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03/03/89 the People of the State of v. Gerald T. Jointer

March 3, 1989





535 N.E.2d 1039, 180 Ill. App. 3d 364, 129 Ill. Dec. 274 1989.IL.275

Appeal from the Circuit Court of Cook County; the Hon. Ronald Himel, Judge, presiding.


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


Following a bench trial, defendant was convicted of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-1) of a Conrail Corporation (Conrail) railroad freight car and was sentenced to four years' imprisonment. On appeal, defendant raises the following points in favor of reversal: evidence produced at trial was insufficient to prove beyond a reasonable doubt that defendant was accountable for the burglary of the railroad car; the trial court improperly denied defendant the right to elicit testimony regarding motive for his arrest; the trial court improperly relied on defendant's past criminal record in determining guilt; and defendant's right to a fair trial was denied because the court "acted as an advocate for the State."

For reasons which follow, we affirm. We summarize below evidence pertinent to our Disposition.

Prior to presentation of witnesses, the parties stipulated that, if Donald Corp, a Conrail security officer, was called to testify, he would state that he did not give defendant permission to either enter any Conrail railroad car on October 11, 1986, or possess any of the boxes of merchandise inside any railroad car under the custody or control of Conrail on that date. Corp would further testify that, after being notified by police, he went to the Chicago police station at 22nd and Damen Streets and identified, for Officer Linda Kennedy and another officer, 13 boxes and their contents as coming from a Conrail railroad car.

The record indicates that when the assistant State's Attorney began to enumerate specific contents, the trial Judge interjected that Corp would testify with regard to "the document listed in the [State's] answer to discovery." Defendant's counsel so stipulated.

We note here that the State's "Answer to Discovery" refers specifically to documents regarding evidence inventoried by the Chicago police department in conjunction with the charge against defendant. The inventory receipt related to defendant's arrest recited, as recovered items, "1 case of Isotoner gloves, 2 cases [of] Aris gloves and socks, 2 cases [of] Orrefors crystal, 2 cases [of] Lancome purses, 4 cases [of] Lancome nylon briefs, and 1 case [of] Parisian table clothes."

Chicago police officer Linda Kennedy, the State's only witness, testified that, at approximately 1:41 p.m. on October 11, 1986, while she was on routine patrol in a squad car, she was notified by radio of a burglary in progress at Cermak Road and Christiana Street, approximately one block away from her then present location. Kennedy testified that, as she proceeded southbound on Christiana Street toward the railroad cars, she observed several people on the railroad tracks located on an embankment above street level. There were two individuals in an opened railroad car and as many as six individuals nearby. While still in the squad car, she observed an individual she identified as defendant reach into a railroad car and receive, from someone inside, a cardboard box. The record indicates she demonstrated for the court the manner in which defendant reached inside the railroad car to receive the cardboard box. She testified that her view of defendant was unobstructed and that she observed defendant from approximately 30 feet away. Kennedy testified that after receiving the cardboard box, defendant turned and came down the embankment. When he came through a hole in the fence at the bottom of the embankment, she placed him under arrest. Another officer aided Kennedy.

Kennedy further testified that she observed several cardboard boxes strewn about the tracks. Approximately 13 boxes were recovered and were taken to the police station. The box taken from defendant was put into the back of her squad car and was also taken to the police station. Kennedy stated she was present when Corp later identified the boxes.

The following exchange took place regarding the cardboard box defendant had in his ...

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