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People v. Strickler

OPINION FILED APRIL 5, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

CHARLES STRICKLER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Marion County; the Hon. E. HAROLD WINELAND, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Defendant, Charles Strickler, was charged in the circuit court of Marion County with two counts of burglary. Following a jury trial in which defendant was found guilty as charged he was sentenced to two consecutive terms of imprisonment of 2 1/2 to 7 1/2 years. Defendant appeals the judgment entered by the trial court.

Defendant presents three issues for review: (1) whether the trial court erred in making a comment in the presence of the jury; (2) whether the court erred in allowing cross-examination of three defense witnesses allegedly showing defendant was a bigamist; and (3) whether the court erred in imposing two consecutive sentences.

Briefly stated, the facts of this case are that on August 24, 1974, between 10:30 and 10:45 p.m., three high school seniors saw defendant and an accomplice at an Amoco Service Station. Defendant appeared to be prying off a panel from a garage door with a tire tool. Shortly thereafter they saw defendant inside the station crawling out, head first, through the hole thus made. He was holding the tire tool and a small box. He and his accomplice then left the scene in a car which was followed by the witnesses. While continuing their pursuit, the witnesses contacted the police who then apprehended defendant. A tire tool was found in defendant's car along with loose change. Defendant's pants pockets appeared to be "bulging" with coins. Thereafter it was determined that a coin box was missing from the Amoco Service Station. The police also learned that a Sunoco Service Station had been similarly burglarized during the same evening.

Prior to his being searched, defendant was placed in a fingerprint room at the police station. Subsequently, police found certain distinctive coins and tokens hidden in that room, which were identified as those taken from the Sunoco Service Station. A mark in the metal facing of a cash register in the Sunoco Station was found to have been made by the tire tool taken from defendant's car.

Defendant first contends that he was deprived of a fair trial due to a comment made by the trial court in the presence of the jury. Following the testimony of the three high school seniors and testimony by a police officer that the tire tool had been found in defendant's car, the prosecutor offered the tire tool into evidence, whereupon the following colloquy occurred:

"Mr. Cooksey [defense attorney]: Well, Your Honor, I object. First of all there has been no showing here that any crimes have been committed where a tire tool was used.

The Court: Well, the evidence does show that it was in the hands of this defendant, a tool like this, similar to this or the same as this. On that basis the exhibit will be admitted into evidence."

It appears that defendant then objected to the comment made by the court and asked permission to expand on his objection following an overnight recess. The next morning defendant moved for a mistrial and the court, after hearing arguments thereon, denied the motion. The trial court, however, expressed its willingness to instruct the jury to disregard the portion of the statement of which counsel complained. Defendant objected to any specificity in such an instruction so as not to call undue attention thereto. Therefore, the trial court simply admonished the jury to disregard "anything that was said by the court" at the time the tire tool was admitted into evidence.

Defendant contends that the trial court's statement was an improper expression of its opinion of defendant's guilt. In addition, he argues that the court's admonishment of the jury was so inadequate and delayed as to have had no curative effect.

• 1 The State responds by asserting that the issue was waived by defendant's failure to make a timely objection. From the record, however, it clearly appears that a timely objection was made and that with the court's permission an expanded argument on defendant's motion for a mistrial was had on the next morning. Defendant thus properly preserved the issue for review.

• 2, 3 By his contention, defendant strains the plain language used by the trial court in arguing that such was an expression of opinion on ultimate factual matters, the credibility of witnesses and the weight to be given to their testimony. (See People v. Finn, 17 Ill.2d 614, 162 N.E.2d 354.) The trial court's statement, "the evidence does show that it was in the hands of this defendant * * *" was no more than an explanation of his ruling admitting the tire tool over defendant's objection that "there has been no showing here that any crimes have been committed where a tire tool was used." Thus taken in context the comment was proper. (People v. Rojas, 68 Ill. App.2d 171, 215 N.E.2d 140.) We note that, in any event, the court cured any error that may have been committed. That the court's admonition was framed in vague language and was given the morning after the alleged improper comment was made were both a consequence of defendant's own requests. Defendant is thus estopped from claiming that these points lessened the impact of the court's curative instruction. Accordingly, we find no merit to defendant's contention.

Defendant next contends that he was denied a fair trial due to the State's cross-examination of three defense witnesses concerning defendant's marriages to two of them. The defense witnesses were Martha Melton, defendant's mother-in-law, and her two daughters, Louise Strickler and Phyllis Torum Strickler. The witnesses testified about defendant's activities on the day of the crime in connection with his alibi defense. Martha Melton stated on cross-examination that Louise was married to defendant and that although Phyllis had once told her that she had married defendant, the witness had no first-hand knowledge of Phyllis' marital status. Louise stated that she was married to defendant. Phyllis stated in effect that she had been married to defendant. In chambers, the State informed the court that it had evidence that defendant had been married to both Louise and Phyllis during the same time.

Defendant argues that the trial court erred in allowing cross-examination of the witnesses concerning their relationship with defendant since the jury may have inferred defendant's bigamy and, if so, this was improper ...


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