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10/16/89 the People of the State of v. Joseph D. Wehrwein

October 16, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOSEPH D. WEHRWEIN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

545 N.E.2d 1005, 190 Ill. App. 3d 35, 137 Ill. Dec. 244 1989.IL.1634

Appeal from the Circuit Court of Cook County; the Hon. James M. Schreier, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. O'CONNOR, J., concurs. PRESIDING JUSTICE MANNING, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Following a bench trial, the defendant, Joseph Wehrwein, was found guilty of possession of a stolen motor vehicle and sentenced to three years' imprisonment. Defendant appeals from the conviction and the sentence.

On appeal, defendant contends (1) that he was not proven guilty beyond a reasonable doubt where the State failed to prove the identification of defendant and failed to prove each element of the crime charged; (2) the trial court abused its discretion in allowing the State to recall a witness; (3) the trial court erred in allowing the State to call a certain witness during its case in chief where the name of the witness was not included in the State's answer to discovery; and (4) that his conviction and sentence must be vacated because the statute under which he was convicted and sentenced is unconstitutional.

At trial, Chicago police officer Leon Toney testified that he was a member of the auto theft unit of the department. On March 7, 1985, at about 7:30 p.m., Toney was stationed in an unmarked car two or three blocks from C & H Transportation Company at 8928 South Holland in Chicago. At that time, he was informed by another officer that a blue tractor-trailer was pulling out of the yard and proceeding northbound on Holland, towards his location. Officer Toney had information that this tractor-trailer had been stolen on March 1, 1985, according to a report from the State of Illinois.

As the tractor-trailer approached Toney at the corner of 87th Street and South Holland Drive, he "could not see much" through the windshield of the vehicle. Defendant then stopped the tractor-trailer at an intersection which was in a well-lit area for a period of from two to four minutes. Officer Toney was parked about 50 feet from the tractor-trailer or approximately the width of the street. Toney testified that he observed the driver of the tractor-trailer, sitting in the cab, six to eight feet in the air, clad in a baseball cap and jacket and having long curly hair. He could not relate the height or weight of the driver. The window of Toney's automobile was open, and he recognized the defendant as the driver of the tractor-trailer. While the defendant was stopped at the intersection, Officer Toney stated that he used a pair of binoculars he had with him to view the defendant and there was nothing obstructing his line of sight. At trial, Toney identified defendant as the person he had seen driving the tractor-trailer.

Officer Toney further testified that he followed the tractor-trailer as it proceeded down a ramp leading south onto the Dan Ryan Expressway. When the tractor-trailer reached the bottom of the ramp, it slowed up, pulled off the road onto the shoulder and turned off its lights. Officer Toney continued on the ramp approximately a quarter of a block, and he also pulled onto the shoulder of the road and turned off his lights. At that time, a Tinley Park police car pulled up behind Toney. Because Toney was in an unmarked car, the officer from Tinley Park thought it was suspicious that Toney had pulled onto the shoulder of the road and turned out his lights. Officer Toney informed the Tinley Park officer who he was and explained to him that he was suspicious that the truck parked behind them was stolen. When Toney got back to the tractor-trailer, it was abandoned alongside the expressway and the defendant who was driving the vehicle had disappeared. Subsequently, on April 23, 1985, Toney testified that Officer Bernatek of the Chicago police department showed him a compilation of six photographs. Toney identified the photograph of the defendant as being the same person he had seen driving the tractor-trailer at the intersection of 87th Street and South Holland Drive on March 7, 1985.

Chicago police officer LeRoy Starr next testified for the State. While the tractor-trailer was parked on the side of the expressway, he arrived on the scene and viewed the truck. Four of the ten tires on the tractor-trailer were missing. Further, inside the cab of the truck, numerous wires were disconnected, hanging about the vehicle and lying on the floor. The radio, as well as its speakers, were missing. In addition, the bracket for one of the two saddle tanks which would contain diesel fuel was removed and the right saddle tank was missing. Subsequently, Starr participated in the execution of a search warrant at the truck yard that previously was under surveillance. At the yard, the officer found parts which appeared as though they matched the tractor-trailer in question, although the officer did not know whether or not the parts actually came from the tractor-trailer.

The State then recalled Officer Toney over objection of the defendant. Officer Toney further testified that when the tractor-trailer reached the bottom of the ramp on the Dan Ryan Expressway, a maroon car was parked on the shoulder of the ramp, and the maroon car began following the tractor-trailer being driven by defendant. For approximately 15 or 20 minutes the maroon car followed the tractor-trailer as it was driven down the expressway. During this period of time, Toney noted the license plate number of the maroon car. Officer Toney passed the maroon car in traffic and stated that a heavy white woman was driving the car. All three vehicles, the tractor-trailer, the maroon car, and Officer Toney's unmarked squad car exited the expressway at Harlem Avenue. At that time he was approached by the Tinley Park officer. At trial it was established that the maroon car was registered with the defendant as the owner.

Harold Duke next testified for the State. Duke is a partner in Duke and Riley Trucking Company, a truck leasing business. Duke identified a picture of the tractor-trailer seized on the exit ramp of the expressway as one of the trucks that his company owned. On the date in question, March 7, 1985, Duke believed that the truck could have been leased to a company known as Legion Nationwide.

Finally, Robert Micco, an employee of Legion Nationwide, testified. Although Micco's name was not on the State's answer to discovery, and the defendant objected to the introduction of his testimony, the court permitted the State to amend its answer. Micco testified that his company, Legion Nationwide, terminated their permanent lease on the tractor-trailer on March 3, 1985, and that Duke and Riley Trucking had the right to possession of the tractor-trailer on March 7, 1985. I

Defendant first contends that the State did not prove him guilty beyond a reasonable doubt where the officer's identification was insufficient and where the defendant was not found to be in possession of a motor vehicle which he knew was stolen. The State maintains that Officer Toney's identification of defendant as the driver of the tractor-trailer was credible and the evidence proved beyond a reasonable doubt that defendant was in possession of a vehicle which he knew or should have known was stolen.

Certain principles of law are well settled in the area of identification testimony. Although a conviction cannot be sustained if the identification of the accused was vague, doubtful or uncertain (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153), the testimony of one identification witness, if positive and credible, is sufficient for a conviction. (People v. Diaz (1981), 101 Ill. App. 3d 903, 428 N.E.2d 953.) The most important factor is whether the witness had an adequate opportunity to view the offender at the time of the crime. (People v. Moore (1983), 115 Ill. App. 3d 266, 450 N.E.2d 855.) An identification may be positive even though the witness viewed the accused for a short period of time. (People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121; People v. ...


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