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People v. Cokley

March 12, 2004


[6] Appeal from the Circuit Court of Cook County Honorable Kenneth J. Wadas, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Gallagher

[8]  Following a jury trial, defendant James Cokley was convicted of residential burglary and possession of a controlled substance and was sentenced to eight years and one year in prison, respectively, with those sentences to be served concurrently. On appeal, defendant contends that: (1) his trial counsel was ineffective in failing to move for separate trials on the two charges against defendant; (2) trial counsel also was ineffective in failing to file a motion to quash defendant's arrest and suppress evidence because defendant was arrested without a warrant and police lacked probable cause to arrest him; and (3) the trial court excluded relevant testimony that supported defendant's alibi and his claim that his inculpatory statement was coerced. Based on our resolution of the second issue, we reverse the judgment of the trial court and remand for retrial. The State charged defendant with committing a residential burglary on February 12, 2001, and with possessing heroin on March 18, 2001. Defendant was tried simultaneously on both counts. At trial, Henry Barsch, a Chicago police officer whose duties then included crime pattern investigation and monitoring narcotics activity, testified that on February 12, 2001, he arrived home at his condominium at 3720 West 111th Street in Chicago. Barsch left home at about noon, leaving his weapon on a desk and locking the door behind him. When Barsch returned at about 2:30 p.m., he noticed that his gun was gone and subsequently discovered that a leather jacket, about $120 in cash and some of his wife's jewelry also were missing. Barsch observed pry marks on the door to his unit and on the building's back door.

[9]  Barsch testified that on March 18, 2001, he and a partner were performing surveillance on 8755 South Crandon in response to a stop order for defendant relating to the burglary of Barsch's residence. Barsch explained that a stop order alerts officers to hold an individual for questioning regarding an offense should that person be stopped for another reason. A license plate check of a maroon Toyota Camry parked on the street in front of 8755 South Crandon indicated that the car was registered to defendant at that address.

[10]   Barsch testified that defendant left 8755 South Crandon and retrieved a Crown Royal bag from the Camry. Barsch and other officers approached defendant, took the bag from him and found that it contained what was later stipulated to be .4 grams of heroin. On cross-examination, Barsch testified that his district did not include 8755 South Crandon but that his surveillance was in response to the stop order for defendant. Chicago police officer Katalinic *fn1 testified that after he and other officers recovered the Crown Royal bag from defendant, defendant was arrested and taken to the 4th District police station.

[11]   Suzanne Deane testified that she lived in a second-floor condominium at the back of Barsch's building. On February 12, 2001, Deane was sitting in her living room near a sliding glass door to her balcony, which overlooked the parking lot. She saw a man drive a maroon Toyota Camry into the lot and back the car into a parking space. Deane identified defendant in court as the driver and sole occupant of the Camry.

[12]   Deane testified that defendant got out of the car and looked up at the building's top floors. Defendant walked towards the building; however, Deane could not see if he entered the building because the building entrance is directly under her balcony. Deane also did not see defendant leave the building but noted at about 2:30 or 3 p.m. that the maroon Camry was gone. About one week later, Deane identified defendant in a six-picture police photo array. She also selected defendant in a six-man police lineup the day after his drug arrest.

[13]   On cross-examination, Deane stated that during her preliminary hearing testimony, she did not describe the maroon car as a Camry. She said defendant arrived at her building between 1:45 and 2:15 p.m. She did not see anything in defendant's hands. On redirect examination, Deane said that defendant wore an overcoat that extended past his knees. Deane said she was not asked at the preliminary hearing what type of car defendant was driving.

[14]   Chicago police detective Susan Joyce testified that no usable fingerprints were recovered from Barsch's residence. Detective Joyce interviewed Deane on February 15 and again on February 27, when Deane identified defendant in a photo array. The detective testified that as a result of Deane's identification, an investigative alert was issued, which informed officers that defendant was wanted for questioning in the residential burglary investigation.

[15]   Detective Joyce interrogated defendant after he appeared in the March 19 lineup. She informed defendant of his Miranda rights, which defendant indicated that he understood, and told him he had been positively identified in the lineup. Defendant then admitted to the burglary, stating that he and a man he called Kiki drove to 3720 West 111th Street in his Toyota because Kiki intended to commit a burglary there. Defendant and Kiki entered the building after prying open the building's back door. Kiki entered a unit on an upper floor and remained there for about 20 minutes while defendant acted as a lookout on the first floor. Defendant said Kiki returned with a leather bag containing a gun and some jewelry and Kiki gave him $100.

[16]   At the close of the State's case, defense counsel moved for a directed verdict on the residential burglary count. Stating that defendant did not contest the drug charge, defense counsel argued that the testimony of Barsch and Deane was insufficient to show that defendant committed residential burglary and that defendant's purported confession conflicted with Deane's account that she saw defendant enter the building alone. The trial court denied the defense's motion for a directed verdict.

[17]   The defense presented alibi testimony from defendant and Johnny Johnston, his manager at United Parcel Service (UPS) in Hodgkins. Johnston testified that defendant worked as a utility person, cleaning trailers and equipment and performing miscellaneous tasks. Johnston stated that defendant's February 12, 2001, timecard indicated that defendant began work that day at 5:47 a.m. and took a lunch break from 11:30 a.m. to noon. The last entry on defendant's timecard showed that defendant started his last task at 2:08 p.m. and ended at 2:30 p.m. Johnston stated that an employee's user identification and password were needed to make such entries.

[18]   On cross-examination, Johnston acknowledged that defendant's timecard showed that an alteration was made to the entry that indicated he finished a job at noon; the card was changed to show that defendant completed a task at 11:30 a.m. Johnston said he did not monitor whether timecard entries corresponded with the work that employee was doing or when the employee finished a job. He said employees could make entries on each other's timecards if they exchanged passwords. On redirect, defense counsel asked Johnston if employees were penalized for not doing the work indicated on their timecard. The State objected, and the trial court sustained the objection. Counsel asked if defendant was penalized on February 12, 2001, for taking a longer lunch than shown on his timecard. The court again sustained the State's objection.

[19]   Defendant testified that he lived at 8755 South Crandon. Defendant admitted to possessing heroin on March 18, 2001, and stated that he had served two years of probation for a previous drug conviction. When asked if he "remembered the events of February 12, 2001," defendant replied "not really" because it was "just another day." Defendant denied participating in the burglary of Barsch's residence, stating that he was at work at the time. He stated he had never been to 3720 West 111th Street until recently when, at his attorney's request, defendant drove there from the UPS building to see how long it took to travel between those locations. The trip took about 22 minutes. Defendant said that while working at UPS, he wore a blue shirt, dark blue pants, work boots and safety glasses. He said he created his computer password and no one else knew it.

[20]   Defendant testified that he confessed to the burglary "under coercion." He said that after Detective Joyce interviewed him about the burglary, he spoke to an FBI agent whose name he could not recall. Defendant said he did not write out or sign a statement for Detective Joyce but rather that the detective was "feeding [him] lines" and he "just kind of agreed with what she was ...

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