APPEAL from the Circuit Court of De Kalb County; the Hon. REX
F. MEILINGER, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Defendant, a City of DeKalb police officer, was charged with the crime of burglary in each of 19 separate indictments. Two trials on indictment #73-CF-216 resulted in hung juries. He was then tried on indictment #74-CF-26 charging burglary, was found guilty by a jury, and on November 22, 1974, was sentenced to serve not less than 4 nor more than 12 years in the penitentiary. Later, on the same day he entered pleas of guilty to the 18 other indictments (including #73-CF-216) and the circuit court of DeKalb County imposed terms of not less than 4 nor more than 12 years on each of them to be served concurrently with the sentence in #74-CF-26. The defendant appeals contending that his convictions are the result of prejudicial errors in the admission of evidence; that the State did not prove beyond a reasonable doubt that he entered the building with intent to commit theft; that the trial court abused its discretion in refusing defendant's proposed continuance of the sentencing hearing for psychiatric evaluation; that defendant's guilty pleas to the 18 other burglary indictments were not voluntarily given; and that the sentences are excessive. (Appeal No. 75-57 is from the jury verdict and sentence and appeal No. 75-56 is from the guilty pleas and sentences in each of the other 18 indictments. Both appeals have been consolidated for the purposes of review.)
At trial defendant was represented by the same privately retained counsel who had represented him at the earlier trials. Defendant's motion to suppress confessions based on the State's failure to observe the requirements of Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, was denied by the trial court.
The following is a summary of the evidence relevant to the issues raised on appeal which was introduced at the trial on indictment #74-CF-26, charging defendant with burglary of the premises of Decor Plywood and Door, Inc. (Decor) on December 18 or 19, 1973. Defendant worked on the 11 p.m. to 7 a.m. shift, and on the evening of December 18 was assigned with squad car No. 332 by the sergeant of the shift, to Zone 3 (being the south portion of the City of DeKalb, south of the railroad track or of Lincoln Highway); Officer Miller, in Car No. 333, was assigned to Zone 2 (being the northeast portion of the city); Officer McMorrow, in car No. 335, was assigned to Zone 1 (in the northwest portion of the city). All DeKalb police officers were under orders not to leave a squad car without notifying the dispatcher.
Sergeant Huber of the Sycamore police department testified that on December 18, 1973, it had been snowing since 9 p.m., and that when he came on duty at 11 p.m. for his 11 to 7 shift, two or three inches of snow had accumulated. As part of his security check he drove southwesterly on Sycamore Road from Sycamore and turned west into Bethany Road to check the three buildings there: Decor, Flaherty and the YMCA. As he passed Decor he saw a set of tire tracks turning into the Decor driveway and saw a DeKalb squad car with headlights shut off along the west side of the building. After turning around in the Flaherty lot, he signaled to the DeKalb squad car with his spotlight but saw no one inside or around the building. After he checked the YMCA building and was driving back to the front, a spotlight signaled from the DeKalb car. He estimated the elapsed time between his signal and the DeKalb car's signal to be five to seven minutes. Sergeant Huber then drove around to check the front door of the YMCA building and proceeded to Decor. As he pulled into the Decor lot he saw no tire tracks other than those of the DeKalb squad car. Huber parked his car in front of it and saw defendant, between the building and his squad car, walking toward him. Defendant told Huber that he had found a door open there and was about to have his department "contact" Sycamore. Defendant then agreed to help Huber check the building but before doing so went back to his car; Huber believed the defendant did so to make a radio call. Huber "contacted the other Sycamore units on patrol," advised them that he was at Decor and that there was no need for them to come out because he was with a DeKalb city squad car. Before he went in Huber drew his weapon from his holster; defendant did not. Inside the door Huber saw two or three damp footprints on the floor entering the building. They both then checked various rooms and Huber observed that the door in the bookkeeper's office was open and that its striker-plate and two screws were lying on the floor. He pointed out to defendant that "it appeared to have been broken in." Defendant called out to Huber that a door in another office had been broken in.
Mr. Kenneth Heide, part owner of Decor, was called and checked the building with both officers. Huber told Heide that it looked like somebody had attempted to get in the safe. Upon checking Mr. Heide found no money or items missing either from the safe or from a drawer in a filing cabinet where some money was kept. Huber further testified that he had pointed out to Mr. Heide that "a tool, say a knife, had apparently been used to slip the lock on the [west] door" of the building. When Huber left the building he observed that there were two sets of footprints coming from the DeKalb city car, one set from Huber's car, and one set from Heide's car, and that the only tire tracks were from the three vehicles.
Carl Bauer, DeKalb Police Department's radio dispatcher, testified that at about 12:07 a.m. on December 19 he tried to contact defendant by radio but received no response. After getting no response to his second attempt, he tried a third time at about 12:15. This time defendant answered, saying he was busy with a Sycamore squad car; that defendant had not "gone off the air" prior to Bauer's first call. Bauer further testified that according to the "Rules and Regulations" police officers were supposed to call in before they left their squad car and to report their location.
Other members of the DeKalb Police Department corroborated Bauer's attempt to reach defendant by radio and confirmed the requirement that police officers were to maintain radio contact and not go off the air without notice to the dispatcher. Sergeant Thompson of the DeKalb Police Department was one of these. He testified that shortly after the incident at Decor he arranged to meet with defendant and had a conversation with him. In that conversation defendant told Thompson that he had driven into the University Motors' driveway (on Sycamore Road east of Decor) to come back into the city. He had directed his spotlight on Decor, noticed that a door looked as if it had been tampered with, drove over, found the door ajar or unlocked, then saw the Sycamore squad car and got the officer's attention. Then he and the Sycamore officer "checked out the business" where there had appeared to be a break-in. Thompson reprimanded defendant for not checking with his supervisor before going out of the city. Defendant said that he "won't do it again" and cut the conversation short by putting his car in gear, stating that he "had to start checking his zone." That was at about 1:45 a.m. on December 19.
Officer Miller, who was assigned to Zone 2 on the 11 to 7 shift on the night of December 18-19, testified that while checking the buildings in the northern end of his zone, he saw defendant's squad car at about 11:30 p.m. driving along Sycamore Road, and "it appeared he was checking the zone or doing some of my business for me, checking the businesses in my area of patrol." At about 12:30 a.m. he heard defendant's radio report that he was coming back on the air after "assisting a Sycamore car with a break-in". He estimated that Decor's location is about 2 1/2 miles from the nearest point of Zone 3 (to which defendant was assigned). Miller further testified that at about 2:30 a.m. on December 19 he heard another radio call from defendant saying that he would be out of his patrol car in a laundromat on Sycamore Road (in Zone 2) which is near other businesses and the offices of Doctors Little and Jenkins, dentists.
Lieutenant Richard Moudy of the DeKalb Police Department, in charge of patrol operations, testified that on December 20, 1973, in the parking lot of the municipal building, he met defendant, who was then going on duty, and told him that Police Chief Joseph Maciejewski wanted to talk to him. He asked defendant to accompany him to the station. They went to the Chief's office and Moudy described the meeting, in a series of answers to questions, as follows:
"The Chief asked Carl Sigman if he knew why he had been brought in, and Carl replied that he did not. The Chief said to Carl that it had been reported by his supervisor, Richard Lorenson, that he had on occasion left his squad car without notifying the radio dispatcher who had attempted to contact him and had gotten no response, and in addition to that he had left his patrol zone on several occasions and the Chief asked Carl if he had been advised by his supervisor not to leave the squad car unless he notified the radio dispatcher. Carl said yes, he had been advised. The Chief asked him if he had left his squad without notifying the radio operator on these occasions, and Carl Sigman replied, yes, he had.
The Chief said he had been apprised of an incident that took place at Decor Plywood in which the radio operator had attempted to contact Sigman for some ten minutes. He asked Carl if he could explain what took place out there, and Carl did admit he had been out of his squad car at Decor for about ten minutes. The Chief, at that time, asked him to remove his police equipment.
He asked him to remove his gun belt and empty his pockets, and take all of his police equipment ...