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February 22, 1994



Released for Publication April 19, 1994.


The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court:

In the early morning of January 8, 1992, Chicago police officer Tim Thompson and his partner, Officer John Walsh, responded to a radio call which instructed them to investigate a suspected burglary at 1551 West Howard Street, on the city's far north side. Upon entering the east end of an alley behind the address they had been given, Thompson heard the wail of an alarm and noticed other squad cars converge on the scene from the west. After parking their vehicle so that it blocked the north end of the alley, Thompson and Walsh alighted from the car and walked into the alley. As they turned a corner, they came upon defendant, who was bent over, near a garbage dumpster, rapidly gathering together coins which were strewn about the alley, and filling his pockets with the change. Thompson also observed a cash register perched on the dumpster with its cord hanging directly in front of defendant, and its cash drawer was lying next to it.

After Thompson asked him why he was in the alley, defendant stood up and attempted to walk around the two policemen. They subdued him, asked for his name and reinquired as to what he was doing there. He responded by informing them that his name was James McCool, and that he was just collecting the coins on the ground. While Thompson stayed with his detainee, Walsh went around to the front of the building, and upon his return, he told Thompson that the front window of the building, which housed a retail establishment, had been broken and the store's cash register was missing. Walsh also related that a trail of coins led from the broken window directly to the dumpster where they had found defendant. Thompson then arrested defendant and, pursuant thereto, conducted a custodial search, which uncovered a large amount of coins, paper currency, some personal belongings, and a set of four small keys which were on a ring with a plastic red apple fob. Although he conducted a thorough search, Thompson did not come across any shards or even particles of glass adhering to defendant's clothing during the pat-down of defendant.

Officer Walsh agreed with Thompson that as they drove up to the location, he heard an alarm. Other than defendant, he saw no individuals near the location of the crime, and he saw no vehicles depart from the area. Once his partner had gained control of defendant, Walsh investigated the front of the building. He saw a storefront with its glass door broken inward, and learned from other officers at the scene that the store was missing a cash register, and that the door had apparently been broken by a tire iron which was found on the store's vestibule floor.

Officer Kathleen Gahagen was the police technician assigned to gather evidence at the scene of the break-in. Beginning at the shattered front door of the establishment, she observed a trail of coins, leading her into the near-by alley and which ultimately led to a dumpster wherein she saw parts of a cash register. She stated that after inspecting the register for fingerprints, she discovered that it contained prints, but she could take no "lifts" with which she could conduct a comparison with prints on file.

The store which was broken into was DollarBuster's, a retail establishment which sold general merchandise and which was operated by Ahmed Diab. He testified that the store closed at 8 p.m. and after closing, his general practice was to leave some money in the register in order to facilitate the opening of business the following morning. His store was equipped with an electronic alarm which, when set off, sounds a siren and simultaneously informs the police of the break-in via phone lines. He denied selling tire irons similar to the one which was found lying on the floor of his store on the morning of the crime, and stated that he never gave defendant the authority to exercise control over the money in the cash register or over the cash register itself. Finally, he identified the keys and the apple fob found on defendant as being the ones which control the registers in his store.

Defendant testified that at approximately 4 a.m. on January 8, 1992, he was walking west on Howard Avenue heading toward the rapid transit station on Howard, when immediately east of Ashland Avenue he saw coins on the ground glinting in the light of the street lamps as well as in the occasional beam of a passing car. He picked up the coins as he came across them, and while so engaged, he noticed that the coins led into the alley, where there appeared to be many more. He went to the end of the trail, raked the coins together into a pile, and filled his pockets with them. Looking up, he saw a cash register next to a light pole in the alley; he kicked and shook the register and heard the jangling of coins. He then lifted the register, placed it on a nearby garbage dumpster, and removed its contents.

As he was readying to leave, a police car pulled up and its headlights illuminated still more change, which he stooped to pick up. An officer exited the vehicle, identified himself, and conversed with defendant, asking him what he was doing. He replied that he was gathering the coins which were all over the alley. The officer then handcuffed him and inspected his pockets, removing their contents. Although he denied that the small keys introduced by the State were among the articles removed, he did say that he had other keys in his pockets which had been inadvertently pocketed while he collected the coins. Finally, he denied breaking into DollarBusters and denied ever using the tire iron found there.

In order to impeach defendant's testimony, the State sought to read into evidence a copy of his prior conviction for robbery. Defendant objected to this, urging the court to omit reference to the particular crime, and to advise the jury only that he had previously committed a felony. He also asked that the State be obligated to inform the jury that he had pleaded guilty to the offense. The court refused both requests and directed the State to keep the prove up in the neutral form of defendant's prior conviction for robbery. When the assistant State's Attorney was reading the conviction to the jury, however, she added that defendant was initially charged with armed robbery, and was sentenced to 180 days' imprisonment.

Defendant immediately objected and immediately thereafter sought a mistrial, arguing that he was prejudiced by the information offered which was in excess of that allowed to impeach a witness's credibility. His motion for a mistrial was denied, but the court did admonish the jury to disregard the incompetent evidence.

Although the information charged him only with burglary, defendant also tendered verdict forms for theft, maintaining that it was a lesser included offense of burglary. The court declined to allow the jury to find him guilty of that crime. The jury thereafter found defendant guilty as charged.

At the sentencing hearing, the State invoked section 5-5-3(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-3(c)) to elevate defendant's Class 2 felony to Class X sentencing. Defendant stipulated that given his two most recent felonies, he was eligible for the enhanced sentence. After reciting factors in mitigation, the court sentenced defendant to 14 years ...

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