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People v. Mckay

OPINION FILED NOVEMBER 20, 1985.

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

v.

DAVID MCKAY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. Charles R. Norgle, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

On July 23, 1984, after a jury trial in the circuit court of Du Page County, the defendant, David McKay, was found guilty of residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-3) and sentenced to seven years' incarceration. On appeal defendant argues, (1) that the State failed to prove his guilt beyond a reasonable doubt; (2) that he was denied a fair trial by the prosecutor's closing arguments; (3) that the trial court erred in instructing the jury; (4) that the trial court erred in denying him a continuance prior to trial; (5) that the trial court erred in denying the jury's request to review the transcript of a defense witness' testimony; (6) that the residential burglary statute is unconstitutional; and (7) that his sentence of seven years was excessive and amounted to cruel and unusual punishment.

The victim, Donna Pfeiffer, testified that she left her apartment, apartment No. 3, at 329 Kimball in Elmhurst, in good condition at approximately 3 p.m. on March 6, 1984. After being notified by the police of a break-in, she returned at 9:15 p.m. to find her apartment ransacked and several items of personal property missing. Pfeiffer had not given anyone else permission to enter her apartment that day.

Pfeiffer's neighbor, Mary Ann Kragel, testified that she looked out her bedroom window just prior to 7 p.m. on the night of the burglary and observed a man sitting in a car in the parking lot. She later identified the car as defendant's. Kragel continued to look out the window for several minutes and saw the man get out of the car and walk around the apartment building. At approximately 7:15 p.m. she looked out her living room window and saw the same man, a black male, 5 feet 8 inches to 5 feet 10 inches, thin, 165 to 170 pounds, wearing a blue hooded sweatshirt, walking directly in front of her window. At this point the man, whose face was only a foot away from her face, turned and looked directly at her for approximately five seconds. Kragel identified this man as defendant in a photo line-up conducted later that evening at the Elmhurst police station as well as in court. Kragel also testified that the car defendant had been sitting in had been moved to a different area of the parking lot and was backed into a parking space against the building with its trunk lid up.

A second neighbor, Robert Crawford, testified that at 7:10 p.m. on the night of the burglary, he saw defendant's car, a red and white early 1970's Pontiac, license number BYM818, backed into a parking space with its trunk open. Crawford then saw a black male, 5 feet 8 inches to 5 feet 10 inches, approximately 150 to 160 pounds, wearing a blue hooded sweatshirt, carry two speakers to the car and place them in the trunk. The man began to walk back to the apartment building, then suddenly turned around, slammed the trunk and drove away.

The State next called two Chicago police officers, Officer John Staszak and Officer Gilbert Broderick, who were on patrol together on the night of the offense and who gave substantially the same testimony. The officers had been briefed on the Elmhurst burglary at roll call that night and had been shown defendant's picture as the suspect in the crime. At 11:30 p.m. the officers, who were patrolling in an unmarked squad car, saw defendant's car at Douglas Boulevard and Central Park in Chicago. The officers pulled alongside of defendant's car as it drove through a lighted intersection and identified the driver as defendant. The officers then attempted to stop defendant's car but defendant sped away. After a few blocks defendant abandoned his car and fled on foot. After being unable to apprehend defendant at that time, the officers returned to defendant's car and recovered two T.V.'s, three coats, a video recorder and two stereo speakers. The victim later identified these items as having been taken from her apartment.

Defendant's main witness was Ann Wynn. Wynn testified that she saw defendant almost every day during March of 1984 and that he had the same amount of facial hair on March 6 as he did that day in court and as shown in defense exhibit No. 2, a picture of defendant taken on March 15, 1984. Wynn also testified that during March of 1984 she saw defendant regularly drive a 1973 AMC Hornet automobile and did not see defendant drive a 1974 Pontiac during that month. Wynn admitted on cross-examination, however, that she had lived with defendant on a prior occasion and that defendant did own the 1974 Pontiac used to commit the burglary.

The first issue raised is whether the State proved defendant guilty beyond a reasonable doubt. Defendant first argues that the State failed to prove his guilt because several of its witnesses were not credible and its case was "too neatly packaged." Specifically, defendant argues that Officers Staszak's and Broderick's identification of him was not credible because their testimony was too "positive" in light of the fact that they did not make a police report on the incident and that Crawford was not credible because it was just too perfect to believe that he happened to see the offender when he was carrying two stereo speakers to his car. Defendant also argues that the jury should not have believed Kragel's testimony because she is the daughter of an Elmhurst police officer.

• 1 Simply stated, defendant questions the credibility of the State's witnesses and the weight to be given to their testimony. It is the jury's province, however, to determine the credibility of the witnesses and the weight to be given to their testimony. (People v. Carlson (1980), 79 Ill.2d 564, 582-83; People v. Zuniga (1973), 53 Ill.2d 550, 559.) It is neither the duty nor the privilege of this court to substitute its judgment for that of the jury's on these issues. (People v. Nicholls (1970), 44 Ill.2d 533, 540.) This court, therefore, cannot reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. In the present case it cannot be said that the evidence was so improbable as to raise a reasonable doubt of guilt.

Next, defendant argues that Officers Staszak's and Broderick's identifications of him are insufficient to support his conviction because they did not satisfy the requirements of People v. Cullotta (1965), 32 Ill.2d 502. In Cullotta, the officers had only a fleeting look at a man in a laundromat as they drove by in their patrol car. Further, it was snowing at the time, and the officers had only a profile view of the man except for one instant when the man turned to look at their passing auto. In reversing the defendant's conviction the Illinois Supreme Court stated:

"We have reiterated the rule that a conviction cannot be deemed to be sustained by evidence beyond a reasonable doubt if the identification of the accused was vague, doubtful and uncertain. [Citations.] And where, as here, the identifying witnesses have never before observed the accused, the attendant circumstances, including the opportunity for definite identification, must be carefully weighed and considered. [Citations.]" 32 Ill.2d 502, 504-05.

• 2 In the present case, however, the officers were not driving past defendant when they saw him, but were driving alongside of him through a lighted intersection. Further, the officers saw defendant a second time when he later fled on foot from his automobile. More importantly, unlike Cullotta, where the officers had never observed the man before and had no reason to suspect him of a crime at the time they did observe him, Staszak and Broderick had been shown a picture of defendant as a burglary suspect at roll call just 30 minutes before they saw him on the street. The officers' identification in the present case, therefore, was neither vague, doubtful nor uncertain.

• 3 Defendant also argues that the officers' identification of him does not meet the requirements of Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243, and People v. Manion (1977), 67 Ill.2d 564, cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 1513. In both Brathwaite and Manion the issue was the reliability of an eyewitness' identification of the offender when the initial out-of-court identification procedure had been suggestive. In the present case the officers were not eyewitnesses to the crime and were not asked to identify the offender. Rather, the officers were asked to identify whether the man they saw driving defendant's car that night was the man whose photograph they had been shown earlier at roll call. Brathwaite and Manion, therefore, are inapplicable.

Defendant further argues that Kragel's identification cannot support his conviction because she gave inconsistent statements on the night of the offense and at trial as to whether the offender was clean-shaven or had a beard and mustache. Defendant relies on People v. Martin (1968), 95 Ill. App.2d 457, and People v. Marshall (1966), 74 Ill. App.2d 483, to support his argument. In both Martin and Marshall, the court held that where the witness misdescribed the suspect at the time of the offense by five or six inches in height and failed to notice or mention the ...


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