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People v. Blair

OPINION FILED DECEMBER 28, 1981.

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

v.

JAMES R. BLAIR, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LEONARD R. GRAZIAN, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant James R. Blair was charged by information with burglary. (Ill. Rev. Stat. 1979, ch. 38, par. 19-1.) Following a jury trial, defendant was found guilty and was sentenced to serve an "extended term" sentence of 12 years in the Illinois Department of Corrections. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2.) On appeal, he contends that: (1) it was error for the State to inform the court prior to any proceedings that there had been plea negotiations; (2) the trial court erred in denying his motion to quash arrest and suppress evidence or, alternatively, in denying a continuance to allow counsel to obtain a rebuttal witness; (3) the court erred in denying defendant's motion for treatment under the drug abuse program; (4) the trial court erred in denying defendant's motion in limine which would have excluded evidence of four prior burglary convictions; (5) the trial court erred in not responding to the jury's written inquiry on the instructions; (6) the trial court erred in permitting testimony that defendant was the subject of an intensive surveillance effort by various "tactical units," for this testimony suggested to the jury that defendant was a well-known burglar or criminal; and (7) the court erred in imposing an extended-term sentence.

Defendant has withdrawn the final issue in his reply brief and therefore it is not considered.

On June 13, 1979, defendant was charged with burglary, alleging that on May 26, 1979, he entered an office at 30 North Michigan Avenue in Chicago, the property of Martin Berzon, with intent to commit theft therein. At a pretrial hearing on December 12, 1979, the State informed the court that there had been discussions off the record, and out of the presence of the court, regarding a possible plea offer, and that an offer was refused by the defendant and therefore the State would make no further offers.

Motion to Quash Arrest

At the above hearing, defendant presented a motion to quash arrest and suppress evidence. Police officers Stubbs and Saternus testified. On Saturday, May 26, 1979, at 1:30 p.m., defendant was observed in an area of downtown Chicago and was put under surveillance by five or six members of the plain-clothed tactical unit who were at all times linked by radio communication. Officer Saternus stated that he had arrested defendant for burglary and for deceptive practice in the past. Officer Stubbs testified that he had arrested defendant before for office burglaries.

While under surveillance defendant was observed going into a hardware store on North Halsted Street. A clerk informed the officers that defendant had purchased a screwdriver there. Defendant then walked to Wacker Drive, reaching the Board of Education Building, which he entered briefly and then exited. He continued his walk eastward to Michigan Avenue. At Michigan he walked a few feet south to the first building, stopped, peered into the entrance, walked back north a bit, walked back to the doorway, looked in again, and then continued southbound on Michigan Avenue. He did a "similar thing" at another building at Lake Street. He then walked to the building in question, at 30 North Michigan, looked into the building, stood there a while, and entered at about 2 p.m. According to Officer Stubbs, the offices in this building are usually closed on Saturdays. The officers then set up surveillance on the Michigan Avenue entrance to the building and waited. At about 2:20 p.m. defendant came out of the building. He had a large overcoat over one arm which partially covered a portable TV. In the other hand he was carrying a typewriter. According to Officer Stubbs, on weekends the downtown part of Chicago is a "high crime area" for burglaries. Officer Saternus placed defendant under arrest, saying "Hello James. You are under arrest." Officer Stubbs searched defendant, found a screwdriver in his coat pocket, and found a receipt bearing the name Martin Berzon in the overcoat.

Officer Stubbs then entered the building's lobby, found the name Martin Berzon on the directory, and then went to the corresponding office located on the 19th floor. On approaching the office in question, he observed the door was ajar and noticed particles of paint and plaster on the floor. There were pry marks on the wood and lock area. The office was in disarray. According to Stubbs, there had been a man on duty in the lobby. He did not know his position but believed him to have been wearing an elevator starter's uniform. This man was not produced to testify at the hearing.

During the hearing Officer Stubbs testified that another entrance to the building, on Washington Street, is normally closed on Saturday and is locked. On cross-examination Officer Stubbs testified:

"Q. Isn't it a fact that on weekends the entrance into the building is on Washington and not on Michigan?

A. No. It's on Michigan."

Officer Saternus testified likewise on cross-examination. Later, defense counsel requested a continuance to subpoena the manager of the building in question as a rebuttal witness to testify that the customary practice in that building is such that when the building is closed, the entrance used is the Washington entrance, not the Michigan entrance. Counsel stated that he had personal knowledge of the building. The trial court denied defendant's request for a continuance and, after additional argument, denied the motion to quash the arrest.

Drug Abuse Proceedings

Defendant filed a petition to be examined or treated under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 120.1 et seq.). The cause was continued for a Treatment Alternative to Street Crimes (T.A.S.C.) examination of defendant. The trial judge, however, stated that he did not believe defendant was a good candidate whether or not he was eligible. The court, however, set the matter for a hearing at which the prosecutor contended that since defendant had two prior convictions for Class 2 felonies, he was not eligible for the drug abuse program. A representative of T.A.S.C. testified that they did not have consent from the parole board for defendant's treatment in lieu of prosecution. The court denied the motion for treatment under the drug abuse statute.

Motion in Limine

After jury selection, the defense made a motion in limine to bar evidence of any prior convictions for impeachment of defendant at trial. The prosecutor then had nine certified copies of convictions, all for burglary. The motion was denied. A motion for mistrial was also denied.

Trial

Officer Saternus testified for the State. At 1:30 p.m. on the date in question, while riding with a partner, he saw defendant walking. He called for some additional tactical units and "placed the subject under surveillance." Other responding "units" who were also "in on the ...


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