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People v. Gray





APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.


Defendant Rickey Gray was indicted for attempted burglary. (Ill. Rev. Stat. 1973, ch. 38, par. 8-4.) Following a bench trial defendant was found guilty and sentenced to five years' probation with six months of periodic imprisonment in the House of Correction. On appeal he contends that he was not proven guilty beyond a reasonable doubt and that the admission into evidence of a prior consistent statement of a State witness was reversible error.

We affirm the conviction.

The State called two witnesses and the defendant testified in his own behalf. The principal State witness was Chicago Police Officer Allen Suzudarski. He testified that at 2:10 p.m. on May 11, 1974, he and Officer Peter Bukari were in a marked police car at 1458 West 87th Street in Chicago. They were in front of the building at that location when its burglar alarm sounded. The officers made a visual check of the front of the building from their car. Observing no signs of entry, they then, within 10 seconds, drove to the rear of the building. The building was on the corner of Laflin and 87th Streets. The rear of the building abutted an alley, and the officers drove north up Laflin to that alley. A door to the building was located at the corner of Laflin and the alley. Officer Suzudarski saw three men standing about six inches from that door. The man closest to the officer had a crowbar in his hands; next to him was a man later identified as the defendant; next to the defendant was a man later identified as Maurice Lockett. When the police car entered the alley the three men turned and faced the officers. The man with the crowbar dropped it and all three ran east down the alley. Officer Suzudarski observed that the door lock was bent and the door was partially open. The officers then pursued the three men on foot. Halfway down the alley Lockett ran north up an intersecting alley. The other two suspects continued east, followed by the officers. Officer Suzudarski and his partner caught and arrested the defendant behind a gas station at 87th and Loomis. Officer Bukari then continued to look for the third man while Officer Suzudarski placed the defendant in the squad car and drove in search of Lockett. About four minutes after the arrest of the defendant, Suzudarski arrested Lockett at 8548 South Laflin. When he returned to where the chase began there were a number of juveniles in the area and the crowbar was gone.

On cross-examination defendant sought to impeach Officer Suzudarski by using the arrest report the officer had prepared. That report stated that Officer Bukari apprehended the defendant at 87th and Loomis. It also stated that Officer Suzudarski apprehended Lockett at 8548 Laflin. Suzudarski sought to explain this by again stating that both officers apprehended the defendant. However, the police report he had prepared did not affirmatively state that both officers made that arrest. The report also indicated that the officers noticed the door handle in an open position when they returned to the scene after Lockett was arrested. It did not mention the door being open. Officer Suzudarski stated that the report was wrong on this point and that he had seen the door open when he first approached the rear of the building.

On redirect examination the State attempted to bring in Officer Suzudarski's preliminary hearing testimony. Defendant objected and the court overruled the objection, stating: "This is redirect. As I understand it, redirect `Attempts to clear up some impeachment that you have got partially by putting in something and leaving out something.' Now, I think that they have a right to redirect to `Straighten it out' by using the preliminary hearing transcript." Later when defendant again objected to the use of this testimony the judge stated: "* * * he can use it to, and I use that word, to `Straighten' out whatever you thought your impeachment was on the police report. That doesn't mean that it impeaches it." In questioning the officer the State quoted from the preliminary hearing transcript and Suzudarski verified that at that hearing he testified that he and Officer Bukari arrested the defendant while Lockett was running north down another alley. He had also testified that after this arrest he arrested Lockett while Officer Bukari looked for the other man.

On re-cross-examination the defendant brought out that at the preliminary hearing Officer Suzudarski testified that it was Lockett who ran with "the third suspect."

Norman Erickson testified for the State that he used the building in question for his business as a plumbing contractor. He did not give the defendant permission to go into those premises. On May 11, 1974, he was called to that location by the police and at that time he turned off his burglar alarm which had been ringing. The alarm had gone off on prior occasions, apparently as a result of a malfunction. He did not notice anything about the rear door on the day he was called there by the police.

The defendant testified that on May 11, 1974, he had been waiting for a bus on the corner of 87th and Loomis for about five minutes when he was arrested. He denied having been at the rear of the building at 1458 West 87th Street, or having tried to break into it. He did not go down an alley to get to 87th and Loomis.

Before passing sentence the trial judge summarized the evidence:

"Now all the cases say that bystanders should never be found guilty of a crime unless he aids, abets, and all those words that they use. And I am calling it circumstantial, it is true the police did not see who used the crowbar on this door that rolled or broke off, whatever they said it was.

However, the circumstances are as I understand it, 2:35 or 2:40 in the afternoon, broad daylight, they are stopped in front of a building, and they hear what they check to be a burglar alarm, which goes off, and they look and see that there was nothing broken. What do they do? The police they go around the back and see if anything is broken, and when they turned the corner almost instantaneously three people started to run; one drops what the police officer calls a crowbar, which may have been used to jimmy that up. You see, they don't have to prove that beyond all reasonable doubt. It is circumstantial.

Now the thing is dropped so many feet away when they started to run. And this officer under oath testified under oath, even though there are two or three little minor things in the police report that may be a little bit different, but he never lost sight of him, arrested him with his partner in the gas station, and that's uncontroverted. The young man said that he was standing there five minutes, and ...

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