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People v. Wilson

OPINION FILED MAY 1, 1984.

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

v.

ALVIN WILSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Kenneth Gillis, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Defendant Alvin Wilson appeals from his conviction by a jury in the circuit court of Cook County of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-3(a)) and the 11-year sentence of imprisonment imposed.

Defendant contends that (1) prosecutorial misconduct denied him a fair trial; (2) the court erred in giving the jury a modified version of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.06-3.07 (2d ed. 1981); and (3) the court erred when, in the State's redirect examination of a police officer, it permitted the State to read to him the officer's police report, including a reference to defendant's alleged admission of another, uncharged, crime.

At trial, the occupant of the burglarized apartment, Dr. Patricia Cooper, testified: her apartment, located at 1423 West North Shore in Chicago was twice burglarized; on May 10 and 20, 1982. (Defendant was here convicted of the May 20 burglary.) Missing from her apartment following the second burglary was her stereo, black medical bag and a jar of pennies. In court she identified the stereo and medical bag as her property.

David R. Beleckis testified: he is a cab driver. On May 20, 1982, he was sent by radio to pick up a male "fare" at 6600 North Clark Street. The man told Beleckis "he was going to pick up a stereo set that he had purchased at the location where we were going." The man directed Beleckis to drive to 1423 West North Shore. Beleckis identified defendant as the fare.

Upon arriving at the apartment, defendant entered the apartment and returned carrying stereo equipment. After his third entry into the apartment, a man appeared and identified himself as the manager of the building. The manager stated he was going to call the police. Defendant stated he had a receipt for the stereo. When he could not produce a receipt, defendant "walked off rather rapidly" leaving the stereo and a black bag full of pennies in the cab. At the manager's request, Beleckis attempted to follow the defendant. When they were unsuccessful, the driver drove the building manager to a police station.

Arthur Koegel testified: he is the manager of the apartment building located at 1423 West North Shore. On May 20, 1982, he witnessed a stranger carrying stereo equipment from the building to a taxicab. Koegel asked the man to show a receipt for the stereo. The man could not. While they were talking a key fell from the pocket of the stranger, which bore the legend "Chateau Hotel, 3838 Broadway, room 206." The man then picked up the key and walked away.

On the following day, May 21, Koegel was accompanied by the police to the Chateau Hotel in an effort to identify the man who carried the stereo. Koegel identified defendant in the street near the hotel, and defendant was then arrested.

Officer Gerald Celan of the Chicago police department testified: he investigated the burglary. When Koegel identified defendant, Celan arrested him. A search revealed a 12-inch screwdriver in defendant's sock. When the officer told defendant he was being arrested for a "burglary up north," defendant responded with "the one on North Shore?" When defendant was placed in the squad car, the officer asked defendant if he remembered Mr. Koegel from the day before, and defendant "nodded his head that he did." At the police station defendant admitted to the May 20 burglary, advising officer Celan that defendant had "seen the stereo" when he was at the apartment "about two weeks earlier."

Defendant testified: he had spent the afternoon of May 20 with acquaintances at the Chateau Hotel, where he lived. He carried the screwdriver found in his possession on May 21 because he was using it to fix a car he had borrowed, and concealed it because he had a prior record for theft. He denied having told the police he committed the burglary. Defendant told the police he did not know Mr. Koegel; he denied being familiar with the north side of Chicago. He also denied ever being at the burglarized apartment.

Defendant was convicted of residential burglary and, after a sentencing hearing, was sentenced to 11 years' imprisonment.

Defendant first argues that various acts of misconduct by the prosecutor deprived him of a fair trial. Defendant contends that the State's discussion of "burden of proof" and "reasonable doubt" in its opening statement was error. There the State told the jury that the State's burden of proof exists "in every criminal case in Cook County" and then drew the following analogy:

"Now, a reasonable doubt is exactly what it says, a doubt that is reasonable. Now, I have a doubt that China exists. I mean I have never seen the country and I have never been there. But is that a reasonable one? Especially in light of the fact that everything I have heard or read about China, is that a reasonable doubt? Not at all."

• 1 At trial defendant failed to object to these statements, nor did he include them in his post-trial motion. Failure to do so has been held to waive their consideration on appellate review. (People v. Childs (1981), 101 Ill. App.3d 374, 428 N.E.2d 185.) While we therefore find them to have been waived, we repeat the admonishments set forth in People v. Starks (1983), 116 Ill. App.3d 384, 451 N.E.2d 1298, that the ...


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