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12/16/88 the People of the State of v. Marse Lowery

December 16, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MARSE LOWERY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

532 N.E.2d 414, 177 Ill. App. 3d 639, 126 Ill. Dec. 729 1988.IL.1827

Appeal from the Circuit Court of Kane County; the Hon. Michael F. O'Brien, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

After trial by jury defendant, Marse Lowery, was found guilty of the offenses of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-1) and unlawful possession of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(a)(2)). He was sentenced to a nine-year term of imprisonment for burglary and a 30-month term of probation for unlawful possession of a controlled substance, and the sentences were ordered to be served consecutively. On appeal, defendant contends that the trial court abused its discretion when it (1) failed to inform defendant or his attorney of certain jury requests for additional information and (2) imposed consecutive rather than concurrent sentences for these offenses.

The parties are familiar with the facts, and we shall note only those necessary for consideration of the issues raised on appeal. On May 18, 1986, Officer Michael McAlevy of the Carpentersville police department responded to a burglar alarm which had been activated at the Century Electronics store. Upon arriving at the store, McAlevy noticed a vehicle, which he described as an older model with dark green coloring, traveling slowly along the road in front of the store. The vehicle stopped and parked approximately 100 yards from the store, and McAlevy radioed for another officer to check it. An investigation of the store disclosed that the front door had its glass shattered and there was a hole in the store's ceiling. After receiving McAlevy's message, Officer John Terry stopped the vehicle which McAlevy had identified, and defendant was its driver. Terry noticed that defendant had a cut on the bridge of his nose and pieces of glass on his upper body. After defendant was arrested, his car was searched, and the police recovered a two-pound sledgehammer, a large screwdriver, and a packet of white powder which was determined to be cocaine.

Defendant was charged by indictment with the offenses of burglary and unlawful possession of cocaine to which he pleaded not guilty, and the case proceeded to trial. The evidence at trial is not relevant to the issues raised in this appeal, but we consider two notes which the jury submitted to the trial Judge after beginning its deliberations. Both the jury's questions to the court and the trial Judge's responses were filed in the circuit clerk's office, but the record is silent as to whether or not the Judge informed either the State's Attorney or defendant's counsel of their receipt and his response.

In the first note, the jury queried:

"Would there be any reason, legal procedure or otherwise, why Mr. Morelli [defendant's attorney] could not have raised the issue of another person placing the cocaine on the visor?"

The trial Judge responded in writing: "I can't explain or question the strategy of the attorney for the defendant!" The second note asked:

"Could we possibly know -- date (How long from arrest B-4 indicted -- and possible to get results from same?"

The trial Judge answered in writing: "Please review the issue instruction which contains the charge. The date of arrest was May 18th. The date of indictment was June 10th. Remember the grand jury only meets two times per month. Defendant was charged by information on the 18th."

The jury subsequently returned verdicts of guilty as to each charge and on January 20, 1987, defendant was sentenced to the consecutive terms of imprisonment ...


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