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People v. Bowman

OPINION FILED APRIL 29, 1981.

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

v.

CLIFTON BOWMAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. STEPHEN M. KERNAN, Judge, presiding.

MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

The defendant, Clifton Bowman, was charged by indictment with the offense of burglary. Following a bench trial he was found guilty and was sentenced to imprisonment for a term of three years. On appeal, defendant asserts that the "best evidence" rule requires that he receive a new trial on the grounds that the State did not lay a sufficient foundation for admission of a photocopy of defendant's written confession. Defendant previously had moved to suppress the confession prior to trial, asserting that it was made as the result of police coercion.

The residence of Diane Washington was burglarized on September 1, 1979. At trial, Freddie McCoy, whose apartment was next door to that of Ms. Washington, testified that at approximately 3 a.m. on that date she was awakened by "someone hollering, get away from that so-and-so's window." Ms. McCoy ran downstairs, where she saw the defendant, whom she knew, fleeing from her apartment window. She observed him running with two other boys who were carrying a television set. While defendant was 40 or 50 feet away when Ms. McCoy recognized him, she asserted that because of a street light she had no trouble seeing him. The witness then noticed that her window screen was torn and the window slightly raised. She also saw that the door to Diane Washington's apartment was "cracked open" and the curtains were "flying out the window."

Diane Washington testified that when she returned home that morning, Freddie McCoy told her what she had seen earlier. Ms. Washington entered her apartment and found that her television and two stereo speakers were missing. She testified that the window had been closed when she left the evening before.

Detective John Thurman of the East St. Louis Police Department testified that defendant was arrested on September 1, 1979, and orally advised of his Miranda rights. Defendant then took the officer to several places where he said the various items taken from Diane Washington's apartment had been left; however, none were recovered. Defendant told the officer the nicknames of the two individuals who had been with him when the apartment was entered. The officer then took defendant to the police station. On the following day, defendant was interrogated.

At trial, Detective Thurman identified a copy of the waiver of Miranda rights which had been signed by defendant and explained that the original had been in the police file initially but that it was missing when he came to court that day. Thurman asserted that the copy was a fair and accurate representation of the original of the waiver of the Miranda rights.

Detective Thurman then identified a copy of the statement allegedly given by the defendant. He said he did not know where the original was but that the photocopy was an accurate representation thereof. Defendant then objected to the officer's testimony regarding the documents on the basis that neither original had been produced.

Detective Thurman told the court that no search for the originals had been conducted because their absence from the file was not discovered until after he arrived at court for trial. The trial court then ruled that the originals were the best evidence and that the State would have to demonstrate that they were unavailable. A recess was then taken so the State could search for them.

After the recess, Robert White, an investigator for the St. Clair County state's attorney's office, testified that he had been requested by the prosecutor to attempt to locate the original Miranda warning paper. He stated that he had telephoned the woman in charge of the police records room, who looked in the file but could not find the original.

Officer White then testified that he had worked for the East St. Louis Police Department and was familiar with its record-keeping procedures. The witness testified that when a case is referred to the Detective Division, that unit receives two copies of the original items contained in the file. When a copy is made of an original item, a form is filled out and placed in the file. The instant file contained a form reflecting that the file had been checked out for the previous preliminary hearing; however, the file contained no form indicating when and by whom it was taken for purposes of making copies of original items it contained. After arguments of counsel, the trial court denied defendant's motion to suppress and admitted the photocopies into evidence.

Detective Thurman then testified that after defendant waived his rights, Thurman typed his statement verbatim regarding the circumstances of the offense. The officer then gave defendant an opportunity to read the statement and instructed him to sign it if it was correct. Defendant then signed the statement.

The copy of the statement indicated defendant's version of the events as follows. At approximately 2 a.m. on September 1, 1979, defendant and two others walked up to the complainant's apartment door and knocked, but no one answered. Although the front window was raised slightly, defendant opened it more, and then one of his accomplices crawled through the window and opened the door. The other accomplice entered the apartment, and defendant walked down to the corner. When he saw the two leave the apartment, he returned to it but then heard someone saying that he was trying to break into an apartment. He picked up the stereo speakers the other two had deposited in the front yard and took them to the side of the building. He then returned to the front of the apartment and, with the two others, picked up the television set and placed it in the weeds close to a nearby apartment building. Defendant then went home.

At trial, defendant asserted his innocence and denied both taking the arresting officer to look for the speakers and discussing such speakers with the officer. He testified that after waking at 1 a.m., he left his apartment to walk over to his sister's apartment which is in a nearby building. While he would have passed the complainant's apartment on his way there, he never got that far. He stated that he heard a woman yell that he was trying to break into someone's apartment, so he went home, arriving soon after 1:30 a.m. Before going back to sleep, he called the police department and asked if they had an arrest warrant outstanding on him. They told him they did not.

Defendant's sister testified that at about 1:45 a.m., she looked out her window and saw defendant walking toward her apartment. She soon left the window and did not see him ...


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