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People v. Stout

OPINION FILED DECEMBER 7, 1982.

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

v.

HERBERT STOUT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McHenry County; the Hon. Henry L. Cowlin, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Herbert Stout was charged on a 13-count information in McHenry County with the offenses of burglary, theft, attempt and forgery. This appeal arises from his jury trial on one count each of burglary and theft (Ill. Rev. Stat. 1979, ch. 38, par. 19-1(a) and par. 16-1(a)(1)), and four counts of forgery (Ill. Rev. Stat. 1981, ch. 38, par. 17-3(a)(1)).

He was acquitted of the forgery counts and the burglary charge. He was convicted and sentenced to two years in the Department of Corrections for theft over $150, the sentence to be served consecutively to a three-year term imposed three months earlier for his conviction of two other counts of forgery which were contained in the information.

The defendant raises four issues here: (1) whether the trial court erred by limiting his cross-examination of a State witness in order to reveal the witness' bias, interest or motive for testifying; (2) whether the trial court erred in denying his tendered accomplice instruction; (3) whether the trial court erred in admitting into evidence two search warrants with supporting affidavits; and (4) whether the imposition of a consecutive sentence was improper.

Stout and the State's key witness at trial, Ronnie Starks, were taken into custody after the police apprehended DeWayne Nickolas, who had attempted to cash a check drawn on the account of the Century Wheels Research Corporation, at the Fox Lake Currency Exchange. The office manager there had previously been alerted that checks drawn on the Century Wheels account were stolen from its parent company, the Precision Switching Company in Spring Grove, Illinois.

Stout was implicated in the offenses charged on the basis of information provided to the police by Ronnie Starks. In two affidavits given to support the issuance of search warrants for a house and automobile belonging to Raymond Shaughnessy, Starks admitted his participation in cashing certain checks he alleged were forged by Stout, checks Stout and Shaughnessy allegedly had told Starks were stolen.

At trial, Starks testified that on May 28, 1980, Stout told him that he, DeWayne Nickolas, Dick Polinski, and Raymond Shaughnessy had burglarized the Precision Switching Company at about 7 or 7:30 p.m. the night before (May 27). Starks testified that on May 28, Stout drew two Century Wheels Research Corporation checks payable to the order of Nickolas and Starks using the checkwriter stolen from Precision Switching. Starks testified that because he cannot read or write, Stout endorsed the check made out to Starks' name; the checks were later cashed at the Fox Lake Currency Exchange, and Starks, Nickolas and Stout split the proceeds.

The same procedure was repeated the next day, the 29th, except that the first attempt of the men to cash the checks at a currency exchange in Schaumburg was unsuccessful, so they returned to the Fox Lake Currency Exchange where the checks were successfully cashed. Also on the 29th, after the checks were drawn up by Stout, some of the stolen office equipment was removed from Shaughnessy's house and placed in a red Vega which was parked in Shaughnessy's front yard.

Stout presented an alibi defense, testifying that on the night of the burglary, he was at the Cozy Cottage, a tavern in Volo, Illinois, from approximately 6 p.m. until 1:30 a.m., with Ray Shaughnessy and Dick Polinski. The testimony of Shaughnessy, Polinski, and the bartender at the Cozy Cottage, Joe Verga, substantially corroborated that of Stout. Stout related that he and his girl friend lived next door to Starks and Starks' girl friend. At trial, it was revealed that Starks' girl friend was DeWayne Nickolas' sister, and a former employee of Precision Switching. Stout testified he was approached by Starks in the early morning of May 28, with the request that Starks be allowed to "leave some stuff" in Stout's girl friend's garage. She refused to allow this, and Stout suggested that Starks put the "stuff" in Shaughnessy's attic storage area, which they did together. Shaughnessy, although at home asleep during the time Starks and Stout moved the "stuff" in, was unaware that this had transpired until Stout mentioned it to him later that morning. Shaughnessy then demanded the items be removed from his house, because he believed the items were stolen. The items were later placed in the red Vega. Stout denied burglarizing Precision Switching, denied any knowledge of, or forging of, any of the checks admitted at the trial, and denied any involvement in the theft of the property identified at trial.

Prior to trial, the State moved in limine that the defendant be prohibited from cross-examining witness Ronnie Starks regarding charges that were pending against him in Lake County (i.e., burglary and theft from a coin-operated machine). The defendant argued he should be permitted to cross-examine Starks as to the charges pending in Lake County for the purpose of exposing any bias, interest, or motive Starks might have to testify falsely against Stout. Defense counsel noted that the pending charges in Lake County occurred after Starks had been placed on two-year probation for burglary in McHenry County (where the defendant's trial was taking place) on July 31, 1980. Starks was also on probation in Lake County for a misdemeanor charge of exerting unauthorized control over property. Consequently, counsel argued, Starks could be testifying under the belief, reasonable or otherwise, that if he cooperated with the State against Stout, his probation in McHenry County would not be revoked in view of the pending Lake County charges.

The trial court granted the State's motion in limine as to the charge pending against Starks in Lake County, but reserved for an offer of proof during the trial whether the McHenry County State's Attorney had made any promises to him. Following such an offer made in chambers, at which Starks was questioned by defense counsel, the trial court denied defense counsel's motion to allow him to question Starks in front of the jury. It was the trial court's finding that there was nothing in the offer of proof that indicated any promise of reward was made to Starks in return for his testimony.

We note that the record shows that Starks was questioned before the jury concerning his conviction in 1975 of a burglary/grand larceny charge in Florida, and his 1980 conviction for burglary in McHenry County following a negotiated guilty plea for which conviction he received a two-year sentence of probation. Part of that plea agreement was that Starks agreed to cooperate with the State's Attorney's office and the sheriff's department in the prosecution of Herbert Stout one time, at one trial. Before his trial in the instant cause, Stout had been convicted of two of the other forgery counts contained in the information, at which trial Starks testified in accordance with his plea agreement. The trial court, however, struck and directed the jury to disregard, a question posed to Starks by the assistant State's Attorney concerning "other matters" pending against Stout in which Starks was also involved. The jury heard Starks testify that prior to the negotiated plea, he had assisted the State and the sheriff's office in getting the search warrants for Shaughnessy's house and car, and that he had provided those authorities with the information necessary to secure those warrants. In later questioning by defense counsel, Starks stated that pursuant to his part of the plea agreement he had testified against the defendant at the "first trial."

The State urges this court to reject Stout's assertion of error first, because the jury apparently rejected Starks' testimony since it found Stout guilty only of theft over $150 which conviction was otherwise supported by the testimony of a defense witness, Raymond Shaughnessy; and second, the error was harmless because the offer of proof revealed Starks had no expectations of leniency.

In support of its arguments, the State cites People v. Wilkerson (1981), 87 Ill.2d 151, 157, People v. Eddington (1979), 77 Ill.2d 41, 44-45, cert. denied (1980), 445 U.S. 944, 63 L.Ed.2d 777, 100 S.Ct. ...


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