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People v. Mallette





Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.


Defendant, Hurley Mallette, was found guilty in a jury trial of three counts of burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-1(a)) all occurring during the early morning of January 24, 1983, at three separate businesses located in the same Lakeside Drive office complex in Bannockburn. Following a sentencing hearing, defendant was sentenced to concurrent six-year terms of imprisonment for each of the three burglary offenses.

Defendant raises two issues on appeal: (1) whether defendant's presence as a passenger in a vehicle containing proceeds from recent burglaries was sufficient proof beyond reasonable doubt that he committed the burglaries, and (2) whether error occurred during post-trial proceedings, requiring a remand for appointment of new counsel and a new hearing on defendant's assertion of ineffective assistance of counsel, where defendant proceeded pro se below to argue his post-trial contention of ineffective assistance of his trial counsel.

The evidence adduced at trial below showed that at approximately 3 a.m. on January 24, 1983, three separate businesses, all located in a Bannockburn office complex, were burglarized and various items of office equipment were later found missing.

Lake County Deputy Sheriff Jimmy Bryant testified that while on patrol, at approximately 3 a.m. on January 24, 1983, he received a radio dispatch alerting him that a burglar alarm had been activated at the American Roller Company in a Bannockburn office complex; that upon arriving at that location he initially found a typewriter lying in the snow outside the office complex and that the front door glass had been broken; that he found other windows belonging to several different businesses in the complex had also been broken; that he stayed at the office complex and radioed for an investigator; and that he did not see anyone enter or leave the complex during the time he was there.

Chicago police department officer Steve Viggiano testified that at 3:40 a.m. on January 24, 1983, while on routine patrol with his partner, Officer Donald McGrath, he noticed a 1975 Plymouth station wagon northbound on Lockwood approaching Lake Street in Chicago; that they curbed the vehicle because it did not have any brake lights; that he exited the squad car and approached the passenger side of the curbed vehicle to check for a city vehicle sticker and was handed a temporary registration certificate by defendant, who was seated in the middle of the front seat next to another passenger; that he returned to the rear of the curbed vehicle where his partner was speaking to the driver; that as he was returning to the rear of the vehicle, defendant slid behind the steering wheel and fled the scene; that his partner, Officer McGrath, jumped back in the squad car and chased the fleeing vehicle, while Viggiano handcuffed the original driver; and that he and his partner noticed numerous typewriters, computer equipment and a photocopy machine in the rear of the curbed station wagon. On cross-examination, Viggiano stated that he observed the middle passenger in the front seat for approximately five seconds and had no doubt that it was defendant.

Chicago police department officer Donald McGrath corroborated Officer Viggiano's version of the occurrence and added that when they first observed the 1975 Plymouth station wagon he noticed an IBM typewriter in the back window in plain view; that he saw numerous typewriters and other types of office equipment in the back of the wagon; that while he was chasing the wagon, after it had fled from the scene, he called for assist units; that the fleeing vehicle stopped in a vacant lot and he pulled his squad car up behind it; that he exited his police vehicle and proceeded to the driver's side door of the wagon; that he observed the occupants of the wagon crouched down in the front seat; that both occupants exited the passenger-side door and fled on foot in different directions and he chased defendant; that defendant hopped a fence into a rear yard of a nearby residence; that two assist units then arrived and the area was cordoned off; that defendant was discovered crouched on his hands and knees in the mud beneath a rear stairway; that defendant was dressed in dark, muddy clothing, was perspiring and his heart was beating quite strongly; that defendant, the station wagon, and the office equipment contained therein, were taken to the 15th District police station in Chicago; that he and his partner called all the suburban Chicago municipalities in an attempt to ascertain whether a burglary had been committed; that he was informed by the Lake County sheriff's department that three burglaries had been recently committed and that the serial numbers of the office equipment reported missing matched the serial numbers of the recovered items; that three persons representing the three burglarized businesses came to the 15th District police station and identified all of the recovered items between the hours of 7:30 a.m. and 11:30 a.m. on January 24, 1983. On cross-examination, McGrath stated that he never lost sight of the station wagon while chasing it; that he never saw defendant's face while chasing him on foot; that he lost sight of defendant for one or two minutes after defendant had jumped over the fence; and that when he found defendant he was wearing the same clothing as the man he was chasing.

No witnesses were presented on behalf of defendant. At the close of all the evidence, defendant did, however, move for a directed verdict, arguing that the State had not shown that defendant was in exclusive or joint possession of the stolen property and that his mere presence in the vehicle did not establish his participation in the earlier burglaries. Defendant's motion for directed verdict was denied by the court below.

The trial court then submitted the case to the jury, which was instructed, inter alia, that if they found that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, they might infer that the defendant obtained possession of the property by burglary. (See Illinois Pattern Jury Instructions, Criminal, No. 13.21 (2d ed. 1981).) The jury found defendant guilty of all three burglary offenses as charged.

• 1 Defendant first contends that he was not proved guilty of burglary beyond a reasonable doubt because his conviction was based solely on a permissive inference of his guilt arising from the exclusive and unexplained possession of recently stolen property. In support of this contention, defendant maintains that his mere presence in an automobile which he neither owned nor was driving, and which contained the proceeds of a recent burglary, does not establish his exclusive possession of the stolen property and the presumption of guilt arising therefrom.

The question of whether the State sustained its burden of proof on the burglary charge turns on whether the jury should have been allowed to infer defendant's guilt from his presence in an automobile containing recently stolen property.

In People v. Housby (1981), 84 Ill.2d 415, 420 N.E.2d 151, our supreme court reevaluated its prior decisions permitting an inference of guilt of burglary from the exclusive and unexplained possession of recently stolen property in view of the United States Supreme Court decision in County Court v. Allen (1979), 442 U.S. 140, 60 L.Ed.2d 777, 99 S.Ct. 2213, and concluded that such an inference of guilt is only proper if: (1) there is a rational connection between the possession and the participation in the burglary; (2) the guilt of burglary more likely than not flows from the possession of the burglary proceeds; and (3) there is corroborating evidence of guilt. (See People v. Housby (1981), 84 Ill.2d 415, 424, 420 N.E.2d 151; People v. Felters (1982), 105 Ill. App.3d 1066, 1067, 433 N.E.2d 368; People v. Johnson (1981), 96 Ill. App.3d 1123, 1125-26, 422 N.E.2d 19.) The same evidence will apparently satisfy all three prongs of the Housby test. People v. Klein (1983), 115 Ill. App.3d 582, 585, 450 N.E.2d 1268.

Our examination of the record reveals that the Housby three-prong test was satisfied in the instant case, and thus, the permissive inference of defendant's guilt by the jury was proper.

Under the first prong of the above analysis, we find that the evidence adduced at trial sufficiently established that there was a rational connection between defendant's recent possession of the stolen office equipment and his participation in the charged burglaries. Lake County Deputy Sheriff Bryant testified that he responded to a burglary alarm at 3 a.m. on January 24, 1983, which had been activated at a business located in a Bannockburn office complex. When he arrived at the scene he noticed that there had been forced entries into several business offices at that location through smashed window and door panels. Bryant stated he did not see anyone enter or exit the building. However, 40 minutes after the burglaries had been perpetrated, a station wagon visibly loaded with office equipment, in which defendant was a passenger, was stopped in Chicago for a traffic violation at 3:40 a.m. It was further established that the office equipment recovered from the rear of the station wagon matched the items reported missing from the Bannockburn businesses. The evidence also showed that defendant, while seated in the front of the vehicle, handed one of the officers a temporary registration certificate for the car indicating that he was not just a casual passenger. Under these facts we find that a rational ...

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