APPEAL from the Circuit Court of Madison County; the Hon.
HAROLD R. CLARK, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendants, Billy Joe Castile, Fred Fairfield and Paul Dean Fisher, from the judgments of conviction entered by the circuit court of Madison County on jury verdicts of guilty to the charge of burglary, the respective sentences entered thereunder, and the denials of defendants' written motions for a new trial. Billy Joe Castile was sentenced to three to nine years' imprisonment, while Fred Fairfield and Paul Dean Fisher were each sentenced to one to three years' imprisonment.
On appeal each of the defendants contends that his conviction must be reversed. First, each defendant claims that the evidence presented by the prosecution cannot sustain their convictions. The following review of the evidence presented by the State in the trial court belies this claim; defendants offered no evidence, and their motions for directed verdicts at the close of the State's case were denied.
John Price, an employee of the Super X Drugs Company, testified that on Sunday, June 10, 1973, he was working as a pharmacist and assistant manager for the company's store in the Nameoki Shopping Center in Granite City. He stated that there were only two entrances to this store. One entrance was situated in the front of the store, facing Nameoki Road, and the other entrance was a metal door leading to the delivery area behind the store. The outside portion of this door was just a "blank side" containing no doorknobs or keyholes. The door fitted flush into an angle iron facing. It was secured by two locks and a metal bar on the inside. According to Price there was no means of opening this door from the outside.
During the afternoon of June 10, 1973, Price, after locking the rear door to the store, gave the key to Harold Vaughn. This key normally hung on a nail in the stock room. Prior to closing Price received a telephone call advising him that someone was hiding in the store. Price testified that he never saw such person. When Price left the store between 6:10 and 6:15 p.m., all the customers and other employees had left. Price exited through the front door. After locking the front door Price drove home.
As Price left the store he was being observed by Sergeant Joe Nemeth of the Granite City Police Department, who was watching the pharmacy through a pair of binoculars from a doctor's office across Nameoki Road. Nemeth was operating as part of a police surveillance team, which had been set up after Price had notified Larry Keshner, a former Assistant State's Attorney, of an impending burglary.
Approximately ten minutes after Price drove away (6:30 p.m.), Sergeant Nemeth observed a male subject inside the pharmacy. This man was wearing a white pharmacy-type jacket. He fit the general description of defendant Fairfield; he was a white male, about five feet nine inches tall with black hair. After approaching the front of the store, the subject went over to the safe located near the display window, remained there for about two minutes, and then returned to the rear of the store.
The remainder of the police surveillance team watched the area behind the store. Captain Francis McManus, chief of detectives, moved into position behind the drug store around 6:30 p.m. He was in a parked car approximately 300 yards from the rear exit to the store. Two other officers, Glen Wright and Harry Mitchell, took up positions about 400 feet from the rear of the store about 7 p.m.
Around the rear of the store was a fenced in area measuring approximately 40 feet by 60 feet. The fence was constructed in such a manner that it obstructed the police from viewing the rear door of the store. The police were, however, able to observe anyone entering into the enclosed area. The enclosed area was bordered by the rear wall of three establishments other than the store in question. Thus, in addition to the rear door of the pharmacy, were the rear doors of Kroger's, a laundromat, and a beauty shop.
At approximately 6:40 p.m. Captain McManus observed what appeared to be three subjects walking alongside the fence. They entered the enclosed area behind the fence and disappeared from his view. One subject was carrying something draped over his shoulder. At approximately 7:25 p.m. Sergeant Nemeth saw the individual in the pharmacy jacket approach the front window for a second time. Shortly thereafter, Captain McManus, who had not seen anyone else go behind the fence, observed three subjects, similar in appearance to those who an hour earlier entered the area, emerging from behind the fence. At the same time Officers Mitchell and Wright, who had not previously observed anyone moving around in the enclosed area, observed three subjects moving around near the rear of the pharmacy. Although Mitchell and Wright could not see the rear door of the pharmacy, they were able to see the short entrance way leading to the rear door of the pharmacy. The police, in radio contact, then "closed in" on the area.
While Captain McManus and Officers Mitchell and Wright drove up to the enclosed area behind the store, Sergeant Nemeth approached the front of the store. Nemeth checked and found the front doors locked. Officers Wright and Mitchell placed the three subjects, later identified as the defendants, under arrest.
On defendant Fairfield the police found a screwdriver, a key with a green plastic tag, and a pair of brown jersey gloves. The store manager, Edward Wisniewski, identified this key as the key to the rear door to the pharmacy. Sergeant Nemeth testified that this key opened the rear door to the pharmacy, but did not fit any other lock in the building. After placing the defendants under arrest Officer Wright checked the doors within the fenced in area and discovered that the rear door of the pharmacy opened upon his pushing it. Upon opening this door the police discovered a large blue duffle bag, a green flight bag, and a black bag. These bags contained boxes and bottles of capsules and pills which were introduced into evidence. Also found were a number of tools, a large prybar, and a white pharmacist's jacket. Pry marks discovered on the cabinet where the narcotics were kept could have been made by a screwdriver about the size of that recovered from defendant Fairfield. A thorough search of the store failed to reveal the presence of anyone else or that anything was stolen. The safe in the front of the store was found unlocked, leaving $1,200 readily accessible.
Wisniewski testified that neither the tools nor the duffle bag were the property of the drug store. Price testified that these items were not present when he closed the store. He further testified that the drugs found in the bags by the police were in an unlocked cabinet when he left. Wisniewski testified that he had given no one permission to remain in the store after closing. Price testified that while he had given the key to Harold Vaughn and had been informed that someone was hiding in the store, he did not give any of the defendants express permission to enter the store after closing.
The primary thrust of defendants' first argument is that the foregoing evidence was insufficient to place any of the ...