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06/21/89 the People of the State of v. Jimmy Lee Washington

June 21, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JIMMY LEE WASHINGTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

540 N.E.2d 1014, 184 Ill. App. 3d 703, 133 Ill. Dec. 148 1989.IL.957

Appeal from the Circuit Court of Kane County; the Hon. Joseph M. McCarthy, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT, P.J., and LINDBERG, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, Jimmy Lee Washington, was found guilty in a jury trial in the circuit court of Kane County of the offense of possession of a stolen or converted motor vehicle in violation of section 4-103(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-103(a)(1)), a Class 2 felony (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-103(b)). He was subsequently sentenced to a four-year term of imprisonment.

Three issues are presented for review: (1) whether section 4 -- 103(b) of the Vehicle Code is constitutional; (2) whether the giving of a jury instruction defining "converted property" combined with the failure to instruct the jury on the definition of "theft" denied defendant a fair trial; and (3) whether defendant's pro se assertion after trial of ineffective assistance of his trial counsel entitles him to remandment for another post-trial hearing on that assertion with appointed counsel other than his trial counsel.

Evelyn Smith and her mother, Ethel Smith, testified that on December 14, 1986, at about 4:45 p.m., they parked a 1979 Oldsmobile Cutlass owned by Evelyn on a side street near 936 West 53rd Street in Chicago, where they were visiting Ethel Smith's aunt. Upon returning to the location where the car was parked approximately an hour later, they discovered the car was missing and contacted the police. Both witnesses testified that the car was locked after they parked and that neither had given anyone permission to take the car. Evelyn Smith next saw her car the following morning in Aurora, after having been contacted by the Aurora police. At that time she discovered that the lock had been pulled out of the trunk, the glove compartment had been pulled out, the ignition had been pulled out, and wires were hanging from the steering column.

Daniel Booth, a patrolman with the Aurora police department, testified that, while on duty on December 15, 1987, at approximately 1:30 a.m., he spotted a 1979 Oldsmobile Cutlass parked with the front end jacked up and the hood open north of 9 South West Street in Aurora. According to Booth, defendant was seated behind the steering wheel and two other individuals, later identified as Robert Moore and Willie House, were outside the car. Booth, believing the car to be disabled, approached the car. Defendant told him his gas pedal was sticking, causing the engine to overheat. After advising the men that the car should not be driven, Booth started to leave, at which point he observed that the lock was missing from the trunk of the car. He copied the license plate number. Booth then drove around the block and determined by radio communication that the vehicle had been reported stolen. Booth returned to where the car was parked. He saw the three men entering the house at 9 South West Street. Booth followed them into the house. Shortly thereafter, Booth was joined by several other officers, and defendant, Moore, and House were placed under arrest.

The State introduced into evidence a written statement given by defendant to Aurora police in which he indicated that on December 14, 1986, without permission he took a 1979 Oldsmobile Cutlass which he had found between Michigan and Wabash on 44th Street in Chicago, with its keys in the ignition and the engine running. In his statement, defendant stated, "I just took [the car] for transportation I was going to give it back, take it back to Chicago where I got it from." He further stated that Moore and House did not know the vehicle was stolen. He also stated that a person named "John" drove to Aurora with him.

In his testimony at trial, defendant offered a different account of the events preceding his arrest. According to defendant, on the afternoon of December 14, 1986, he was with Denise Lawson at her residence. Between 7 p.m. and 8 p.m. he left to pick up his and Denise's daughter, returning at about 10 p.m. He then left again accompanied by a friend, Peewee Bates, in Bates' car. According to defendant, while headed toward 45th and Michigan, they came upon Johnny Fleming, defendant's cousin, and an unidentified individual in the Cutlass. Defendant and Bates caught up with Fleming, and defendant got into the back seat of the Cutlass. The three agreed to drive back to Aurora. In Aurora they stopped to meet Twanda Harris, and eventually ended up at 9 South West Street. Johnny Fleming left in another car. Later, defendant, Moore, and House went outside and tried to fix the car. Defendant testified that he never drove the car or knew it was stolen.

Defendant testified that the version in his written statement -- that he took the car after finding it with the keys in the ignition -- was suggested by police during questioning. According to defendant, he was told that if he signed the statement, Moore and House would be released. A certified copy of defendant's prior conviction in 1982 of robbery was admitted into evidence on rebuttal.

Denise Lawson testified that defendant was with her on December 14, that he left about 7 p.m., and that he returned and left again at around 10 p.m.

Twanda Harris testified that defendant, Johnny Fleming, and another individual arrived at her residence in Aurora around midnight on December 14 in a 1979 Oldsmobile Cutlass driven by Fleming and that she joined them. After making several stops, they arrived at the location where ...


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