APPEAL from the Circuit Court of La Salle County; the Hon.
C. HOWARD WAMPLER, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
After a jury trial defendant, Harold Graves, was found guilty of the offenses of armed robbery, burglary and theft. Judgments of conviction were entered by the circuit court of La Salle County for the offenses of armed robbery and burglary and concurrent sentences of imprisonment of 7 to 20 years and 5 to 15 years, respectively, were imposed. The convictions related to offenses which took place at the Grewenig house in Ottawa, Illinois. Two other charges of burglary and theft which took place at the Navarro house were dismissed after the convictions and sentences described.
On March 19, 1975, Katherine Grewenig surprised two persons in the act of burglarizing her home. She later identified the persons as the defendant and Mickey Boardman. She saw Boardman leave her house and walk past her down the alley. As she entered her kitchen Grewenig saw defendant in the doorway to an adjoining bedroom. When defendant saw Grewenig, he went back into the bedroom and returned with a tear gas projector. She was forced into the basement and the defendant thereafter fled with a coin collection and some items of jewelry.
Boardman was also charged with the offenses at the Grewenig house. After his agreement to testify in behalf of the prosecution, Boardman was permitted to plead guilty to burglary and granted probation.
The first issue which we shall consider on this appeal is the defendant's contention that evidence of the burglary and theft at the Navarro house was improperly permitted.
Defendant was charged with the offenses occurring in the Navarro house on March 18, 1975, and also with offenses occurring at the Grewenig house on March 19, 1975. The People elected to try those charges relating to the offenses occurring at the Grewenig house first.
Prior to trial, the defendant moved in limine to exclude evidence of the Navarro burglary from the trial of the defendant for the offenses occurring in the Grewenig house. In opposition to the motion the People proposed that the co-defendant Mickey Boardman when called as a witness would testify that he and Graves had learned from a fence of a coin collection located in a house at 215 West Superior Street in Ottawa, Illinois. Boardman would further testify that by mistake they went to the house at 215 East Superior Street in Ottawa, which is the Navarro house. After discovering they had burglarized the wrong house on March 18, they went to the Grewenig house at 215 West Superior on March 19, resulting in the offenses previously described. The motion in limine was denied. When Boardman later testified his testimony was consistent with the offer of proof proposed by the People.
At trial Susan Navarro testified to coming home at about 10 a.m. on March 18, 1975, and discovering a burglary in progress. The two offenders fled, but shortly afterwards Boardman was apprehended by a police officer and returned to the Navarro house at which time Susan Navarro identified Boardman as one of the burglars. He was not, however, arrested at the time, but on the contrary, was released.
In addition to the testimony of Boardman concerning the burglary of the Navarro house, the police officer also testified confirming the incident as described by Navarro and Boardman.
• 1 The general rule is that evidence of other criminal offenses is ordinarily inadmissible in a trial for another offense. (People v. Butler, 133 Ill. App.2d 299, 273 N.E.2d 37.) This rule has its exceptions and where evidence of other criminal misconduct proves or tends to prove scheme, design or identification, such evidence is admissible. (People v. McDonald, 62 Ill.2d 448, 343 N.E.2d 489.) These are the reasons expressed by the trial court in permitting the evidence of the other offenses and in our opinion the trial court acted properly.
• 2 Defendant insists the only purpose of the evidence of the Navarro burglary was to corroborate the testimony of Boardman, the accomplice witness. He further suggests that the evidence cannot be considered as probative of scheme or design where the nature of the conduct or modus operandi is different. We agree that the conduct of the parties in carrying out each burglary was somewhat different, but we do not agree that the scheme or design is limited to the introduction of evidence of offenses having a common or similar modus operandi. Scheme or design in itself suggests a logical relationship between the two offenses and in this respect, we believe the testimony of Boardman does establish a relationship between the offenses. That the burglary of the Navarro house was a mistake or an accident, and the reasons therefore, does establish a link between the two burglaries and not only offers a motive for the burglary of the Grewenig property, but also buttresses the identification of the defendant as one of the burglars. That it may also incidentally enhance the credibility of the People's accomplice witness does not mean that the evidence is improper.
Next the defendant argues the court committed error when it ruled on two motions after the defendant had moved for a substitution of judge as of right under section 114-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114-5(a)). The motion for substitution of judge was denied, but later the trial court determined that a substitution of judge was desirable and the change was accomplished. However, the previous motions were not reconsidered.
We have reviewed the record and conclude the trial court did not err in ruling on the motions. It was not precluded from so doing on account of the substitution of judge motion. In the first place it seems the record does not clearly support the defendant's account of the events which took place or their chronology. According to the defendant, after the trial calendar was published and within 10 days, he moved for substitution of judge under section 114-5(a) which required a substitution of judge as a matter of right. However, the record indicates that earlier, on May 23, 1975, defendant had filed a motion for substitution of judge for cause based on section 114-5(c) (Ill. Rev. Stat. 1975, ch. 38, par. 114-5(c)) which motion was denied the same day. Subsequent to the denial of this motion defendant moved for substitution of judge under section 114-5(a) and also moved for suppression of evidence. The People also moved for an order requiring defendant to appear in a lineup. The motion for suppression of evidence was denied and the propriety of this order on its merits will be considered later in this appeal. The motion requesting defendant be ordered to appear in a lineup was granted and the propriety of this motion on its merits will also be considered later in this opinion. Thereafter, the defendant called his motion for substitution of judge under section 114-5(a) for hearing and the court also denied this motion. Thus the claim by the defendant that the trial court erroneously denied his motion for substitution of judge prior to ruling on the motions is not supported by the record and in fact that record reveals that defendant made no effort to have the motion heard before the rulings were made.
• 3 The defendant is also in error in suggesting that the court's denial of his motion for substitution of judge under section 114-5(a) was erroneous. Even if the trial court did later decide to grant the substitution of judge, this does not mean the original order denying such motion was improper. The record indicates that prior to denying the motion, the court had made rulings on substantive issues of the case. Even where the substitution of judge was sought under section 114-5(a), relief is appropriate only if there have been no prior substantive rulings by the judge from whom a substitution of judge is sought. People v. ...