APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
529 N.E.2d 760, 175 Ill. App. 3d 150, 124 Ill. Dec. 779 1988.IL.1396
Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.
JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI
Following a jury trial, defendant, Frank Hirschmann, was convicted of attempted burglary and criminal damage to property and sentenced to three years' imprisonment. On appeal, defendant argues that (1) the trial court's refusal to instruct the jury with the defense's tendered identification instruction was error; (2) the trial court abused its discretion in denying defendant treatment for substance abuse as an alternative to incarceration; and (3) the prosecutor's use of leading questions during examination of the complainant as well as his comments in closing argument constitutes reversible error. We affirm.
On April 19, 1984, James Crane was awakened by noises which were coming from the alley behind his building. When Crane went to his window to look out, he observed a man trying to break the window of a foreign car repair garage across the alley. This man was later identified as the defendant. Defendant also knocked and banged on the door handle of the rear garage in an attempt to open the door. Crane continued to watch defendant as he called the police.
Defendant continued to move around the garage in an attempt to gain entry. Crane continued to watch defendant, and as defendant came close to Crane's window, Crane gave the police a description of defendant's face, clothing and body build over the phone.
Crane was still watching defendant when the police arrived. When defendant saw the police, he ran away. Crane saw defendant run west and relayed this information to the police dispatcher who was on the phone. After a foot-chase by the police, defendant was apprehended. When defendant was handcuffed and searched, the police recovered gloves, two small flashlights, a folding knife and an auto ignition key.
Defendant was taken back to the alley where Crane had previously observed him. When asked if defendant was the man Crane had called the police about, Crane responded that defendant was the person he had seen trying to break into the garage.
The owner of the garage testified at trial for the State. Nick Busioc stated that when he left his garage on April 18, 1984, the garage was in perfect condition. However, when he returned the next morning, the knob of the back door had been ripped off, the window which faces the alley was broken and a fuse box was open with a circuit breaker turned down in an "off" position.
At the close of the State's case, defendant made a motion for a directed finding. This motion was denied. Defendant chose not to present any evidence. At the instruction conference, defendant sought to have the jury instructed with a non-Illinois Pattern Jury Instructions instruction on the defense theory of honest but mistaken identification. The court denied defendant's request. Following deliberation, the jury returned a verdict of guilty of attempted burglary and criminal damage to property.
At the sentencing hearing, the court heard evidence in aggravation and mitigation. The court also heard testimony from Diedre Cobb, a TASC (Treatment Alternatives to Street Crimes) representative. Cobb stated that defendant is an addict and that he demonstrates a likelihood of rehabilitation through drug treatment. The court denied TASC treatment for defendant and entered judgment on the attempted burglary conviction. No judgment was entered on the criminal damage to property conviction and it is not an issue in this appeal.
Defendant first argues that the trial court erred in refusing to instruct the jury with defendant's non-IPI instruction on identification. Defendant asserts that the sole issue in this case was one of identification. Therefore, defendant's proposed instruction listing several factors involved in assessing the ...