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People v. Heard

OPINION FILED JANUARY 18, 1980.

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

v.

CHARLES HEARD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. HOWARD M. MILLER, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1) and theft (Ill. Rev. Stat. 1977, ch. 38, par. 16-1). He was sentenced to a term of three to nine years in the penitentiary on the burglary conviction. No sentence was imposed on the theft conviction. On appeal he contends that he was denied a fair trial where a police officer referred to his alias while testifying and that the evidence did not establish his guilt beyond a reasonable doubt.

The following pertinent evidence was adduced at trial.

For the State

Elyre Thomas

At approximately 10:30 or 11 p.m. on July 27, 1976, he parked his automobile, which contained a citizen's band radio (C.B.) and a bag of clothing, on the west side of Indiana Avenue and entered Glady's Restaurant at 45th Street and Indiana. The C.B. radio, which had cost $189, was in a console and bolted to the floor. Prior to entering the restaurant he gave no one permission to enter his car. As he left the restaurant after eating, he "heard an alarm going off" on his car. As he approached his car a lady from a nearby building told him that the car had been broken into and that she had called the police. When he opened the car door he "noticed my stuff in my car was gone."

As he waited for the police to arrive, he observed two men standing in the street approximately four or five houses south of his car. The street was lit by large overhanging street lights. One of the men, whom he identified at trial as defendant, was carrying "a large object" which was approximately the same size as the console containing his C.B. radio. The other man was carrying "my bag of clothes." As he began running toward the two men he observed a police car approaching from the south on Indiana. Pointing to the fleeing men, he told the officers, "Here they are." The police car went in reverse to the corner of 46th Street and Indiana. He followed the man carrying the clothes. The police arrested the man between 46th and 47th Streets. Defendant had turned the corner at 46th and Indiana, running west toward Michigan Avenue. After the man with the clothes had been arrested he and some police officers returned to 46th and Indiana, turned west toward Michigan and entered the alley between Indiana and Michigan. He observed defendant standing "a couple of houses" into the alley with the two police officers. His C.B. radio and console were on the ground right in front of defendant.

On cross-examination he stated that he did not actually hear the automobile alarm until he left the restaurant. He did not recall telling the police that he was still seated in the restaurant when he first heard the alarm. He admitted that he lost sight of defendant while chasing the other man. He also admitted that he could not be certain at first whether the object defendant was holding in the street was the C.B. radio. Although the radio was on the ground in front of defendant, he could not be certain where the officers had actually found it.

D.V. Carter, Chicago Police Officer

At approximately 11 p.m. on July 27, 1976, he and his partner, Officer Bitoy, proceeded to investigate a reported theft in progress at Glady's Restaurant. The officers proceeded northbound on Indiana, turned west on 46th Street and entered an alley between Indiana and Michigan. When they had driven approximately 120 feet into the alley he observed defendant standing behind a chest-high wooden slat fence. After defendant made a forward thrust of the hands he heard a loud noise which "[s]ounded like something had dropped." The officers left the car and went behind the fence where they observed a C.B. radio approximately five or six feet from defendant. He did not see anyone else near defendant. He proceeded to arrest defendant.

On cross-examination he stated that he did not see or hear Elyre Thomas prior to entering the alley.

Lucio Bitoy, Chicago Police Officer

He basically corroborated the testimony of his partner, Officer Carter, regarding defendant's arrest. He added that several other police cars were present when he arrived at 46th and Indiana. Defendant was "a good four or five buildings" into the alley when observed behind the fence. After defendant was arrested, Bitoy carried the radio to the alley.

On cross-examination he admitted that no one directed him and Officer Carter into the alley; they were conducting a general search of the area. He also admitted that in his police report he wrote "R.O's observed one male Negro, Heard, Charles in the alley where R.O.'s heard glass breaking." The report did not mention seeing Heard standing behind a fence or throwing an object. He was about 25 feet away when ...


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