Appeal from the Circuit Court of Du Page County; the Hon.
Duane J. Walter, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendants Linda and Milton Talach were found guilty in a jury trial of retail theft not exceeding $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16A-3). Subsequently, Linda Talach was sentenced to one year probation, the last 30 days to be served in the county jail, and a $500 fine, and Milton Talach was sentenced to one year probation, 180 days' imprisonment as a condition of probation, and a $500 fine. Both defendants appeal and raise the following issues for our review: (1) whether the trial court abused its discretion by striking defendants' motions for a new trial and arrest of judgment not filed within 30 days of the judgments entered on the verdicts; (2) whether the trial court erred in denying defendants' motion to suppress evidence; (3) whether the defendants were proved guilty beyond a reasonable doubt; (4) whether the trial court erred in admitting evidence at trial unrelated to the crime charged; and (5) whether the trial court erred in the sentencing hearing and abused its discretion in imposing sentence.
Prior to trial, the defendants filed motions to suppress evidence and to quash their arrests. Milton Talach testified at a hearing on these motions that at approximately 1:30 p.m. on December 4, 1980, he was driving with his wife in his 1979 blue and white Chevrolet Blazer. He was stopped by police officers, though he was not breaking any law. While he and his wife were standing by a police squad car, five to 10 feet behind the Blazer, an Officer Baker opened the back door of the Blazer without his permission. He said that his wife did not help Officer Baker open the door to the Blazer. He and his wife were then arrested, the Blazer was towed away, and some grocery items of theirs were taken.
Officer Douglas W. Baker of the Wheaton police department testified that he arrived at the scene in response to a radio call. Officers from the village of Carol Stream had already stopped a vehicle which had been described in a radio dispatch as one used in a retail theft. He had been previously told that a man and a woman driving in a blue and white Blazer with a certain license number were wanted in connection with the theft of nine jars of Taster's Choice coffee. He saw the defendants standing behind a blue and white Blazer. The license number of the Blazer matched the one he had received. He looked through the back window of the Blazer and saw several shopping bags with the tops of what he believed to be coffee jars sticking out.
He then placed the defendants under arrest and gave them their Miranda warnings. Upon questioning the defendants he determined that they were husband and wife and that the Blazer was registered to Milton Talach who refused to give Officer Baker permission to search the Blazer. Linda Talach told Officer Baker that she did not care whether he searched the vehicle. He looked at the "materials" in the Blazer. He then placed the defendants in his vehicle and had the Blazer towed because it was in a no parking zone. Approximately 15 or 20 minutes later he conducted an inventory search of the Blazer at the police station. He took the property, which was supposedly stolen from a Jewel store, and placed it in the police inventory.
The trial court denied both motions finding that the police officers had the right to make a stop given the information that there had been a crime and the description of the vehicle and its occupants; that there was sufficient evidence to form a reasonable basis for the officers to believe that the crime was committed by the defendants; that Linda Talach did not have the authority to consent to a search of the vehicle; and that based on all this information and what Baker saw through the window he was justified in searching the Blazer.
The day of the trial, on defendants' motion, the trial court limited the State to introducing nine jars of Taster's Choice coffee, the amount alleged in the complaint, out of the total number of items seized from the Blazer, which included seven shopping bags containing another 103 jars of Taster's Choice coffee, three shopping bags containing 119 jars of Pacific Pearl Snowcrab and an unstated number of shopping bags containing 43 cans of Pillar Rock Fancy Red Salmon and 20 cans of Bumble Bee Red Salmon. All the items had Jewel store labels on them.
The court later modified this ruling, on the State's motion, to allow the State to introduce one shopping bag containing 16 jars of Taster's Choice coffee to show the way they were packed.
At trial, Mary Havarilla, a Jewel Food Store security guard, testified that at approximately 1 p.m. on December 4, 1980, she observed the defendants, with whom she had previously been acquainted, enter the Main Street Jewel Food Store in Wheaton, take a grocery cart, and proceed directly to the coffee aisle. She spoke to the store manager, Barry Eisfeldt, who went to the far end of the coffee aisle. Havarilla stood in the same aisle as the defendants, approximately eight to 10 feet away. She watched them stop opposite the shelf where Taster's Choice coffee was displayed. They stood at opposite ends of the shopping cart. Milton Talach took nine jars of Taster's Choice coffee with red labels off the shelf and placed them in the cart. Linda Talach then placed the jars in a brown plastic travel bag which was sitting in the cart. There may have been one or two items in the cart at that time but she did not recall. Linda Talach then zipped up the bag, put it on her shoulder, and walked out of the aisle and directly out the front door of the store without passing through the check-out line.
Less than a minute later Milton Talach left the aisle. As he walked up the aisle, Havarilla, who was then at the end of the aisle, moved over into the next aisle. He passed her at a distance of eight feet. He went to the check-out line and stood there for a second or two. She did not recall if there were any items in the cart at this time. He then left the cart and walked out of the store without going through the check-out lines.
After Milton Talach left the coffee aisle but before he left the store, Havarilla observed, through the front window of the store, Linda Talach get into the passenger side of a blue and white Blazer. She said that Milton Talach left the store approximately 30 seconds after Linda Talach did. Havarilla and Eisfeldt followed Milton Talach out the front door. Milton got into the Blazer. Havarilla went to the passenger side and displayed her badge. Eisfeldt stood behind the Blazer. The Blazer was backed up quickly. Eisfeldt jumped out of the way. The Blazer was backed all the way out of the street and then driven away quickly. She saw that the Blazer had an Illinois license plate, number SMR 167.
She identified two brown plastic travel bags, which had been seized by Officer Baker from defendants' Blazer, as similar to the one Linda Talach carried out of the store.
Havarilla admitted that her written report of the incident did not indicate the color, brand or number of the items taken. She testified that, under store policy, she is to stop suspected shoplifters after they leave the store unless they pass through the check-out line and pay for some items, but not others, in which case she is to stop them after they pass through the check-out and before they leave the store.
Barry Eisfeldt's testimony was substantially the same as Havarilla's. Although he testified that Havarilla was at the far end of the aisle when he observed Milton Talach taking the jars off the shelf, he did not see her there while the defendants were taking the coffee even though he could see past them. On direct examination he testified that Milton Talach took the jars off the shelf and placed them in the travel bag himself; but on cross-examination he explained that Linda Talach helped him place them in the bag. He saw Linda Talach go to the beverage aisle before leaving the store. He thought there were some items left in the cart after Milton left the coffee aisle, but he could not remember what they were.
Eisfeldt identified the label on one of the jars of coffee in the shopping bag, which had been admitted into evidence, as a distinctive type of label used only by Jewel stores. He said that it was impossible to tell from which Jewel store the items came. Defense counsel showed him a jar from the shopping bag which had the green label of Taster's Choice decaffeinated ...