APPEAL from the Circuit Court of Adams County; the Hon. ROBERT
L. WELCH, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Kenneth Majors (defendant herein) appeals his conviction, after jury verdict, upon a charge of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1) and a sentence of 4 years imposed.
The conviction of defendant was upon the theory of his accountability for the acts of a co-defendant, Jones, constituting the burglary. The latter negotiated a plea of guilty to misdemeanor theft and was sentenced to probation.
The defendant raises five issues on appeal, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the trial court's refusal to call Jones as a court's witness denied him a fair trial, (3) the prosecutor's comments concerning accountability made during closing arguments denied him a fair trial, (4) a policeman's hearsay testimony regarding an out-of-court identification of the defendant violated his rights of confrontation, and (5) the trial court abused its discretion by imposing an excessive sentence.
Because the defendant questions the sufficiency of the evidence, a recitation of the trial testimony is necessary. Judy Sharp testified that on May 8, 1978, she was in the parking lot of a K-Mart store in Quincy, Illinois. While walking toward her car, she saw a man holding a CB radio get into a bluish-green van bearing Missouri license plates that was parked next to her car. Through the front windshield of the van she saw two men, a woman, and a baby. Believing that the man had just stolen the CB radio in her car, Sharp ascertained the license number, yelled at the persons, and then ran back inside the store.
Sharp's further testimony disclosed that at the Quincy police station she chose two pictures from a lineup of photographs. She made an in-court identification of the defendant as one of the two men in the van, but she could not "say for definite."
On cross-examination, Sharp testified that she saw Jones and not the defendant holding the CB radio. She also testified that at the time of the photographic lineup, her identification of the defendant as one of the two men in the parking lot was certain, although during the trial she was less certain.
Barry Taber testified that on May 8, 1978, he was sitting in his truck in the same K-Mart parking lot. He saw a woman walk toward her car, stop, shout, and then run back toward the store. A man then ran to Taber's truck and told Taber to get the police on his CB radio, which he tried to do. Parked one lane away from the defendant, Taber saw the van, light blue with Missouri plates. While continuing to try to reach the police, Taber followed the van; they went through the intersection of 30th Street and Katherine Road; they reached the corner of 12th and Locust Streets, where the van pulled into a gas station. Taber drove down the block, turned around, and came back. By that time the van had moved across the street to the parking lot at the Pepsi-Cola bottling plant. A police car then pulled up next to the van. Taber testified that he had observed the van without interruption during the entire trip from the K-Mart lot to the Pepsi-Cola lot. On cross-examination, Taber testified that the van left the lot after Sharp began shouting. Taber did not see any of the persons in the van, however, or even know how many were in it. While he was turning his truck around, he did not watch the van.
Officer Simons of the Quincy police department testified that on May 8, 1978, he received a call for assistance and intercepted and stopped a van matching the description given him over the radio. The van's driver denied that he had been in the K-Mart parking lot, and Simons did not see the CB radio inside of the van. Inside the Pepsi-Cola bottling plant, Simons found Jones, who matched the given description of the second man in the van. Simons arrested the two men; at trial, he identified the defendant as the driver of the van.
Officer Fletcher of the Quincy police department testified that he and another policeman searched the roadside near the intersection of 30th Street and Katherine Road. Fletcher was about 100 feet away from his partner when the partner found the radio near the side of the road.
Officer Busse of the Quincy police department testified that at a lineup of photographs, Sharp identified the defendant as the driver of the van she had seen in the K-Mart parking lot and Jones as the man who had taken the CB radio. Defendant did not object to any of this testimony.
Defense counsel moved that Jones be called to testify as a court's witness. In the absence of the jury Jones was called to the stand to lay the necessary foundation. Jones testified that he, the defendant, the defendant's wife and the wife's baby were riding in the van on May 8, 1978. They drove through the K-Mart parking lot looking for CB radios to steal and stopped at an unlocked car, from which Jones took a CB radio. Jones testified that when a woman began shouting they left in the van, and he threw the radio out of the van along Katherine Road. Jones got out of the van at a gas station.
Jones' further testimony revealed that he had discussed the crime with two persons, the defendant's father and the defendant's first attorney. On May 9, 1978, he told defendant's father that he, Jones, had taken the radio. Jones denied telling the defendant's father that the defendant had not been involved in the crime. He told defendant's father that he would testify that he had taken the radio, but denied saying that he would testify that the defendant had had nothing to do with the crime.
Jones also testified that on November 13, 1978, he spoke with his then attorney. Jones denied talking to the police about testifying for the defendant. In a statement signed in the State's Attorney's office on November 13, 1978, Jones declared that he was drunk at the time of the burglary and that the defendant had devised the plan. As a result of the statement, the State dropped the burglary charge against Jones, who pleaded guilty to misdemeanor theft. Yet Jones testified during the hearing on the defendant's motion to have Jones declared a court's witness that they had developed the plan jointly.
The defendant's father then testified, also outside the jury's presence, to help lay the foundation for calling Jones as a court's witness. The father testified that on May 9, 1978, Jones told him that the defendant had had "nothing to do with the incident," and that Jones would testify to that fact. The father also testified that Jones repeated this to him on that morning, minutes before the trial began.
The defendant's attorney at the time of trial avowed that if the defendant's first attorney was present, he would testify that on November 13, 1978, Jones had told him that the defendant had not been involved in the burglary. The State's Attorney added that the ...