Appeal from the Circuit Court of Alexander County; the Hon.
Stephen L. Spomer, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendants, Lafayette Woods and Phillip Cleaves, were convicted of burglary and theft after a consolidated jury trial in the circuit court of Alexander County of May 13 and 14, 1985. Each defendant was sentenced to concurrent terms of imprisonment of four years for burglary and three years for theft. Each defendant perfected an appeal, and the causes were consolidated for argument and decision in this court.
On appeal defendants contend: (1) that they were not proved guilty beyond a reasonable doubt; (2) that the charging instruments failed to state an offense; and (3) that they were denied the effective assistance of counsel. We reverse and remand for a new trial.
James Graves testified as follows at trial: On February 25, 1985, at approximately 8 p.m., he and the two defendants were riding around in Woods' green, four-door Ford LTD. Graves had the idea to steal a battery, and he (Graves) drove to a parking lot near the Mainliner Lodge in Cairo, Illinois. Graves testified that he opened the hood of a parked car and, with the assistance of the defendants, reached inside and removed the battery of the car. The three of them went up under the hood, and the two defendants loosened the bolts on the bar holding the battery down and removed the bar. Graves lifted the battery out and carried it to the trunk of Woods' car. Graves then drove them out of the parking lot. A police officer later pulled the car over and discovered the battery in the trunk. On cross-examination Graves testified that he pleaded guilty to burglary and theft and was sentenced to probation in return for his testimony.
Millard Williams testified that on February 25, 1985, his 1965 Plymouth was parked in the lot at the Mainliner Motel. That night, after being informed by the motel clerk that the battery had been stolen from his car, Williams went out to his car and found the hood up and the battery missing. Williams also stated that the keys that he had left on the seat were instead in the ignition. At trial he identified the battery found in Woods' car as the battery from his car.
Richard Washington testified that on the evening of February 25, 1985, he was in Cairo, Illinois, and the Mainliner Hotel. He and Ollie Hudson saw three young black men running from the parking lot. Washington testified that one of the three men was bent over as if he was carrying something heavy. Washington noticed that one of the men was wearing an army field jacket and another was wearing a beige coat. He stated that he was unable to see their faces. According to Washington, the three men opened the trunk of a car, put the heavy object inside, and drove away with the lights turned off. Washington and Hudson then got into their car to follow the three men, who were riding in a green, four-door Ford bearing a Kentucky license. Washington testified that they had assumed that the three men had stolen something because there had been problems in the parking lot, "batteries coming up stolen." After getting the Kentucky license number from the green Ford, Washington and Hudson went to the police station and gave the police the license number and a description of the three men's clothing and actions. Washington told the police that as he passed the men in the car, he saw that one of them was wearing a black baseball cap with stripes around it. Washington was unable to state whether the man wearing the black cap was also wearing either the beige coat or the green jacket that he had seen before. Later at the police station, Washington identified the clothing that Graves and the defendants were wearing as that worn by the persons he saw in the parking lot.
Corporal Fleming of the Cairo police department testified that at 8:50 p.m. on February 25, 1985, he received a call from the dispatcher informing him that a battery had been stolen at the Mainliner Lodge and that three black males in a green Ford with Kentucky license LSP632 were suspects. Fleming testified that 12 minutes later he stopped a car answering this description. The driver of the car, Graves, informed Corporal Fleming that the car belonged to Woods. Fleming testified that Woods gave him permission to look inside the trunk and Woods informed him that there was a battery there that belonged to Woods. At the time of the stop, Cleaves was also a passenger in the vehicle. Fleming testified that Graves was wearing a green jacket, Woods was wearing a brown jacket, and Cleaves had on a black baseball cap.
Officer Fleming placed the three men under arrest and transported them to the police department. He also took the battery into evidence. He later identified the battery at trial. At the police station Officer Fleming spoke with Washington, who identified the clothing that was taken from the three men who were arrested as the clothing that he had seen on the men whom he followed. Officer Fleming then left the station and went to the Mainliner Lodge to locate the vehicle from which the battery had been taken. There he observed a gold Fury in the parking lot with its hood up and its battery missing. He found that the car belonged to Millard Williams of Centralia, Illinois.
Phillip Cleaves testified that on February 25, 1985, between 8 p.m. and 9 p.m., he was at Louis Jones' house to inquire about employment. Cleaves testified that he did not actually talk to Jones but instead talked to a woman, Jones' wife or daughter. He was told that Jones was asleep. Cleaves testified that after he left Jones' house, he went to his mother's house for dinner. After dinner he went outside and upon seeing Graves and Woods in the car, asked them for a ride to town. He stated that he was in the car less than four minutes when the police arrived. Cleaves testified that he had no knowledge of the theft of the battery.
Lafayette Woods testified that on the evening of February 25, 1985, he was at Arlene Davis' house playing cards and drinking with Graves. Woods stated that because he did not have a driver's license, he asked Graves to go out and get some beer. Woods testified that when Graves returned without the beer about a half hour later, he got into the car with him. Woods testified that shortly after he got into the car, the police stopped them. Woods stated that at the time of the arrest, he was wearing a yellow shirt, blue jeans, and a reddish wool tweed jacket. According to Woods, he told the police officer when he stopped the car that he had sold a battery earlier that day, not that he had a battery in the trunk, as Fleming testified. On cross-examination, Woods testified that he had driven to Solomon's junkyard earlier that day and had sold the battery to a short, thin black male in his late twenties or thirties who was working there. Woods testified that he had no idea that there was a battery in the trunk of his car and that he was not involved in the theft of the battery.
Louis Jones testified that on the evening of February 25, 1985, at some time after dark but before 10 p.m., Phillip Cleaves came to his house to discuss employment at the business for which Jones was a foreman. Jones testified that his daughter answered the door but that he could see Cleaves through the door. He stated that he talked to Cleaves a few minutes, informing him that he had scheduled Cleaves to work the next morning.
Steven Solomon testified that he was the owner of Solomon's junkyard and that on February 25, 1985, he did not have in his employ a short, thin black male under 40 years of age.
• 1 Defendants first urge that they were not proved guilty of burglary beyond a reasonable doubt because their alleged actions, opening the hood of the car and taking the battery, are excluded from the burglary statute and are instead included under the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-102).
Section 19-1(a) of the Criminal Code of 1961 provides as follows:
"A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4-102 of The Illinois Vehicle Code, nor the offense ...