APPEAL from the Circuit Court of Jersey County; the Hon.
HOWARD LEE WHITE, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 29, 1978.
On October 31, 1977, Marilyn Turner and Cynthia Grincavich were charged by information in the circuit court of the seventh judicial circuit (Jersey County) with burglary in violation of section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 19-1(a)). The public defender was appointed to represent both defendants. Following jury trial, both defendants were found guilty. Turner, the appellant in this cause (hereinafter referred to as appellant), was sentenced to a term of 3 to 12 years' imprisonment.
On appeal, appellant contends that: (1) She was not proved guilty beyond a reasonable doubt; (2) she was denied effective assistance of counsel by her attorney's joint representation of co-defendant, Grincavich; (3) remarks by the prosecutor concerning his personal opinion of appellant's guilt constituted improper closing argument; (4) the trial court erred in refusing her tendered instruction on circumstantial evidence; and (5) the trial court abused its discretion in imposing a greater sentence on appellant than on co-defendant, Grincavich.
The record discloses that on October 28, 1977, Thelma Alexander, a next-door neighbor of Stewart and Helen Fraley, saw Helen Fraley leave home around noon. Five minutes after Helen drove away, Alexander observed a blue car with yellow and black license plates stop in front of the Fraley residence. A young woman got out of the car and went to the back door of the Fraley home. The woman then returned to the car and spoke with its occupants, another girl and two males. Both girls returned to the house and entered through the back door. Alexander could not identify the girls but described them as being tall and around 20 years of age. Within five minutes of observing the girls enter the Fraley residence, Alexander noticed the arrival of Janice Fraley's car.
Janice Fraley, a niece, testified that she arrived at the Fraley residence at approximately 12:15 p.m. As she drove up to the house, she noticed that the Fraleys' car and truck were both gone, and also noticed a blue and white Pontiac parked at the bottom of the hill with two people inside. The car had Missouri license plates. As she pulled into the drive, someone in the Pontiac began honking the horn.
As Janice opened the kitchen door, two girls came running from the living room into the kitchen. One girl continued running out of the house, while the other girl stopped to talk. The girl told Janice that she was looking for the "Reynolds," and that this was her grandmother's house. After informing the girl that the house belonged to the Fraleys, Janice told the girl that she was going to call the police. The girl replied, "No, it's nothing like that," and left. Janice identified the co-defendant, Grincavich, in court as the girl who stopped and talked to her inside the Fraley residence.
At this point in the testimony, the court suggested that an instruction be given that the conversation in the Fraleys' kitchen apply only to Grincavich, and that a motion to that effect by defense counsel would be entertained. Defense counsel replied:
"Well, in order to represent Ms. Turner, I have to make it. I'm not sure it is best for Ms. Grincavich. I'm not sure as to that, but you can consider the motion made, Your Honor."
The court's suggestion and counsel's response were out of the hearing of the jury. The court, thereafter, instructed the jury that the conversation testified to between Janice and Grincavich applied to Grincavich's case only.
Janice further testified that she could not identify the other person in the house, other than: "She had black hair and it was a girl and that was about all." At the police station following the incident, Janice identified the blue and white car which she had seen outside the Fraley residence, the person who had been driving the car, and Grincavich as the girl to whom she had spoken inside the Fraley residence.
Howard Sandberg, a policeman for the city of Jerseyville, testified that pursuant to a radio dispatch, he stopped a blue and white Pontiac with Missouri license plates at approximately 12:30 p.m., on October 28, 1977, about two miles south of the Fraley home. Sandberg identified the appellant and Grincavich as having been the two female occupants of the car along with two males.
Helen Fraley testified that when she arrived home on October 28, she noticed her desk drawer and a pantry drawer open in the kitchen, a drawer open in her sewing room, and a sliding closet door open in the hall. Helen stated that nothing appeared ...