APPEAL from the Circuit Court of Rock Island County; the Hon.
JAY HANSON, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Phillip McVay appeals from his conviction, following a jury trial, for the offense of burglary. The defendant was sentenced to two years' probation, with the first 180 days to be served in the county jail. On this appeal, the defendant contends: (1) that he was not proven guilty beyond a reasonable doubt because of the unreliability of the State's principal witnesses; (2) that he was denied a fair trial because of the improper and prejudicial statements of the prosecutor during closing argument; (3) that he was denied a fair trial when the court failed to grant his motion for a severance from a co-defendant for trial, where the State presented an admission by the co-defendant which implicated the defendant in the commission of the crime; (4) that the court committed reversible error in refusing to give an instruction tendered by the defense; and (5) that the court erred in instructing the jury on the admissibility of the co-defendant's admissions as to defendant McVay.
The record reveals that on January 29, 1980, one Jeffrey Booth returned to his home shortly after 1:30 in the afternoon. Inside his home he found co-defendants John Reed and Phillip McVay. Both McVay and Reed were recent acquaintances of Booth, and both had been in his home previously with his permission. When Booth inquired of them what they were doing in his home, the men answered that they were looking for him. Although upset with their presence, Booth and the two sat down, over coffee, and talked. After 15 minutes, Reed and McVay left. Booth testified at trial that he did not give them permission to enter the house and that when he left, earlier that morning, the door and windows to his home were locked and secure. Booth testified that there were pry marks and other evidence of forcible entry on a front window of the house.
After Reed and McVay had left, Booth checked upstairs on his and his wife's valuables. He found he was missing a watch and that his wife's jewelry box was not in its usual place in the dresser drawer. Later, after determining that the watch and several of his wife's necklaces were missing, Booth, accompanied by his wife, went over to the McVay residence. There present were John Reed, Phillip McVay, and Cindy McVay, Phillip's sister. Booth told the two men that if he did not get his belongings back from them, he would notify the police. McVay and Reed both denied any knowledge of the belongings. Booth then informed the police of the missing items and of the events of that afternoon. The cross-examination of Jeffrey Booth focused upon his private life and his relationship to the defendants. His financial problems were explored, as was an extramarital affair with a Kathy Hook.
Booth admitted to a problem with alcoholism and to prior drug use, although he denied any drug addiction. He also admitted to having locked himself out of his house on a date prior to the burglary. On that occasion, with the help of Phillip McVay, who was with him then, he had gotten into the house by entering through a jimmied front window. Further impeachment took the form of indicating various discrepancies between Booth's pretrial statements to police and his testimony at trial. The clear implication in the defense attack on Booth's credibility was that Booth's purpose in bringing charges against Reed and McVay was to cover up his own problems and perhaps to get insurance proceeds for the missing items.
Booth also identified, during his testimony, several exhibits offered into evidence by the State. Included in the exhibits were three rings belonging to him and recovered from possessions belonging to John Reed, which had been stored at the McVay residence (as well as a key to the Booth residence). The items were also identified by Mrs. Booth, whose testimony corroborated her husband's with respect to the missing items. She also testified that she was aware of her husband's affair with Kathy Hook and of his drug and alcohol problems. She was, as was her husband, acquainted with both defendants, Reed and McVay.
Various investigating officers also testified for the State. One officer testified to the presence of pry marks on the outside of the front window of the Booth residence. Two other officers testified to their arrest of subjects Phillip McVay and John Reed, at the McVay residence, on the night of the burglary. Their testimony was that Phillip McVay, upon seeing them at the top of the stairs, ran toward the front part of the building.
Another witness for the State was Cindy McVay, 16-year-old sister of Phillip McVay. Cindy had previously been a girlfriend of the co-defendant John Reed. Prior to her testimony, however, defendant's counsel renewed an objection to her testimony which he had made prior to trial. On the morning of the scheduled trial, defense counsel for Phillip McVay informed the trial judge that he had just learned of some new evidence in the case which the police had obtained the previous Thursday. Included in that evidence, were certain statements allegedly made by defendant John Reed to Cindy McVay concerning the burglary and trial. According to defense counsel, those statements tended to incriminate John Reed and also implicated co-defendant Phillip McVay in the crime. Defense counsel stated that although the statements did not expressly name Phillip McVay, they were of such nature that, when combined with the other evidence, the jury would most likely consider the statements against McVay as well as Reed, even if a cautionary instruction were given.
Based upon the incriminating statements by Reed, which allegedly implicated McVay, defense counsel moved for a severance for trial. The trial judge, acknowledging that the situation was one to be concerned about, nevertheless denied the motion to sever, opining that a cautionary instruction would negate any possible prejudice. He also stated that he felt that, if anything, the situation would benefit the defendants in that the jurors could become confused and return a not guilty as to them both. Later, at trial, when defense counsel renewed his objection to Cindy McVay's testimony, based upon the severance issue, the trial judge overruled the objection, stating that he felt the jury understood that testimony against one defendant did not automatically apply to both defendants. He then instructed the jury that "testimony against so to speak one defendant isn't necessarily testimony against the other. That's for you to decide." Following the judge's ruling, Cindy McVay testified that she had received a phone call from John Reed the Thursday before trial, in which Reed told her that there were no hard feelings between them, but that if he, Reed, went down (was convicted), so would both she and her brother, Phillip McVay. As a result of the call from Reed, Cindy McVay went to the police and turned over to them a key, three rings and a watch, later admitted into evidence against the defendants. Concerning the items, Cindy McVay testified that they were from a jewelry box located among John Reed's clothes, which were stored in the attic of her mother's house. She testified that a couple of days after John Reed's arrest for the burglary, Reed called her and told her to remove some items from the glove compartment of his truck so that the police would not find them. It was those items, later turned over to the police, that Cindy stated she removed from the glove compartment and put with Reed's clothing in the attic. The rings and the key were offered into evidence against the defendants.
The final witness for the State's case in chief was a police officer who had taken Cindy McVay's statements concerning the stolen items removed from Reed's truck. He testified to that conversation with Cindy McVay and also testified to the fact that the key given him by Ms. McVay unlocked the exterior door to the Booth residence. At the close of the State's case, directed verdict motions were denied.
A principal thrust of the defense presentation in the case was a sharp attack upon the credibility of both Jeffrey Booth and Cindy McVay. Two younger brothers of Phillip McVay testified that they were acquainted with Jeffrey Booth and had been present when he had to pry open the front window of his home using a knife. They also testified that they were present when Booth pawned a watch in Rock Island. They testified that Booth once had asked them to steal from Kathy Hook a necklace he had given her, which he now wanted back. They testified that Booth had consumed alcoholic beverages with them previously and that he had offered them narcotic drugs. Both testified that they had seen Booth use drugs. They also testified that they had observed the police search of John Reed's truck on the night of the arrest, and one boy testified that the glove compartment was searched that night.
Janice McVay, mother of all the McVays involved in the case, also testified for the defense. She testified that she had observed a police search of John Reed's truck on the night of the arrest and that it appeared that they were going through everything with flashlights. She also testified that her daughter, Cindy, a principal witness for the State, had been diagnosed as a borderline mentally retarded child. She described her daughter as living "in and out of a fantasy world." She stated that one could not believe everything Cindy said. To contradict Cindy's testimony about the early telephone call from John Reed, Mrs. McVay testified that she had no phone at her home and that Kathy Hook's apartment, downstairs, did not have a phone until recently, certainly subsequent to the time her daughter claimed to have received the first call from John Reed concerning the items in the glove compartment of his truck. Mrs. McVay also testified that she had gone through Reed's belongings in the attic and had not noticed any jewelry box during her examination.
Kathy Hook was also a defense witness. She testified to her affair with Jeffrey Booth, to the gifts of necklaces which he had made to her during that affair, and to their drug intake during the affair. She said that she and Booth used drugs almost every time they were together, over a period of six months. She admitted to her own drug addiction during that period of time. Kathy Hook testified that on the day of the burglary, Booth had told her about it and said that he had to report a burglary, or else his insurance company would not honor his claim.
The final witnesses for the defense were the defendants. According to their testimony, they had been shopping together on the morning of January 21, and when they returned to the McVay house they learned that Jeffrey Booth had stopped there for them. He had told them the day before that he might need a ride to the doctor's office, so they thought that this was his reason for stopping by that morning. Booth did not have a car and, according to Reed, he (Reed) had given him rides previously. Reed and McVay then walked over to Booth's house, since Reed's car was low on gas, and they entered through an unlocked front door. ...