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08/12/88 the People of the State of v. Michael Colley

August 12, 1988





528 N.E.2d 223, 173 Ill. App. 3d 798, 123 Ill. Dec. 678 1988.IL.1251

Appeal from the Circuit Court of Cook County; the Hon. James A. Zafiratos, Judge, presiding.


JUSTICE SULLIVAN delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.


Following a jury trial, defendant was convicted of criminal trespass to property and residential burglary. Judgment was entered only on the residential burglary conviction and he was sentenced to a term of nine years. On appeal, he contends (1) that the State improperly used its peremptory challenges to exclude black citizens from the jury; (2) he was denied his right to effective assistance of counsel; and (3) he was denied a fair trial by improper prosecutorial comments during closing argument.

At trial, Helen Falkman testified that in September 1985 her son lived in her house at 1829 South 20th Avenue in Maywood, Illinois, but that she visited there approximately once each week. The two-story house had an enclosed front porch, access into which was through a front door, which was kept locked. A mailbox and doorbell were located on the outer side of the front door. Another set of doors divided the front porch from the living room. On each side of the inside door was a standard, combination screen and storm window. The storm windows were not removed and the windows were kept closed. She did not know defendant nor did she authorize him to enter her residence, and she did not own a gun or keep one for protection between the two doors inside the porch. On cross-examination, Mrs. Falkman stated that she was not at the house on September 10, 1985, and, although her son told her that he always locked the front door, she did not know whether it was locked on that date or if a window in the porch had been raised.

Yvonne Mueller testified that she lived next door to Mrs. Falkman's house at 1825 South 20th Avenue in Maywood. She was cutting her grass at about 6:30 p.m. on September 10, 1985, when she noticed a man directly across the street. He walked up and down the block on both sides of the street for about 15 minutes. She went into her backyard but continued to look out in the front and saw the man crossing the street and looking over his shoulder in her direction. The man then entered an old "red junk" car -- which had no wheels and had been parked in the driveway of the home of Richard Spears across the street at 1822 South 20th Avenue "for some time" -- and remained inside it for approximately one-half hour. When she finished mowing her back lawn, she went inside and to the front window of her home to watch him. He then exited the car, walked to the rear of it, opened the rear door, and after "fiddling around" awhile, he threw an old white towel over his shoulder and walked up on the west side of the street to the corner. He then recrossed the street, walked south past her home and "walked right in to Mrs. Falkman's house" next door. She immediately called the police, and within three to six minutes about six squad cars arrived. The police brought the man, whom she identified as defendant, out on the front porch. About 15 minutes after the police left, Mrs. Spears entered her car, which was also in the Spears' driveway, and drove away. She visited the Falkman house about three times each week and had never noticed the right front window open or without a screen. However, she had not visited the home on that day and did not know the condition of the screen on that window or whether the front door was locked.

Officer Andrew Lindsey testified that at about 7 p.m., he received a call of a burglary in progress at 1829 South 20th Avenue. Mrs. Mueller directed him to the front of the Falkman house, where he saw a man on the porch near the door. As he began walking toward the house, the man, whom he identified as defendant came out of the enclosed porch and walked down to the sidewalk. He recognized defendant because defendant had grown up in Maywood. In response to his inquiries, defendant said that he was looking for a friend but he did not know the friend's name nor did he know who lived in the house. Officer Robinson then arrived in another squad car and walked into the porch from where he retrieved a blue-steel, rubber-handled, .38 caliber revolver wrapped inside a white towel. After a brief conversation with Mrs. Mueller, he and Robinson went into the porch, where he observed a screen from one of the windows on the floor beneath the window, which was opened about four or five inches. Robinson also showed him where he had found the gun between the screen and front doors. He did not find any pry marks on any of the doors, windows or screens nor was there evidence that the door had been forced.

Officer James Robinson testified that when he arrived on the scene, he entered the porch and noticed that the screen had been removed from the right window and that the window was raised about six inches. As he examined the front door to determine whether entry had been made into the house, he noticed a dirty, stained, white rag on the floor between the two doors. When he picked it up, he found a .38 caliber revolver, loaded with six live rounds of various shells, wrapped inside. On the gun, which he identified in court as the State's exhibit No. 5, were the serial number 63906 and markings "FSS," which he knew to stand for "Frain Security." The towel, gun and six shells were subsequently inventoried at the Maywood police department but one bullet had been lost sometime in the morning of the trial. When shown the bag in which the bullets had been placed, he noted that there was a hole in it.

Patrick Powes, a forensic scientist and fingerprint examiner for the Illinois Department of State Police, testified that he found no latent fingerprints on either the handgun or the shells.

Edward Townsend testified that in 1978 he was employed as a guard by the Andy Frain agency and was issued a .38 caliber, blue-steel pistol with the markings "FSS 23," but in August 1979 the gun was stolen from his home in a burglary. He identified the State's exhibit No. 5 as the one he owned, but noted that the grip on the handle was different. He did not know defendant and had never given him permission to handle or use his revolver. He admitted that he had been convicted of possession of a controlled substance two months prior to trial.

William Mathis testified that he had been the operations manager of the Andy Frain Security Service since January 1980 and maintained records of all of the agency's weapons. His records disclosed that the .38 caliber revolver with serial number 63906 had been reported stolen on August 15, 1979, and identified State's exhibit No. 5 as the weapon described in his records.

Over objection by defense counsel, all of the State's exhibits were admitted into evidence. The trial court then denied defense counsel's motion for a directed finding on the residential burglary charge but granted his motion for a directed finding on the theft charge and instructed the jurors that the theft count had ...

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