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People v. Cox

OPINION FILED APRIL 16, 1979.

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

v.

ALBERT COX, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN A. NORDBERG, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

___ N.E.2d ___ Defendant, Albert Cox, was indicted for the offenses of burglary and possession of burglary tools. (Ill. Rev. Stat. 1977, ch. 38, pars. 19-1, 19-2.) Following a jury trial, defendant was found guilty of each charge. The trial court subsequently imposed concurrent sentences of 4 to 12 years for burglary and 1 to 3 years for possession of burglary tools. Defendant appeals from the judgments of conviction.

On appeal, defendant contends that (1) he was not proved guilty beyond a reasonable doubt; (2) the State's closing argument was prejudicial where defendant was characterized as a professional criminal without supporting evidence; (3) the State improperly referred to defendant's failure to testify; (4) the trial court erred in instructing the jury on the use of circumstantial evidence; and (5) the trial court erred in imposing convictions and sentences for both burglary and possession of burglary tools.

Officer James Cochran testified that on September 16, 1975, at about 12:30 a.m., he was on squad car patrol in the vicinity of Fifth Avenue and Madison Street in Maywood, Illinois. He was driving south on Fifth Avenue and testified that he noticed no people on the street. While stopped at the traffic light at the corner of Fifth Avenue and Madison Street, Cochran heard the outside burglar alarm go off at Tykes Drugstore, located at the northwest corner of the intersection. Cochran made a right turn onto Madison, parked in front of the drugstore, got out of the squad car and checked the front and side windows and the front door of the drugstore. Cochran found that the glass was intact and the door was secure. He then walked north on Fifth Avenue and entered an alley behind the drugstore. The alley he entered continues for about one half block and connects with a north-south alley between Fifth and Sixth Avenues. There were no street lights on Fifth Avenue at the point Cochran entered the alley, but there was one mercury vapor light in the north-south alley.

When Cochran arrived at the rear of Tykes Drugstore, he observed two men jump off the roof. Cochran testified that one man was dressed in dark clothing and the other man wore dark pants and a tan leather jacket which was slightly longer than waist length. Each man carried a paper bag.

The suspects ran to an abandoned car in the alley and ducked behind it. When Cochran announced that he was a police officer, both men jumped up and ran north down the north-south alley. Cochran ran after them, ordered the men to stop and then fired two shots that hit neither suspect. The suspects ran westbound behind a garage in the middle of the block toward Sixth Avenue, at which time Cochran lost sight of them for about five seconds. Cochran continued to chase both men through a vacant lot between houses, across Sixth Avenue and into the back yard of a residence at the corner of Sixth Avenue and School Street.

At this point the suspects split up. The man wearing dark clothes continued to run south through the yard, climbed over a fence and eluded Cochran. The suspect with the tan leather jacket ran into the yard toward the garage and climbed up on the flat roof of an addition to the garage. Thinking the suspect might be using the garage to clear the fence, Cochran ran to the back alley and approached the garage. He then shined his flashlight up on the garage addition and discovered the suspect in the tan jacket was still on the roof, lying in a prone position. Cochran ordered him down from the roof, placed him under arrest and returned to the squad car. Officer Cochran testified that the man he found lying on the roof and whom he arrested was the defendant.

After placing defendant in custody, Cochran returned to the rear of the drugstore and found a torn paper bag containing several watches and an assortment of change. At the site of the abandoned car, Cochran discovered a brown paper bag containing a pry bar, hammer, drills and some more watches. Cochran subsequently inspected the roof of the drugstore and discovered a two-foot hole had been knocked in the roof. In addition, a chisel, a screwdriver and drill bit had been left on the roof.

Cochran further testified that another individual, Loren Blackwell, was later taken into custody concerning the burglary investigation. Blackwell had been released pending results from the crime laboratory. Laboratory tests later indicated that Blackwell had been involved in the burglary. However, at the time of trial Blackwell had left the jurisdiction.

Later that same morning Cochran returned to Tykes Pharmacy and met one of the co-owners, Mr. Dozinski. Inside the drugstore, Cochran noticed two cash registers had been emptied of their change and that a section of the metal roof had been pried down. Cochran also found that the watch display case had been pried open, some watches had been taken and others were lying on the floor. Cochran also noted that the drugstore had an alarm system that ran along the floor behind the counter. When a light beam emitted from the system is broken, the alarm is triggered. Finally, Cochran testified that Dozinski identified the recovered watches as property missing from his store.

On cross-examination, Cochran testified that there was a vapor light on Fifth Avenue, as well as a lamp in the north-south alley. Nonetheless, he did not see defendant's face until he was arrested. Cochran further testified concerning his pursuit of the suspects. Initially, he was 30 to 40 feet away from the men. At the time the suspects reached the abandoned car, they were 50 to 60 feet distant. At this point, Cochran announced his office, the suspects fled and Cochran began chasing them into the north-south alley. While the officer and both suspects were in this alley, Cochran fired two shots which missed. Both suspects disappeared behind a garage for no more than four to five seconds and emerged with Cochran still in pursuit.

Further evidence was adduced via stipulation. Three sets of police reports, together with the stipulated testimony of the individuals who prepared them were admitted into evidence.

One exhibit was a report compiled by two evidence technicians assigned to the Cook County Sheriff's Department. The parties stipulated that the two technicians would have testified that on September 16, 1975, they investigated an alleged burglary at Tykes Drugstore and discovered that suspects had drilled a hole through the roof of the drugstore and entered the establishment. Wood and tar samples were collected from the entry point. Directly below the entry point a knit cap and insulation material from the roof were found. The evidence technicians next proceeded to the Maywood Police Department and collected a nail puller, an adjustable wood drill bit and both suspects' clothing. Included in the items of clothing received was a pair of black cloth gloves taken from defendant. These items were inventoried and submitted to the laboratory for comparative study.

The second exhibit was a report dated December 29, 1975, submitted by Robert Gonsowski, a criminalist with the Bureau of Identification, Illinois Department of Law Enforcement. It was stipulated by the parties that Gonsowski would have testified that he received all of the aforementioned samples and items of clothing from the Cook County Sheriff's Police evidence technicians and that the hair samples removed from the knit cap were similar in color and characteristics to a hair standard taken from Loren Blackwell.

The third exhibit was a report dated January 19, 1976, compiled by Kenneth Vail, a criminalist with the Bureau of Identification. Vail's report indicated that the drill bit revealed tar-like material and imbedded wood and that the pry bar contained tar-like material. However, Vail concluded that this tar-like material was dissimilar from the tar contained on the drugstore roof. Defendant's coat and Blackwell's shoes also evidenced minute traces of tar-like material of insufficient quantity and quality for comparative examination. Examination of defendant's other clothing failed to reveal anything of evidentiary value. Examination of Blackwell's pants revealed masses of insulation which were compared with insulation samples from the roof of Tykes Drugstore. According to Vail's report, both samples were similar and could have originated from the same source.

It was further stipulated that if Eugene Dozinski were called to testify, he would state that he was co-owner of Tykes Pharmacy. At the time of the burglary, the drugstore was closed and secured and he had not given permission to anyone to be inside. He would further testify that the watches recovered were watches taken from the drugstore.

After the State rested, the defendant made a motion for a directed verdict, which the trial court denied. Defendant then rested without presenting any evidence. The jury subsequently returned a verdict of guilty of the offenses of burglary and possession of burglary tools.

• 1 Defendant asserts he was not proved guilty beyond a reasonable doubt because Officer Cochran's identification testimony was impermissibly doubtful and uncertain. Specifically, defendant contends that a reasonable doubt of guilt was established since Cochran did not see the suspects' faces either when they jumped from the drugstore roof or during pursuit and because he lost sight of them for about five seconds.

• 2 The State has the burden of proving beyond a reasonable doubt that an accused is the person who committed the crime charged. This burden may be met by the positive identification of one witness who had an adequate opportunity to observe the offender. (People v. Clark (1972), 52 Ill.2d 374, 386-87, 288 N.E.2d 363.) However, an identification need not be positive to support a conviction (People v. Oswald (1963), 26 Ill.2d 567, 187 N.E.2d 685), but there need be some other fact or circumstance to assist the trier of fact in determining the weight to be attributed to the identification testimony. People v. Washington (1970), 121 Ill. App.2d 174, 257 N.E.2d 190.

When Cochran saw the two suspects jump from the drugstore roof, he identified one as wearing a longer than waist length tan leather jacket. Cochran admittedly could not distinguish that person's facial characteristics because of the darkness of the hour (12:30 a.m.), the absence of sufficient artificial lighting (one vapor lamp in the alley) and the fact that the suspects were either hidden behind an automobile or in flight. Accordingly, from the time the ...


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