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06/02/88 the People of the State of v. Michael Pryor

June 2, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL PRYOR, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

524 N.E.2d 700, 170 Ill. App. 3d 262, 120 Ill. Dec. 670 1988.IL.871

Appeal from the Circuit Court of Kane County; the Hon. Joseph M. McCarthy, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

After trial by jury defendant, Michael Pryor, was convicted of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-1), and sentenced to 24 months' probation, the first 12 months to be served on intensive probation. He appeals contending that (1) insufficient evidence was presented at trial to submit an accountability instruction to the jury; (2) the State did not prove him guilty, as either a principal or accomplice, beyond a reasonable doubt; (3) the trial court erred when it ruled that the codefendant's guilty plea was inadmissible to show that defendant was not involved in the burglary; and (4) prosecutorial remarks made during closing arguments denied him a fair trial. We affirm.

Officer Robert Downs testified that at 10 p.m. on March 5, 1986, he was on patrol and received a dispatch that a black Oldsmobile was seen circling his patrol area, and at 10:55 p.m. he received another dispatch directing him to an apartment complex located at 835 Richards Street, Aurora, Illinois. Downs, who was alone in a police van and arrived at the scene with his headlights off, approached a black Oldsmobile that was parked parallel to a red van, and stopped approximately 25 feet from the car and van. The driver's side of the Oldsmobile was facing the passenger side of the van, and Downs observed that the passenger window of the van had been smashed out and that the sliding door of the van, which was facing the driver's side of the Oldsmobile, was open. Downs testified that he saw a silhouette standing inside the van, and when he turned his spotlight on, he saw a dark-haired, black man standing in the van and a blond-haired man sitting on the passenger side of the Oldsmobile. Upon clarification, Downs testified that the dark-haired man in the van was white. The dark-haired subject saw the police van and jumped from the red van to the driver's side of the Oldsmobile. Downs testified that, while the Oldsmobile had tinted windows, he could see into the car because his spotlight was directed at the rear window. Downs left his vehicle, momentarily losing sight of the dark-haired man, and as he reached the Oldsmobile he found defendant, who was the dark-haired man, sitting in the driver's seat and Edward Barkes, the blond-haired man, sitting on the passenger side trying to hide. Three cans of motor oil and two speakers, which were later identified as stolen, were found in the car. At trial, Officer Downs identified defendant as the dark-haired male in the driver's seat of the Oldsmobile, and noted from his report that defendant was 5 feet 8 inches and 175 pounds and Barkes was 5 feet 6 inches and 130 pounds. Cross-examination revealed that Downs did not note, either in his police report or at the grand jury proceedings, that he used the spotlight on his police van to observe defendant and Barkes while the burglary was in progress. On redirect examination, Downs testified that the routine use of equipment, such as a spotlight, would not normally be included in a police report, and that he was not questioned about his use of the spotlight at the grand jury proceedings.

Officer Torres testified that he received a call for backup assistance, and, upon arriving at the scene, he arrested the blond-haired male, later identified as Barkes, sitting on the passenger side of the Oldsmobile, and Officer Downs arrested the dark-haired male. Torres also testified that the two suspects had similar hairstyles but that Barkes' hair was longer.

Defendant testified that the Oldsmobile belonged to Barkes but that the title was registered in defendant's name because Barkes did not have a driver's license and could not obtain plates. Barkes had applied a special tint to the windows which created a mirror effect when light was shined on the window. Defendant testified that he received a call from Barkes at his home in Montgomery, Illinois, at about 10 p.m. on March 5, 1986. Barkes wanted defendant to pick him up from work in Aurora, Illinois, and defendant arrived there at approximately 9:45 p.m. the same evening. Defendant and Barkes went back to Barkes' home in Montgomery for a short time, and then left for a gas station in Aurora. After leaving the gas station, Barkes, the driver, and defendant drove to an apartment complex to visit Barkes' friend. Defendant was not told who they were visiting nor did he ask. Barkes pulled alongside a parked red van, smashed in a window, and began to steal items from the van. After approximately five minutes, defendant noticed the headlights of an approaching vehicle which he thought might be a police car, and called out to Barkes, "[Come] on, let's leave." Defendant testified that Barkes jumped to the driver's side of the Oldsmobile but that defendant changed seats with him, at Barkes' request, because Barkes did not have a driver's license and he was worried that Barkes might get arrested for driving without a driver's license. Defendant testified that he did not see the spotlight Downs claims to have shined at the van and car but only saw the blue and red mars lights on top of the police van. Defendant stated that he did not leave the scene when Barkes broke into the van because he was afraid of being "busted."

Prior to trial, defense counsel made a motion in limine, to which the State agreed, barring the State from introducing evidence of a statement by Barkes implicating defendant. Defense counsel also stated that he wanted to introduce into evidence a certified copy of Barkes' guilty plea and indictment related to this offense. Barkes had pleaded guilty to a reduced charge of attempted burglary and was sentenced to two years of imprisonment, but could not be located by authorities to begin his sentence. Defendant's offer of proof was:

"[The] fact that the co-defendant Barkes pleaded guilty to a reduced charge. The offer of proof is that if I were allowed to present this evidence, number one, it would be consistent with our theory that Barkes is the guilty person and he, alone, was the offender who broke into Mr. Blagg's red van, and that Mr. Pryor neither assisted, aided or abetted or was a principal participant in that burglary.

And in furtherance of that theory we have Barkes's guilty plea which I'm asking to be made part of the record and impounded by the Court."

The State objected, stating that "the bare bones certified copy of conviction or the fact that Barkes pled guilty is not relevant to our defendant's guilt." The trial Judge denied defendant's request on relevancy grounds. During the instruction conference, the State offered, over defense counsel's objection, an instruction relating to accountability, arguing that there was sufficient evidence to show that defendant aided and abetted in the burglary; the trial court gave the instruction. The jury found defendant guilty of burglary, and he was sentenced to 24 months' probation.

Defendant contends that the State failed to prove him guilty of burglary beyond a reasonable doubt because the State's only evidence linking him to the crime was the vague, doubtful, and incredible testimony of Officer Downs. Defendant argues that Downs' initial misstatement that he observed a dark-haired, black subject standing in the van causes his ...


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