APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION
553 N.E.2d 712, 194 Ill. App. 3d 958, 143 Ill. Dec. 5 1989.IL.1696
Date Filed: October 27, 1989; Modified on Denial of Rehearing March 23, 1990. As Corrected November 8, 1990.
Appeal from the Circuit Court of Cook County; the Hon. Kenneth L. Gillis, Judge, presiding.
JUSTICE RAKOWSKI* delivered the opinion of the court. McNAMARA and EGAN JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RAKOWSKI
Roy Brown and Willie McNeal were charged with possession of burglary tools and attempted residential burglary. After a bench trial in the circuit court of Cook County, both defendants received concurrent terms of 10 years for burglary and three years for possession of burglary tools.
The appeals for these defendants have been consolidated in this court. Defendant Brown in this appeal asserts that the trial court should have: (1) granted a severance of his case because of antagonistic defenses; (2) quashed his arrest and suppressed the subsequent lineup identification of him; (3) dismissed the charge of possession of burglary tools because it involved the same behavior as the burglary charge itself; and (4) allowed him to choose treatment for drug addiction under Treatment Alternatives to Street Crime in lieu of his prison sentences. Defendant McNeal asserts in his appeal that the trial court should have: (1) excluded the evidence of another burglary committed on the same day; (2) excluded evidence of his vehicle registration unless the State first laid a proper foundation through the car dealer who sold him his car and then presented a certified copy of the registration made before the beginning of this litigation; (3) dismissed the charge of possession because there was no evidence that McNeal ever had physical possession of the burglary tool; and (4) imposed a shorter sentence because the statute under which he received an extended sentence is unconstitutionally vague.
On October 1, 1985, an attempted burglary occurred at the home of Cathleen Sayles, 5412 West Drummond Place in Chicago. Four witnesses observed a black male in the gangway of the Sayles home. Between them, these witnesses observed this male as he attempted to open Sayles' garage and basement window with a screwdriver, tucked the screwdriver into his pants, entered a car parked in front, and rode away. The witnesses also observed another black male driving the car and noted license number RHY707.
Later that evening, the police located the car and placed it under surveillance. About 40 minutes into the surveillance, Brown walked to the car, placed an object in the trunk, and left. The police followed and arrested him. Shortly thereafter, police arrested McNeal when he entered the car. In the car, the police found two items from another burglary which had also been committed the same day, 4 1/2 blocks from Sayles' residence.
After these arrests, Brown appeared in a lineup. There he was identified by the four witnesses from Sayles' neighborhood. The State later charged both men with attempted burglary and possession of burglary tools.
At trial, the State presented evidence to show that McNeal owned or at least controlled the burglary car. The police officer who conducted the surveillance of the car testified that McNeal tried to drive the car on the night of his arrest. McNeal's aunt testified that the members of her household, including McNeal himself, previously used the car. Finally, Rosanne Quattrocki, a manager from the motor vehicle facility in Chicago, described the normal procedure for car license registration. The State then presented a certified copy of the record for license number RHY707, which showed that: Lesley Oldsmobile had submitted a registration on July 3, 1985; the Secretary of State had issued McNeal's plates on August 7; and the records office of the Secretary of State had made a certified copy of these records on December 3.
At trial, McNeal's theory for defense was based upon mistaken identity. He argued that someone else drove the burglary car for Brown. Twice during the cross-examination, McNeal's counsel asked a witness to identify Brown. Even though these witnesses also identified Brown during the case in chief, Brown claimed that by reason of McNeal's theory of defense, he was prejudiced from his trial as a co-defendant with McNeal.
The State also introduced evidence that McNeal, another person and McNeal's car were at the scene of a burglary that occurred around the same time and about 4 1/2 blocks from the burglary attempt at Sayles' residence.
Following Brown's conviction, at his sentencing hearing, he requested treatment under the TASC program of the Alcoholism and Substance Abuse Act (Act). Brown stipulated that he had received treatment under the Act in 1981 as a result of a plea of guilty on a burglary charge. In that case, the trial Judge had deferred entering judgment and placed Brown under TASC supervision for two years. On appeal, now, Brown claims that he did not receive deferred prosecution but instead, by reason of this plea of guilty, he in fact had been convicted. Thus, he asserts, he was eligible for TASC treatment under section 22 of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 6322).
As noted earlier, the trial Judge found both defendants guilty here. After making the finding, the Judge reviewed the record of both defendants and found that McNeal's record included one conviction for first degree murder and another for armed robbery, and that the past history of both defendants made them eligible for extended sentences beyond the three to seven years provided for the Class 2 felony of attempted burglary. He then, as previously stated, sentenced each defendant to concurrent terms of 10 years for attempted burglary and three years for possession of burglary tools.
Brown's first issue presented in his appeal is that the trial court committed reversible error when it denied his motion for severance due to the antagonistic defenses between him and McNeal. This occurred, Brown says, because in his own defense, he denied guilt, while defendant McNeal, on the other hand, claimed that Brown had committed the crimes but did so with another companion.
A trial court may order separate trials where the joinder of defendants will prejudice one defendant at trial. (Ill. Rev. Stat. 1985, ch. 38, par. 114-9.) When defendants have been indicted jointly, they will usually stand trial jointly unless some problem, like antagonistic defenses, would cause unfair prejudice to one of the defendants. (People v. Daugherty (1984), 102 Ill. 2d 533, 540-42, 468 N.E.2d 969, 972.) At a bench trial, however, the law will normally presume that the Judge, as trier of fact, can exclude improper evidence from consideration even if some improper material does come in during the trial. People v. Moore (1984), 128 Ill. App. 3d 505, 514, 470 N.E.2d 1284, 1290-91.
On appeal, Brown claims that the trial testimony elicited by McNeal in cross-examination had implicated him and thus prejudiced him. The record does reflect that two witnesses did identify Brown on cross-examination by McNeal, but both of these witnesses had also identified him during the prosecution's case in chief. Since Brown had already been identified prior to McNeal's cross-examination, we do not find this cross-examination testimony to be a sufficient showing of prejudice due to antagonistic defenses. This evidence was merely cumulative at most and not unduly prejudicial ...