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People v. Austin

OPINION FILED AUGUST 2, 1977.

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

v.

DOUGLAS B. AUSTIN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Tazewell County; the Hon. STEPHEN J. COVEY, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

This appeal was initiated by the defendant, Douglas Austin, from his convictions of two counts of burglary. Subsequent to the jury trial, the defendant was sentenced to two concurrent terms of imprisonment of from 3 to 9 years.

The defendant was charged by information with two counts of burglary and two counts of felony theft in violation of sections 19-1 and 16-1(a)(1), respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 19-1, 16-1(a)(1)). A prompt preliminary hearing found probable cause existed. Nevertheless, prior to trial, the defendant moved to suppress evidence taken from his possession or his automobile when he was initially arrested. After hearing the arguments of counsel, the trial court concluded that the police officer had probable cause to arrest the defendant and search his vehicle.

At trial, the State's evidence tended to establish that at approximately 1:50 a.m. on December 10, 1975, an automobile belonging to the defendant was parked at the terminus of a dead end street in a subdivision of Washington, Illinois. A resident of the neighborhood had seen two men get out of the car, go to the trunk and do something there, and then walk into a field. This resident telephoned the police and described the situation.

Officer Kampmeier of the Washington Police Department went to the scene and maintained surveillance of the vehicle, which she recognized as belonging to the defendant. She testified that she had observed the defendant driving this automobile at about midnight on the same night.

After one hour, Officer Kampmeier was relieved by Officer Marshall who also knew that the car under surveillance belonged to the defendant. In addition, Officer Marshall was aware that the defendant did not live in the area, that the defendant's parents lived about two miles away, that the defendant had a prior burglary conviction and that several burglaries and thefts had been reported in this area during the preceding week.

At approximately 4 a.m., someone walked up to the vehicle, opened and closed the trunk of the car and drove off in the car. Officer Marshall began to follow the vehicle, without turning on his headlights until one-tenth of a mile down the road the vehicle accelerated. This vehicle was then intercepted and stopped by several other police cars, Officer Marshall pulling up behind the vehicle under surveillance.

Officer Siron observed the defendant, who was the person driving the automobile, which had been under surveillance, take a hatchet from his belt and lay it down between the driver's seat and the front door. After the defendant exited the car, he was subjected to a pat search and was asked what he was doing on the dead-end street and where he was going. His respective replies were "nothing" and "nowhere." Officer Marshall, seeing a hatchet, gloves, a ski mask and two pairs of pliers lying on the floorboard of the car, demanded the key to the defendant's trunk and therein discovered two bottles of liquor, a leukemia collection board, a money bag, some packages of dried beef, and some cigarette lighters. The officer then closed the trunk and placed the defendant under arrest. When the defendant was later searched at the stationhouse, seven checks drawn on the Morton American Legion account were found in his possession as well as a roll of postage stamps. It was also noted that the defendant was wearing sneakers.

The next morning some chain saws and a box of tools were found in a field near the place where defendant's car had been parked on the dead-end street. Footprints in the snow led from the location of the saws to the back of a nearby Ace Hardware Store as well as from where the defendant's car had been parked to within 35 or 40 yards of the back of the Ace Hardware Store. One set of the footsteps was made by someone in tennis shoes.

The owner of the Ace Hardware Store testified that when he inspected his store on December 10, 1975, some chain saws were missing. He also stated he did not give anyone authority to remove the saws from the store. The owner's wife testified that her office in the store had been ransacked and that $35 and a roll of postage stamps were missing.

The commander of the American Legion Post in Morton testified that some items were missing from the Post on December 10, 1975. The items included dried beef sticks, cigarette lighters, liquor, and a Leukemia poster. He also noted that the locks were torn off the juke box, and bowling machine, and the cigarette machine. He stated he did not authorize anyone to enter the building on the night of December 9-10, 1975. A tool mark examiner testified that a piece of metal found in the defendant's trunk matched a piece missing from one of the vending machines in the Legion Post.

The defendant testified in his own behalf and admitted having pleaded guilty to a charge of burglary some four years previously. However, he stated he was at a party in Washington which ended at 12:30 a.m. on December 10, 1975. Prior to that time one Mike Davis had borrowed his car but returned to the site of the party at 2:30 a.m. without the defendant's car. Davis told the defendant where his car was located and that it was staked out by the police. Davis and the defendant then walked out to a nearby field where one "Bobby" was and the defendant saw some chain saws on the ground. The defendant got his keys back and walked to his car, opened his trunk, did not see anything unusual, closed the trunk, and got into the car. He saw some blank checks on the seat of the car and put them into his wallet. The defendant denied participation in either burglary.

On rebuttal, the State impeached the defendant's testimony by introducing two statements in which the defendant admitted participation in the offenses. On surrebuttal, the defendant denied having had a conversation which allegedly resulted in one of the incriminating statements.

The jury returned verdicts of guilty on all four counts, but judgment was entered on only the burglary counts. During the sentencing hearing, the defendant stated the offenses were caused by his drug problem. Nevertheless, the defendant was ...


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