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08/16/96 PEOPLE STATE ILLINOIS v. ROBERT SZYDLOSKI

August 16, 1996

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT SZYDLOSKI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 9th Judicial Circuit, Knox County, Illinois. No. 94--CF--168. Honorable Stephen C. Mathers, Judge, Presiding.

Released for Publication September 20, 1996.

Honorable William E. Holdridge, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice. Justice Lytton delivered the opinion of the court. McCUSKEY, J., concurs and Holdridge, P.j., dissents.

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

Defendant Robert Szydloski was charged with two counts of burglary (720 ILCS 5/19--1(a) (West 1994)) and two counts of theft (720 ILCS 5/16--1(a) (West 1994)). Following a jury trial, the defendant was convicted on all counts and sentenced to six years in the Department of Corrections. We reverse and remand for a new trial.

On July 5, 1994, the defendant and his wife, Catherine Szydloski, went to two grocery stores, Eagle and Giant Foods. The pair were driven to these locations by a neighbor, Glen Staley. At defendant's trial, Staley testified that when he picked up the Szydloskis from their residence, the defendant was in possession of a tote bag which he placed in Staley's car. The defendant then went to get his wife. When the pair returned they were carrying a cardboard box, which they placed in the car.

Staley first drove to the Eagle store. As the Szydloskis exited the car, the defendant handed the tote bag to his wife. Staley stayed in the car. When the pair returned to the car, the defendant sat in the front passenger seat and his wife sat in the back. Catherine Szydloski then removed meat from the tote bag and placed it in the cardboard box.

The defendant then had Staley drive to Giant Foods where all three entered the store. Staley testified that the defendant and his wife placed merchandise in the tote bag. Staley reported what he saw to the manager. Although store personnel did not see any shoplifters in the store, they found meat, cigarettes and other merchandise from Eagle and Giant in Staley's car.

The State presented evidence that during the investigation of the case, police interviewed Staley, who identified the defendant and his wife. The defendant was then questioned. He told the police that he was at the two stores with his wife, but he denied taking any merchandise.

Catherine Szydloski testified on behalf of the defendant. She stated that she stole the merchandise while her husband was not looking. She also claimed that Staley had entered the Giant store for the purpose of stealing cigarettes. She insisted that her husband had no knowledge of her plans to steal merchandise; instead, he first learned of the crimes after the three had returned to the car. The defendant protested, exited the car, and began to walk home. Catherine testified that she followed after her husband, and the two argued as they walked.

The State attempted to impeach Catherine Szydloski by calling Officer Lisa Petentler as a witness. Petentler testified that Catherine had previously stated she and Robert entered the store with the intent to steal the meat.

The jury convicted the defendant on all counts, and the defendant filed this appeal.

On appeal, the defendant argues (a) the trial judge erred in instructing the jury regarding accomplice testimony pursuant to IPI Criminal 3d No. 3.17, (b) the defendant was not proven guilty of burglary since the State failed to establish that he lacked authority to enter the stores, (c) the prosecutor committed reversible error during closing argument when he referred to the defendant and his wife as "professional thieves," and (d) defense counsel erred in not requesting drug treatment as a part of defendant's sentence.

I.

Initially we address the trial judge's use of the accomplice ...


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