People v. Cadwallader

• Decision Date: 31 March 1989
• Docket Number: No. 4-88-0364,4-88-0364
• Citation: 181 Ill.App.3d 488,536 N.E.2d 1319
• Parties: , 130 Ill.Dec. 108 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark CADWALLADER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1319

536 N.E.2d 1319

181 Ill.App.3d 488, 130 Ill.Dec. 108

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark CADWALLADER, Defendant-Appellant.

No. 4-88-0364.

Appellate Court of Illinois,

Fourth District.

March 31, 1989.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, and Arden J. Lang, Asst. Defender, Springfield, for defendant-appellant.

Brett Irving, State's Atty., Pittsfield, Kenneth R. Boyle, Director State's Attorneys Appellate Prosecutor, Robert J. Biderman, Deputy Director, and Rebecca L. White, Staff Atty., Springfield, for plaintiff-appellee.

Justice KNECHT delivered the opinion of the court:

A Pike County information charged that on or about July 31, 1987, defendant Mark Cadwallader committed the offenses of residential burglary of the dwelling place of Gary Drebes (Drebes) (Ill.Rev.Stat.1985, ch. 38, par. 19-3), burglary of a building belonging to Drebes (a garage) (Ill.Rev.Stat.1985, ch. 38, par. 19-1(a)), and theft of Drebes's property valued in excess of $300 (Ill.Rev.Stat.1985, ch. 38, par. 16-1(a)(1)). The case was tried to a jury on March 21, 1988, and defendant was found guilty as charged. The trial court sentenced defendant to four years' imprisonment in the Department of Corrections. Defendant appeals contending he was not proved guilty beyond a reasonable doubt, and it was error for the jury to deliberate without the benefit of written instructions. We reverse.

The chief prosecution witnesses were Billy Hart and Lee Robbins, who admittedly took part in the crimes with which defendant was charged. Hart, age 17, gave the following testimony. On July 30 or 31, 1987, Hart, Lee Robbins, and the defendant broke into Drebes's residence and garage and stole various items. The afternoon of the break-in, Hart picked up defendant around 4 p.m. at his home in Hull, Illinois. Hart could not remember exactly what they did thereafter, but he thought they drove to Hannibal. Around 10 p.m., Hart and defendant picked up Lee Robbins and drove to Drebes's residence. After parking the car, Hart and Robbins walked two-tenths of a mile to the house and retrieved the house and garage keys from a light post. Defendant remained in the car drinking beer. Hart unlocked the garage and he and Robbins took some tools and a five-gallon jug of gasoline. The boys carried what they could to the car and told defendant they needed help with the rest. Defendant helped them carry the remaining items to the trunk of the car. Hart and Robbins then went back to the house. When they were sure no one was home, they returned to the car and parked it behind the house. Hart unlocked the house and he and Robbins entered while defendant kept watch outside. Hart and Robbins carried a shotgun, cigarettes, a lamp, a trumpet, and a jewelry box from the house to the car and defendant helped them load the items in the backseat. Defendant did not enter the garage or the house. Robbins locked the garage, Hart locked the house and Robbins replaced the keys on the light post.

Hart estimated they left Drebes's residence around 11 p.m. and drove to a nearby field. They filled the car with the stolen gas and set the can on fire. Some jewelry was saved, but they threw away the jewelry box. Thereafter, they drove to Quincy to sell some of the stolen merchandise, but their buyer, David Will, could not be found. Hart dropped defendant off at his house in Hull and Robbins and defendant spent the night at Hart's house in New Canton. Hart kept the lamp and cigarettes for himself. The next day around 2 p.m., Hart and defendant went to Quincy and sold the gun, lamp, trumpet, and tools to David Will. Hart and defendant split the money.

On cross-examination Hart said he had known defendant for about one year and saw him on a daily basis. Hart said defendant knew the boys planned to break into Drebes's house while he and his family were on vacation. Hart said Robbins was a friend of one of Drebes's children. Consequently, Robbins knew where the family kept the keys to their house and garage. Hart testified he had been in Drebes's residence without defendant on a prior occasion one week earlier. At that time Hart entered the residence and stole a pistol. Hart pleaded guilty to the latter offense.

Hart also admitted he gave a written statement to the police regarding the break-in at Drebes's residence. In the written statement, Hart said he drove to Quincy immediately after the break-in and sold the stolen items to David Will for $75. Hart indicated he gave defendant $20. By contrast, Hart testified at trial the trip to Quincy was made the day after the break-in. Hart said he initially gave a false statement to the police because he was trying to protect defendant.

Finally, Hart testified he was charged with the Drebes break-in and other crimes, pleaded guilty, and received two years' of juvenile probation. A condition of Hart's probation was that he would testify truthfully at any further proceeding, pay restitution and abide by a curfew.

Lee Edward Robbins, also age 17, recounted the following events. On or about July 31, 1987, Hart and defendant picked him up at home around 9:30 p.m. Hart drove them to Drebes's residence. After Hart parked the car, he and Robbins walked up to the house. Robbins showed Hart where the keys to the house and garage were hidden. Robbins gave the key to Hart and he opened the garage. Defendant remained in the car. Hart told Robbins to go get defendant and the three men carried the gasoline and tools to the car. They then got into the car and drove it up to the house. Defendant said he would stay in the car as a lookout. Hart unlocked the door and he and Robbins went in. Robbins took the jewelry box and Hart carried the gun, lantern, trumpet, and cigarettes to the car. Defendant did not enter the house except to tell the two boys to hurry up.

After locking all the doors and disposing of the gas can, Robbins, Hart, and defendant drove to Quincy. On the way back to Hull, defendant threw the jewelry box out of the window onto a gravel road near a creek. Hart and Robbins dropped defendant off in Hull and Robbins spent the night with Hart.

Robbins admitted he had been charged in this case, but was awarded juvenile probation, a curfew, and ordered to pay restitution. Robbins also agreed to testify truthfully at further related proceedings. On cross-examination Robbins said he, Hart, and defendant agreed to break in to Drebes's house while en route. He believed the break-in was complete by 10:15 p.m. Robbins also admitted he included false facts in a written, but nonsworn, statement to the police. Robbins's statement falsely reported defendant entered and removed items from Drebes's house.

Gary Drebes testified for the State that he and his family were on vacation from July 24, 1987, to August 2, 1987. His house and garage in rural Hull, Illinois, were locked when the family returned on August 2. Later that day, Mrs. Drebes discovered a jewelry box missing from a downstairs bedroom. A shotgun, antique lamp, and trumpet were among other items missing from the house. A toolbox and tools, a gasoline can, and gasoline were absent from the garage. Drebes estimated his total loss at around $1,000.

On cross-examination Drebes testified he keeps keys to the house and garage hidden on a light pole outside. The keys were in their hiding place after the break-in. Drebes said he was acquainted with Billy Hart and Lee Robbins. The latter boy had visited one of Drebes's sons in his home.

Investigating Officer Chris Dolbere testified there was no forced entry to Drebes's home or garage. No fingerprints were taken at the crime scene. An officer found the missing jewelry box alongside a road in rural Hull. None of the other missing items had been recovered.

Defendant presented an alibi defense. Page Carlen testified she was with defendant at her home from 5:30 or 6 p.m. until 10:30 p.m. on July 31, 1987, while he worked on Vicki Brown's car. Carlen said her husband Mike came home from work about 7 p.m. with his friend Mark Teuscher and the two men helped defendant with the car repairs. Carlen said she left the house briefly at 10:30 p.m. When she returned around 11 p.m., defendant and Teuscher were gone. Her husband indicated defendant and Teuscher left together. The witness did not see Robbins or Hart that evening.

David Will testified he had known defendant for between one and two years. Will recounted that he, defendant, and another man were bar hopping in Quincy from about 10:30 or 11 p.m. on July 31, 1987, until 5 or 6 a.m. Will could not remember the name of the man with defendant, but was certain it was not Hart. He denied purchasing merchandise from defendant or Hart at any time. Will admitted on direct examination he had two prior convictions, one for cocaine possession and another for insurance fraud.

The defendant, testifying on his own behalf, said that from about 5:30 p.m. to 10:30 or 11 p.m. on July 31, 1987, he worked on a car belonging to Vicki Brown (his girlfriend), which was stalled at Page Carlen's house. Mike Carlen and Mark Teuscher joined him around 7 p.m. After the work on the car was complete, defendant said he and Teuscher drove to Quincy. Defendant explained that Mark Teuscher did not testify because he was at a seminar in Arkansas. According to defendant, he and Teuscher were in Quincy with David Will until the bars closed. They spent the night in Hannibal at Teuscher's house and returned to Hull the next day around noon. Defendant denied any involvement in the Drebes break-in. Defendant admitted he had known Hart and Robbins for about one year, but denied seeing them on or about July 31, 1987.

Vicki Brown testified she had known defendant for two years and had lived with him most of that time. She said she was with defendant on July 31, 1987, until about 5 p.m. when he went to Carlen's to work on her car. Brown talked to defendant on the phone between...