APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendant, Robert Lee Jones, was found guilty of theft (Ill. Rev. Stat. 1977, ch. 38, par. 16-1) and was sentenced to a four-year prison term.
On appeal, defendant contends: (1) the trial court improperly instructed the jury; (2) the improper jury instruction and the prosecutor's closing argument emphasized defendant's silence at the time of his arrest; (3) the prosecutor's closing argument improperly emphasized defendant's failure to testify; and (4) the trial court, prior to sentencing, erroneously failed to determine whether defendant should receive treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.1 et seq.).
Officer Thomas Patterson testified that at 5 p.m. on September 27, 1979, he and his partner, John Roman, were patrolling a Chicago Transit Authority elevated station. They were dressed in civilian clothing. Patterson observed defendant standing on the sidewalk in front of the station. He saw defendant approach various persons and show them the contents of a shopping bag. From a distance of 10 feet, he noticed that the shopping bag which defendant held contained clothing garments attached to hangers. It appeared that price tags were affixed to the garments and the garments were hanging over the side of the shopping bag. After watching defendant for a short time, Patterson walked over and stood next to defendant, and looked into the shopping bag. Patterson again observed numerous garments on coat hangers. Each garment had a "full" price tag attached to it. Patterson explained that a "full" price tag is one which is divided into three consecutive parts. The price tags attached to the clothing indicated that the clothing came from Carson, Pirie, Scott and Company (Carson).
Patterson further testified that he had purchased clothing from Carson's store on numerous occasions. Each article of clothing which he purchased had a "full" price tag attached to it. In Patterson's experience, the salesperson always detached the first part of the three-part price tag and then removed the clothing from the hanger prior to wrapping the clothing and completing the sale.
Patterson further asserted that after observing the clothing in defendant's shopping bag, he identified himself to defendant as a police officer and asked defendant "where he had gotten the clothing." Defendant shrugged his shoulders. Patterson then took the shopping bag from defendant, opened it up, and saw that each piece of clothing was on a hanger and had a "full" price tag attached. Patterson identified this clothing at trial as the clothing he had recovered from defendant's possession and which had been in the shopping bag.
After Patterson looked through the shopping bag, he asked defendant "if he would come into the station with us so we could check out where this merchandise was from." He then advised defendant of his constitutional rights. The defendant indicated he understood his rights. Defendant and Patterson then went to the police station where Patterson later determined the value of the clothing to be $543.
Wayne Malchin, who had worked for 1 1/2 years as a security dispatcher for Carson's State Street store, testified that he was familiar with the sales procedure utilized by Carson's salespersons. Malchin asserted that when an item is purchased from a Carson's store the salesperson removes the hanger and the first portion of the price tag before placing the item into a bag.
Malchin also explained that the code numbers on the price tags indicated that the item would be sold in a particular Carson store and department. Malchin also stated that the price tags contain a season number which indicates what month the item will be sold. Malchin examined the code numbers on the price tags of the clothing which Patterson had recovered. Malchin stated the tags disclosed that the clothing came from the Carson's store located on State Street and was available for sale in early September. Malchin also identified the hangers as property of a Carson's store and stated that he had observed clothing similar to that recovered from defendant on sale in Carson's State Street store on September 27, 1979.
On cross-examination, Malchin again asserted that the code numbers on the price tags indicated the clothing was scheduled for sale in the month of September. He acknowledged that the time could have been September 1, but he did not think the clothing would have been available for sale before then. Malchin also explained that the price tags are attached to the clothing before it arrives at a Carson's store.
On redirect examination, Malchin said that the price tags indicated the merchandise belonged to Carson and that the hangers also belonged to Carson. On recross-examination, Malchin admitted that the hangers did not bear Carson's name.
Maurice McKatherne, a Carson's store detective for two years, testified that on September 27, 1979, he was sent to the police station by the manager of Carson's security. There, McKatherne observed Carson's merchandise, and he identified this merchandise at trial. He also described the significance of the code numbers printed on the price tags.
McKatherne further explained the sales procedure utilized by Carson's sales persons. This explanation was substantially the same as the explanation given by Malchin. McKatherne also asserted that the Carson price tag is attached to sale merchandise before the merchandise arrives at the store. He also stated that the clothing is placed on hangers before "it hits the floor." He acknowledged that clothing merchandise is placed on hangers before it arrives at the store.
On cross-examination, McKatherne asserted that the code number reflected on the price tags of the recovered merchandise indicated the clothing would be available for sale in September. The items could not have been on sale any earlier than September because they would not have "hit the floor." Although McKatherne did not know when the items with that particular code number would reach the warehouse, he did not think the items could have been in the warehouse for months. McKatherne explained that then the "tags [wouldn't] go on them for months. The tags won't go on until they hit the floor." He admitted that he did not know when the items would be tagged, but he knew that the items were tagged when they arrived at the store.
On redirect examination, McKatherne testified that he knew that the merchandise at trial had not been purchased by a customer because the price tags had not been ...