Appeal from the Circuit Court of Lake County; the Hon. Charles
F. Scott, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
The defendant, Robert N. Tyson, was charged by information with residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-3) and three counts of felony theft (Ill. Rev. Stat. 1983, ch. 38, par. 16-1(d)(1)). At the close of the State's case before a jury in the circuit court of Lake County, the court granted the defendant's motion for a directed verdict as to counts II and III of the felony theft charges. Defendant's motion was denied as to the remaining theft count and the residential burglary charge. Subsequently, the defendant was found not guilty of residential burglary, but guilty of felony theft, and was sentenced to two years in the Department of Corrections.
The defendant now appeals and raises the following contentions in this court: (1) that the evidence failed to establish defendant's guilt beyond a reasonable doubt; (2) that the defendant received ineffective assistance of counsel when defense counsel, erroneously believing that the defendant could be impeached by a prior theft conviction, did not call the defendant to testify; and, (3) that the prosecutor's improper remarks during opening and closing arguments, calculated to bolster the credibility of certain witnesses and inferring defendant had a burden to present a theory of innocence, constituted reversible error.
The evidence presented at trial and pertinent to this review is as follows: Raymond J. Flegal testified that on July 31, 1984, at approximately 10:30 p.m., he returned home with his family to find his back patio door open and several belongings missing, including a 21-inch Sony television, a video cassette recorder, a stereo turntable, a cassette deck, several video tapes, a set of car speakers, three jewelry boxes, and a jugful of coins. He immediately notified the Zion police.
Officer Cindy Markobrad of the Zion police testified that she, along with Officers Lowery and Bridges, arrived at the Flegal home at approximately 10:45 p.m. While the other officers checked the inside of the home, Markobrad investigated the immediate area outside the house. As she was surveying the property she happened to notice a large, dark-colored automobile stopped at a traffic light on Lewis Avenue, a busy four-lane highway about 150 yards from the Flegal property. She stated that she had a clear view of the car since the area between the Flegals' and Lewis Avenue was an open field with only one large tree in the vicinity. She was suspicious of the vehicle since it appeared to be stopped for no apparent reason. She then watched as the car started up again and proceeded northbound on Lewis Avenue. She noted that, as it took off, it had an extremely loud muffler. She radioed another officer to report the suspicious vehicle. Within minutes, Officer Ower, positioned in a squad car near the scene, followed the vehicle and pulled it over on a traffic stop.
At trial Officer Ower testified that when he stopped the vehicle, the driver got out of the car and walked back towards him. He gave his name as Robert Tyson. Ower testified that as he was standing near the defendant's automobile, he observed a passenger in the front seat and another passenger in the back seat, whom he recognized as Mark Downey. Downey got out of the car and stood near the defendant as he talked to Ower. The officer than looked into the car's rear window and observed several items stacked up in the back seat of the car. Specifically he noticed a television, a stereo turntable and a plastic bag containing various articles. He next told Tyson and Downey to place their hands on the hood of the car, but while frisking the defendant, Downey and the other passenger took off running from the scene. Officer Ower then arrested the defendant for driving without a license, driving with a loud muffler and for suspicion of burglary. Raymond Flegal later identified the items in the car as property removed from his house. Some of his belongings, including a video cassette recorder, a 12-inch television, and a cassette recorder, were never recovered.
Ower testified that after transporting the defendant to the Zion police station, the defendant gave the following statement. He identified the two other men in his car as Mark Downey and Ferrell Bond. He said that about 10:30 p.m., while he was driving down Lewis Avenue on his way home from visiting friends in Waukegan, he saw Ferrell Bond standing at the side of the road, holding a plastic bag and flagging him down. He said he stopped and Bond asked for a ride. As Bond was getting into the car, Mark Downey came running up towards the car, carrying a television set. Downey got into the car and told him to drive north on Lewis Avenue. Later, when they turned east on 23rd Street, they were pulled over by the squad car. When asked about the other items in the car, the defendant said he only knew about the plastic bag and the television set. He also said that once they started driving, he began to suspect from Bond's and Downey's conversation that the television was probably stolen.
Officer Hampton, another Zion police officer, gave a similar version of the defendant's statement. However, he also indicated that the defendant told him Downey "came out of the bushes" with the television set, that he just "wanted to hurry up" and get Downey and Bond out of his car and that he was taking them to the "Jets" housing project to get rid of the stuff. Officer Hampton also testified that he lifted a number of fingerprints from the scene of the break-in at the Flegals. Anthony Spadafora, a forensic scientist, testified that four of the lifted fingerprints matched those of Ferrell Bond. However, none of the latent fingerprints matched those of the defendant.
Officer Lowery testified that he and Officer Ransom removed the material that was in the back seat of the defendant's car immediately after it was towed to the Zion police station. The recovered property included a television, a turntable, several jewelry boxes, a clock radio, two remote control devices, stereo speakers, and a garbage bag and pillow case full of equipment and miscellaneous items. It took both Lowery and Ransom to carry the television from the vehicle to the evidence locker.
Prior to the commencement of trial, defense counsel moved in limine to prohibit the State's use, for impeachment purposes, of an alleged theft conviction entered against defendant in 1981. Counsel argued that in light of the fact that the defendant was being tried on three counts of felony theft, introduction of the prior conviction would be far more prejudicial than probative of his credibility. The court denied the motion, ruling that despite the prejudicial effect of the conviction, it showed "moral turpitude" and therefore went to the credibility of the defendant. See People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695.
Later, after completion of the State's case, the defendant moved for a directed verdict of not guilty on all charges. The court denied the motion for directed verdict on the residential burglary count, but granted the motion on counts II and III of the felony theft charges. Count II alleged that the defendant knowingly obtained control over certain stolen property of Raymond Flegal, knowing that the property had been stolen by Ferrell Bond and Mark Downey. Count III alleged that the defendant knowingly obtained control over certain stolen property of Raymond Flegal under such circumstances as would reasonably induce said defendant to believe the property was stolen. Count IV, alleging that the defendant knowingly exerted unauthorized control over property of Raymond Flegal, was allowed to stand. The defendant did not testify, and the defense rested without presenting any evidence.
Subsequently, the jury found the defendant not guilty of residential burglary but guilty of one count of felony theft. At the sentencing hearing, defendant presented his post-trial motion for a new trial. At that time it was discovered that the defendant's presentence report contained no record of a 1981 theft conviction. The report only indicated an arrest for theft in 1983 for which the defendant received one year of court supervision and 50 hours of public service employment. Defense counsel acknowledged that his understanding of defendant's record was "apparently an error." Nevertheless, the court denied the defendant's post-trial motion and entered judgment on the guilty verdict. This appeal followed.
The defendant's first contention is that the State failed to establish his guilt beyond a reasonable doubt. He asserts that the State's case was based wholly on circumstantial evidence, and that the jury's verdict was both speculative and inconsistent with the defendant's theory of innocence as presented in his post-arrest statements. He therefore asked this court to reverse his conviction.
• 1 Where a conviction is based entirely on circumstantial evidence, the facts proved must be consistent with the defendant's guilt and inconsistent with any reasonable hypothesis of innocence. (People v. Branion (1970), 47 Ill.2d 70, 77, 265 N.E.2d 1; People v. Giangrande (1981), 101 Ill. App.3d 397, 400, 428 N.E.2d 503.) If the proof is entirely circumstantial and there is a reasonable hypothesis arising from the evidence which is consistent with the innocence of the defendant, then that hypothesis must be adopted. (People v. Wilson (1948), 400 Ill. 461, 473, 81 N.E.2d 211; see People v. Grice (1980), 87 Ill. App.3d 718, 725, 410 N.E.2d 209.) However, guilt need not be established beyond any possibility of a doubt. (People v. Williams (1977), 66 Ill.2d 478, 485, 363 N.E.2d 801; People v. Branion (1970), 47 Ill.2d 70, 77, 265 N.E.2d 1.) ...