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12/28/89 the People of the State of v. Edward Lemons

December 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EDWARD LEMONS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

549 N.E.2d 800, 192 Ill. App. 3d 997, 140 Ill. Dec. 149 1989.IL.2036

Appeal from the Circuit Court of Cook County; the Hon. Donald E. Joyce, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Defendant, Edward Lemons, was charged with burglary and possession of burglary tools. Following a jury trial he was convicted of burglary and acquitted of possession of burglary tools. He was sentenced to 20 years' imprisonment.

On appeal, Lemons challenges the admission of what he characterizes as hearsay identification testimony. He also asserts that the trial court deprived him of a fair trial by instructing the jury that a witness' prior inconsistent testimony could only be considered for impeachment purposes and not as substantive evidence. He further argues that the trial court made a comment that, in effect, adopted the State's version of the case and assumed his guilt. Finally, Lemons challenges the sentence as exceeding the statutory ceiling for an extended term. On this last point, the State concedes that 14 years is the maximum term that Lemons can be sentenced to under the relevant law.

We affirm the conviction and reduce the sentence to 14 years' imprisonment.

Background

In the early morning hours of February 17, 1987, Michael McCall left his apartment to investigate after a neighbor told him someone was burglarizing his mother-in-law's 1971 Chevrolet Impala. He observed the back of a man bent over the steering wheel, noting that he wore a dark, dirty jacket and a half-torn sweatshirt. McCall went back inside his apartment and telephoned police. Shortly thereafter, he saw police cars arrive and saw a man running down an alley.

Officers Michael Decker and Robert Weisskopf arrived on the scene. Weisskopf heard a scraping sound from across the street and slightly behind the burglarized car. He ordered the person to come out from underneath the car. The person was Lemons, who appeared to be intoxicated. Weisskopf found no weapons on him but he did recover a woman's glove, a man's glove, and some tools and a flashlight.

McCall and Officer Decker inspected the Impala for damage, noting that a small piece of the steering column was missing and that there were scratch marks on the left side. McCall testified that he noticed tools on the floor of the car, some of which were his and others which were not. Some of his were missing. He also found two children's coats that were not his, one of his wife's gloves, and one man's work glove.

At trial, Weisskopf testified that the two gloves he took from defendant matched two that were in McCall's car. The woman's glove was identified as belonging to Theresa McCall. Weisskopf also testified that McCall told him he saw two offenders.

At the preliminary hearing McCall testified first that he saw the police recover the glove from Lemons but admitted that he did not actually see the police take the gloves from Lemons. He stated that he did not have personal knowledge that Lemons was in possession of them. At trial he testified that as Weisskopf led Lemons to the squad car, Weisskopf turned toward Lemons, took something from him, and then showed McCall the woman's glove. Defense counsel sought to have McCall's prior statements admitted as substantive evidence. The ...


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