APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
538 N.E.2d 834, 182 Ill. App. 3d 949, 131 Ill. Dec. 459 1989.IL.686
Appeal from the Circuit Court of Cook County; the Hon. John N. Hourihane, Judge, presiding.
PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and COCCIA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
After a jury trial, defendant William Sorice was found guilty of conspiracy to commit a burglary and burglary and sentenced to four years' imprisonment. On appeal, he contends: (1) the trial court erred in denying his motion to suppress evidence; (2) he was denied a fair trial because the prosecutor elicited testimony suggesting prior criminal conduct by him; (3) the trial court erred in permitting a Chicago police department criminologist to testify concerning certain evidence; (4) he was not proved guilty beyond a reasonable doubt; (5) he was denied a fair trial because the prosecutor commented on his silence during closing argument; (6) he was substantially prejudiced because of an improper communication to the jury which impermissibly hastened its verdict; and (7) the court abused its discretion in sentencing him to four years' imprisonment. For the reasons set forth below, we affirm in part and reverse in part.
The record discloses that at a hearing on defendant's motion to suppress, he testified that on February 10, 1985, he was employed as a Chicago police officer and worked the third watch out of the 12th District (3 to 11:30 p.m.), at which time he had his service revolver with him. On February 11, at 7:30 a.m., two uniformed and two plainclothes police officers came to his home. The officers told him that someone had been found with his identification card and badge. He was asked to accompany the officers to the 12th District police station and said, "O.K." At the station, he filled out a "to-from report." He did not recall if he stated therein that he had lost his car, identification, gun, and house and car keys. He also did not know if his gun was lost or stolen and only knew that his car was missing because he did not know where he had parked it. Defendant further related that he went from the 12th District to Area 4, where he signed some complaints for the theft of his star and identification because an officer informed him that they were not in his car, which the police had subsequently located. He was also informed that his car had been towed at 8:30 that morning from a parking lot of the Lawrence Fishery at 22nd and Canal in Chicago and that the tow operator could not stop laughing because of the large number of empty beer cans and bottles that were in the backseat.
Sergeant Melvin Bynum, a Chicago police officer assigned to the Internal Affairs Unit, Confidential and Corrupt Police Practices Section, testified that he went to defendant's home on February 11 with other officers. He told defendant he was needed at the 12th District in regard to the burglary of a jewelry store which had occurred earlier that morning and that one of the offenders had been found with his identification and star. On the way to the station, defendant told Bynum that he had no idea where his identification and star were, that he had bought a six-pack and had been drinking, he could not recall what happened to his car or gun, and that the last time he saw his revolver it was in his car; Bynum did not include this conversation in his report. Bynum further stated that he and a fellow officer were ordered to locate defendant's car to see if his gun was in it inasmuch as his badge and identification had been recovered. They found the car in the Lawrence Fishery parking lot. After brushing some snow off the car window, Bynum saw that the inside was in disarray. He then used a coat hanger to gain entry into the car. He found defendant's loaded gun under the front seat of the vehicle, as well as a lock puller, jumper wires, and a set of lock fix, which were in "plain view" adjacent to the gun. He also observed a pair of coveralls and a knit that in the back section of the car. Defendant's car was subsequently towed to the police station and the items found therein inventoried by someone other than Bynum.
Based on the foregoing, the trial court denied defendant's motion to suppress, finding the exigent circumstances excused the warrantless search of defendant's car. Prior to trial, the court also granted defendant's motion in limine barring the State from introducing any evidence regarding defendant's alleged involvement in the attempted burglary of a currency exchange.
At trial, police officer Thomas Hughes testified that he and another officer were ordered to investigate a burglary at the Princessa Jewelry store located at 1650 West 18th Street in Chicago. When they arrived at the store, they saw some footprints in the newly fallen snow coming out from the rear of the store, up on a porch, and in the areaway between two garages and then out into an alley. Once on the porch, Hughes observed wires hanging down from the side of the building and an iron gate and wooden door to the rear of the building were standing open. After entering the store they found a large safe with its doors and drawers open, a glove in front of it, and various tools for "peeling" open the safe.
The police notified the owner of the store, Jesus Amaya. Amaya subsequently testified at trial that upon arriving at the store he found showcases broken, the safe open and the store in complete disarray. The value of the goods taken amounted to $216,000. Amaya identified defendant as someone who had come into the jewelry store dressed in his uniform several times before the burglary, i.e., January 1985, a week later, and on a Friday in February just prior to the burglary. On the first occasion, defendant brought a Timex watch in to be repaired, the second time he stayed for 10 to 15 minutes and asked if the store carried 14k or 18k gold and what the quality of it was and the price of a chain and ring, and on the last occasion defendant came in, looked around the store and told Amaya that he had a couple of gold chains he was going to bring in to be repaired. Approximately two weeks before the burglary, defendant also told Amaya about some strange men he had seen standing around on the second-floor landing of the store.
Steven Manning also testified on behalf of the prosecution. Manning was a former police officer who was discharged from the department in 1983 after he pleaded guilty to theft and official misconduct. When he was arrested for the burglary at issue here, he was on probation. He pleaded guilty to the violation of probation petition and was sentenced to four years' imprisonment. Manning further testified that he first met defendant in June or July 1984 at a restaurant; in September 1984 he and defendant met at another restaurant and defendant asked him if he was interested in a "score" ("illegal payday" or a burglary) during which his only function would be to act as a lookout; and he and defendant continued to converse by telephone throughout the fall and into the winter, contacting each other through beepers and using pay phones.
On February 4 or 5, 1985, defendant called Manning and said he should prepare himself because defendant had a score available. They subsequently met each other at that time at the Lawrence Fishery located at 2120 South Canal. During their conversation, defendant told Manning that he had a jewelry store set up and that they would take it within a week. Defendant told him he would receive $1,000 for his role as lookout. They were to use Manning's Lincoln town car because it was official looking and defendant directed him to get valid license plates which did not check out to him.
On February 9, Manning received a page from defendant. When he called defendant, defendant told him that they were going to score the next night, to meet him at the Lawrence Fishery after the third watch at 11:30 or 11:45 p.m., to bring a scanner to monitor the police ban, and to bring his Lincoln town car. Manning arrived at the Fishery the next evening at 10:30 p.m.; defendant arrived at 11:45 p.m. in his own car; defendant got out of his car, said hello to Manning, took a bag out of his car trunk and put it in Manning's trunk; defendant got into Manning's car and gave him directions to the area of 18th and Ashland; and defendant told Manning not to worry because they were in the 12th District and he knew most of the police officers in the area. When they arrived at the jewelry store, defendant told Manning to park across the street. Defendant then instructed Manning to listen to the scanner, which was tuned to the band for the 9th and 12th Districts; that if he heard or saw anything he was to sound the car horn or set off the car's alarm system; and that if there was a problem he was to tell the police that defendant was down the street having sex with some girl. Defendant, after telling Manning that he was going to leave his star and identification in Manning's car, got out of the car, took the bag from the trunk, and left. Manning's car was facing east when he saw defendant go north across the street in the direction of a Clark gas station, which was located next to the Princessa Jewelry store.
At approximately 2 a.m., a squad car passed Manning's car. Manning froze for a moment, then reached for the car's inoperable mobile telephone and feigned making a phone call. The squad car made a U-turn, pulled up alongside Manning's car, and two police officers got out of the car and told Manning to do the same. Manning asked the officers what the problem was and informed them he was an ex-police officer and that he was making a phone call while waiting for a friend. The officers told Manning that if he was an ex-police officer he would not mind them searching his car and Manning then consented to a search. Thereafter, one of the officers found the scanner with an earplug and defendant's badge, identification and beeper. Manning informed the police that the owner of the badge, whom the officers knew, was down the street with his girl friend.
The officers arrested Manning and took him to the 12th District and then to Area 4 headquarters, where he saw defendant in another room. Initially, Manning told the police he had no comment other than he did not steal the badge recovered from his car. However, after defendant signed complaints for the theft of his star, Manning agreed to answer questions and to testify before the grand jury. He subsequently gave an oral statement to the police, which was written down, telling them he was involved in a burglary with defendant. Manning further stated that defendant never told him he could use his badge and identification and that is why he did not show them to the arresting officers; he left his position opposite the jewelry store on two or three occasions; he did not know what defendant took out of the trunk of his car once they got to the jewelry store; and he did not see defendant enter the jewelry store.
Chicago police officer Donald Johnson testified that on February 11 it was snowing heavily and around 2 a.m. he and a fellow officer observed a car parked on the street without any snow on it. They drove up to the car and confronted the occupant -- Manning. They asked Manning what he was doing and he responded he was making a phone call, they asked him if he lived in the neighborhood and he responded he was an ex-police officer, they asked him if he still carried a weapon and he responded that he did not, and they asked him if there was a weapon in the car and he said no and to take a look. Upon searching the car, they found a wallet with a police star and a beeper. One of the officers knew the police officer named on the star and identification and asked Manning where the officer was, to which Manning responded that he was upstairs with some girl, pointing to a row of houses. Manning was then placed under arrest for possession of stolen property -- the police star.
Geraldine Roman, a personnel manager of Rogers Radio Communications, d/b/a Metromedia Paging, also testified for the prosecution. She stated that she keeps the business records of the company, that the People's exhibit 3, a Metromedia pager, was rented by defendant in 1984 and that he was still renting it on February 10 and 11, 1985. Finally, she identified People's exhibit 44 as a work order dated March 7, 1985, wherein defendant stated that the beeper had been lost.
The State also called Ray Lenz, a criminologist of the Chicago police department's crime lab, to testify as an expert. He stated that a fiber on a glove found in the jewelry store was very similar in cross-sectional shape as well as in other materials to fibers found on the coveralls recovered from defendant's car. It was his opinion that the fiber on the glove could have originated from the coveralls and that there were no differences ...