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07/31/95 PEOPLE STATE ILLINOIS v. JAMES STONE

July 31, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES STONE, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE PHILIP CAREY, JUDGE PRESIDING.

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

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

Some criminal cases are barely defendable. This is one of those cases.

The defendant was accused of breaking into a car parked in a Jewel parking lot. A security guard testified to finding the defendant in the car, hacking away at its steering wheel with a hammer and screwdriver. The defendant was charged with burglary and possession of a stolen motor vehicle.

At trial, the theory of defense was that the defendant happened upon the car after the window had been broken, the door unlocked, the hood latch opened from the inside, and a red towing sticker placed on the car window. Because of the car's condition, the defendant assumed it had been abandoned, not stolen, and he had a right to enter it.

The defense did not impress the jury. The defendant was found guilty of both offenses. On appeal, he claims that was no defense at all. He contends his lawyer was ineffective for several reasons. He also maintains that reversible error occurred during his cross-examination and during the State's final argument. In addition, the defendant raises issues concerning his concurrent six-year sentences on the two charges.

We affirm the defendant's conviction and sentence for burglary, but vacate the conviction and sentence for possession of a stolen motor vehicle.

EVIDENCE AT TRIAL

On April 22, 1991, Wilhelminia Cunningham parked her 1989 Toyota at 88th and Lafayette, a Jewel parking lot. When she left her car the windows were rolled up, the doors were locked, and the steeringwheel was in good condition. When she next saw her car the driver's side window was broken. The door was unlocked and the steering column "was all busted out." She did not give anyone permission to enter her car that day. She did not leave a hammer or screwdriver in her car. Nor was there a tow sticker on her car when she left it, although there was a tow sticker on it when she saw the car later that day.

After Ms. Cunningham left her parked car, Walter Green, a Jewel security task force officer, saw the defendant standing by Ms. Cunningham's Toyota. There was glass on the ground next to the driver's side door. The hood was up. Green did not see any tow sticker.

Green watched the defendant. He saw the defendant enter the car and begin hammering on something inside the car. Green summoned a nearby police officer. They saw defendant using a hammer to jam the screwdriver into the ignition.

Green approached the car, told the defendant to get out, and said, "Security, you are under arrest." The defendant dropped the hammer and screwdriver and got out of the car.

The defendant, as he was being handcuffed by Green, said he was trying to start the car for a friend.

The police officer summoned by Green was not called as a witness.

The defendant testified:

On direct examination, the defendant said he knew how to start an ignition without a key. He had been working on cars for the past seven years.

On the day of the incident, he was on his way to see his parole officer. He had been in prison twice for burglary and had been out of prison four months at the time of this arrest.

He saw the Toyota in the parking lot. It had a red tow sticker on the windshield. The driver side window had been smashed. He got in the car. He did not know whose car it was. He thought the car had been abandoned and that it was going to be towed. He knew it was against the law to take something that was not his. The only thing he did was to get in the car and look around.

When he was sitting in the car, the security guard, armed with a gun, told him to get out of the car and lay on the ground. He did. He denied having or seeing a screwdriver or a hammer.

If he wanted to hot wire a car without a key, he could have done so from underneath the hood. He never tried to start the car. He denied telling the security guard he was trying to start the car for a friend.

On cross-examination, the defendant said "James Stone" was thename he was using in this case, but that his true name is Alvin Wofford. He told the police his name is James Stone.

There were about seven or eight cars in the parking lot. The Toyota was beat up with dents and scratches on it. It was the only car with a tow sticker. The window was shattered. He thought the car was abandoned. He got into the car. Then:

"Q. [by the prosecutor]: Because you see a car being towed away, does that give you a right to go in and look and take what you want?

A. No.

Q. And you opened the car door, is that right?

A. No. I had got in the car and looked ...


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