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12/21/89 the People of the State of v. Kevin Cathers

December 21, 1989





550 N.E.2d 1018, 194 Ill. App. 3d 318, 140 Ill. Dec. 893 1989.IL.1995

Appeal from the Circuit Court of Greene County; the Hon. Thomas G. Roady, Jr., Judge, presiding.


JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT, P.J., and GREEN, J., concur.


Defendant Kevin Cathers was charged by information with residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19-3) and theft under $300 (Ill. Rev. Stat. 1987, ch. 38, par. 16-1(a)(1)) of a video cassette recorder from the home of Vincent Edwards on April 26, 1988. Defendant's brother Michael was separately charged by information with the same offenses. Separate counsel were appointed by the court for each defendant, they waived trial by jury and were tried in a bench trial simultaneously. On August 23, 1988, the circuit court of Greene County convicted defendant on both counts and sentenced him on September 23, 1988, to 14 years' imprisonment for residential burglary and 364 days' imprisonment for theft, the sentences to run concurrently. Defendant was also ordered to pay $3,000 as reimbursement for court-appointed counsel. Defendant's motion for a new trial was denied, and the defendant filed a timely notice of appeal on September 23, 1988.

On appeal, defendant contests the admission into evidence of his brother's statement and asserts ineffective assistance of counsel because of the failure of his attorney to object to the admission on Bruton grounds. (Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) Defendant also challenges the order requiring reimbursement of attorney fees.

The facts will be reviewed only as they are necessary to this Disposition.

The defendants were charged with the burglary of Vincent Edwards' home in Roodhouse, Illinois, and with the theft of a VCR from Vincent Edwards. The record does not reflect any motion for the joinder of the prosecution by either the State or the defendants, but likewise there was no objection by either defendant when the cases were called for bench trial. Michael made a statement to police immediately after his arrest implicating the defendant. In substance, Michael indicated that he was driving his own car, he let the defendant out to do something, he didn't know what, and about 10 or 15 minutes later, the defendant got back into the car with a VCR in his possession. He then took the defendant to their home, where the defendant got out of his car, and into his own car, and the two met a few blocks from their residence. The defendant took the VCR out of Michael's car and put it into his car. Michael then took his car home and got into Kevin's car. The brothers went to Granite City on April 27, 1988, and to Alpine Cleaners in Madison, Illinois, where they sold the VCR to a Frank Marsala for $65.

Michael had made a motion in the trial court to suppress the statement as being involuntary. The record does not reflect any objection by defendant's counsel asserting a Bruton violation. The trial court found that the statement was voluntary and denied Michael's motion to suppress. The record does not reflect any indication by the trial court that this statement would be considered only as evidence against Michael. The defendant in his motion for new trial does not assert that the trial court used the statement of Michael in determining the guilt of the defendant. The State argues that the defendant has waived any error concerning the statement made by Michael. We find the State's position is well taken but, even on the merits, the defendant's assertion that there was a Bruton violation is without merit.

The supreme court has recently considered the issue raised by the defendant in this case. In People v. Schmitt (1989), 131 Ill. 2d 128, 545 N.E.2d 665, a codefendant, Nielsen, moved for a severance of his case from that of Schmitt, alleging that Schmitt had given written and oral statements implicating Nielson and that their theories of defense were antagonistic. No ruling was procured on this motion prior to the commencement of the trial, but by agreement of the parties, the court proceeded as if the cases had been severed, conducting simultaneous but separate bench trials. During the course of the trial, Nielsen's attorney repeatedly objected to the testimony regarding Schmitt's statements implicating Nielsen. The court time and again sustained counsel's objections and assured Nielsen's attorney that "'[t]hroughout, the Court is not considering statements made by Schmitt with regard to Nielsen.'" (Schmitt, 131 Ill. 2d at 132, 545 N.E.2d at 666.) In approving the joint trial of defendants in Schmitt, the supreme court stated:

"We do not mean to imply that the procedure employed in the instant case is without its pitfalls -- there are many. Any court employing such a procedure would do well to exercise the utmost caution to recite for the record its findings in each case and the reasons for its rulings. That said, we do not find the task beyond the abilities of circuit court Judges or one to be undertaken only by the offspring of Zeus. (Schmitt, 131 Ill. 2d at 137-38, 545 N.E.2d at 669.)

The supreme court emphasized that there was nothing in the record to indicate the court relied upon the post-arrest statements of Schmitt where he named defendant Nielson as his drug source. Further the court stated:

"We must presume the trial court considered only competent evidence unless the contrary affirmatively appears of record or the trial court, confronted with serious improprieties in a case where a defendant's guilt is not manifest, fails to comment on the irregularities or even indicate ...

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