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June 4, 1997


Appeal from the Circuit Court for the 13th Judicial Circuit Bureau County, Illinois. No. 94--CF--62. Honorable James J. Wimbiscus, Judge, Presiding.

Rule 23 Order of May 14, 1997, Redesignated Opinion and Ordered Published June 4, 1997. Released for Publication July 16, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable William E. Holdridge, Justice, Honorable Thomas J. Homer, Justice. Lytton, P.j., with Holdridge and Homer, JJ., concurring.

The opinion of the court was delivered by: Lytton


The defendant, Steven J. Hage, was convicted of two counts of burglary (720 ILCS 5/19--1 (West 1994)). He was sentenced to consecutive terms of 7 years' imprisonment on one count and an extended-term sentence of 10 years on the other count. On appeal, the defendant contends: (1) the police lacked probable cause to arrest him; (2) he received ineffective assistance of counsel; (3) the trial court erred in refusing to give an instruction on the lesser-included offense of theft; and (4) his sentence is excessive. We affirm.

On November 13, 1994, the defendant and his co-defendant were arrested outside the Princeton Auto/Truck Plaza (Plaza). They were charged with burglarizing the Plaza on October 23 and 30, 1994, and stealing money from the video games in the Plaza's arcade room. Subsequently, the defendant moved to quash his arrest.

At the hearing on the defendant's motion, the investigating police officer testified that he had been notified on October 24, 1994, that someone had broken into the video games at the Plaza. Upon questioning the manager, the officer learned that the Plaza had several video surveillance cameras, one of which was trained on the arcade. The manager also informed the officer that a boy had reported seeing two men breaking into the machines the previous day.

Following his conversation with the manager, the officer viewed the previous day's videotapes. He focused his attention on the time period during which the boy had said he saw the theft. During this period of time, the tape shows two men entering the arcade. One man was wearing a baseball-style cap with the words "Kansas City" written on the back. The other was wearing a denim jacket with an elaborate design on the back. The pair were carrying a black bag. One of them had a screwdriver. While the men were in the arcade, they stood in front of several of the machines. At times, their hands were not on the controls for the game but were near the location of the game's cashbox. They also stood for a time in one corner of the room where the manager later found the cashboxes from which the money had been stolen.

The officer testified that he was informed on October 31, 1994, that another theft had occurred at the Plaza. After that report, he viewed the surveillance tapes from October 30 and saw the same two men enter the arcade. Again, one of the men was wearing a Kansas City cap. This time, however, the denim jacket was worn by the same man who was wearing the cap. The officer observed that these two men were the only people to appear on both the tapes from October 23 and the tapes from October 30.

Finally, the officer testified that on the day of the defendant's arrest, the officer was at the Plaza watching the video surveillance of the arcade. He saw the defendant and the co-defendant enter the room and recognized them as the men he had seen on the October 23 and 30 surveillance tapes. The defendant was wearing the Kansas City cap he had worn on the previous two occasions. The investigating officer watched the defendant and codefendant in the arcade for a short time. They appeared nervous and exited hastily from the room. He followed them and arrested them as they attempted to enter a car in the parking lot. The denim jacket worn in the surveillance tapes was found in the car.

Following this testimony, the trial court denied the defendant's motion to quash his arrest.

At his arraignment, the defendant expressed dissatisfaction with the representation he was receiving from his court-appointed attorney. The defendant stated that the attorney had urged him to plead guilty and that the defendant did not think that the attorney would adequately represent him if he elected not to plead guilty. The trial court told the defendant he was free to retain private counsel if he chose. The court further informed the defendant that if he merely sought a new public defender, the defendant would first have to prove a conflict of interest with the present attorney. The defendant did not thereafter obtain private counsel.

Four days before the trial was scheduled to begin, the defendant moved to continue the trial. His attorney claimed that the State had recently revealed the names of two boys who allegedly saw the defendant stealing from the video games at the Plaza. He claimed that he did not have sufficient time to interview these witnesses and prepare for trial. He also noted that the defendant had been in the custody of the Illinois Department of Corrections until the previous week and argued that he had not had sufficient time to meet with the defendant.

The State responded to the defendant's motion by stating that it had no control over the defendant's incarceration and that the State itself had not yet had time to interview the child witnesses. The State requested that any continuance be short, perhaps only a week. The State then raised the defendant's previous wish to obtain new ...

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