APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN MORRISSEY, JUDGE PRESIDING.
Released for Publication December 22, 1996.
Presiding Justice Campbell delivered the opinion of the court. Buckley, J., and Wolfson, J., concur.
The opinion of the court was delivered by: Campbell
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant Edward Hawkins was found guilty of aggravated possession of a stolen motor vehicle and possession of burglary tools. Martin Wtulich, who was charged in the same information as defendant, was tried separately and is not a party to this appeal. The trial court sentenced defendant to 36 months of probation and seven days of the Sheriff's Work Alternative Program. The trial court also ordered defendant to pay $10,000 in restitution to the victim. Defendant now appeals his conviction and the order of restitution.
The record on appeal indicates the following facts. During jury selection, the trial court asked a panel of potential jurors en masse questions regarding whether they understood that defendant was presumed innocent, that the burden of proof was on the State and that the defendant was not required to present a defense. The trial court also asked the group whether they could be fair and impartial jurors.
Following jury selection and opening statements, John Schiele testified that he was the owner of West Lake Motors in Elmhurst, Illinois. Schiele testified that on May 23, 1994, he contacted the police to report that a dark green and tan 1994 BMW 740il had been stolen from his lot. The car retailed for approximately $64,000. Schiele also stated that he found a door lock laying on the ground where the car had been parked.
Schiele testified that he next saw the car again approximately two and one-half weeks later, at the repair shop that did work for the dealership. According to Schiele, the left front wheel was turned backward, the driver's side door lock and ignition lock tumbler were removed, and the hood, fenders and doors were damaged. The windows, passenger's side door lock and trunk lock were intact. Schiele admitted that many people at the dealership had access to the car and could have driven the car. Schiele testified, however, that he had never seen defendant at the dealership and had not given him permission to remove the car from the lot.
Chicago Police Officer Kenneth Moore testified that on May 28, 1994, he and his partner were patrolling near the intersection of North and Wood in Chicago when he saw a beat car in pursuit of a green BMW travelling eastbound on North Avenue. Officer Moore's partner, who was driving their patrol car, attempted to curb the green BMW, but the car turned south on Wood Street. The left front part of the green BMW struck another car almost immediately. The driver of the BMW, who Officer Moore identified as Mr. Wtulich, exited the car and began running northward on Wood Street. The passenger, who Officer Moore identified as defendant, fled southward on Wood Street.
After checking with the officer in the other beat car, Officer Moore used his radio to broadcast a flash message, then accompanied his partner in a search for Wtulich. Officer Moore and his partner caught Wtulich, from whom they learned an address. Officer Moore then returned to the green BMW. Officer Moore observed that a door lock had been removed and the ignition had been "pulled." Officer Moore also observed a screwdriver on the seat of the vehicle, which Officer Moore was able to use to start the car. Officer Moore took the green BMW to the police station.
When Officer Moore arrived at the police station, other officers brought defendant to him. Officer Moore testified that he interviewed defendant in the presence of two other officers. Officer Moore informed defendant of his Miranda rights; defendant stated that he understood them. Officer Moore then questioned defendant about the green BMW. Defendant stated that approximately a week earlier, past midnight on a Sunday, he had gone to West Lake Motors, entered the lot, punched out the lock and ignition, used a screwdriver to start the car and drove it from the lot.
On cross-examination, Officer Moore stated that he did not personally know whether anyone other than he had started the car with the screwdriver found in the car. Officer Moore admitted that he did not show the screwdriver recovered from the car to defendant. Officer Moore also admitted that he did not take a written or videotaped statement from defendant. Officer Moore also testified that because defendant was the passenger in the car, he would need a confession or an eyewitness to secure a conviction.
Following the admission of the State's exhibits, the State rested. Defendant moved for a directed finding. The trial court denied the motion. Defendant rested without presenting evidence.
Defendant renewed his motion for a directed finding at the conclusion of the jury instruction conference. The trial court denied the motion. Following closing arguments, jury instructions and deliberations, the jury found defendant guilty of aggravated possession of a stolen motor vehicle and possession of burglary tools.
The trial court denied defendant's post-trial motion on May 9, 1995. The trial court later sentenced defendant to 36 months of probation and seven days of the Sheriffs Work Alternative Program. The trial court also ordered defendant to pay $10,000 in restitution to the victim. On May 23, 1995, the trial court denied defendant's motion to reconsider ...