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People v. Baynes

OPINION FILED AUGUST 28, 1980.

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

v.

EVERETT BAYNES, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Monroe County; the Hon. ALVIN H. MAEYS, Judge, presiding.

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

___ N.E.2d ___ This is an appeal by the defendant, Everett Baynes, from separate convictions of burglary and theft, in the Circuit Court of Monroe County, Illinois. He was sentenced to a determinate term of five years on each offense, sentences to run concurrently. The cases have been consolidated on appeal.

On February 21, 1978, the defendant, Everett Baynes, was charged by information with theft of two automobile tires and wheels owned by Billy Long, having a total value of more than $150. The theft allegedly occurred on February 12, 1978. At the arraignment on February 21, 1978, the defendant pleaded not guilty and demanded a trial by jury. This case was denominated 78-CF-2, People of The State of Illinois v. Everett Baynes. The defendant changed his plea of not guilty to guilty on May 19, 1978, and was sentenced on August 31, 1978. A second information was filed against the defendant on March 10, 1978, alleging two counts of burglary of a motor vehicle owned by Michael Walsh, and theft of two stereo speakers, having a total value of less that $150, owned by said Michael Walsh. Defendant was duly arraigned, pleaded not guilty, and demanded a trial by jury.

The defendant's trial was held on May 15, 1978. The People's evidence established that at approximately 1:30 a.m. on February 19, 1978, Michael Walsh had an accident with his 1972 pickup truck in rural Monroe County. The pickup truck was left alongside the road, as Walsh and his companions were driven to the hospital in a car which had been following them. When Walsh returned to his truck the next day he discovered three tires, two stereo speakers, which had been in the truck's cab, and a tachometer, which had been bolted to the steering column, were missing. Walsh identified, at trial, the tachometer as the one which had been in his truck; however, he could not identify the stereo speakers.

David McCoombe testified for the People explaining during his direct examination that while he had initially been charged, along with the defendant, with burglary of the Walsh truck, his attorney and the prosecutor had entered into an agreement, in exchange for McCoombe's testimony at defendant's trial, he would be charged with theft under $150 and that he would pay a $200 fine and court costs. McCoombe was a Missouri resident, and at the time of defendant's trial he was on probation in Missouri for theft under $50.

McCoombe testified during direct examination that at approximately 3 a.m. on February 19, 1978, he, his brother Jerry, Mark Barnett and Clayton Gardner left a Pizza Hut in Waterloo, Illinois, and drove to Valmeyer, Illinois, arriving there about 3:30 a.m. The group then observed defendant in his car, pulled over and talked with him. McCoombe had known defendant about one month. Defendant told them there was an overturned truck one-half mile out of town. They drove to see it, the McCoombe party following defendant's car. When they arrived, all of the men got out of their cars and looked around the deserted accident site for about five minutes before returning to Valmeyer. Nothing was then taken from the truck, and there had been no discussion of doing so.

The group met at a laundromat in Valmeyer, where according to McCoombe, the defendant asked him to return to the truck and remove the tachometer. Defendant told McCoombe he wanted it so he could give it to John Koch, who might want to use it for his police car. Koch was a part-time officer with the Valmeyer Police Department. The two cars then returned to the accident scene. At that time defendant again asked McCoombe to remove the tachometer, telling him what size wrench he should use to remove the bolts holding the tachometer to the steering column. Defendant neither entered the truck nor furnished any tools to be used by McCoombe in removing the tachometer. Defendant then drove down the road to his grandfather's house, having told the others that he would act as a lookout. However, no "prearranged signal" was established prior to defendant's departure, and defendant did not have a C.B. radio in his car.

After defendant left, McCoombe climbed into the cab of the pickup truck through the broken rear window. Using a wrench, he removed the tachometer. It took him from 10 to 15 minutes to do this. While McCoombe was thus engaged, Mark Barnett took two truck tires and a tow strap which had been lying on the ground nearby, which he placed in McCoombe's car. The group then left for Valmeyer, McCoombe waving the tachometer out of the car window as they passed the defendant's parked car. McCoombe identified People's Exhibit No. 1 as the tachometer he had taken.

McCoombe drove to where Barnett's car was parked so the tires could be put in Barnett's car. McCoombe's brother and Clayton Gardner then went their separate ways. Barnett and McCoombe returned to the accident scene for the third time, taking one more tire. Defendant was not involved. The two then returned to Valmeyer where they met the defendant, and the three "went driving around." Defendant said he wanted the tachometer, but McCoombe refused to give it to him, saying he wanted it for his car. They drove around for the remainder of the early morning hours.

McCoombe also testified during direct examination that about one month after the items were taken from the truck, defendant showed him two car stereo speakers. The witness identified People's Exhibits Nos. 2 and 3 as being the speakers defendant had shown him. Defendant left the speakers with McCoombe and his brother. Then, on May 7, 1978, McCoombe gave them to Tammy Schofield, telling her to "take them back to Illinois." When Schofield left the McCoombes' home she had the speakers with her. This was corroborated by the testimony of Tammy Schofield.

Under cross-examination McCoombe admitted that approximately one month before trial he told defendant's counsel that he had found the tachometer under a rock in defendant's back yard. He further testified that defendant did not request him to lie. McCoombe also agreed that in exchange for the People's reducing the "felony charge of burglary down to a misdemeanor," he was required to testify against the defendant. Furthermore, he admitted that before the above agreement was entered into, the People had told him that they would not extradite him for trial if he promised to stay out of Illinois. On redirect, McCoombe testified that before the agreement was finalized, the prosecutor had warned him that if he perjured himself at defendant's trial, the agreement was "off" and he would be prosecuted for burglary.

Mark Barnett also testified for the People. He had known defendant for about six to eight months. While he corroborated much of David McCoombe's testimony, Barnett's testimony also differed in certain respects.

According to Barnett, the group returned to Valmeyer after having merely looked over the accident scene, defendant opened the trunk of his car and showed him two stereo speakers, saying he had earlier taken them from the disabled pickup truck. The witness was not asked to identify the stereo speakers during the trial. He also testified that when the group went back to the scene for the second time, the only item taken was one tire, which Barnett placed in McCoombe's car. Clayton Gardner did not go with them the second time, as he had gone home. According to Barnett, the tachometer was taken during the third visit to the truck.

Barnett testified that when he arrived, defendant asked him to remove the tachometer. Barnett refused; then defendant asked David McCoombe to do it. McCoombe agreed. Defendant told McCoombe he wanted him to remove it because if it "came up missing John Koch would be looking for him." Barnett further testified before defendant left to station himself as a lookout, he took McCoombe to check the truck's glovebox because it might contain some "tapes." While McCoombe was inside the truck removing the tachometer, Barnett took a tow strap and two tires which were lying on the side of the road which he placed in the car. Barnett also identified the tachometer. Barnett testified that when McCoombe later refused to give the tachometer to defendant, defendant said "keep it down for a month or two because the police would be looking for it."

It was also developed during Barnett's direct testimony that he had pled guilty to theft of three tires taken from the truck and was sentenced to three days in jail. Barnett was subpoenaed to testify at defendant's trial, and he stated during direct examination that the State had not reduced any charges in exchange for his testimony. He had a prior conviction of theft less than $150.

On cross-examination the witness at first denied having ever given an account different from this trial testimony regarding his participation. He then admitted having earlier lied when he stated that he first saw the disabled truck when he and McCoombe were "coming back from Maeystown." He had given this account to the police on February 28, 1978. He also denied at trial that he and McCoombe made a final trip to the truck after the tachometer was removed.

Officer John Koch, a part-time policeman with the Valmeyer Police Department, also testified for the State. At approximately 2 a.m. on February 19, 1977, he received a radio dispatch regarding the truck accident. When he arrived at the scene there was no one present. At that time he observed the tachometer and stereo speakers inside the cab of the truck. At trial, he could not identify the tachometer or the stereo speakers, but did state that People's Exhibit No. 1 looked like the tachometer he had seen.

He then went into town to call the radio dispatcher and try to obtain more information about the accident. After this, Officer Koch drove out to the accident scene again. There was a group of about 15 people present when he arrived. Some of them were stopping momentarily, and then driving on. He testified the defendant was present. The officer had known the defendant for approximately four months, the relationship being of a social nature and not involving "official business." They had frequently talked about "cars and girls, [and] whatever was going on in town at the time."

After arriving at the scene the second time, Koch and defendant discussed the accident and where the truck's occupants might be. During their conversation the defendant commented that the truck's tachometer "would look good in his car." On direct examination the officer could not recall whether the defendant made any specific comment regarding the tachometer and Koch's police car. Koch then drove back to Valmeyer and attempted, but failed, to arrange for a wrecker to tow the truck into town. Later that same morning, Koch drove back out to the truck observing that the tachometer, the two stereo speakers, and the tires were gone. On cross-examination Koch testified that he thought the conversation with the defendant occurred during the policeman's first visit to the disabled truck, the defendant having arrived with another man soon after Koch got there. He also testified that the defendant might have been there during his second visit, when the crowd of people was present. During Koch's first visit, while he was conversing with defendant, defendant pulled the car keys from the truck's ignition and handed them to Koch. After defendant commented about how nice the ...


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