APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
LEIFHEIT, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
The defendant, James A. McKiness, was convicted by a jury of theft over $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16-1), and subsequently was sentenced to 36 months' probation with a condition thereof that the first 30 days were to be served in the Kane County Correctional Center.
The defendant appeals and presents three issues for review: (1) whether he was denied due process of law in that his sixth and fourteenth amendment (U.S. Const., amends. VI, XIV) rights had been infringed by prosecutorial threats to a potential defense witness thereby causing the witness to refuse to testify; (2) whether he was properly convicted of felony theft where the jury was not given an instruction requiring them to determine if the value of the stolen property, a post-hole digger, was in excess of $150; and (3) that the trial court improperly sentenced him to 36 months' probation for a Class 3 felony. See Ill. Rev. Stat. 1979, ch. 38, par. 1005-6-2(b)(2).
The facts pertinent to this appeal are summarized as follows. At trial the State's first witness was Lee Patterson, proprietor of Tri-City Rentals in St. Charles, Illinois. He testified that his business involves renting tools to construction firms and private individuals. On November 30, 1979, at approximately 5 p.m., two men entered his store and inquired about renting a post-hole digger. One of the men was the defendant, James McKiness.
Mr. Patterson explained to the two men how to operate the different post-hole diggers he had for rental. Defendant picked out a two-man post-hole digger because he had operated one before. He asked in whose name the machine would be rented, and the man who was with defendant indicated that the rental contract should be put in his name, which he said was Phil Williams. In defendant's presence, Mr. Patterson referred to this individual as Phil.
While Mr. Patterson was completing the contract, defendant walked away from the counter and stood by the front door. Mr. Patterson asked the other man for a $40 deposit and some identification, and received from the individual $40 in cash and a traffic ticket bearing the name Phil Williams.
After the contract was completed, Mr. Patterson came out from behind the counter and explained how to operate the machine. The defendant said that he knew how to operate the machine because he had used that type of equipment before. While the men carried the post-hole digger out of the store, Mr. Patterson went to get the auger (drill bit) for the digger. He yelled out "Phil" to the individual who identified himself as such because he did not want the man to forget the auger, and he handed the auger to defendant as the two men were leaving. He closed his store shortly after the men left.
Because the rental period of the contract was for one day, Mr. Patterson became suspicious when the equipment was not returned the next day. The following Monday, Mr. Patterson called the police.
During direct examination, the assistant State's Attorney questioned Mr. Patterson regarding his opinion as to the fair market value of the post-hole digger. Mr. Patterson testified that his current business includes buying and selling equipment such as the type he rents in his present business, including post-hole diggers. He further testified that, by checking with manufacturers and looking at brochures which listed prices, he formed the opinion that the fair market value of the post-hole digger was $500.
Detective Dan Klinkhamer testified that on December 13, 1979, at approximately 4:40 p.m., he telephoned defendant and advised him that he wished to speak to him in connection with an alleged theft from Tri-City Rentals. The defendant voluntarily came to the police department for the interview and, after being advised of his rights, gave an oral and a written statement.
In his oral statement, defendant stated that his brother Tim came to his house and asked him to go to Tri-City Rentals with him to rent a post-hole digger. Defendant told Tim he would go with him after he ran a few errands downtown. Tim informed defendant that he was going to Alabama and had to get the post-hole digger before he left. After defendant ran his errands, the two men went to Tri-City Rentals. Defendant told the police that when he heard the proprietor call his brother Phil, he knew that "we were stealing the post-hole digger."
Detective John Bogolin, who was also present during the questioning of the defendant, substantially corroborated Detective Klinkhamer's testimony regarding the contents of the defendant's oral statement. However, Detective Bogolin noted that, in his written statement, defendant stated that when he heard the proprietor call his brother Phil, "right then I knew that he stole the post-hole digger."
The defense consisted of the defendant's testimony. He testified that on November 30, 1979, at around noon, his brother Tim came to his house. After the two men looked at some repairs defendant had done in the kitchen, defendant asked Tim for a ride into town to run some errands. Defendant, his wife and Tim left for town about 45 minutes later in Tim's company truck. Tim subsequently drove to Tri-City Rentals, arriving between 1:30 and 2 p.m. Defendant and Tim went into the store and walked up to the counter. While the proprietor explained the rental terms to Tim, defendant walked around the store. He looked at the various equipment and did not pay close attention to the conversation at the counter, although he did see Tim take out what looked like a traffic ticket and hand it to the proprietor. After his brother and the proprietor completed the paperwork, the proprietor showed defendant and his brother how to run the machine. After the proprietor showed them how to operate the machine, defendant helped his brother load the machine in the pickup truck which was parked just outside the door. Defendant testified that the first time he heard the proprietor call his brother "Phil" was when he and Tim were getting into the truck to leave. After leaving the store, Tim dropped defendant and his wife off at their house and left with the post-hole digger.
Defendant acknowledged that Tim had mentioned going to Alabama prior to going to Tri-City Rentals. However, he did not know that Tim was going to take the post-hole digger with him. Defendant stated that he had no intent to steal the post-hole digger.
At the conference on jury instructions, the court indicated it would give the State's tendered instruction on the issues. No objection was made by the defendant. This instruction failed to include that the State must prove that post-hole digger which the defendant controlled without authorization had a value in excess of $150. No issues instruction was tendered by the defendant. Following closing arguments and instructions to the jury, the jury found defendant guilty of theft over $150.
On August 7, 1980, a hearing began on the defendant's post-trial motion. Along with other contentions, defense counsel also raised an issue concerning Tim McKiness. Counsel noted that Tim had given a statement to the St. Charles police indicating that defendant had nothing to do with the theft. Counsel further stated that on the day of defendant's trial, Tim McKiness was at the courthouse for his own pretrial conference on theft charges arising out of the same incident. At that time, assistant State's Attorney James Doyle told Tim McKiness that if Tim testified at his brother's trial both he and his brother would go to jail but that if he did not testify both men would stay out of jail.
State's Attorney Doyle asked for time to investigate defense counsel's allegations which the court allowed. A subsequent evidentiary hearing was held on the allegations on September 26, 1980. The following testimony was adduced.
Tim McKiness testified that on the day of his brother James' trial he came to court for his own pretrial conference and to testify on his brother's behalf. After Tim talked with Walter Donat, the attorney representing him, he did not testify for his brother.
Attorney Walter Donat then testified that on June 5, 1980, he was present in court for Tim McKiness' pretrial conference, which was also being handled by assistant State's Attorney James Doyle. At approximately 9:30 or 10 a.m., Donat had a conversation with Doyle regarding Tim and defendant. Doyle asked Donat if Tim McKiness was going to testify at defendant's trial. Donat said that, to ...