APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
509 N.E.2d 1057, 156 Ill. App. 3d 1046, 109 Ill. Dec. 218 1987.IL.747
Appeal from the Circuit Court of Kane County; the Hon. Barry Puklin, Judge, presiding.
JUSTICE WOODWARD delivered the opinion of the court. HOPF and INGLIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD
Following a jury trial, the defendant, Earlie Span, was found guilty of the offenses of residential burglary and possession of a stolen automobile. During the trial, the State had nol-prossed a charge of felony theft that had been pending against the defendant. Defendant was sentenced to six years' imprisonment for residential burglary and four years' imprisonment for possession of a stolen automobile. Defendant appeals.
The defendant was arrested with codefendant, John Croom, but the two were scheduled to be tried separately. Prior to trial, defendant's attorney informed the court and Croom's attorney that he intended to call Croom as a witness at defendant's trial. Croom's attorney informed the court that in the event Croom was called to testify, he would exercise his fifth amendment right not to testify.
The case was called for trial on September 30, 1985. On that date, the defendant's attorney informed the court that he had been unable to locate two alibi witnesses. The defendant indicated that he did not want a continuance and was willing that the trial proceed without these witnesses. The defendant's attorney then stated:
"Your Honor, I might ask him [the defendant] something else. Is it your choice to proceed today without the testimony of Mr. John Crume [ sic ] who you have indicated was going to clear you of this offense?"
After a Discussion between the court, the assistant State's Attorney, and the defendant's attorney regarding the duty of the State to turn over to the defendant any evidence favorable to the defendant, the following colloquy took place:
"THE COURT: But the State has taken the position they're going to dispose of your case before they dispose of the co-defendant's case. They're putting you in a situation where the co-defendant can't be called by your lawyer and made to testify because he has a right to remain silent. Now, I pointed that out to you when you were arraigned, or whoever arraigned you pointed that out, so they're kind of in the driver's seat. They get to choose who goes first, I guess. Now, knowing that, do you want to go ahead today, or would you like to have it continued?
THE DEFENDANT: I would like to just go ahead."
At trial, the State's evidence showed the following: On July 16, 1985, the home of Mrs. Anita Y. Glenn was burglarized. Mrs. Glenn was awakened either by the sound of car doors slamming or the sound of her Cadillac diesel automobile starting up. She then went to her front door and turned on the porch light. She saw her car backing out of the driveway. She observed someone on the passenger side of the car, but she could not see the driver of the car. After she called the police, she noticed that her purse, which contained six $20 bills, credit cards, and her car keys, was missing. The purse was found the next day outside of her neighbor's home. Mrs. Glenn also noticed that her kitchen window had been opened and the screen cut.
Some 40 minutes later, Illinois State Trooper David Spahn was on patrol when he heard the report of the stolen Cadillac. He then observed Mrs. Glenn's Cadillac at I-290 and Mill Road. He began to follow the vehicle and called for backup officers. He then activated his lights and siren. A chase ensued which reached speeds upwards of 100 miles per hour. After the Cadillac came to a stop, both individuals in the Cadillac left the vehicle and ran in different directions, with State Trooper Spahn and the other officers in pursuit. During the foot chase, Spahn heard gunfire but did not know where it came from. Both individuals, the driver of the car, John Croom, and the passenger, the defendant, were apprehended and taken into custody. They were transported separately to the Addison police station, where they were searched. From Croom, the police recovered a black jacket, gloves, six $20 bills, and assorted jewelry. The defendant had no property in his possession. However, a six-inch sewing gauge with a sharp point was found on the seat in the police car, where defendant had been sitting, which had been searched prior to transporting the defendant.
The defense presented the testimony of Alan Span, the defendant's brother, who stated that shortly after 2 a.m. on July 16, 1985, he heard a knock at the door. He got out of bed, went to the window, and saw a medium-sized car going down the hill. ...