Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Eatherly

OPINION FILED NOVEMBER 16, 1979.

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

v.

THOMAS M. EATHERLY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

After a bench trial defendant, Thomas M. Eatherly, was convicted of theft of an automobile valued in excess of $150 (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a)) and criminal damage to property (Ill. Rev. Stat. 1975, ch. 38, par. 21-1) and was thereafter sentenced to 3 to 9 years for theft and 364 days for criminal damage to property to be served concurrently.

On appeal defendant makes the following contentions: (1) that the trial court erred in denying his pretrial motion to suppress his statement; (2) that the evidence did not establish he intended to permanently deprive the owner of his property or that it exceeded $150 in value and (3) that the trial court unduly restricted cross-examination of a juvenile witness.

From the evidence adduced in trial it appears that on the evening of July 8, 1977, defendant left a party in Waukegan, Illinois, with Laurie Chandler and David Olson. Chandler and Olson testified that they had all been drinking beer and smoking marijuana and Eatherly left them saying that he had to "get some transportation," returning about 10 minutes later driving a 1966 Volkswagen which he said he had hot-wired. Defendant and his two friends then drove around Waukegan for an hour or two during which time a part of the rear bumper of the car came off while defendant was making a turn. He tore off the rest of the bumper and they continued to drive until the car went into a swamp where they abandoned it. The police recovered the automobile several days later at which time it was in a severely damaged condition in that its roof and hood were caved in, its headlights and windshield broken out, and the rear seat, spare tire and battery were missing. There was evidence that some of the damage to the vehicle was caused by others after defendant left it in the swamp.

Peter Posemato, who was employed as a body and fender repairman in Barrington, Illinois, testified that the car belonged to him, having purchased it for $200 in December of 1976. He testified he had repaired and painted the vehicle and that its value at the time it was stolen was $600.

Defendant was arrested on July 27, 1977, and taken to the Waukegan Police Department where detective Walter Williams read to him the Miranda warnings from a preprinted form. Williams testified that defendant was advised of his rights in the following manner:

"I read to him he had the right to remain silent, I asked him if he understood that and he stated yes.

I read to him anything you say can and will be used against you in a court of law, I asked him if he understood that and he stated yes.

I advised him you have the right to consult with a lawyer before you answer any questions or make any statement and have him present during questioning, I asked him if he understood that and he stated yes.

I advised him if he could not afford a lawyer one would be appointed for you before questioning or at any time during questioning if you so desire, I asked him if he understood that and he stated yes.

I advised him if you answer any questions or make any statement without consulting a lawyer or without having a lawyer present during questioning, you will still have the absolute right to stop answering questions or making any statement until you consult with a lawyer or have a lawyer present during further questioning, I asked him if he understood and he stated yes, he did."

The officer then gave defendant a rights waiver form to sign and testified defendant looked it over and said he did not wish to sign anything at that time.

Officer Williams asked defendant about the damage to the Volkswagen and testified, "[a]t this time he [defendant] stated he would tell me but it would, you know, this is off the record, but I'll tell you what happened" and proceeded to state he had stolen the car because he had a drinking problem and was drunk that night and tired of walking and that he knows how to hot-wire Volkswagens. He further stated that while the three of them were in the car it became stuck in the mud and when they tried to pull it out the bumper came off and that was the only damage they had done to the car. Officer Williams further testified he then asked defendant to relate how he had stolen the car and defendant said he did not want to make any statement about that until he conferred with his lawyer. The questioning ceased and defendant was returned to his cell.

• 1 We must first consider whether defendant has waived review of the errors claimed by his failure to file a post-trial motion in the trial court as is required by section 116-1(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 116-1(b)). (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) The State refers to People v. Schoo (1977), 55 Ill. App.3d 163, 371 N.E.2d 86, and People v. Stinnette (1977), 49 Ill. App.3d 134, 363 N.E.2d 945, as authority for application of the waiver rule in this case. Schoo and Stinnette, however, must be distinguished from the present case as there the errors deemed waived because not raised by a post-trial motion, or otherwise presented to the trial court for possible correction, did not relate to issues of the sufficiency of the evidence to sustain the findings of the trial court. It has been generally held by the appellate court that in a bench trial a post-trial motion is not necessary to preserve for review questions regarding the sufficiency of the evidence and that other claims of error will also be preserved for review after a bench trial if they were brought to the attention of the trial court. (See People v. Larsen (1st Dist. 1977), 47 Ill. App.3d 9, 361 N.E.2d 713; In re Driver (4th Dist. 1977), 46 Ill. App.3d 574, 576, 360 N.E.2d 1202, 1204; People v. Papproth (5th Dist. 1977), 56 Ill. App.3d 683, 371 N.E.2d 1097; People v. Guynn (3d ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.