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March 25, 1994


In the Circuit Court of Cook County. Honorable Themis N. Karnezis, Judge Presiding.

Released for Publication May 5, 1994.

Giannis, McNAMARA, Rakowski

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

Following a bench trial, defendant John Budwitis was found guilty of burglary. Following a simultaneous jury trial, defendant Ronald McKinney was also found guilty of burglary in connection with the crime. Both men were sentenced to a prison term of six years in the penitentiary. Both defendants now appeal the judgments entered against them pursuant to Illinois Supreme Court Rules 602 and 603 (134 Ill. 2d R. 602, R. 603).

The State presented evidence that just before 1 a.m. on February 23, 1992, officers Yvonne Delia and David Villalobos were traveling along 64th Street in Chicago in an unmarked police car. Officer Villalobos drove the car while officer Delia sat in the front passenger seat. Officer Delia testified that while she and her partner were driving along she saw defendant McKinney standing by a five-foot-high fence looking back and forth. She said that McKinney was just inside the open gate of the fence. Officer Delia noticed from inside the car that a garage utility door behind McKinney was open. Officer Villalobos similarly testified that he saw defendant McKinney standing inside the fence and that the utility door was open.

As the officers exited the car to investigate, each heard defendant McKinney yell out in the direction of the garage. McKinney then began to run down a nearby alley. Officer Villalobos gave chase and eventually apprehended McKinney. Before McKinney began to run, however, both officers saw defendant Budwitis exiting the garage. Officer Delia testified that he had a small flashlight in his hand. While officer Villalobos was chasing McKinney, officer Delia entered the backyard and apprehended Budwitis. Officer Delia took Budwitis into custody after performing a pat-down and taking the flashlight.

Officer Villalobos testified that following the apprehension of the defendants he entered the garage which appeared cluttered. He stated that he saw several items of property that had been lined up at the door. He admitted, however, that these items might have been there for several weeks before the incident.

The officers testified that they went to speak with Mrs. Judy Kaminski who owned the garage. Mrs. Kaminski testified that in the afternoon of February 22, 1992, her sister-in-law had accidentally broken off a key in the lock of the utility door which led inside the garage. Instead of replacing the lock at that time, she stated she had installed a hook and eye to the utility door and the door had been closed. She stated when the police came and woke her that evening, they took her into the garage. She then noticed that a patio-type umbrella which had been in the garage had been moved. Mrs. Kaminski also testified that she noticed several items had been movedaround when she went into the garage the next day. She stated she had not given either defendant permission to enter her property.

Following the State's case-in-chief, counsel for defendant Budwitis argued a motion for a directed verdict. The motion was denied. Budwitis then rested. He subsequently asked the court to reconsider his arguments made in the directed verdict in lieu of closing argument.

Defendant McKinney recalled officer Delia as a witness. She testified that the defendants told her during questioning that they had a beer earlier that evening. Officer Delia marked on her report that defendants had been drinking and that defendant Budwitis smelled of alcohol. Defendant McKinney then rested.

Following closing argument by McKinney's counsel, the jury returned a verdict finding McKinney guilty of burglary. Thereafter, the trial court found defendant Budwitis also guilty of burglary. Both men were sentenced to a prison term of six years based upon their criminal backgrounds.

We first address the arguments raised by defendant Budwitis. He first claims that by refusing to announce its verdict at the close of his trial, the trial court improperly "opened itself up" to the improper influence of the jury's decision against his codefendant. He cites People v. Schmitt (1989), 131 Ill. 2d 128, 545 N.E.2d 665, 137 Ill. Dec. 12, where the supreme court indicated that the better procedure in simultaneous trials is for the trial court to make its decision regarding each defendant immediately after the close of the respective cases. See Schmitt, 131 Ill. 2d at 139.

As the State argues, however, defendant Budwitis has waived this issue on appeal. In order to preserve an issue for review, a defendant must make a contemporaneous trial objection and renew that objection in a written post trial motion. ( People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 119 Ill. Dec. 265.) In this case, when the trial court indicated that it would wait until after the jury returned with the verdict in defendant McKinney's case before announcing its decision in defendant Budwitis' case, counsel for Budwitis did not object. Indeed, Budwitis' counsel stated, "Okay, Judge, that's fine." A defendant cannot agree to a procedure before the trial court and then complain about that same procedure on appeal. See e.g., Schmitt, 131 Ill. 2d at 137 ("where, as here, a party acquiesces in proceeding in a given manner, he is not in a position to claim he was prejudiced thereby").

Even assuming, however, that the issue had not been waived, the substance of defendant Budwitis' complaint is without merit. The Schmitt case itself indicates that the trial court's failure to make animmediate ruling at the close of a defendant's case is not in itself reversible error. While the supreme court has indicated that the better procedure is for the trial court to do so (see Schmitt, 131 Ill. 2d at 139), the supreme court has also expressed general confidence in the trial court's ability to compartmentalize its consideration of the evidence against each defendant. The court declared that in the absence of proof to the contrary, a reviewing court must presume that the trial court considered only competent evidence in reaching its verdict. Schmitt, 131 Ill. 2d at 138-39.

There is nothing in this record to indicate that the court considered anything beyond the evidence offered against defendant Budwitis in reaching its verdict against him. Indeed, the court expressly recognized the importance of considering only the evidence against defendant Budwitis in making its ruling by stating, "Mr. Budwitis, based upon the evidence which we heard as to you the Court finds as to you that you will * * * likewise be found guilty." (Emphasis added.) Because of this, and because of the strong presumption that the trial court considered only competent evidence against defendant Budwitis, his arguments to the contrary are rejected.

Defendant Budwitis next argues that the court found him guilty of burglary without sufficient evidence. Section 19-1 of the Criminal Code of 1961 states:

"A person commits burglary when without authority he knowingly enters or without authority remains within a building, * * * or any part thereof, with intent to commit therein a ...

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