, as well as having paint on them at the time of the trial. During the State's cross-examination of Mrs. Rogers, the shoes were introduced as People's exhibits. Very little yellow color was to be found on the shoes, only a yellow smudge on one and a speck on the other. Orange and green were prominently displayed. Mrs. Rogers testified that the shoes had been in her sole possession since they had been obtained from the jail in April of 1974. She could not say whether or not there had been yellow paint on the shoes at that time.

The conviction under review here involves a burglary of Elmer's Garage. However, all but a few pages of testimony presented to the jury dealt with a burglary of the Craft Texaco station. This evidence was introduced by the State to show defendant's presence at the Craft station so that he could be tied in with John Adam Hull, an admitted burglar of both Elmer's Garage and the Craft station. The only evidence directly implicating defendant in the Elmer's Garage burglary concerned the spilled mustard in that station and the presence of a yellow substance on defendant's shoes a few hours later. Defendant contends this massive introduction of evidence of a subsequent criminal offense denied him a fair trial by prejudicing him in the eyes of the jury. Objections were made to the introduction of this testimony both before trial and at trial. The jury was given IPI — Criminal ...

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