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06/22/87 the People of the State of v. Robert Brandon

June 22, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT BRANDON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

510 N.E.2d 1005, 157 Ill. App. 3d 835, 109 Ill. Dec. 937 1987.IL.864

Appeal from the Circuit Court of Cook County; the Hon. Fred G. Suria, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE QUINLAN delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The defendant, Robert Brandon, was charged by information in the circuit court of Cook County with the offenses of attempted residential burglary (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 19-3) and possession of burglary tools (Ill. Rev. Stat. 1983, ch. 38, par. 19-2). A jury found him guilty of attempted residential burglary and not guilty of possession of burglary tools. Judgment was entered on the verdict and Brandon was sentenced to a term of nine years' imprisonment. Defendant appeals. We affirm.

In his appeal, the defendant makes the following contentions: first, that the trial court abused its discretion by refusing to ask prospective jurors during voir dire if they would be prejudiced against the defendant if they learned he had prior felony convictions; and second, that the trial court erred by failing to appoint independent counsel to represent defendant at a hearing on defendant's pro se motion for a new trial in which he alleged inadequacy of trial counsel. The defendant's pro se motion was filed eight days after the trial court had denied a motion for a new trial filed by his appointed trial counsel which did not include a claim of inadequacy of counsel.

Defendant Brandon pleaded not guilty to the information which charged him with attempted residential burglary and possession of burglary tools and requested a jury trial. A public defender was appointed to represent Brandon. Prior to trial, his defense counsel, an assistant public defender, moved in limine to bar the State's use of Brandon's two prior burglary convictions in any attempt to impeach him. The trial Judge denied the request but ordered the State to use the term "felony conviction" rather than "burglary conviction" when making reference to these prior convictions during any impeachment of defendant. After denial of the motion in limine, defense counsel then requested that the court ask the prospective jurors during its voir dire examination whether they would be biased or prejudiced against the defendant because of his prior felony convictions. The trial Judge declined to do so, stating that the manner in which any such question would be asked could possibly prejudice either party and, in any event, the jury instructions would cover this matter.

At trial the State presented an occurrence witness, the victim, the victim's mother, the two arresting officers, and an evidence technician for the Chicago police department. The occurrence witness, Mattie Smith, testified that she was near 1854 South Ridgeway on May 16, 1985, when she noticed a man on the second floor porch prying open a window. She stated that she also saw a man in the alley who appeared to be acting as a lookout. On cross-examination Smith testified that although she had called the police to report the incident, she was never asked to identify the man she saw on the porch.

Chicago police officer Christin Kato testified that he and his partner were dispatched to the Ridgeway address in response to a call of a burglary in progress. Officer Kato stated that, upon arriving at the scene, he heard a banging noise coming from the second floor porch and observed a man straddled on a second floor windowsill. The man had his left leg on the porch and his right leg and the whole right side of his body inside the window. Kato identified the defendant as that man. According to Officer Kato, the defendant told him that he was "looking for someone."

Officer Kato testified that he placed the defendant under arrest, and at the time of his arrest Brandon had a pry bar and a broken padlock in his possession. Officer Kato further stated that when he examined the second floor window the burglar bars were unlocked at the bottom and were partially pushed inside the half opened window. A second witness, Daisey Brinson, the victim's mother, lived on the same block as her daughter and had heard from a neighbor that the police were at her daughter's address investigating a burglary attempt. Mrs. Brinson testified that she then walked over to the scene of the investigation and observed the opened window and the pushed-in burglar bars. Mrs. Brinson stated that she told the arresting officers that her daughter always kept that window closed and that the bars covering the window were always padlocked.

Thereafter, the padlock that had been recovered at the scene was identified by Officer Kato and introduced in the court proceedings. Rose Ashley, the tenant of the second floor apartment, also identified the padlock as one of the locks she used on a set of burglar bars which were on the rear windows of her apartment. Police officer Frank Luera testified that he was also present during the arrest and he corroborated Kato's testimony concerning the events that occurred at 1854 South Ridgeway on May 16, 1985.

The defendant, Robert Brandon, testified in his own behalf. According to the defendant, he went to the 1854 Ridgeway building in order to purchase marijuana from residents of the first floor apartment. The defendant said that he knocked on the door of the first floor apartment where he had purchased marijuana several times before and that when no one answered the door he began to leave. It was at this time that Officer Kato and his partner, Officer Luera, arrived and arrested him. Defendant said that Officer Kato then went to the second floor and returned with a crowbar and tried to hand it to the defendant. Officer Kato accused the defendant of trying to break into the second floor apartment but Brandon denied the allegation. At trial, the defendant also denied that he was trying to break into the second floor apartment. According to Brandon, Officers Kato and Luera both told him that they wanted information from him about people who were selling drugs from the first floor apartment and that they would make a deal with him in exchange for the information. Defendant claimed that the first time he saw the padlock that was allegedly in his possession at the time of his arrest was at the police station.

The defendant's sister, Olivia Minniefield, testified that Brandon had left her house at about 11:30 that morning to purchase some marijuana for them to smoke together before he went to work at noon. In rebuttal, however, the People presented the sister of the victim, Betty Johnson, who lived in the first floor apartment, which was alleged to be the place where defendant regularly purchased drugs. Johnson testified that she lived there with her two school-age sons and that no one ...


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