Appeal from Circuit Court of Sangamon County No. 09CF508 Honorable John W. Belz, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
Order filed April 4, 2012
JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice McCullough concurred in the judgment and opinion.
¶ 2 A. The Criminal Complaint
¶ 3 A criminal complaint was filed on June 16, 2009. According to the complaint, signed and sworn to by a police officer, defendant committed burglary (720 ILCS 5/19-1(a) (West 2008)) on June 14, 2009, in that he "knowingly entered a building of George Seaver, d/b/a Lincoln Douglas Cafe, located at 312 E. Monroe, Springfield, Sangamon County, Illinois, with the intent to commit therein a theft."
¶ 4 The complaint said nothing, however, about entering the building "without authority," even though lack of authority was an element of burglary. See 720 ILCS 5/19-1(a) (West 2008) ("A person commits burglary when without authority he knowingly enters *** a building *** with intent to commit therein a felony or theft.").
¶ 5 B. The Preliminary Hearing
¶ 6 On July 2, 2009, the trial court held a preliminary hearing, in which the court considered whether there was probable cause to believe that defendant had committed an offense. See 725 ILCS 5/111-2(a) (West 2010). Only one witness testified in the preliminary hearing, a Springfield police officer, Ryan Maddox.
¶ 7 Maddox testified that, at approximately 1:36 a.m. on June 14, 2009, he and other police officers were dispatched to a burglary in progress at "Lincoln Herndon [sic] Cafe," 312 East Monroe Street. Reportedly, two people who worked at a bar called "Two Brothers" had heard the shattering of glass and had seen a man crawling through the bottom portion of the door of the cafe. They described the man as "a black male wearing a black shirt [and] black shorts with red writing on the shirt," and they last saw him walking north on the railroad tracks along Third Street.
¶ 8 Near Fourth and Cook Streets, two investigators with the Secretary of State Police detained a man who appeared to match the description. They saw fragments of glass on his arm. The police showed this man to the witnesses from Two Brothers, and the witnesses said he was the one they had seen crawling out of the cafe. Maddox identified defendant, in court, as the man the witnesses had identified.
¶ 9 On the basis of Maddox's testimony, the trial court found probable cause to believe that defendant had committed an offense.
¶ 11 On July 2, 2009, the State filed an information charging defendant with burglary (720 ILCS 5/19-1(a) (West 2008)). The information read the same way as the complaint. It alleged that defendant committed the burglary on June 14, 2009, by "knowingly enter[ing] a building of George Seaver, d/b/a Lincoln Douglas Cafe, located at 312 E. Monroe, Springfield, Sangamon County, Illinois, with the intent to commit therein a theft."
¶ 12 Like the complaint, the information said nothing about entering the building "without authority." 720 ILCS 5/19-1(a) (West 2008).
¶ 13 D. The State's Pretrial Motion To Amend the Information
¶ 14 On September 20, 2010, immediately before voir dire, the State moved to amend the information by adding the phrase "without authority," so as to signify that defendant's entry of the Lincoln Douglas Cafe on June 14, 2009, was unauthorized.
¶ 15 Defense counsel objected to the proposed amendment, arguing it was untimely and therefore unfairly prejudicial to defendant. Defense counsel told the trial court: "We would object at this point and time. That is an element of the charge and an amendment at this late stage of the ballgame I believe is prejudicial to the Defendant and we would object."
¶ 16 The trial court overruled defense counsel's objection to the proposed amendment of the information. The court said: "All right, I am going to allow the amendment. I do think he was charged with Burglary. It is not a new charge. So, I will allow that. I do not see the prejudice to the Defendant at this time." At the prosecutor's suggestion, the court made a handwritten amendment to the information, adding the phrase "without authority" between the words "knowingly" and "entered." The judge initialed the insertion.
¶ 17 E. Evidence in the Jury Trial
¶ 18 The jury trial occurred on September 21, and 22, 2010. The testimony was substantially as follows.
¶ 20 A Springfield police officer, James Doss, testified that, on June 14, 2009, around 1:30 a.m., he was dispatched to Lincoln Douglas Cafe, 312 East Monroe Street, in response to a report of a burglary. According to the dispatch, the suspect was a black man dressed all in black clothing, including a black T-shirt with red and white lettering on it.
¶ 21 When Doss arrived at the cafe, he saw that the bottom part of the glass to the front door had been broken and pulled out of the door frame. The door was locked, and a sign on the door said the owner was out of town, at a funeral.
¶ 22 Doss lifted the broken glass of the door and crawled into the cafe. The floor was littered with glass shards. A couple of bills of United States currency, coins, and receipts also were on the floor. The drawer of the cash register had been pulled completely out of the register and thrown onto the floor, behind the counter. No one was in the cafe.
¶ 24 George Seaver was one of the owners of Lincoln Douglas Cafe, and he testified it was his and his partners' practice to leave enough cash in the cash register overnight to make change for twenties the next day. Typically, they left about $100 in the register, in fives and ones.
¶ 25 Seaver did not know defendant and never gave him or anyone else permission to enter the locked cafe in the early morning of June 14, 2009. Only Seaver and his partners were allowed to touch the money in the cash register.
¶ 26 In addition to currency, a Jamaican coin had been in the cash register: a gold-colored coin that looked like a medallion or token-a "trinket coin" with someone's portrait stamped on it. A customer had left this coin, apparently as a tip. Seaver did not know the denomination of the coin.
¶ 27 After the burglary, this Jamaican coin was missing from the cash register, along with the currency. Seaver and his partners looked under counters and everywhere but never found the Jamaican coin.
¶ 28 The prosecutor handed People's exhibit No. 25(a) to Seaver, and he testified it looked like the Jamaican coin that had been in his cash register. On cross-examination, Seaver admitted he could not say for sure that this was the selfsame coin; he could say only that it looked like the coin.
¶ 30 Katie Maurer testified that her boyfriend, David Hannah, was employed as a bartender at Two Brothers Lounge, in the 300 block of East Monroe Street. At about 1:30 a.m. on June 14, 2009, she was standing beside him on the sidewalk outside Two Brothers as he locked the place up. She had consumed probably two drinks between 10:30 p.m. and 1:30 a.m. She was facing East Monroe Street, and he had his back turned to the street as he locked the front door. Lincoln Douglas Cafe was almost directly across the street from Two Brothers.
¶ 31 Maurer saw a man walking down the other side of the street: a black man, balding or with very short hair, dressed in black sweatpants and a black shirt with red and white lettering on it. She assumed this man was wearing a FitClub shirt, because FitClub shirts had the same combination of colors. The man threw a brick-like object at the front door of Lincoln Douglas Cafe, and Maurer heard the sound of falling glass. Then the man stooped and entered the cafe. She told Hannah, " 'That guy just broke in.' " Hannah turned around but did not see anything.
¶ 32 Hannah's car was parked across the street, almost directly in front of the cafe. After hesitating a minute or so, Maurer and Hannah began crossing the street, toward Hannah's car. She walked behind Hannah because he was trying to protect her. With Hannah blocking her view, she did not see the man come back out of the cafe. But she saw the man walking west down the street, and it was the same man she had seen break into the cafe.
¶ 33 Maurer and Hannah got into the car, and she called the police. In her conversation with the dispatcher, she described the man as an African American wearing a black T-shirt with red and white lettering and black sweatpants with a thin white stripe. She did not tell the dispatcher that the man was short-haired or balding.
¶ 34 The prosecutor showed Maurer People's exhibit No. 19, a photograph of a black T-shirt decorated with an image of a red arrow and the word "bam" in white. Maurer testified that the shirt in the photograph looked like the shirt the man had been wearing, but she could not say this was the identical shirt.
¶ 35 Likewise, the most Maurer could say was that defendant-a balding black man whom she identified in court-looked like the man she had seen break into the cafe.
¶ 37 As David Hannah was locking up Two Brothers, Maurer drew his attention to something, and he heard a shuffling sound as if someone were moving broken glass. He turned around but did not see anything. He finished locking up and then paused a while in front of Two Brothers, smoking a cigarette. When it appeared that the coast was clear, he and Maurer began approaching his car, a Humvee, which was parked across the street, almost directly in front of Lincoln Douglas Cafe. (From the vantage of someone standing in front of Two Brothers, the cafe was across the street and one door to the left.)
¶ 38 When Hannah reached about the middle of the street, he saw, through the windows of his Humvee, a man "pop up" in front of the cafe. The man walked west down East Monroe Street.
Then, before turning the corner to go onto Third Street, the man looked back, and Hannah saw his face in the light of the streetlights. Hannah also noticed the man was wearing a black T-shirt with red and white lettering. Possibly, he also was wearing black sweatpants-but Hannah was not sure about that. The man headed south on Third Street.
¶ 39 Hannah and Maurer got into the Humvee, and Maurer telephoned the police. She gave the police the description that Hannah gave her.
¶ 40 Then they drove to another bar, The Alamo. While they were there, Hannah received a telephone call from the police. The police asked him to come to Fourth and Cook Streets and see if he recognized a man they had caught. Hannah and Maurer left The Alamo and drove to that intersection. Maurer remained in the car, and Hannah got out and looked at the man standing in the glare of the headlights of the squad cars. Hannah told the police this was the man he had seen pop up in front of the cafe. He identified defendant, in court, as the man.
¶ 41 From the time Hannah saw the man outside the cafe to the time he identified the man to the police, no more than 10 minutes elapsed, by his estimate.
¶ 43 Kevin Gade testified he was an investigator with the Illinois Secretary of State Police and that on June 14, 2009, around 1:30 a.m., he was patrolling in his squad car. Two other investigators, named Paxton and Spressor, were riding with him.
¶ 44 The Springfield police department announced on the radio that a burglary had occurred at Lincoln Douglas Cafe on East Monroe Street and that the suspect was a black male wearing black pants and a black shirt with red and white lettering. No more than a couple of minutes later, Gade and his colleagues spotted a man who appeared to match the description; he was walking south on Fourth Street, toward the YMCA. No one else was out. Gade reported on the radio that they had found a man who possibly matched the description. Gade identified defendant, in court, as the man they had seen.
¶ 45 While Gade was speaking with the dispatcher on the radio, Spressor got out of the squad car and asked defendant for identification. Gade also got out. Defendant could provide no photographic identification; he had only a social security card.
¶ 46 Spressor asked defendant where he had been. He replied he had been at work, at Augie's Restaurant. Spressor asked him what he did there. He answered that he took out the trash.
¶ 47 Defendant's breath smelled like liquor. Also, Spressor noticed glass particles, like glitter or snowflakes, sprinkled up and down defendant's arm. Gade saw these glittery particles, too, when Spressor commented on them. ...