People v. Burney
| Decision Date | 26 January 2012 |
| Docket Number | No. 4–10–0343.,4–10–0343. |
| Citation | 963 N.E.2d 430,2011 IL App (4th) 100343,357 Ill.Dec. 477 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Timothy L. BURNEY, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Michael J. Pelletier, State Appellate Defender, Karen Munoz, Deputy Defender, Colleen Morgan, Assistant Appellate Defender, Office of State Appellate Defender, Springfield, for Timothy L. Burney.
Benjamin L. Goetten, State's Attorney, Jerseyville, Patrick Delfino, Director, Robert J. Biderman, Deputy Director, Linda Susan McClain, Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for People.
[357 Ill.Dec. 481] ¶ 1 In April 2010, a jury found defendant, Timothy J. Burney, guilty of residential burglary and criminal trespass to a residence. In May 2010, the trial court sentenced him to prison.
¶ 2 On appeal, defendant argues (1) the State failed to prove him guilty beyond a reasonable doubt, (2) he was denied a fair trial, (3) his criminal-trespass-to-a-residence conviction must be vacated under the one-act, one-crime rule, (4) the trial court erred in ordering him to reimburse the public defender, (5) the court failed to award him credit against his fine, and (6) the court improperly assessed various fees. We affirm in part, vacate in part, and remand for further proceedings.
¶ 4 In August 2008, the State charged defendant by information with one count of residential burglary (count I) (720 ILCS 5/19–3(a) (West 2008)), alleging he knowingly and without authority entered into the dwelling place of Geraldine Krause with the intent to commit a theft therein. The State also charged defendant with one count of criminal trespass to a residence (count II) (720 ILCS 5/19–4(a)(2) (West 2008)), alleging he knowingly and without authority entered Krause's residence at a time when defendant knew that one or more persons were present in the residence. A third charge of criminal trespass to a motor vehicle was later dismissed. Defendant pleaded not guilty.
¶ 5 In July 2009, defendant filed a motion to suppress evidence, claiming the police took him to the victim's home and placed a white towel around his neck to see if the victim recognized him. Defendant argued the show up was improper and extremely prejudicial. At the hearing on the motion, the State agreed the presentation of defendant to the victim was improper. The court granted the motion.
¶ 6 The State, however, sought to introduce evidence that the victim recognized defendant's voice when he said, at the show up. The trial court suppressed the voice identification, finding the improper show up made the voice identification inadmissible.
¶ 7 Defendant also filed a motion to suppress the evidence of a white towel found near where he was arrested as well as a blue plastic grocery bag found on the victim's property. Defendant argued the State could not lay a proper foundation for entry of the towel and plastic bag into evidence. Further, he argued the plastic bag was not made available to him prior to its spoliation by the State. The trial court denied the motion to suppress.
¶ 8 At defendant's jury trial, Geraldine Krause took the stand and gave her version of the incident. Before she finished testifying, the State asked to call a deputy regarding some evidentiary issues. Defense counsel objected, wanting to cross-examine Krause. The trial court stated defendant would have the opportunity to do so when Krause was recalled. The State indicated it intended to call two witnesses to establish a chain of custody. When it was discovered that one of the previously undisclosed witnesses was a family member of a juror, the court declared a mistrial.
¶ 9 In August 2009, defendant filed a motion to suppress evidence gathered during the use of a police tracking dog. Defendant argued the deputy handling the dog would be unable to lay a proper foundation and testify as to why the dog may or may not track human scent or whose scent was being tracked. The State conceded Illinois law prohibited admission of dog-tracking evidence but submitted testimony as to the dog's ability. The trial court excluded all evidence of the dog tracking. The court did allow the State to introduce evidence of the discovery of defendant, finding officers would have inevitably found him during a search of the area.
¶ 10 The State filed a motion to reconsider the suppression of the show up and the voice identification. The trial court advised the State that if defendant's statement was made prior to the police placing a towel on his shoulders during the show up, the statement would be admissible. Defense counsel contended the police did not mention defendant made a statement at the show up. The State also indicated defendant asked officers what he was being charged with. When an officer stated he was being charged with trespass to property, defendant responded, “Well you can't get me for burglary or home invasion.” The court found this statement was not subject to suppression.
¶ 11 At a subsequent hearing, Jersey County sheriff's deputy Kevin Ayres testified he responded to the report of a residential burglary on August 28, 2008. Once defendant was taken into custody, he was brought over to the victim. As the victim approached, defendant said “you don't know me and I don't know you.” Ayres said the statement was made prior to a towel being placed on defendant. The trial court allowed the statements to be introduced.
¶ 12 In January 2010, the State filed a motion to have Krause declared unavailable as a witness and to use her prior in-court testimony. The motion indicated Krause was elderly and in poor health, and her doctor was concerned the stress of testifying could exacerbate her condition. The trial court denied the motion, finding defendant did not have a prior opportunity to cross-examine Krause.
¶ 13 In March 2010, the State filed a motion to declare Krause's statements to law enforcement as nontestimonial. The State claimed Krause was able to give a partial description and told Deputy Ayres the suspect fled on foot. The trial court found Krause's statements were nontestimonial because they were made in the course of an ongoing police emergency. The court also found the statements were admissible as excited utterances.
¶ 14 In April 2010, defendant's jury trial commenced. Jackie Huett testified she resided in a mobile home on Bethany Church Road in August 2008. At the time, she was in the process of tearing down the mobile home. Defendant offered to help her for money. Since defendant was going to stay at the mobile home for a day or two, Huett and defendant went to Shop 'n Save for sandwiches, chips, and beer. Huett stated the supplies were placed in plastic bags.
¶ 15 Deputy Ayres testified he responded to a call of a residential burglary at 10:15 p.m. Upon meeting Krause, Ayres found her to be “very upset” and shaking. She told him she heard a noise at the door and then a man forced his way inside. The man had a blue plastic bag over his head and was wearing blue jeans and no shirt. Krause also stated the man smelled of an alcoholic beverage. The man wanted her car keys. She told him to leave or she would call the police. When she attempted to call the police, the man pulled the phone out of her hand and threw it on the floor. Krause then grabbed a broom and advised the man to leave.
¶ 16 Ayres searched the property and eventually found defendant in a trailer with no walls approximately a quarter of a mile away. At the time, defendant was wearing blue jeans and no shirt. Ayres could see cans of opened and unopened alcohol on the floor along with a white towel. Krause had told Ayres the suspect wore a “greyish white sweatshirt” draped over his shoulders. Ayres approached defendant, who appeared intoxicated, and told him to put his hands up. After defendant was taken into custody, Ayres searched outside Krause's residence and found a blue plastic shopping bag. When defendant was brought over for an identification, he said “you don't know me and I don't know you” to Krause. As defendant was being placed back into the squad car, he asked Ayres what he was being charged with. When Ayres stated it was criminal trespass, defendant responded “you can't get residential burglary or home invasion on me.”
¶ 17 On cross-examination, Deputy Ayres stated defendant was rolling a cigarette when he approached the trailer. Ayres did not find defendant to be winded or wet, although there was a light mist at the time.
¶ 18 Jersey County sheriff's chief deputy Kevin Klass testified he processed the crime scene for fingerprints and footwear evidence. He identified a white towel and a blue plastic bag that were collected as evidence. Klass stated the bag was ripped on both sides, and it was possible the holes were used for eye cutouts.
¶ 19 Defendant exercised his constitutional right not to testify. Following closing arguments, the jury found defendant guilty of residential burglary and criminal trespass to a residence.
¶ 20 In May 2010, the trial court sentenced defendant to four years in prison on the residential-burglary conviction and two years on the criminal-trespass-to-a-residence conviction with both sentences to run concurrently to each other. This appeal followed.
¶ 23 Defendant argues the State's evidence was insufficient to convict him beyond a reasonable doubt. We disagree.
¶ 24 “When reviewing a challenge to the sufficiency of the evidence in a criminal case, the relevant inquiry is whether, when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” People v. Singleton, 367...
To continue reading
Request your trial
-
People v. Sumler, 1–12–3381.
... ... See People v. Johnson, 237 Ill.2d 81, 97, 340 Ill.Dec. 168, 927 N.E.2d 1179 (2010) ; accord People v. Burney , 2011 IL App (4th) 100343, 86, 357 Ill.Dec. 477, 963 N.E.2d 430 (where a single act is involved, multiple convictions are improper); see also People v. Miller, 238 Ill.2d 161, 165, 345 Ill.Dec. 59, 938 N.E.2d 498 (2010). 87 In deciding whether one of defendant's convictions must be vacated, ... ...
-
People v. McCoy
... ... Lerma, 2016 IL 118496, 5 n. 1, 400 Ill.Dec. 20, 47 N.E.3d 985. The fact that the statement was made in response to a question does not destroy its spontaneity. People v. Burney, 2011 IL App (4th) 100343, 39, 357 Ill.Dec. 477, 963 N.E.2d 430 (That a statement may be made in response to an inquiry does not destroy [its] spontaneity. (citing People v. Connolly, 406 Ill.App.3d 1022, 1025, 347 Ill.Dec. 238, 942 N.E.2d 71 (2011) )). In Burney, for example, a deputy ... ...
-
People v. McGee
... ... Attempts to explain the reasonable-doubt standard have been disfavored by the courts because no matter how well-intentioned, the attempt may distort the standard to the prejudice of the defendant. People v. Burney , 2011 IL App (4th) 100343, 67, 357 Ill.Dec. 477, 963 N.E.2d 430 (quoting People v. Keene, 169 Ill.2d 1, 25, 214 Ill.Dec. 194, 660 N.E.2d 901 (1995) ). However, both the prosecutor and defense counsel are entitled to discuss reasonable doubt and to present his or her view of the evidence ... ...
-
People v. Montano
... ... Lacy , 407 Ill.App.3d 442, 465-66, 347 Ill.Dec. 1013, 943 N.E.2d 303 (1st Dist. 2011) ; People v. Reeves , 314 Ill.App.3d 482, 489, 247 Ill.Dec. 305, 732 N.E.2d 21 (1st Dist. 2000) ; People v. Tyler , 2012 IL App (3d) 100970, 42, 363 Ill.Dec. 166, 974 N.E.2d 963 ; People v. Burney , 2011 IL App (4th) 100343, 57-62, 357 Ill.Dec. 477, 963 N.E.2d 430 ; People v. Lefler , 294 Ill.App.3d 305, 309, 228 Ill.Dec. 788, 689 N.E.2d 1209 (5th Dist. 1998). 144 I would distinguish Moore and Holmes (and all of the cases I cited in the previous paragraph) the same way the majority ... ...