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People v. Cowper





Appeal from the Circuit Court of Kane County; the Hon. John Petersen, Judge, presiding.


Rehearing denied September 11, 1986.

The defendant, Shannon Cowper, was indicted in the circuit court of Kane County for the February 25, 1985, residential burglary of the dwelling of Anthony Medina located at 303 Cherry Street in Elgin. (Ill. Rev. Stat. 1985, ch. 38, par. 19-3(a).) He was convicted in a jury trial and sentenced to 15 years in the Department of Corrections. He challenges his conviction on the basis of the alleged error committed by the court in limiting redirect examination of him which was designed to bring out the totality of an oral statement on which he was impeached, and in admitting hearsay testimony concerning the absence of a listing in three different sources for the person upon which defendant's defense of mistake of fact was based when the three sources themselves were not produced in court.

The record shows Medina's next-door neighbor, Roy Mitchell, observed a man walk up to the rear door and then up the stairs to the second floor of the Medina dwelling about 8:20 a.m. on February 25, 1985. He came back down the stairs to the first floor and knocked on the door. No one responded to the knock; the man took something out of his cap, wrapped it around his hand and broke the pane of glass. The man reached inside, opened the door and entered the house. The neighbor's wife called the police.

The police responded within minutes. Two of the officers went to the rear of the house, and two stayed in the front; one of the officers, Bradish, positioned himself behind a tree to the east of the front door. Officer Rathjen, who had gone to the back of the house, testified the back door with the broken glass was closed and that he saw a movement of the window shade behind the glass. He approached the door, identified himself, and ordered everyone out of the house. He received no response. About 30 seconds later, he heard a commotion at the front of the house, and heard that a person had been taken into custody. Officer Bradish testified that a man, later identified as the defendant, stuck his head out the front door and looked to the west. He then came out of the door in a "crouched over" position and sort of jogged toward where Bradish was positioned. Bradish told the defendant to "freeze" and defendant said: "I wasn't in the house, the door was open." The defendant was arrested, and a screwdriver, a roll of masking tape, a wadded-up piece of masking tape and a piece of glass were taken from him. These items were placed on the bumper of the police van. The glass recovered from the defendant was subsequently broken when the defendant kicked at the items after being told they were being seized as evidence.

The owner of the house, Medina, testified that since he left the house that morning his stereo had been moved, the medicine chest and china-cabinet doors were opened, a bedroom light was turned on, and a rear bedroom window was opened.

Elgin Detective McCurtain testified he heard a radio dispatch concerning a burglary in progress and responded with other patrol units. He observed the defendant in the custody of Officer Bradish, and he entered the residence. No one else was found therein, and no one else was arrested. The owner was contacted, and he identified the items that had been disturbed. McCurtain testified he did not know a person named Omar Taylor and, over objection, that he attempted to locate him by checking Elgin police computer records, the Elgin phone book, and the Elgin city directory. He was unable to find Omar Taylor listed in any of those sources.

On cross-examination, McCurtain stated that the inquiries could not have uncovered a new resident to the town, a person without a phone, or a person who had had no contact with the Elgin police department.

The defendant testified about 7:30 a.m. on February 25, he left his girlfriend's house to buy cigarettes at Dunkin' Donuts. On the way he met Omar Taylor, whom he knew from playing basketball at Elgin High School. Taylor asked him for help moving some of his belongings because his "old lady" had kicked him out. The defendant agreed and accompanied Taylor to 303 Cherry Street; defendant had never been there before. Taylor said he did not have a key. The defendant knocked, but no one answered. Taylor told the defendant to break the window because he had to get his things. The defendant had a screw driver and masking tape because he used them when he paints. He last painted the Friday before, February 22, at his girlfriend's mother's house. He put tape on the window at the bottom, down in the corner. He hit the window and pulled off the tape and glass and stuck it in his pocket.

Once inside, Taylor went into the rear bedroom, and the defendant testified he waited for him on the front porch. Soon, the defendant heard the sound of walkie-talkies and then saw police cars in front of the house. He looked for Taylor but could not find him. Defendant was arrested in the front yard of the house as he was leaving. The defendant stated he never touched the stereo or the cabinet doors, and kicked the bumper of the police van because he was "mad [he] was going to go to jail."

He was taken to the police station, where he had a conversation with Detective McCurtain in part concerning 303 Cherry Street.

On cross-examination, the defendant denied he went up the stairs to the second floor of the house, or that he wrapped tape around his hand or wadded it up. He said Omar told him how to put the tape on the window. He said he did not try to get out of the house by the back door after the police arrived, and that the door was open. He stated he really did not look at anything or notice anything in the house, and that he just looked for a place to sit down. He said he got frightened when he saw the police and that he got frightened every time he saw the police; it was just natural fear of the police. He denied telling the police that he was not in the house, and denied he inquired about the reason for the seizure of the items found in his jacket. He admitted he kicked the bumper where the evidence was. He acknowledged that he did not tell the police about Omar Taylor at the scene of his arrest because "he couldn't even think of that then." He stated he played basketball with Omar Taylor a number of times. He did not know where he was living or working, and he described him as 5 feet 10 inches to 5 feet 11 inches tall, medium skinned. When asked if he knew how to get in touch with him, the defendant stated: "Well, he is in the neighborhood." He did not know what happened to Omar Taylor that day. Defendant thought Detective McCurtain had given him his rights before he talked with him about the incident, but he did not remember any of the specific admonitions. He remembered talking to McCurtain, but he denied he told him he tried to run out the back door when he saw the police. He further denied he then tried to get out the window in the bedroom, and that he finally ran out the front door. In response to the prosecutor's questioning, the defendant stated Omar Taylor did tell him to go into the house, and that there is an Omar Taylor.

On redirect, defense counsel asked defendant if he told McCurtain about Omar Taylor during the interview at the police station. The State objected on the basis such testimony would constitute improper admission of a prior consistent statement. Defendant argued his rehabilitation should not be limited, and that he should be allowed to counter the inference created during the State's cross-examination that he did not tell the police about Omar Taylor at the scene with the totality of the statement he made to Detective McCurtain, which included the fact that he told McCurtain about Omar Taylor. The State argued the extent of the defendant's rehabilitation should be limited to only those points included in the statement on which he was impeached, and that he was impeached only as to whether he tried to leave the house by the back door or the rear bedroom window. The court sustained the State's objection.

In rebuttal, the State called Detective McCurtain, who testified that in the course of his oral statement, the defendant told him that he first tried to run out the back door of the house, saw the police, then tried to escape ...

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