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07/27/89 the People of the State of v. Randy W. Connolly

July 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RANDY W. CONNOLLY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

542 N.E.2d 517, 186 Ill. App. 3d 429, 134 Ill. Dec. 338 1989.IL.1158

Appeal from the Circuit Court of Mason County; the Hon. Thomas L. Brownfield, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On July 7, 1988, following a jury trial in the circuit court of Mason County, defendant Randy W. Connolly was convicted of burglary and felony theft. He was subsequently sentenced to concurrent extended terms of 14 years' imprisonment for burglary and 10 years for theft.

On appeal, defendant maintains (1) the trial court erred in allowing evidence of defendant's previous offenses of burglary and attempt (burglary) to prove his guilt of burglary and theft here; (2) he was denied his sixth amendment right to confront witnesses against him by the State's introduction of a hearsay statement made by a nontestifying codefendant; (3) he was denied his right to a fair trial by the introduction of a plea-related Discussion in violation of Supreme Court Rule 402(f) (107 Ill. 2d R. 402(f)); (4) he was denied his right to a fair trial by the State's characterization of its case as undisputed and uncontradicted and thus focusing the jury's attention on defendant's failure to testify; (5) the court erred in considering the proceeds received by the defendant as a factor in aggravation; (6) his extended-term sentence for theft violated the provisions of section 5-8-2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-2(a)); and (7) the trial court erred in failing to advise the defendant of the possibility of treatment under the Alcoholism and Substance Abuse Act (Act) (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 6301 et seq.). We reverse and remand for further proceedings.

Daniel Rohlfs testified at trial that he had entered a plea of guilty and was to receive a sentence of 4 1/2 years' imprisonment for burglarizing a jewelry store in Havana, Illinois, on March 12, 1988. He stated that on that date, he was approached by defendant and Mark Basden and was asked if he wanted to "make some money." He said he did, and they all drove from Springfield to Havana to look for a jewelry store to burglarize. Rohlfs testified (1) defendant and Basden were dressed in dark winter clothing and told Rohlfs to dress "warmly"; (2) defendant and Basden had various tools in the car and instructed Rohlfs to gather them into boxes; (3) when they found a jewelry store, the three men went to the back of the building to look for an alarm system; (4) defendant cut some of the wires leading to the jewelry store; (5) they were returning to the store, when a police car appeared, and they all "took off" running; (6) they then drove "aimlessly" around town and eventually returned to the store after the police had departed. Rohlfs said that defendant and Basden then instructed him to cut a hole in the roof of the jewelry store with an axe, drop into the store, grab all of the men's rings and then open the back door for Basden and defendant. Rohlfs said it took him almost three hours to cut through, and when he later went to look for defendant and Basden, he could not find them anywhere in town. He said he then hid the jewelry he had taken and called defendant at his apartment in Springfield to come to Havana to get him. Rohlfs said he gave some of the jewelry to Basden and defendant, and they later split the proceeds from the sale of that jewelry. Rohlfs admitted that he had two previous burglary convictions. He also admitted that he had previously told the police that he cut the wires near the store, but he said he was initially reluctant to tell the police of defendant's involvement. His testimony was corroborated in part by telephone bills showing collect calls from Havana to defendant's apartment on March 13, 1988, by testimony of people who overheard the telephone calls, by a person who witnessed Rohlfs and defendant retrieving a box from where Rohlfs said he had hidden some of the jewelry and by testimony of two police officers.

Police officers Kevin Noble and Rod Boggs testified at trial that they were officers of the Havana police department and that they answered a "silent alarm" coming from Walker's Jewelry Store at 10 p.m. on March 12, 1988. Noble said he saw no sign of forced entry and nothing out of the ordinary. He also said that he later saw defendant and Basden in Havana in the early morning hours of March 13.

Boggs testified he had seen the two men in the company of a third, unidentified man at a time when Rohlfs claimed the three of them were driving around waiting for the police to leave the jewelry store. He also testified that he later saw the car with two men sleeping inside. He said defendant produced a valid driver's license and indicated he and his friend were traveling from Peoria to Springfield and stopped there to rest. Boggs said he did not detect any signs of alcoholic intoxication, and there were no alcoholic beverages or tools in the car. He said he then directed defendant to go to the nearest motel or to leave town.

Officer Leland Keith, of the Mason County sheriff's office, testified that he arrested defendant on March 25, 1988, and defendant acknowledged that he had been in Havana on the night in question. He said he and Basden had been in Peoria, were drunk, and he did not commit any burglary. Keith said defendant then inquired as to whether they made "deals" in Keith's county. The officer then testified over objection to a statement taken from Mark Basden six days prior to his death on March 18, 1988. In that statement, Basden also indicated he and defendant had been in Peoria, were drunk, and were returning to Springfield. Basden also said he and defendant had been asleep when the police approached their car and told them to get out of town. Basden denied participating in the burglary of the jewelry store and said he knew nothing about it.

John Cook, a detective in the Logan County sheriff's department, then testified over defense objection that he had investigated a burglary of a grain elevator in Chestnut, Illinois, in the early morning hours of April 18, 1985. He said (1) someone had broken into the elevator building by prying a basement door and had cut wires to a loud-speaker positioned outside the building; (2) defendant was seen driving a car in the vicinity of the elevator at the approximate time of the burglary wearing a navy blue, hooded sweatshirt; (3) he searched defendant's car and found a three-way lug wrench, a pry bar, screwdrivers, pliers, and a wire connector; and (4) his investigation revealed defendant was responsible for the burglary.

Sergeant Frank Natale of the Springfield police department testified that he investigated an attempt (burglary) at a grocery store in Springfield in the early morning hours of December 4, 1985. Natale testified (1) an alarm was triggered when wires near the roof of the store were severed; (2) the back door to the store bore fresh pry marks; (3) near the time the alarm sounded, police observed a man driving away in a car registered to defendant's wife; (4) defendant was apprehended, on foot, near the store with wire cutters; (5) defendant was wearing a dark blue stocking cap, tan coat, Levis, and gloves; and (6) the officer's investigation revealed defendant was responsible for the attempt (burglary).

At the close of trial, the jury was instructed that the other crimes evidence could be considered "solely on the issue of the defendant's modus ...


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