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09/18/87 the People of the State of v. Dean Powell

September 18, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DEAN POWELL, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

513 N.E.2d 1162, 160 Ill. App. 3d 689, 112 Ill. Dec. 553 1987.IL.1373

Appeal from the Circuit Court of Hamilton County; the Hon. David L. Underwood, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. KARNS, P.J., and WELCH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Defendant, Dean Powell, was convicted of perjury (Ill. Rev. Stat. 1985, ch. 38, par. 32-2) on September 30, 1985, after a jury trial in the circuit court of Hamilton County. Defendant was sentenced on February 20, 1986, to serve a three-year term of imprisonment, to be served consecutively to sentences previously imposed in the circuit court of Hamilton County.

Defendant has perfected the instant appeal, raising five issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether the failure to instruct the jury on the element of materiality violated due process standards; (3) whether it was improper for the trial Judge to preside at both the perjury trial and the previous guilty plea hearing where defendant allegedly made the perjurious statements; (4) whether the judgment order clearly defines defendant's sentence; and (5) whether defendant is entitled to credit against his sentence for time spent in custody.

The evidence at trial was as follows: Bill Warren, sheriff of Hamilton County, testified that Irvin's Jewelry Store in McLeansboro, Illinois, had been burglarized on October 1, 1984. Jewelry valued at approximately $60,000 had been taken and very little of it had been recovered.

The jury was informed that the parties had stipulated that People's exhibit No. 1 was a true and accurate copy of excerpts from defendant's testimony at a hearing on November 29, 1984, in the circuit court of Hamilton County, at which defendant pleaded guilty to the burglary of Irvin's Jewelry Store. The exhibit consisted of one full page and excerpts from two other pages of the transcript. Although the exhibit was admitted into evidence at trial, it is not included in the record on appeal.

Michael Mezo testified at the trial in the case at bar that he pleaded guilty to receiving stolen property on the basis of his possession of three items in the burglary of Irvin's Jewelry Store. Mezo related that on October 2, 1984, defendant asked Mezo to accompany him on a trip to Oklahoma, the purpose of which was to drive defendant's brother, Alan Powell, to his home. Early the next day the defendant, defendant's wife, defendant's brother, and Mezo left for Oklahoma. On the way they stopped for gasoline in Missouri. At this time Mezo saw pillowcases in the trunk. The pillowcases appeared to be full. Defendant pulled out three watches which he gave to Mezo. During the trip Mezo heard defendant ask his brother whether arrangements had been made to sell the jewelry. Alan Powell, defendant's brother, responded in the affirmative. After their arrival in Oklahoma at the home of Alan Powell's in-laws, defendant gave Mezo a gold wedding band. Defendant and Mezo thereafter each pawned a ring at a pawn shop. Mezo testified that defendant eventually sold the remaining contents of the pillowcases.

Larry Huggins, special agent with the Illinois Division of Criminal Investigation, testified that he spoke with defendant on March 1, 1986, at Menard Correctional Facility. Huggins explained that he was investigating Mezo's role in the McLeansboro burglary. Defendant told Huggins that he, his wife, his brother, and Mezo left Hamilton County and arrived in Tulsa, Oklahoma, on October 4, 1984. Huggins testified that defendant stated that later "they" sold some of the burglary proceeds to two people in Tulsa.

Defendant testified at the trial of the instant cause that he had been convicted of the burglary of Irvin's Jewelry Store. Defendant stated that he had planned to drive his brother, Alan, home to Oklahoma. Defendant stated that Mezo approached defendant and asked if he could go along, since he could make a connection in Oklahoma to sell the jewelry. According to defendant, his wife, his brother, and Mezo traveled to Oklahoma and after their arrival Mezo made arrangements with some of Alan Powell's friends to sell the jewelry. Defendant testified that he had nothing to do with the sale of the jewelry. Defendant stated that Mezo made arrangements at an airport to fly to Las Vegas. Defendant assumed that Mezo sold the jewelry because Mezo's luggage was lighter and he had more money. Defendant admitted that some of the jewelry from the burglary was found at defendant's home in Hamilton County.

Defendant acknowledged that the following questions were asked of him by the State's Attorney and answered by him at the guilty plea hearing held prior to his being charged with perjury:

"Q. And what became of those items when you moved them?

A. I have no idea. Mr. Mezo came a couple of days later and got them ...


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