APPEAL from the Circuit Court of St. Clair County; the Hon.
PATRICK FLEMING, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 25, 1980.
Defendant, Wilbur Rhodes, appeals from a judgment of conviction in the Circuit Court of St. Clair County entered on a jury verdict finding him guilty of the offense of burglary. He was sentenced to a term of three to nine years' imprisonment.
The issues raised by defendant on review are several and concern the sufficiency of the evidence, the admissibility of certain testimonial and physical evidence, and the conduct of the prosecutor during his cross-examination of defendant and closing argument to the jury.
Marshall Gurley testified that on February 23, 1977, at approximately 4 p.m., he returned to his home at 8304 Carol Drive in East St. Louis after leaving his place of employment where he had worked as a school teacher since 8 a.m. that morning. After entering the house through the front door, Gurley discovered that several drawers of his bedroom dresser had been pulled out and that the contents of a file folder had been emptied onto the floor in another room. Gurley related that when he entered the kitchen, he noticed that the door between the kitchen and a glassed-in back porch was open and that the pane in the top half of the kitchen door had been broken. Upon further examination, he discovered that a storm window on the porch to the kitchen was no longer locked. He stated that he observed pieces of glass from the kitchen door pane on the kitchen floor and the porch floor as well as pieces of glass from the porch window on the porch floor and outside in the yard. Although he found nothing missing from his home, Gurley telephoned the police and reported the break-in. All the doors and windows were locked when he left for work in the morning. Gurley was not acquainted with the defendant.
Officer James Detloff of the East St. Louis police department testified that he was dispatched to Gurley's home after the report of the burglary. His duties included examining the scene for physical evidence. He described the dimensions of the porch as 10 feet 6 inches by 6 feet 6 inches, and the distance from the porch door to the kitchen door as approximately 11 feet to 12 feet. In the course of his investigation, Detloff found fingerprints on a large piece of glass which he picked up on the porch, near the kitchen door, which he identified as part of the broken window pane from the kitchen door. He explained that he obtained one "lift" with two prints from the piece of glass which he compared with defendant's FBI fingerprint card later that evening, matching the latent prints with defendant's right index and middle fingers as shown on the card. Detloff located defendant's FBI fingerprint card by reference to a fingerprint classification and that was the only print card he utilized for comparison; although, he stated that he had looked at at least 10 samples before determining that the two latent fingerprints were defendant's. No check for latent prints was made anywhere inside Gurley's house because it did not appear that the surface of the dresser and drawers was suitable for latent prints.
Detloff stated that after making the fingerprint comparison on the evening of February 23, 1977, he placed the lifter tape on a piece of paper with identifying information and left the lift on a desk at the police station for his superior officer. Regarding his qualifications to testify as a fingerprint expert, Detloff testified that he had served as an identification officer for the East St. Louis police department for five years, consisting of three years full time and two years part time, and that his duties included collecting physical evidence and photographing and checking for fingerprints. He further testified that he had received 50 hours "in service" training with the department and some training by the Federal Bureau of Identification although no one from the FBI had ever checked or certified his work. He stated that he had made between 5,000 to 6,000 fingerprint comparisons and the first half of his classifications had been verified by his supervisor who had checked Detloff's work until his death a few years before. Throughout Detloff's testimony, defense counsel objected to the lack of proper foundation for use of the FBI fingerprint card, the lack of a proper showing of chain of custody for either the card or the lift and Detloff's lack of qualifications as an expert. At the close of his cross-examination of Officer Detloff, defense counsel moved that the testimony regarding the FBI fingerprint card and the fingerprint lift be stricken and that the exhibits themselves be barred from admission because of insufficient qualification of Detloff as an expert, inadequate demonstrations of the chains of custody, and the conclusory determination as to the source of the piece of glass, namely that it came from the kitchen door window. The motion was denied.
The State also presented the testimony of Shirley Johnson, a technician employed by the East St. Louis police department, who identified defendant's FBI fingerprint card and testified that she had prepared it. She stated that the fingerprint card was in substantially the same condition at trial as when she prepared it, and she identified defendant in open court as the person she had fingerprinted. On cross-examination, defense counsel attempted to show that Johnson could not possibly remember having taken defendant's fingerprints inasmuch as she admitted having fingerprinted as many as 3,000 people since she took defendant's fingerprints. However, on redirect examination, she explained that the reason she remembered defendant was because she had seen him under arrest four or five times. She further testified that the address listed on the fingerprint card and given to her by defendant as his home address was approximately seven blocks from the address of the victim.
Defense counsel, in camera, repeated his objections to the admission into evidence of the fingerprint lift and defendant's FBI print card on the grounds previously raised, and also moved for a directed verdict. The trial court again overruled the objections and denied the motion for directed verdict.
Testifying in his own behalf, defendant stated that he had lived with his mother at 626 N. 78th Street in East St. Louis for several years and admitted that he had previously been convicted of burglary as a result of a guilty plea. He denied burglarizing the Gurley home and related that on the day in question he had spent the late morning and afternoon hours next door to his own home playing chess with a man named Vincent who was from Chicago. On cross-examination, the prosecutor asked defendant whether he had not in fact pleaded guilty to two counts of burglary as part of a negotiated plea on the previous occasion to which defendant answered affirmatively.
During his closing argument to the jury, the prosecutor made references to the fact that defendant preyed upon people who work to earn a living and that a burglar makes his living finding things in other people's houses on working days and during working hours. No objections to these remarks were made by defendant. The prosecutor also related to the jury that when a person breaks into a house by way of a window, he breaks out a pane of glass on the outside, picks out the remaining pieces of glass in the window and drops them. It was in this manner, he explained, that defendant's fingerprints came to be on the piece of glass found by Officer Detloff. The prosecutor further explained that a person does not leave fingerprints on glass by merely breaking a window; instead, he must grab pieces of glass and pick them out of the window.
Defendant's initial contention on appeal is that the State failed to prove him guilty of the offense of burglary beyond a reasonable doubt because it failed to prove the essential elements of intent to commit a theft and entry into a building. Defendant asserts that the sole evidence of any significance produced by the State were two fingerprints taken from a piece of glass found at the crime scene and that, although one room of the house had been ransacked, there was nothing to connect him with the actual entry into the house or to show his actual presence inside Gurley's home for any purpose.
1 The State's theory is as follows: The testimony that the outer porch window and the window in the kitchen door was broken is sufficient to support the inference that unauthorized entry was made into Gurley's previously locked residence; the fact that this was done during working hours, with the house unoccupied, permits the inference that this entry was made with the intent to commit a theft; and the presence of defendant's fingerprints on the broken piece of glass indicates that defendant was the burglar.
Section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 19-1(a)) ...