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People v. Allen

OPINION FILED NOVEMBER 9, 1983.

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

v.

CYNTHIA L. ALLEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Vermilion County; the Hon. James K. Robinson, Judge, presiding.

PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 9, 1983.

Defendant, together with Denise Suggs, Anthony Long, and Daniel Davis, was charged by information in the circuit court of Vermilion County with the offenses of burglary, felony retail theft, and felony theft in violations of sections 19-1(a), 16A-3(a), and 16-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 19-1(a), 16A-3(a), 16-1(a)). Long entered a plea of guilty to an amended charge; the information was dismissed as to Davis with leave to reinstate; Suggs' case was severed; and defendant was found guilty by a jury of felony retail theft and felony theft, but not guilty of burglary. She was sentenced to 30 months of probation, two conditions of which were that she make restitution in the amount of $2,867 and serve six months' imprisonment in the county jail. Sentence was entered on the felony theft charge, the trial court holding that the retail theft charge had merged into it. This appeal followed.

On appeal defendant raises three issues: (1) error in refusal by the trial court to give the tendered instruction on accomplice testimony; (2) error by the trial court in permitting Long to testify over objection as to statements made by Suggs, a co-defendant; and (3) error in the computation of restitution.

Some recapitulation of the facts is necessary to the understanding of the issues. Defendant and the other three persons involved were residents of Terre Haute, Indiana. On December 22, 1981, they drove from that city to Danville, Illinois. Long testified that they used a car belonging to another person and that he was the driver, Davis rode in the passenger seat in the front, and defendant and Suggs rode in the rear seat. On arriving at Danville they went to the area of the Meis Department Store and parked. Defendant and Suggs went into the store and the men remained in the car.

Michael Chumley, an employee of the Meis Department Store, testified that on December 22, 1981, he observed two large black women in the coat department, identifying them as Suggs and the defendant. He stated that the defendant went into a fitting room while Suggs engaged him in conversation about putting a number of dresses on layaway. About 15 minutes later defendant left the fitting room and handed a pantsuit to Nancy Gilbreath, another employee of Meis; she then went directly out the front door of the store. Chumley did not see her carrying anything. At about the time defendant left the fitting room, Suggs decided that she was no longer interested in dresses on layaway, broke off the conversation, and left the store.

Ms. Gilbreath then entered the fitting room and found an empty hanger with a fur coat tag on it. A second hanger with a broken chain was found among the fur coats. Chumley then explained the store's procedures for tagging coats and other clothing. With coats a three-part tag is used, one part of which is removed at the time of sale; with dresses and other items, the entire tag is removed when the item is sold. He then identified various exhibits as being blouses and dresses and two fur coats, all of which he stated were the property of the Meis Department Store, except one of the coats which was a brand not carried by Meis. He was able to do this by reason of the presence of tags on the various items of merchandise.

When the defendant left the fitting room and the empty hangars were discovered, David Haley, the store security officer, was told to follow her and Suggs and obtain the license number of any car which they might enter. Haley testified that he followed Suggs and saw her meet the defendant next to a 1976 cream-colored Oldsmobile; there were two white males in the front seat of this automobile; and there was no one else in or near the car. After he had been told by Ms. Gilbreath about the missing coat, he notified the police and gave them a description of the car, its occupants, and the license number.

All of the foregoing events occurred at about 12:30 p.m. About 12:57 p.m. on the same day the car was stopped in a Danville merchant's parking lot by Officer Dicken of the Danville police. He testified that Long was the driver, and Suggs, Davis and the defendant were passengers. He observed two fur coats and numerous other items of clothing lying on the back seat of the car and then placed all four persons under arrest. He identified various exhibits as items of clothing taken from the car.

Anthony Long testified for the State. The record is somewhat deficient in demonstrating his exact status. He stated that he had entered into a plea agreement regarding the charges which grew out of the incident at bar. However, he appeared unsure as to some of the particulars of that agreement; he did not know whether it was to a reduced charge; however, the docket sheet indicates that he pleaded to an amended information, the nature of which is not shown. Both the docket sheet and Long's testimony are confirmatory of the fact that part of the agreement was that he testify against the defendant in the instant case. Also, the record does not reveal that any preliminary hearing was held in Long's case.

Long stated that the defendant had asked him to take her shopping at the Village Mall in Danville and that he and the others then proceeded from Terre Haute to Danville as has been recounted. He was asked on cross-examination about conversation during that trip as follows:

"Q. [by defense counsel] And at that time in the car on the ride from Terre Haute to Danville, did anyone mention taking any merchandise from Meis; is that correct?

A. No, they didn't.

Q. Did you talk about shopping at Meis; is that correct?

A. We had conversation going on, but it was just stuff, you know, about the weather, and you know, the radio stations, what not."

He then stated that they arrived at the mall and the two women went into Meis' while he and Davis remained in the car. After a short time, the defendant and Suggs came out of the store with two shopping bags which they placed in the car and then re-entered the store. At this juncture Long stated that he and Davis left the car to purchase cigarettes at a nearby drugstore. When they returned to the car, the defendant was seated in it with the two shopping bags. Shortly afterwards Suggs came out of the store and at that time someone was writing something down. Long stated that he believed the person was writing the license number of the car.

Long's testimony continued: after Suggs and the defendant were in the car he turned to the back to ask directions out of Danville and saw Suggs pulling "some stuff," "some clothes," out from under her coat; he also saw a brown fur coat. He started toward Terre Haute but the icy conditions of the road caused him to turn back into Danville, where the car was stopped by the police about one-half hour later. He was asked about conversations between the defendant and Suggs ...


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