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06/26/95 PEOPLE STATE ILLINOIS v. AARON MCCRAY

June 26, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
AARON MCCRAY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Thomas F. Dwyer, Judge Presiding.

As Modified On Denial of Rehearing July 10, 1995.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Buckley, J., concur.

The opinion of the court was delivered by: Wolfson

MODIFIED UPON DENIAL OF REHEARING

The Honorable Justice WOLFSON delivered the opinion of the court:

On November 12, 1990, Aaron McCray was arrested for a residential burglary committed four days earlier. The trial court allowed police testimony that raised the inference McCray had just committed another residential burglary. This case requires us to decide whether the evidence concerning the second burglary was admissible because it showed the circumstances surrounding the defendant's arrest.

We hold that it was error to admit the evidence. However, for reasons that follow, we affirm the defendant's conviction.

EVIDENCE AT TRIAL

On November 8, 1990, Gina Speckman was living alone in apartment #203 of an 18-story apartment complex at 415 West Fullerton Street in Chicago. She left her apartment at 7:30 a.m. that day, locked the door, but did not engage the deadbolt.

That same day Andrew Debuono, a window washer for Anchor Building Maintenance, was washing windows at the 415 West Fullerton apartment building. At about 10:30 a.m., Debuono left the building through the front entrance to go to a nearby drugstore for a can of soda pop. As he was leaving the building, he encountered a man with crutches and a cast on his leg. Debuono held the front door open for this man, allowing him to enter the building.

Approximately 30 minutes later Debuono saw the man again. Having returned from the drugstore, Debuono went to the roof of the building. From the roof he suspended himself by ropes and rigging over the side of the building. He resumed the job of washing windows and was cleaning windows at the fourth-floor level when he heard a loud bang. Looking down, he saw that the man he had seen earlier on crutches had come through a fire escape door to a small, rooftop landing off the second-floor level. Debuono described the man as "moving fast" and looking "confused" or "lost." The man on crutches ran toward the side of the building, got onto the fire escape and out of Debuono's line of vision.

In the meantime, Gina Speckman returned to her apartment sometime between 10:30 and 11:00 a.m. that day. When she went to her apartment and attempted to unlock the door, she found that she could not enter because the deadbolt was engaged. Thinking that maintenance had entered her apartment to fix something, Gina called out and asked who was inside her apartment. Gina received no response, but heard loud rustling noises from inside her apartment.

Gina went downstairs to the manager's apartment and learned that no maintenance worker was in her apartment. Gina and the manager returned to Gina's apartment together. They found the door ajar. Inside, Gina discovered that her apartment had been ransacked and several pieces of her good jewelry were missing.

Gina noted that the windows of her apartment had burglar bars on them so that the only exit from the apartment was through the door. At the end of her hallway, however, there was a fire escape door leading to a rooftop landing and exterior fire escape.

Gina called the police. At about 11:55 a.m. Officer Kelly, an evidence technician for the Chicago police department crime lab, arrived. He dusted the apartment for fingerprints and other evidence, but found nothing.

Debuono told the police what he had seen. On November 10, 1990, he was shown a photo array of six pictures. From these pictures he identified defendant McCray as the man on crutches whom he had seen entering the building and leaving on the fire escape on November 8, 1990.

On November 12, 1990, Debuono viewed a lineup in which McCray participated. Again Debuono was able to identify McCray as the man he had seen on November 8, 1990, at the 415 West Fullerton building. Debuono also made an in-court identification of McCray.

At trial Detective James Contino testified regarding McCray's arrest. On November 12, 1990, Contino and three other detectives went to McCray's residence. When Contino arrived at the residence, Contino observed McCray leaving the building. McCray had a cast on his leg and was walking with the aid of crutches. The detectives followed McCray as he boarded a bus, transferred from one bus to another, and then walked to a residential building at 533 West Wellington. Contino saw McCray enter the building and, approximately 15 minutes later, leave the building. The following testimony was given:

"Q. When you saw the defendant come out of the building, where were you at?

A. I was in my car parked in front of the building.

Q. What did you do - - I'm sorry. Strike that. When you saw the defendant come out of the building, did you notice ...


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