People v. Bailey

• Decision Date: 08 September 1989
• Docket Number: No. 5-87-0355,5-87-0355
• Citation: 188 Ill.App.3d 278,135 Ill.Dec. 591,543 N.E.2d 1338
• Parties: , 135 Ill.Dec. 591 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Edward M. BAILEY, II, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1338

543 N.E.2d 1338

188 Ill.App.3d 278, 135 Ill.Dec. 591

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Edward M. BAILEY, II, Defendant-Appellant.

No. 5-87-0355.

Appellate Court of Illinois,

Fifth District.

Sept. 8, 1989.

Dissenting Opinion Sept. 15, 1989.

Daniel M. Kirwan, Deputy Defender, Michelle A. Zalisko, Asst. Defender, Mt. Vernon, for defendant-appellant.

Charles Garnati, State's Atty., Williamson County Courthouse, Marion, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Ellen Eder Irish, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellee.

Justice LEWIS delivered the opinion of the court:

The defendant, Edward M. Bailey, II, was convicted by a jury of burglary of a motor vehicle, specifically, a van, and two counts of theft. He was sentenced to serve extended term sentences of ten years on the burglary conviction and six years on each of the convictions for theft, the sentences to be served concurrently. The defendant now appeals, raising three issues for review: (1) whether he was proved guilty beyond a reasonable doubt of the burglary of the van because the State failed to show that he entered it without authority; (2) whether the trial court abused its discretion in imposing an extended term sentence on the burglary conviction because that sentence was grossly disparate to the sentences imposed on the "other participants" in the event; and (3) whether the trial court erred in imposing an extended term sentence on both the burglary conviction and the two convictions for theft.

At trial Gary Allsopp testified that around September 11, 1986, four guns were taken from his home in Herrin, Illinois, including a .22 caliber rifle and a .357 caliber revolver. Steven Gourley, a friend of Allsopp, testified that "towards the end of September" of 1986 Victor Roman had shown him a .357 caliber revolver. Knowing Allsopp's gun of that description had been stolen, Gourley discussed the matter with Allsopp and checked the serial number of Allsopp's gun against the one Roman had. Gourley determined that the gun was Allsopp's and agreed to take Roman to see Allsopp. When the men met, Allsopp informed Roman that the gun was his and called the police.

Don Bailey, the defendant's brother, testified that at the time of trial he was on probation for the theft of four guns from Gary Allsopp, including the .22 caliber rifle and the .357 caliber revolver. As a condition of receiving probation, this witness had agreed to testify at the defendant's trial consistently with a written statement he had made previously to the police. At trial the witness testified that, after stealing the guns from Allsopp, he and John Renfro had placed the rifle and revolver in the witness' van, which was parked in the driveway of his home in Herrin. The witness stated that, although he had given defendant permission to enter and use the van whenever he wished, he had not given defendant permission to take the rifle or the revolver. The witness stated further that he had not given Victor Roman permission to take the rifle or the revolver and that Roman did not have permission to enter or use the van. The witness said that in September of 1986 the defendant was living with him and his wife at their home in Herrin, although during the first two weeks of September the witness and his wife had stayed with his parents in Carbondale in anticipation of the birth of a baby.

John Renfro testified that he and Don Bailey had stolen the guns from Allsopp's house and that he had agreed to plead guilty to burglary of the Allsopp residence in exchange for being sentenced to probation. Renfro identified the rifle and revolver as the guns placed in Don Bailey's van around September 14. He indicated that he and Don Bailey were "co-owners" of the guns and stated that neither the defendant nor Victor Roman had permission to take them. He stated that the defendant had not been involved in the theft of the guns from Allsopp's house.

Victor Roman testified that on September 14, 1986, he had gone with the defendant to Don Bailey's residence and that, after coming out of the house, he, that is, Roman, and the defendant had entered the van parked there because, upon looking into the van through the windshield, they had seen two guns on the floor. He testified that the defendant said they could get the guns. After entering the van, the witness and the defendant both held and examined the two guns, namely, the rifle and the revolver, and then removed them from the van, intending to sell them. The witness testified that neither he nor defendant had permission to take either weapon. The rifle was put into a guitar case provided by the defendant. After leaving the van, Roman and the defendant drove to Doug Smith's house to try to sell the guns, but Smith was not at home. Roman stated that he had returned alone to Smith's house later and had sold the rifle to a man there. One or two days later, he said, he had seen Steve Gourley, who told him he knew someone who would buy the revolver. When Roman tried to sell it to Allsopp, Allsopp claimed the revolver was his, and the police were called. The witness testified that he had pleaded guilty to the offense of theft of firearms from Don Bailey, that this was his first conviction, that he had been sentenced to probation, and that a condition of his probation was that he was to testify truthfully at the defendant's trial.

Herrin Police Officer Michael Spruell testified that he had investigated the burglary and theft at Gary Allsopp's house and had obtained written statements from Victor Roman, Don Bailey, and the defendant. The defendant's statement, which was given on September 16, 1986, and admitted into evidence, reads in pertinent part:

"A couple of days ago, Vic Roman and myself went to my brother Don's apartment, to get some food. We looked through Don's brown 1969 Ford van and Vic and I found a pistol lying on the floor. Vic and I took the pistol back to Vic's house. I knew that the pistol was probably stolen, so Vic and I were going to sell it for whatever we could get out of it. I have had Officer Spruell of the Herrin Police write this statement for me."

According to Officer Spruell, the defendant stated that although he had not been sure to whom the revolver in his brother's van belonged, he "had an idea" that it might have been stolen. Officer Spruell admitted, however, that when he wrote the defendant's statement for him, he wrote that the defendant "knew" the gun was probably stolen, not that he "had an idea" that the gun might have been stolen. The officer testified further that he had read the defendant's statement to him, that the defendant had read the statement, and that, after reading it, the defendant had signed the statement affirming its truthfulness and accuracy. Later, on September 21, 1986, Officer Spruell learned from Roman that the rifle had also been taken from the van.

Tracy Bailey, Don Bailey's wife and the defendant's sister-in-law, testified that the defendant had lived with her and her husband in September of 1986. She stated that the defendant had had authority to use their van.

The defendant, testified that sometime after his release from the Department of Corrections in May of 1986 he had moved into his brother Don's house in Herrin. The defendant stated that because his car had been repossessed, he drove Don's car and, when Don traded that car for a van, defendant was allowed to use that vehicle. On September 14, 1986, he said, he and Victor Roman had gone to Don Bailey's house. He testified that he had gone into the house alone and that when he came out of the house Roman was inside the van. The defendant stated that Roman told him there were guns inside the van and that he would like to sell them. The defendant said that he did not respond but went into the van to retrieve some speakers he had loaned to Don. He noticed the guns for the first time, he said, after he was inside the van. He testified that Roman took the .357 caliber revolver but denied ever having touched the gun himself. The defendant testified further that he believed the gun might have been Roman's because Roman had previously mentioned that he owned a gun and the defendant had never known his brother Don to have a gun.

The defendant stated that he and Roman returned to the van later that day to get the rifle. Although the defendant provided a guitar case from the house in which to carry the rifle, he said that he did not enter the van to retrieve the rifle and did not touch the gun. Defendant stated that he and Roman then took the rifle to Doug Smith's house but, because Smith was not at home, they returned later that evening. The defendant stated that Roman sold the rifle to William Doty, who was present at Smith's house, but the defendant denied participating in any way in the sale of the rifle to Doty. Defendant testified that Roman told Doty that the gun was "hot" and that this information surprised the defendant.

The next morning Roman told the defendant that he had tried to sell the revolver to its rightful owner. The defendant accompanied Roman to Roman's house, and Officer Spruell arrived there. The defendant stated that he had told Officer Spruell that he did not think Roman was stealing the guns when he removed them from the van. The defendant testified further that he did not steal the guns from the van and denied having given Roman permission to do so. The written statement he had given to Officer Spruell, he said, was not truthful.

In rebuttal, Doug Smith testified that during the evening of September 14, 1986, the defendant and Victor Roman came to his house. He stated that both the defendant and Roman tried to sell the rifle to him, and that it was the defendant who first quoted a price of $35 and later lowered that figure to the actual selling price paid by Doty, who bought the rifle.

The jury...