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08/18/88 the People of the State of v. James Dodd

August 18, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JAMES DODD, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

527 N.E.2d 1079, 173 Ill. App. 3d 460, 123 Ill. Dec. 441 1988.IL.1277

Appeal from the Circuit Court of Du Page County; the Hon. John J. Nelligan, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, James Dodd, was charged by information with retail theft (Ill. Rev. Stat. 1985, ch. 38, par. 16A-3) and by complaint with driving while his license was suspended (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303). After a jury trial, defendant was convicted of both offenses and was sentenced to concurrent terms of eight years' imprisonment in the Department of Corrections for retail theft and 364 days' imprisonment for driving while his license was suspended. On appeal, defendant argues (1) that the trial court erred in giving Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981) (hereafter IPI Criminal 2d No. 3.17), to the effect that testimony of an accomplice is subject to suspicion and should be considered with caution, where the witness was called by defendant; (2) that it was error for the trial court to instruct the jury that defendant's intent should be presumed from his actions, thereby raising a conclusive presumption which violated due process and the presumption of innocence; and (3) that the trial court erred in altering a certificate of suspension issued by the Secretary of State by obliterating the date on which the suspension ended. For the reasons set forth below, we reverse both of defendant's convictions and remand for a new trial.

The offenses of which defendant was convicted stemmed from the theft of a diamond cocktail ring with a retail value of $4,441.22 from the East Queen Imports jewelry store in the Oak Brook shopping center. At defendant's trial, Genevieve Grzetic testified that she was working at East Queen Imports on January 18, 1986, at about 3 p.m. At that time, a woman, later identified as Karen Richie, came into the store and said she wanted to see the cocktail ring, which was displayed in the front window. Ms. Grzetic showed Richie the ring at a display case next to the front door of the store, and when Grzetic glanced away, Richie took the ring from her hand, said thank you, and ran out. Grzetic yelled, "She took the ring," and ran out after Richie.

Grzetic lost sight of Richie, but while Grzetic was in the parking lot of the shopping center, a salesperson from another store drew her attention to defendant, saying defendant was with the woman who took the ring. Grzetic saw defendant standing by the door of a blue car, opening it. She testified that he went in very slowly and sat down. Grzetic began saying the license plate number to herself and started back to the store to call the police, when defendant started to back out. She next saw defendant and Richie in police custody on a nearby expressway ramp.

Nikita Ivory, an assistant manager at Rogers and Hollands jewelry store in the Oak Brook shopping center, testified that she was at work on the night of January 17, 1986, and January 18, 1986. She testified that on January 17 at about 7:30 p.m., she saw defendant and Richie outside the store looking at merchandise in the window. Richie came in alone and asked to see a large diamond ring in the window. Ivory showed Richie the ring, but Richie said she wanted to look at some other rings before making her decision and left. At about 8:30, Richie returned to the store, and defendant followed her in a few seconds later. While defendant looked at some display cases near the door, Richie asked Ivory to see the ring again. As Ivory showed her the ring, Richie called defendant over to look at it. Defendant said, "Yeah, that's nice. Come on, let's go," and he and Richie left together.

Ivory testified that on January 18 at about 3 p.m., Richie again came into the store and asked to see the ring again, this time at the door. Ivory informed Richie that store policy did not allow her to show rings at the door, and Richie said she wanted to go look at another ring again because she was going to make her decision and get a ring that day. Richie then left.

After Richie left, Ivory went out for lunch and walked by East Queen Imports, which is three stores away from Rogers and Hollands. As she approached East Queen Imports, she heard a saleslady scream that something had been stolen, and Richie ran out the door right into her. Ivory chased Richie and caught hold of her coat, but Richie broke free and ran into the parking lot, ducking between the cars.

Ivory lost sight of Richie, so she and some other people started looking through the parking lot. Ivory turned and saw defendant standing in an entryway to a nearby Sears store. She saw him walk slowly out, and she yelled, "That's the guy who was with her, I saw him last night." When defendant saw Ivory and the others running towards him, he jumped into a light blue car and took off very quickly. Ivory saw Richie's head come up from the backseat as the car pulled away.

Officer Susan Srch of the Oak Brook police department testified that while on patrol in an unmarked squad car shortly after 3 p.m. on January 18, she heard on her police radio that a theft had just occurred at the Oak Brook shopping center. She also heard a description of the car involved and its license plate number. After parking at the corner of York Road and 22nd Street, Officer Srch soon saw defendant's car approaching the corner from the west and turning north on York Road. She activated her siren and a red light on her dashboard and pursued defendant's car to the eastbound exit from York onto Roosevelt Road. At the bottom of the ramp, another police car had blocked the roadway, forcing defendant to stop. When she first saw defendant's car, it appeared to be traveling above the posted speed limit, and during the chase, defendant sped up to 60 to 65 miles per hour. Although Officer Srch could only see defendant in the car at first, when she approached the stopped car, she saw Richie lying down in the backseat. Richie told Officer Srch that she had dropped the ring at the shopping center, but the ring was never found.

Officer Dennis O'Donovan of the Oak Brook police department testified that he was the driver of the marked squad car which blocked the expressway ramp. He stated that defendant's car was traveling approximately 45 to 50 miles an hour down the ramp. As defendant neared the squad car, he veered to the right onto the shoulder of the road. O'Donovan pulled forward, blocking the shoulder, and defendant stopped a few ...


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