APPEAL from the Circuit Court of Cook County; the Hon. ADAM N.
STILLO, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a bench trial, Lawrence Moore and Kevin Madlock (defendants) were convicted of burglary and sentenced to 3 years. They have appealed.
The issue here is whether the fact of possession by defendants of recently stolen property may properly give rise to a presumption of guilt of burglary. On March 31, 1981, the supreme court addressed a similar situation in a definitive opinion. (People v. Housby (1981), 84 Ill.2d 415, 420 N.E.2d 151.) Therefore, we will first state the facts and then attempt to apply thereto the teaching of Housby.
On February 3, 1979, a few minutes before 8 a.m., four police officers responded to a radio message of "burglary in progress" at 2143 West 71st Place. That address is on the south side of 71st Place. Officer Hutton looked down the gangway adjacent to the house. He saw a black person, identified as defendant Madlock, some 15 feet away, in the act of passing a battery charger to another black person through the side door. Madlock saw the officer. Madlock went into the house and closed the door.
The police officers noted some battery chargers, mechanical tools and other automotive equipment in front of the doorway at the side of the house. The police knocked on the door. A lady named Moore responded. She told the police the equipment did not belong to her. She told them her nephew "stays there sometimes." But "he wasn't there last night" and "she didn't think anyone was there last night." Mrs. Moore and the police entered the basement. They found Madlock upon a mattress on the floor fully clothed, covered with a blanket. Mrs. Moore said Madlock was not her nephew. The officers found defendant Moore hiding behind the furnace.
The officers examined the tools and equipment and noted initials "T.G." on certain of the items. Investigating the area, the police found a garage-type building fronting north, identified as 2121-25 West 71st Street. This is the street immediately north of 71st Place. There is a north and south alley immediately adjacent to the building itself. A screen had been removed from a front window. The officer described the interior as though some person "had been in there moving things around." After speaking to neighbors, the officers located Thomas Gross, the owner of the building. He is owner and operator of the 71st Street Battery and Auto Center at that address on 71st Street.
Gross testified he locked and left his shop on Friday, February 2, 1979, about 11 p.m. On the morning of February 3, 1979, about 8:30, he found a plexiglass front window had been knocked out and the screen pulled away. His radio had been moved from the desk to the ground outside the door. The rear overhead door had been raised. Batteries and tools were missing and "things were thrown all over the place." At the police station, he identified the property which had been removed from the premises. He had engraved his initials on certain items. He had never given defendants or other persons permission to enter his structure or to remove his property.
The People also called Robert Thornton. On the morning of Saturday, February 3, 1979, about 7:45 or 8 o'clock, he was digging his car out of the snow close to 2143 West 71st Place. He saw the two defendants "carrying stuff from one side of the street to the other." They made about three trips "carrying equipment that you work on cars with."
Defendant Moore testified he has lived at 2143 West 71st Place for 5 1/2 years with his mother. On the evening of February 2, 1979, he and defendant Madlock went to a party in a lounge at 71st Street and Western Avenue. They stayed from 11 p.m. until about 1:30 a.m. They walked together toward Moore's home. Within a block away, as they passed the alley adjacent to the battery and auto center, Moore saw a box of tools and "a battery and some more stuff on the side." This was about 2 a.m. Defendants walked down the alley and looked at the "stuff." Each of them took some of the items they had seen in the alley, leaving some of the others. Moore testified he did not know where the property came from or who was the owner. They went across the street to the Moore residence. They left the items they had taken at the side door. They went inside and went to sleep.
About 7 a.m. Moore went outside to dispose of some garbage. He testified he had forgotten the items which had remained in the alley. He went across the street again and brought back a battery cable. He awakened Madlock and both of them started to carry the remaining material across the street to the Moore residence. He denied removing the property from the battery center.
He saw Mr. Thornton in the street. He did not remember seeing the initials on some of the tools. He looked at the doors of the battery center. The back door was not open. He also testified he could not tell if the back door was open or closed. He testified he was in the basement when the police arrived. He saw them come. He also testified he was outside when he first saw the police come.
• 1 In our opinion, the proper legal principle which is determinative of the issues in the instant case is that the rights of these defendants are not infringed upon and the presumption of guilt is properly applied only if (Housby, 84 Ill.2d 415, 424):
"(i) there was a rational connection between [defendants'] recent possession of property stolen in the burglary and [their] participation in the burglary; (ii) [their] guilt of burglary is more likely than not to flow from [their] recent, unexplained and exclusive possession of burglary proceeds; and (iii) there was evidence corroborating [defendants'] guilt."
We will consider application of these ...