APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM LEWIS, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This is an appeal from judgments and sentences entered in four cases against defendant Stephen T. Beller.
Defendant was found guilty by a jury in the circuit court of Williamson County of the offenses of burglary and felony theft. On April 20, 1976, prior to defendant's being sentenced on the jury verdicts, defendant pleaded guilty to three other burglary charges pursuant to a negotiated plea agreement. The plea agreement included a sentence recommendation covering the guilty verdict offenses as well as the untried offenses. Defendant agreed to plead guilty to the three burglaries in exchange for a sentence of eight to 30 years on the four pending cases and immunity from prosecution with respect to numerous burglaries and thefts under investigation. It also was agreed that items seized from the residences of defendant and an accomplice which could not be positively identified by the victims of the burglaries would be turned over to defendant's fiancee, Ms. Lynn Lawrence.
After thoroughly admonishing defendant of the consequences of his pleas and establishing factual bases therefore, the court sentenced defendant to the penitentiary for two consecutive sets of two concurrent sentences of four to 15 years (four sentences in all). The initial sentences were ordered to be consecutive to any previous sentences defendant was on parole from when the instant crimes were committed; however, the written judgment orders direct that the sentences be consecutive with "the parole violation in 74-CF-296 in St. Clair County."
Defendant raises six issues in this appeal. The first three issues present questions concerning the fairness of defendant's jury trial. The remaining three pertain to the sentencing of defendant. The issues are: (1) whether the prosecutor's comment on defendant's failure to call a non-alibi witness deprived him of his right to be presumed innocent throughout the trial; (2) whether the comments on defendant's failure to state his defense to the police at the time of his arrest violated his privilege against self-incrimination and prejudiced the jury against his assertions of innocence; (3) whether the prosecutor's opening statements, cross-examination and closing argument were improper and deprived defendant of a fair trial; (4) whether defendant's sentences should be modified or remanded for further consideration because the court believed that the law mandated that a parolee's sentence be served consecutively with the sentence under which he was held by the Department of Corrections; (5) whether defendant's sentences were excessive; and (6) whether defendant may be entitled to have his sentences vacated and remanded for a new sentencing hearing.
Since defendant does not challenge the sufficiency of the evidence to support the jury's guilty verdicts, we shall only generally describe the nature of the proof at trial and supply additional information as necessary for explanation of our disposition of the particular issues.
The residence of Ronald Morneweg and his family near Johnston City was burglarized on December 13, 1975. Various items including a number of intended Christmas presents were removed from the house. An investigation of the sale of a blue linde star ring which was positively identified as a present stolen from the Morneweg residence led the police to arrest Jimmie D. Walker, a co-indictee as to these burglary and theft charges. Mr. Walker told the police that another person that had been involved in one of these burglaries had certain items at the residence where he was staying on Brush Street in Johnston City.
Before executing a search warrant on the house, police ascertained that defendant was living there. The house was searched; numerous items were seized, including several which matched the description of items stolen from the Mornewegs, and defendant was arrested. At trial, two of these items, a pair of boots with a distinctive scuff on the right boot heel and a girl's Timex watch with a solder-repaired band, were positively identified by Mr. and Mrs. Morneweg as items missing from their home. In addition, Mrs. Morneweg believed five other items (a gold bracelet, a Maxi hair dryer, two pairs of pants (sizes 5 and 11) and pajamas) were those items taken from her house because they were identical to the missing items, being of the same types, sizes and colors.
Jimmie Walker, initially a co-defendant in the case, testified for the State under a grant of immunity. (See Ill. Rev. Stat. 1975, ch. 38, par. 106-1 et seq.) He basically testified that defendant and Larry Meyer, the witness' brother-in-law, burglarized the Mornewegs' house while he acted as the getaway car driver. They subsequently divided the merchandise between them. Of the items Walker's testimony apportioned to defendant, five were seized at the Lawrence residence where Beller lived and were identified at trial by the victims either as being a stolen item or as being identical with one.
Defendant's defense was that he innocently purchased most of the items in question from Walker on various occasions. The repaired watch was said to have been purchased on December 30 or 31, 1975, in a bar in Johnston City from a stranger in blue jeans and T-shirt, accompanied by a woman in "hot pants." Defendant produced three witnesses to corroborate his testimony concerning these purchases.
Mrs. Mary Lawrence, mother of defendant's fiancee Lynn, and in whose house Beller was living when arrested, testified that on several occasions Walker and Meyer would drive over to the house and that on each occasion defendant would return to the house with some of the items in question. Larry Meyer was separately charged with this same burglary and theft in another indictment. He testified that Walker tried to sell his wife some of these items and that he drove Walker to the Lawrence residence several times so that Walker could sell defendant the slacks, pajamas and boots. James Lawrence, Lynn's brother, testified that in December he was with defendant at Larry's house in Marion, Illinois, when defendant bought a Maxi hair-dryer from Jimmy Walker.
In addition, two prisoners of the Williamson County jail testified to overhearing a conversation in the jail between Jimmie Walker and defendant in which Walker told defendant he would admit to selling defendant the slacks and pajamas but that defendant would have to come up with his own explanation of how he got the rest of the things he sold defendant. Both witnesses testified that they were intimidated by the police prior to trial about perjury penalties and the ill effect their testimony might have on their own cases. In rebuttal, a police detective testified that at the request of the State's Attorney he and several other officers interviewed these two witnesses about their intended testimony. One witness said that he had not seen or heard anything about which to testify. The other witness told the detective that he did not know what he had heard and did not know whether he should say anything or not. The detective agreed that he had told them about the offense of perjury.
Defendant first contends that the prosecutor's comment on his failure to call a witness made during closing argument denied him his presumption of innocence and a fair trial. We agree that the comment complained of was improper but find that it was harmless beyond a reasonable doubt and was not a material factor in defendant's conviction.
During his testimony defendant stated that he originally purchased the pair of boots admitted at trial from Walker for Davis Lawrence, his fiancee's younger brother. He further testified that David tried them on but decided that he did not like them because the heels were too high. Defendant, therefore, kept them for himself and dyed them black at a later date. David Lawrence was not called as a defense witness.
In closing argument the State's Attorney recounted this portion of defendant's testimony and then ...