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11/15/89 the People of the State of v. Anthony Kennedy

November 15, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ANTHONY KENNEDY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

547 N.E.2d 634, 191 Ill. App. 3d 86, 138 Ill. Dec. 467 1989.IL.1787

Appeal from the Circuit Court of Cook County; the Hon. Ronald A. Himel, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. FREEMAN, P.J., and CERDA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Following a bench trial in the circuit court of Cook County, Illinois, defendant, Anthony Kennedy, was found guilty of possession of a stolen motor vehicle and sentenced to a term of four years of imprisonment. Defendant prosecutes this appeal seeking to reverse his conviction and sentence. He contends that: (1) he was denied a fair trial because the trial Judge was biased and considered matters outside the record; and (2) he was not proven guilty beyond a reasonable doubt. *fn1 We reverse and remand for a new trial.

The facts adduced at trial follow.

Loretta Henderson testified that she and her husband are the lessees of a 1987 Cadillac Seville with Illinois license plate PWA 175. At approximately 4:30 p.m. on January 27, 1987, she parked the Cadillac in front of her house, which is located at 2007 West 67th Place, in Chicago. The Cadillac remained parked in front of the house at 11 p.m. that evening. The next day, she recovered the automobile from the police pound. The steering wheel had been torn out, the hood and the trunk had been damaged, and the seats, radio, lights and doors on the driver's side had been removed. Ms. Henderson testified that neither she nor her husband gave anyone permission to remove the Cadillac. Ms. Henderson further testified that it was in good condition on January 27, 1987.

Officer Joseph Avila of the Chicago police department testified that at approximately 12:45 a.m. on January 28, 1987, he and his partner, Lynn Garmon, were patrolling the area near 65th and Seeley Streets in Chicago when they observed a Cadillac Seville with Illinois license plate PWA 175. The driver of the Cadillac, whom Officer Avila identified as defendant, looked toward the police officers and drove off. The officers followed the Cadillac to 65th and Damen Streets, where Officer Avila observed that the window on the passenger side was broken. He activated the lights on the police car, and defendant drove off at a high rate of speed. The officers followed it to an alley near 68th and Justine Streets, where the Cadillac came to a stop after hitting a tree trunk, a fence, and several vehicles. The officers pulled alongside, and Officer Avila observed defendant's face by the interior light of the Cadillac. Defendant first tried unsuccessfully to get out of the car by the door on the driver's side. He then exited by the door on the passenger's side and ran off with the officers in pursuit. While running, defendant removed his jacket and threw it on the ground. The officers caught defendant approximately one block from the alley after a chase which lasted three minutes.

Officer Avila testified that he then returned to the alley and inspected the Cadillac. He observed that the steering column was broken and recovered a screwdriver from the car. The radio and seats had not been removed.

Officer Avila also testified that he advised defendant of his constitutional rights, and defendant then told him that he had taken the Cadillac so that he could sell the tires and feed his children. Officer Avila's police report does not contain any reference to this statement.

Yolanda Martin testified for the defense. On January 28, 1987, she lived in an apartment at 6811 South Justine Street with her children, her boyfriend, Cindy Simmons, Ms. Simmons' children, Ms. Simmons' boyfriend, and defendant. Defendant left the apartment at approximately 1 a.m. that day. On cross-examination, Ms. Martin testified that defendant left the apartment "around midnight, something like that."

Ms. Simmons also testified for the defense. On January 28, 1987, she was in the apartment on Justine Street along with defendant. Defendant left the apartment at 1 a.m. She knew the time when defendant left the apartment because of a certain movie that she was watching.

Defendant testified that at approximately 1 a.m. on January 28, 1987, he left his apartment to go to a store on 69th and Ashland Streets. On the way to the store, he was approached by a person who he thought was about to hit him. He later learned that the person was a police officer. Defendant testified that he ran across the street to avoid being hit and he was then arrested by several police officers. Defendant stated ...


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