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People v. Hairston





APPEAL from the Circuit Court of Kankakee County; the Hon. JOHN F. MICHELA, Judge, presiding.


Following a jury trial the defendant, Lindsey Hairston, was found guilty of burglary, criminal damage to property and unlawful possession of a hypodermic syringe. He was sentenced to an extended term of imprisonment of 10 years.

On appeal the defendant raises the following issues: whether the defendant's rights under the United States and Illinois constitutions were violated where the prosecutor elicited testimony from a State witness regarding the defendant's post-arrest silence; whether the court was barred from imposing an extended-term sentence where the defendant's prior conviction was neither alleged in the information nor proved at trial; whether both factors listed in the extended-term sentencing provision need be present before an extended-term sentence is imposed (see Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-3.2(b)(1) and (2)); whether the present case should be remanded to the trial court for imposition of sentences upon the defendant's criminal-damage-to-property and unlawful-possession-of-a-hypodermic-syringe convictions.

The resolution of these issues does not require a detailed recitation of the facts in this case. For the purposes of determining this appeal it is sufficient to note the following. The evidence placing the defendant at the scene of the crime was circumstantial and included the testimony of Laura Briscoe, who lived in a second-floor apartment above the burglarized offices of the Kankakee County housing authority. Ms. Briscoe testified that she was awakened about 3:20 a.m. on the morning of October 1, 1978, by a noise outside her window. She observed an individual outside the building wearing a brightly colored sweater such as the defendant was wearing when apprehended. Upon hearing further noises she notified an individual named Freddie, who lived in the housing authority office, that someone was breaking into the office.

Michael Furrow, a Kankakee city police officer, testified that he responded to a burglary call received at approximately 3:55 a.m. on October 1, 1978. Upon receiving the call, he proceeded to the North Dearborn Street address of the housing authority office, where he observed the defendant running down the street. Furrow recognized the defendant, whom he had known for 12 or 13 years. After pursuing the defendant with the aid of another squad car, Officer Furrow apprehended him in a grassy area nearby. While handcuffing the defendant, Officer Furrow noticed that the defendant's hands were cut and bleeding.

During the booking procedure at the station following the defendant's arrest, Officer Furrow found a hypodermic syringe in the defendant's pants pocket. The defendant was charged with and found guilty of the unlawful possession of a hypodermic syringe.

Officer Charles Mathes of the Kankakee city police department secured the burglary scene. He found two street level windows broken and the screens for those windows twisted and torn. Inside the housing authority offices five rooms and four doors were ransacked and damaged. Blood was found on the floor and on some broken glass. It was impossible to determine with complete accuracy whether the blood found at the scene was the same type as that of the defendant or whether the fingerprints lifted from the scene were those of the defendant. Glass particles were found in the defendant's sneakers. However, a forensic scientist testified that it was common to find glass fragments on sneakers and that the glass tested was very common, though it did have a similar refractive index to the glass fragments taken from the broken windows in the housing authority office.

Based on the circumstantial evidence presented by the State, the jury returned guilty verdicts against the defendant as to all three charges against him. The defendant presented no evidence on his behalf.

During the trial the following exchange took place during the State's questioning of Officer Furrow:

"Redirect Examination

[Mr. Power, State's Attorney: When Mr. Hairston was being booked at the Station you say you found a syringe on him?

A. Yes, sir.

Q. At this time had Mr. Hairston been given his Miranda warnings?

[Mr. Smietanski, Assistant Public Defender]: Objection. ...

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