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People v. Milam






Rehearing denied February 15, 1980.

Following a bench trial in which he was found guilty of burglary and theft of property valued at more than $150, the defendant, Jerry Milam, was sentenced to concurrent terms of imprisonment of not less than one nor more than three years for the offense of theft and not less than three nor more than nine years for the burglary offense. From this determination the defendant appeals, questioning whether he was proven guilty beyond a reasonable doubt and challenging the propriety of the sentencing procedure employed.

At the trial the victim, Claude Cooper, testified that on November 18, 1979, he purchased a Zenith 23-inch color television set from Grant's Hardware Store, and placed it, still crated, in the trunk of his car. Since the trunk would not close, it was tied down with a rope.

After leaving the hardware store, Cooper drove to the Sea King restaurant on South Chicago Street, Joliet, and parked directly across the street from the restaurant. At that time it was approximately 3:30 p.m. However, after approximately 30 minutes, Cooper noticed that the television set was gone. Asking a woman in the restaurant to call the police, he got into his car and drove down the alley. Approximately 10 minutes after noticing the television was missing Cooper returned to the restaurant.

At that time, the police had already arrived. In the presence of the officers Cooper had a conversation with a woman. He then got into the back seat of the squad car, and with the two officers, they began looking for a blue 1968 Chevrolet containing two black males.

After driving in the area for approximately 10 minutes, Cooper observed a blue Chevrolet on Water Street near the housing project off McDonough Street. Two black males were near the vehicle, reaching down to pick up a television set that was in a crate. Cooper testified that one of the individuals he saw was the defendant, Jerry Milam, whom he had known for approximately two years. The defendant was wearing a brown jacket. The other person was tall and slim, but Cooper did not recall what the tall individual was wearing. The two men looked up and ran. Cooper and one of the officers remained at the car with the television set while the other officer ran after the two men.

Cooper testified that he had a clear view and was sure that one of the individuals he saw that day was the defendant. When he first noticed the car with the television set in it, he was approximately 150 feet away, and when the two people he saw near the car started running, he was approximately 75 feet away. The men disappeared behind a building and that was the last the witness saw of them. The total amount of time that he had the two individuals in his sight was just a "flash," a second or two. According to the witness, it could have been as long as five seconds from the time he first saw the vehicle until the time he saw the two individuals running away.

Cooper also testified that at the scene, he did not tell the police officers that one of the individuals was Jerry Milam. He did not have to because they already knew. The witness did not recall telling the police anything about Jerry Milam. Nor did he tell the assistant State's Attorney he spoke with about a week before the trial that it was Jerry Milam he saw at the car, explaining that he was not asked.

Officer Donald Edgerly of the Joliet police department testified that at approximately 3:50 p.m. on November 18, 1977, he and Officer Hernandez received a call to go to the Sea King Restaurant on a theft report. Upon arrival, the officers were met by Claude Cooper. After Cooper had a conversation with a woman, the officers and Cooper entered the police vehicle and began to look for two black males driving a late model Chevrolet. Edgerly drove the squad car, Hernandez sat in the front seat and Cooper was in the back seat.

After driving approximately 10 minutes, they observed a vehicle located at 370 or 376 South Water Street which matched the description. Edgerly saw two black males standing near the rear of the vehicle, apparently trying to remove a television set from the trunk area. One of the men was tall and the other short. The taller man was approximately 6 feet tall with a slim build. He was wearing brown pants and a blue jacket. The shorter man was approximately 5 feet 8 inches tall and was wearing a brown jacket.

As the police car proceeded toward the vehicle the men fled. Officer Hernandez pursued the subjects while Edgerly remained with Cooper at the vehicle. In the glove compartment of the suspect vehicle, Edgerly found an Illinois State vehicle title in the name of Jerry Milam. He also observed a temporary vehicle registration form on the vehicle's window bearing the defendant's name, and on the front seat of the vehicle, Edgerly found a copy of a court summons bearing the name of Lamont Evans.

On cross-examination, Edgerly testified that he first observed the blue car with the television set in the trunk at a distance of approximately 150 to 200 feet. At the time, Edgerly could see the two individuals who were near the car. When the two individuals began to run, Edgerly was about 30 to 40 feet away. The witness stated that he had the individuals in his sight for approximately one minute. After they started running, Edgerly had them in sight for 15 to 20 seconds.

Edgerly testified that he believed that Cooper told him that one of the subjects was Jerry Milam, although he did not put that fact in his police report. The witness described his police report as a summary of the most important facts of a situation and agreed that an eyewitness identification at the scene is an important fact.

The State's final witness was Joliet police officer Alam Odenthal. Odenthal testified that on November 18, 1977, he was assigned a general patrol zone on the east side of Joliet. At approximately 4 p.m. he monitered radio traffic with reference to a foot chase in progress. ...

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