Appeal from the Circuit Court of McLean County; the Hon.
William T. Caisley, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
On January 26, 1981, an information was filed charging defendant with the crime of burglary which alleged that on July 30, 1980, he knowingly and without authority entered a building in Hudson, Illinois, occupied by Isaac L. and Virginia T. Brown with the intent to commit therein a theft.
On March 1, 1982, jury trial began. The State's chief witnesses at trial were the victims, defendant's ex-wife Kelly Carr, and Morton police officer Robert Huston. Defendant did not testify at trial and no evidence was offered in his behalf. Prior to trial, defendant's counsel made an oral motion in limine to exclude testimony of his former wife concerning the circumstances of the alleged burglary, but the motion was denied and no issue has been raised on appeal as to the admissibility of defendant's ex-wife's testimony.
On appeal, defendant argues that (a) he was not proved guilty of burglary beyond a reasonable doubt; (b) he was denied the effective assistance of counsel; (c) the trial court erred in failing to appoint counsel other than defendant's appointed counsel to argue his pro se motion alleging ineffective assistance of counsel; and (d) the trial court erred in imposing a 14-year extended-term sentence to run consecutively to defendant's other convictions. In view of our disposition of defendant's second issue, we need not address defendant's other arguments. A brief description of the facts is necessary.
Isaac Brown testified that on July 30, 1980, he, his wife, and their daughter were in their backyard during the early evening hours working in the garden or mowing. He testified that they had not locked the door and that he did not know the defendant or give him authority to enter the house. Brown stated that the next day he noticed that his wife's billfold containing several credit cards was missing but did not file a police report. Isaac first became concerned that his wife's billfold had been stolen the following month when he received a Visa credit card bill listing a purchase of a television set. It was not until January of 1981, that he filed a police report with the McLean County Sheriff's office, after he received a phone call from a Detective Huston of Morton, Illinois, who inquired whether his Visa card had been taken. Brown identified People's exhibit No. 1 which was a credit card receipt from a K-Mart store in Morton listing the purchase of a color TV on July 30, 1980, and denied ever being in the Morton K-Mart store, or authorizing his signature to appear on the draft. Virginia Brown's testimony was corroborative of Isaac's. Both related the same occurrence on July 30, and neither testified to seeing the defendant on the premises.
The State's key witness was Kelly Carr, formerly Kelly Krankel. Carr and defendant were married on April 13, 1979, and divorced on April 9, 1981, three months after defendant was charged. Carr testified that she and defendant were living in Morton, Illinois, in July of 1980 and that on the 30th of the month they traveled to McLean County. Carr stated that defendant, who was driving, exited off of Interstate 74 at Goodfield and proceeded to Hudson. She related that defendant saw "them" in the backyard and pulled in the driveway of "the house." She testified that she observed her husband walk through the garage and knock on a side door. After no response, she observed defendant enter the house and a minute later exit carrying a wallet in his bib overalls. They then left Hudson and proceeded to the K-Mart store in Morton where she and defendant accompanied by their two small children, purchased a television set with a Visa card that was in the billfold. She identified People's exhibit No. 1, and testified that she forged the signature of I.L. Brown.
After Carr retained an attorney to commence divorce proceedings against the defendant, she admitted the crime to Detective Huston in Morton, and was prosecuted for forgery in Tazewell County. On cross-examination, she acknowledged that when she was first contacted by the police she denied any knowledge of her husband's burglary. She denied that her husband had been stuck in the mud near a river in Pekin, Illinois, on the night of July 30, and further denied striking a deal with the authorities in Tazewell County for her testimony against the defendant. She did not indicate how the police became aware of her involvement in the incident but stated that the police had wanted to talk to her as early as October of 1980. Carr explained that she did not want to talk to the police until January because she was pregnant and her parents did not want her to become involved until she delivered the baby. Ms. Carr admitted she had difficulty in serving the defendant in the divorce action, but denied that she had contacted the police so that their location of defendant would make it easier for her to serve him with process.
The State's final witness was Detective Huston. Huston stated that he was contacted by Sergeant Poynter of Peoria who received information from Kevin Carr, defendant's ex-brother-in-law, regarding the television set. Huston stated he talked to Carr and the Browns in January of 1981, and requested the Browns to file a report with McLean County authorities. On cross-examination, he admitted that when he first talked to Carr she denied any knowledge of where the card came from but stated that later she admitted forging the signature on the credit card draft.
This was all the evidence presented by the State. No evidence was offered by the defense.
The jury found the defendant guilty and he received an extended-term sentence of 14 years to run consecutively to sentences defendant received in Peoria and Bureau counties. No evidence was offered in defendant's behalf at his sentencing hearing.
The only claim of error argued by defendant which we consider is his contention that he was denied the effective assistance of counsel. Prior to sentencing, defendant filed a pro se post-trial motion which alleged that he was denied the effective assistance of counsel because of his appointed attorney's failure to investigate an alibi witness on his behalf. At a hearing on this motion, defendant stated to the court that five months prior to trial he informed his attorney of an alibi witness and contacted the witness to inform him that his attorney would be in touch. The trial court inquired of defendant's appointed counsel on the validity of this claim:
In ruling on the post-trial motion or prior to ruling on it, is there anything you wish to say, Mr. O'Rourke with respect to the alleged alibi?
MR. O'ROURKE: I did not talk to the man, Judge. That is all I would say. I did not talk to the man, I ...