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People v. Kristovich

OCTOBER 28, 1975.




APPEAL from the Circuit Court of Lake County; the Hon. THOMAS J. DORAN, Judge, presiding.


Defendant was convicted of burglary, after a jury trial, and sentenced to 1 to 3 years in the penitentiary. On appeal he presents these issues: (1) whether the reference in the prosecutor's opening statement to defendant's having been under surveillance on the day of his arrest, and the admission of testimony by two agents of the Illinois Bureau of Investigation ("IBI") that they were "assigned to the organized crime section", deprived defendant of his constitutional right to a fair trial; (2) whether defendant was irreparably prejudiced by the admission of evidence of his involvement in a similar offense (other than that for which he was indicted); and (3) whether the physical evidence was improperly and prejudicially admitted over defense objections without having the chain of possession sufficiently established.

The indictment charged that defendant committed the offense of burglary on December 11, 1973, by entering a 1973 two-door Lincoln Continental Mark IV motor vehicle ("Lincoln") owned by Marlene L. Yohe, with the intent therein to commit a theft. In his opening statement the prosecutor stated that he expected to show that on that date IBI agents operated what is known as a "moving surveillance" of the accused commencing at 9:30 a.m. Defense counsel objected and moved for a mistrial. After argument in chambers the trial court admonished the prosecutor but denied the motion.

Mrs. Yohe, the owner of the Lincoln, testified that on December 11 she had stopped at a dry cleaning shop and picked up her husband's suit, her daughter's sweater and her own slacks and gold dress. She hung all of these articles on the hook behind the driver's seat. She later drove the car to Toppers' Restaurant, parked in the restaurant lot and went into the restaurant. While she was there a man who identified himself as an IBI special agent took her outside. They went to her car and she saw that the passenger window was broken out and that the clothing was missing. She also identified the articles of clothing (People's Exhibit 5) taken from her car.

Roger Shiels, when asked his profession, testified that he was a special agent for the IBI "assigned to the organized crime section." He arrived at Rickett's Restaurant at about 5:55 p.m. on December 11. There he observed defendant step out of his car, walk into Rickett's parking lot, look into a 1969 Thunderbird parked there, first manipulating a device at the passenger window, then later smashing and breaking the window with his hand. Shiels saw him remove therefrom a grey suit in a clear plastic bag and a brief case, and then kick the car door shut and walk toward his own car. Shiels looked for Agent Tetyk, whom he had met earlier at the parking lot, but then saw Tetyk's car following immediately behind defendant's car. After a radio conversation with Tetyk, Shiels went into the restaurant and located the owner of the Thunderbird, one William Hoskins. The defendant was not arrested at this time but surveillance was continued.

Agent Tetyk testified that he was a special agent for the IBI, and on December 11, 1973, was assigned to its organized crime section. At this point, in chambers, defendant's counsel moved for a mistrial on the grounds that bringing out Tetyk's assignment would prejudice and inflame the jury. The court denied the motion. Resuming his testimony, Agent Tetyk stated that on that date he was at Rickett's Restaurant at about 5:55 p.m. and observed the defendant use a forward and backward motion with his arm at the passenger side of a 1969 Thunderbird. Tetyk next saw him leave the car carrying clothing in a clear plastic bag. He then followed defendant's car to Toppers' Restaurant. At Toppers' defendant parked, left his car, and looked into several cars already parked there. At the passenger side of a Lincoln Tetyk testified he saw the defendant making forward and backward motions with a thin metal object, and saw the defendant smash the passenger side window. Defendant then opened the door, entered the Lincoln, and exited carrying several clear plastic clothing bags. Tetyk and Sergeants Fieroh and Schwalje arrested defendant as he was about to enter his car. Tetyk identified the thin object, an extended, bent coat hanger (People's Exhibit 8), which he testified defendant was carrying in his hand, a screw driver (People's Exhibit 9) which was in defendant's possession, and the clothing (People's Exhibit 5) which was draped over defendant's left hand at the time of his arrest.

Agent Schwalje testified that he and his partner, Fieroh, were in the area of Rickett's Restaurant and he observed defendant in the vicinity of a black Thunderbird in the restaurant parking lot. Later, after he and his partner drove to Toppers' Restaurant, he saw defendant near a silver Lincoln car. He then saw defendant running toward his (defendant's) car with clothing draped on one arm and a screw driver and an extended and bent coat hanger in his left hand. Defendant was arrested as he was about to enter his car. Schwalje identified an extended and bent coat hanger (People's Exhibit 8) with his mark on the tag, and the screw driver (Exhibit 9) on which he put his initials the next day.

Special Agent Fieroh testified that he was in a squad car with Schwalje on December 11, northbound past Rickett's Restaurant; that he saw defendant next to a dark Thunderbird leaning over the passenger side door with a large screw driver protruding from his back pocket. Shortly thereafter, in the Toppers' area, he saw defendant standing next to the passenger door of another car. He further corroborated the testimony of Agent Schwalje up to the time of defendant's arrest and described defendant at that time with the clothing over his left arm and the bent coat hanger and screw driver in his left hand. Fieroh took those items at the time of the arrest and they remained in his custody until the following day when he labeled and initialed them and deposited them in "our vault" which had a combination lock for safekeeping. He then testified in some detail concerning the custody of the items but no purpose will be served by summarizing it in this opinion.

William Hoskins testified, over defense objection, to his ownership of the Thunderbird car. He further testified that when he parked the car at Rickett's Restaurant the windows were intact and when he left there the right window was broken and two brief cases and a suit on a hanger had been removed.

The trial court admitted People Exhibits 5, 8, and 9 into evidence over defense objections that the chain of custody had not been properly established. At the close of the State's case defense motions for a directed verdict and renewed motion for a mistrial were denied.

Defendant testified in his own defense that at about 6 p.m. on December 11, 1973, he drove to Rickett's Restaurant but finding no parking space there drove on to Toppers'. There he parked "parallel to the parking lot" and left his car to enter the restaurant. "[I]n between several automobiles," he noticed clothes on a hanger in a plastic bag, picked them up, and after he took "eight or ten steps" toward the restaurant he was arrested by two armed men, one of whom stated he was a police officer. Defendant testified he dropped the clothing, that he had nothing in his possession other than those items, and that no other items were removed by the police from his possession. On cross-examination he stated he never got out of his car at Rickett's Restaurant because there was no parking space open.

The jury found defendant guilty of burglary and after hearing in aggravation and mitigation defendant was sentenced to a term of 1 to 3 years.

Defendant contends that his conviction should be reversed and remanded because the jury was improperly advised in the prosecutor's opening statement that defendant was under "surveillance" and by testimony of two IBI agents, that they were assigned to the "organized crime section." We do not agree.

• 1 Opening statements are not grounds for reversal unless it appears that they influenced the jury in a manner resulting in substantial prejudice to the defendant. (People v. Vasquez, 118 Ill. App.2d 66.) The testimony of the IBI agents confirmed in effect that defendant was under a "moving surveillance" by them prior to his arrest. Thus, the jury was not misled by the opening statement nor was the defendant prejudiced by it. Indeed, the jury ...

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