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People v. Posey

OPINION FILED APRIL 21, 1980.

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

v.

HOWARD H. POSEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. DEVINE, Judge, presiding. MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

On April 4, 1979, defendant, Howard H. Posey, was arrested and charged with possession of a stolen vehicle and attempt theft. On April 24, 1979, in open court, the offense of possession of a stolen vehicle (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 4-103(a)) was reduced to criminal trespass to vehicle (Ill. Rev. Stat. 1977, ch. 38, par. 21-2). Following a bench trial, defendant was found guilty of each offense. He was sentenced to concurrent terms of 364 days for each offense to be served in the House of Correction. Defendant appeals, contending that (1) he was not proved guilty of either offense beyond a reasonable doubt; (2) he was denied the effective assistance of counsel; and (3) the complaint for criminal trespass to vehicle is invalid.

We affirm.

William Johnson testified first for the State. He had testified previously at defendant's preliminary hearing. Defense counsel stipulated that Johnson had testified that he was manager of the Hyatt Regency Hotel parking garage and was working on April 4, 1979, between the hours of 11 a.m. and 2 p.m. It was further stipulated that Johnson had identified defendant as a passenger in a 1973 Chevrolet, license number MMG 49. When that car entered the garage, Johnson noticed the driver because he resembled an employee. Defendant and the driver alighted from the auto, which was then parked by an attendant. Johnson was several feet away. At one point defendant came back to the parking area, but Johnson did not see him re-enter a car.

On cross-examination, Johnson stated that he did not remember what clothes defendant was wearing. The 1973 Chevrolet entered the garage at about 12:30 p.m., at which time a number of cars were entering and leaving.

Martin Gold testified that on April 4, 1979, he owned a 1973 Chevrolet Caprice, license number MMG 49. That day he left his car in a parking garage and was subsequently notified that his car had been stolen. Gold never gave anyone permission to drive his vehicle.

Louis Rizzuti testified that on April 4, 1979, he was on duty as a security officer for the Hyatt Regency Hotel. Security officers received several calls that two black males were attempting to enter guest rooms. As a result of this information, Rizzuti went to the main floor lobby guest elevator. After a few minutes, he observed defendant leave one of the guest elevators and go over to the car lobby elevator. In the guest elevator with defendant was a man subsequently identified as co-defendant Norris. Norris "was holding the door open with one hand and had a hold of a large laundry bag with the other." It was later determined that the laundry bag contained 22 king-sized sheets and three bedspreads owned by the Hyatt Regency Hotel.

Rizzuti further testified that defendant told Norris to "wait until I get a car." Rizzuti approached the guest elevator and asked the man holding the laundry bag to accompany him to the security office. On a television monitor, Rizzuti observed defendant in the garage area. Rizzuti then went to the garage and told defendant to come to the security office.

Defendant testified that he came to the Hyatt Regency on April 4, 1979, via the Chicago Transit Authority elevated. He denied that he was a passenger in a 1973 Chevrolet Caprice. He went to the personnel office. Defendant denied having knowledge as to how the bag of sheets and bedspreads were placed in the elevator.

On cross-examination, defendant testified that in the personnel office he was told to go to "B.R." Defendant explained he went to the 22d floor to ask some maids he knew where B.R. was located.

Following closing arguments, the trial court found defendant guilty of both charges.

• 1 Defendant contends that he was not proved guilty of trespass to vehicle beyond a reasonable doubt. His challenge is threefold. First, he alleges that due to unreliable in-court identification, the State did not establish that defendant was in the automobile. The following questioning of Johnson by the State's attorney is undeniably suggestive:

"Q. Mr. Johnson, while you were working at the Hyatt Regency parking garage on April 4, 1979, did you have occasion to see the defendant, Howard Posey, enter that garage?

A. Which?

Q. Mr. Posey, the gentleman in the ...


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