Appeal from the Circuit Court of Kane County; the Hon. Paul
Schnake, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant was found guilty of misdemeanor theft (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(a)) after a bench trial in the circuit court of Kane County. The circuit court enhanced his sentence to a Class 4 felony after finding that he had been convicted of a prior theft (Ill. Rev. Stat. 1981, ch. 38, par. 16(e)(1)) and sentenced him to one year in the Department of Corrections. He argues on appeal that the trial court erred in denying his motion to suppress evidence discovered in the trunk of his car and that the State failed to prove him guilty beyond a reasonable doubt of theft.
The defendant and Samuel Haley were charged by indictment with burglary and theft in that they knowingly exerted unauthorized control over property of another in excess of $300 with the intent to deprive its owner permanently of its use. The State nolle prossed the charges against Haley. Prior to trial, the defendant filed a motion to suppress evidence seized from the trunk of his car. The hearing on this motion and his trial were held concurrently.
Aurora Patrolman Charles Davis testified that after receiving a radio call at 10:01 p.m. on January 1, 1982, concerning a burglary on North May Street, he drove to the 700 block of May Street and parked his marked squad car. After a short period of time, he saw in his rear view mirror a white Thunderbird pull out of a parked position from the 800 block. The car's headlights were not on. The officer followed the car as it circled the block, observing that it traveled at a higher than normal rate of speed, and eventually stopped in a driveway at 713 North May Street, the defendant's residence. The driver, identified at trial as the defendant, exited the car and walked toward the squad car as Officer Davis exited the squad car and walked towards the defendant's car. Officer Davis requested identification from defendant and informed him that he stopped him for driving without the headlights on. The officer granted the defendant's request to get identification from his home after being informed that the defendant did not have his driver's license on his person. The passenger in the car then identified himself as Samuel Haley.
When the defendant returned, Officer Davis told him that he stopped the car because a burglary had just occurred and his car pulled out in a suspicious manner without its headlights on. The defendant responded that he was leaving from the house of his friend, Johnny. The officer informed him that a television had been taken and asked if he could look in the car's trunk. Officer Davis opined that he asked this question in a manner in which the defendant could have declined to grant him permission to look in the trunk. The defendant told him that there was a television in the trunk of the car which belonged to Johnny who had left it in there after the defendant helped move some of his property. Officer Davis responded that if he saw the television he could determine if it came from the burglary and the defendant then opened the trunk. The black and white television found in the trunk was one which was stolen in the burglary. Officer Davis denied that he verbally or physically coerced the defendant to open the trunk and, having no basis to believe that the defendant committed the burglary, wanted to give the defendant the opportunity to clear himself.
After placing the defendant under arrest, the defendant volunteered that he was not involved in the burglary and that Johnny had taken the property. He directed the police to a shed in back of 804 North May Street, Johnny's address, where other proceeds of the burglary were located: two stereo speakers and a stereo component. While being transported to the police station and during the booking process, the defendant continued to deny involvement in any burglary and blamed Johnny. He told the officers that Ronnie Simmons and Johnny were probably selling the color television, also taken from the burglary, at that very moment.
Sergeant Jeff Nelson of the Aurora police department who, along with Officer Johnson, gave Miranda warnings to the defendant the next morning, testified that the defendant told them that he had been home with friends on January 1 when Johnny, also referred to as Baby Johnny and known as John Reyes, arrived with the black and white television and stereo and offered to sell them to him and the others. After no one cared to purchase them, and he refused to store them in his home for Johnny, he agreed to drive Johnny and these items to Johnny's home. The defendant knew they were stolen from what Johnny had told them. He admitted aiding Johnny in moving the items. He further indicated, however, that he never intended to keep any of the items. At the time he was arrested, the defendant had just dropped Johnny off, and intended to drop Haley off, and then return to pick up Johnny and take him to another part of town.
The parties stipulated that Officer Mark Johnson's testimony would be the same as Sergeant Nelson's testimony.
Evidence established that the residence where this property was located had been broken into that evening. The value of the property taken was less than $300.
Some of the people who were present with the defendant at his home on January 1 testified in his behalf. Samuel Haley said that he arrived at the defendant's home around 1 p.m. and watched TV with the others. The defendant remained home the entire time. Johnny, whom he had never met before, arrived at 10 p.m. He was sweaty and breathing hard, and carried a stereo component. He asked the defendant if he wanted to buy it and the defendant refused. Around 20 minutes later, he brought in two speakers and then later the television. The defendant told him to take those items out of his house and refused to let him leave them there. The defendant agreed to drive Johnny to Johnny's mother's house. He never handled the items. At Johnny's house, Johnny removed the component and speakers from the trunk but left the television in the trunk so that he could take it to a party. When they left Johnny's house, they were going to go back to the defendant's house and pick up his girlfriend, Diane, drop off Haley at his house, and then pick up Johnny to take him to the Holiday Inn.
Diane Garcia testified that Sam Haley arrived in the early afternoon. She and the defendant went to her mother's house at 1:30 p.m. and returned home at 3:30 p.m. Johnny arrived that evening while she was watching a movie on television in the living room. He went into the basement to join the defendant and Sam Haley. He returned to the living room, went back into the basement, and then left and returned carrying speakers. She saw the defendant open the trunk and Johnny place the items in it when the defendant agreed to drive Johnny home.
Ronald Simmons testified that he arrived at the defendant's home at 8:30 p.m. While watching television in the living room, the defendant, Sam Haley, and Johnny Skaggs went into the basement at around 9:30 p.m. At around 10:15 to 10:30 p.m., the defendant came up with Baby Johnny. When he first saw Baby Johnny, he was breathing hard and sweating. He followed Johnny downstairs where he saw the television and component which Johnny asked him if he wished to purchase. Later, Johnny brought in the speakers. The defendant told Johnny to get the stuff out of his house. At a later date, Baby Johnny told him that he committed the burglary himself.
On rebuttal, Officer Jeffrey Nelson testified, to impeach Sam Haley, that Sam Haley told him that "they" took the property to the car and that Johnny and the defendant removed the property from the car and placed it in the shed. His police report referred to "they" without mentioning any names. He further said that Sam told him that the defendant was going to take Johnny to the Holiday Inn area to sell the television. The officer further testified that Ronald Simmons told him that he never went into the basement that evening, and that Diane told him that she never saw the television or the stereo.
The trial judge found the defendant not guilty of burglary and guilty of misdemeanor theft. After denying the defendant's post-trial motion, and finding that the defendant had been convicted of a prior theft, the judge sentenced him to ...