APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
548 N.E.2d 421, 192 Ill. App. 3d 55, 139 Ill. Dec. 36 1989.IL.1826
Appeal from the Circuit Court of Cook County; the Hon. Robert J. Collins, Judge, presiding.
PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Following a jury trial, defendant was convicted of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3(a)) and sentenced to 25 years' imprisonment. On appeal, he argues that: (1) his constitutional right to confront witnesses against him was violated by the State's use of prejudicial hearsay testimony; (2) he was denied a fair trial as a result of the State's improper and inflammatory arguments to the jury; (3) the trial court erred in refusing to give his proposed jury instruction regarding eyewitness identification testimony; and (4) the sentence imposed is excessive. For the reasons set forth below, we affirm.
The evidence at trial established the following. On June 8, 1986, Donald Williams' home was burglarized. The home is a three-story brick house with a finished basement and side driveway located at 4940 South Woodlawn Avenue in Chicago. At the time of the burglary, Williams' wife, Mary, their daughter, Linda, and three tenants resided in the home. At approximately 6:15 a.m. Williams woke up and, as he was walking past a vacant bedroom used by his son on occasion, he noticed some drawers had been pulled out of the dresser and the contents therein strewn about. Williams returned to his bedroom and awakened his wife. They went downstairs and noticed that the front hall closet was open and several items of clothing were strewn about the floor. Thereafter, they went into their TV room, found a window wide open and discovered that their 19-inch television, which had been sitting on a table in front of the window, was missing. They then went back upstairs to the second floor, awakened their daughter, and the three of them went through the house again, eventually going to the basement family room. There they saw that a window had been broken and that a 13-inch black television was missing. They walked back upstairs to the first floor, Mr. Williams proceeded to the second floor to get dressed and to call the police, and Mrs. Williams and her daughter went to the television room on the first floor.
As the two women stood talking and looking out of the first-floor window, Mrs. Williams saw a man, later identified as defendant, walk up the driveway from the west carrying the black television taken from her home. As defendant continued down the driveway, Mrs. Williams said, "There he is" to Linda, and the two women watched defendant walk approximately 50 feet down the driveway. After losing sight of defendant when he reached some bushes at the front of the house, the women ran upstairs to the master bedroom. Linda called out to her father, "He is here. We see him. He is in the driveway." Linda and Mrs. Williams continued to watch defendant from the bedroom window. Mr. Williams called the police and gave them a description of defendant as related to him by Linda.
As defendant continued walking toward the front of the house, carrying the television, he met a young black woman wearing blue jeans, a blue jean jacket and a red sweatshirt. They crossed the street and walked behind a parked van. Shortly thereafter Linda and Mrs. Williams saw the woman emerge from behind the van and walk away from the area. Linda testified that she did not see defendant emerge from behind the van and that her view of the driveway between two houses on the east side of the street was obstructed by the van. Approximately five minutes later, Sergeant Swain, a Chicago police officer, arrived at the Williams home, had a conversation with them, and then left. A short time later, he returned, followed by a second squad car. Inside the second car was a black woman whom Linda and Mrs. Williams both identified as the woman they had seen earlier with defendant.
Officer Swain testified that on June 8, 1986, at approximately 6:30 a.m., he was on routine patrol in his squad car when he observed a black female standing by some trash cans near 4940 South Woodlawn Avenue. She was wearing blue jeans, a blue jean jacket and a red sweater. Swain questioned the woman briefly because it was unusual to see someone out at that time of the morning. Swain then drove off and a minute later he received a radio call concerning a burglary at 4940 South Woodlawn. He returned to that address and, while speaking with the Williamses, he received a second radio call and proceeded to 50th and Kimbark, approximately 1 1/2 blocks away from the Williams residence. Upon his arrival, he observed University of Chicago police and Chicago police officer Renard Jackson with a black female, whom Swain recognized as the woman he had previously talked to in front of the Williams home. Thereafter, Swain drove back to the Williams home, followed by Officer Jackson, who had placed the woman in his squad car. Mrs. Williams and her daughter subsequently identified the woman, Azalee James, as the person they had seen with defendant. She was then placed in custody, "Mirandized," and taken to the 21st District police station.
Detective Patrick Rooney of the Chicago police department testified that he was assigned to investigate the burglary of the Williams home. He interviewed Linda and Donald Williams and Azalee James at the police station. He told James that she was under arrest for residential burglary and advised her of her constitutional rights. (James was subsequently released, and neither the State nor the defendant called her as a witness at trial.) After receiving information from James, Officer Rooney went to defendant's residence, arriving there at approximately 10 a.m. Defendant was not at home so Rooney left a message with defendant's mother to have defendant call him. At 2 p.m., defendant called Rooney, he agreed to voluntarily come into the police station to talk with Rooney, and Rooney went to defendant's house and brought him to Area 1 police headquarters.
At Area 1, defendant was advised of his constitutional rights and informed that the police were investigating a burglary at 4940 South Woodlawn. Defendant denied any knowledge of the burglary, stating that at the time of the incident he was drinking at a disco until 5 a.m. and that he arrived home at approximately 6 a.m., at which time his mother told him the police were looking for him. When Detective Rooney told defendant that he had not been to his mother's home until approximately 10:15 a.m., defendant then told him that he went to his sister's house after the disco, fell asleep there for awhile, and, when he awoke, he went to his mother's house.
Rooney next asked defendant if he knew Azalee James. Defendant replied that he did but that he had not seen her for two weeks. After Rooney related to defendant some information he had received from James, defendant stated that in fact he had been en route to James' house earlier that day when he observed a burglary in progress at a residence on Woodlawn. He watched while "property was stashed" and then went to James' house, woke her, and they returned to the scene and took a television which had been among the stashed property. Rooney further testified that when he told defendant that there were two eyewitnesses to the crime, defendant stated that he had in fact been walking with Azalee James past the victims' home, observed a television lying in the bushes near the front of the house, and then took the television. Thereafter, Rooney requested that defendant's fingerprints, which were already on file, be compared with fingerprints taken from a broken basement window of the Williams home.
Chicago police officer Levy P. Roberts testified that on June 8, 1986, at approximately 3:30 p.m., he fingerprinted defendant. Chicago police officer Fred Harris, a trained latent fingerprint examiner of 12 years and called by the State as an expert, testified that he compared defendant's fingerprint with a print taken from the scene of the burglary and found 21 points of identification. In Officer ...