People v. Hancock

• Decision Date: 01 November 1978
• Docket Number: No. 14874,14874
• Citation: People v. Hancock, 382 N.E.2d 677, 65 Ill.App.3d 694, 22 Ill.Dec. 357 (Ill. App. 1978)
• Parties: , 22 Ill.Dec. 357 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Edward Lee HANCOCK, Larry Wayne Demay, Cynthia Ann Grincavich and Marilyn Irene Turner a/k/a Marilyn Irene Jines, Defendants. Appeal of Marilyn Irene TURNER, Defendant.
• Court: Appellate Court of Illinois

Page 677

382 N.E.2d 677

65 Ill.App.3d 694, 22 Ill.Dec. 357

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Edward Lee HANCOCK, Larry Wayne Demay, Cynthia Ann Grincavich and Marilyn Irene Turner a/k/a Marilyn Irene Jines, Defendants Appeal of Marilyn Irene TURNER, Defendant.

No. 14874.

Appellate Court of Illinois, Fourth District.

Nov. 1, 1978.

Rehearing Denied Nov. 29, 1978.

Richard J. Wilson, Deputy State Appellate Defender, Donald T. McDougall, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Lee J. Plummer, State's Atty., Jerseyville, Robert C. Perry, Deputy Director, Gary J. Anderson, Staff Atty., State's Attys. Appellate Service Commission, Springfield, for plaintiff-appellee.

REARDON, Justice.

On October 31, 1977, Marilyn Turner and Cynthia Grincavich were charged by information in the circuit court of the seventh judicial circuit (Jersey County) with burglary in violation of section 19-1(a) of the Criminal Code of 1961 (Ill.Rev.Stat.1977, ch. 38, par. 19-1(a)). The public defender was appointed to represent both defendants. Following jury trial, both defendants were found guilty. Turner, the appellant in this cause (hereinafter referred to as appellant), was sentenced to a term of 3 to 12 years' imprisonment.

On appeal, appellant contends that: (1) She was not proved guilty beyond a reasonable doubt; (2) she was denied effective assistance of counsel by her attorney's joint representation of co-defendant, Grincavich; (3) remarks by the prosecutor concerning his personal opinion of appellant's guilt constituted improper closing argument; (4) the trial court erred in refusing her tendered instruction on circumstantial evidence; and (5) the trial court abused its discretion in imposing a greater sentence on appellant than on co-defendant, Grincavich.

The record discloses that on October 28, 1977, Thelma Alexander, a next-door neighbor of Stewart and Helen Fraley, saw Helen Fraley leave home around noon. Five minutes after Helen drove away, Alexander observed a blue car with yellow and black license plates stop in front of the Fraley residence. A young woman got out of the car and went to the back door of the Fraley home. The woman then returned to the car and spoke with its occupants, another girl and two males. Both girls returned to the house and entered through the back door. Alexander could not identify the girls but described them as being tall and around 20 years of age. Within five minutes of observing the girls enter the Fraley residence, Alexander noticed the arrival of Janice Fraley's car.

Janice Fraley, a niece, testified that she arrived at the Fraley residence at approximately 12:15 p. m. As she drove up to the house, she noticed that the Fraleys' car and truck were both gone, and also noticed a blue and white Pontiac parked at the bottom of the hill with two people inside. The car had Missouri license plates. As she pulled into the drive, someone in the Pontiac began honking the horn.

As Janice opened the kitchen door, two girls came running from the living room into the kitchen. One girl continued running out of the house, while the other girl stopped to talk. The girl told Janice that she was looking for the "Reynolds," and that this was her grandmother's house. After informing the girl that the house belonged to the Fraleys, Janice told the girl that she was going to call the police. The girl replied, "No, it's nothing like that," and left. Janice identified the co-defendant, Grincavich, in court as the girl who stopped and talked to her inside the Fraley residence.

At this point in the testimony, the court suggested that an instruction be given that the conversation in the Fraleys' kitchen apply only to Grincavich, and that a motion to that effect by defense counsel would be entertained. Defense counsel replied:

"Well, in order to represent Ms. Turner, I have to make it. I'm not sure it is best for Ms. Grincavich. I'm not sure as to that, but you can consider the motion made, Your Honor."

The court's suggestion and counsel's response were out of the hearing of the jury. The court, thereafter, instructed the jury that the conversation testified to between Janice and Grincavich applied to Grincavich's case only.

Janice further testified that she could not identify the other person in the house, other than: "She had black hair and it was a girl and that was about all." At the police station following the incident, Janice identified the blue and white car which she had seen outside the Fraley residence, the person who had been driving the car, and Grincavich as the girl to whom she had spoken inside the Fraley residence.

Howard Sandberg, a policeman for the city of Jerseyville, testified that pursuant to a radio dispatch, he stopped a blue and white Pontiac with Missouri license plates at approximately 12:30 p. m., on October 28, 1977, about two miles south of the Fraley home. Sandberg identified the appellant and Grincavich as having been the two females occupants of the car along with two males.

Helen Fraley testified that when she arrived home on October 28, she noticed her desk drawer and a pantry drawer open in the kitchen, a drawer open in her sewing room, and a sliding closet door open in the hall. Helen stated that nothing appeared missing from the house, and that she had not missed anything so far.

Neither the appellant nor Grincavich presented any evidence at trial.

Appellant first contends that the State's circumstantial evidence failed to establish that she was the other person with co-defendant Grincavich seen inside the Fraley home. Appellant alternatively argues that even if the evidence was sufficient to show entry, the evidence insufficiently proved that the appellant or Grincavich intended to commit a theft inside the house.

Circumstantial evidence is considered good evidence and, unless there are circumstances contradicting the reasonable inferences and conclusions drawn by the jury from such circumstantial evidence, the jury's determination should not and cannot be disturbed. (People v. James (1974), 24 Ill.App.3d 112, 116, 320 N.E.2d 20, 23.) To support a conviction on the basis of circumstantial evidence, the facts presented must be inconsistent with any reasonable hypothesis of innocence. The trier of fact, however, is not required to search out a series of potential explanations compatible with innocence and elevate them to the status of reasonable doubt. (People v. Uselding (1976), 39 Ill.App.3d 677, 681, 350 N.E.2d 283, 287.) The trier of fact determines the credibility of the witnesses, the weight to be accorded their testimony, and the inferences to be drawn from the evidence. People v. Amos (1977), 46 Ill.App.3d 899, 901, 5 Ill.Dec. 538, 540, 361 N.E.2d 861, 863.

In People v. Peacock (1974), 20 Ill.App.3d 969, 313 N.E.2d 470 (abstract), the defendant argued that the circumstantial evidence failed to prove that he was one of two persons observed during the burglary of a home. A State witness testified that when he arrived at his parents' home, he saw a white Pontiac parked outside. Upon entering the house, he observed the co-defendant, Krulih, running out the back door. The witness was able to identify Krulih at the trial. While seeking help next door, the witness observed a second man jump from an upstairs window. The witness did not see the second man's face and could not identify him as the defendant. The witness, however, was able to describe this individual as about 40 years old, 5 feet 6 inches tall, and wearing a long brown coat. The burglary was reported, and the defendant and Krulih were stopped later that day while driving a white Pontiac. The defendant was wearing a long brown coat. The defendant contended, as an alibi defense, that he had spent the entire day with Krulih. In finding the circumstantial evidence sufficiently supported the defendant's conviction, the court noted that co-defendant, Krulih, was positively identified as one of the burglars; that defendant was with Krulih during the day; that defendant was stopped in a car similar to one observed at the scene of the burglary; and that defendant's age, height, and clothing were similar to those of the second man observed at the burglary scene.

In the instant case, there is no evidence positively identifying the other girl who entered the Fraley home with Grincavich. Janice Fraley identified Grincavich but saw only the back of the other girl's head, and was unable to describe the other girl beyond the fact that she had black hair. While the record does not disclose the color of appellant's hair at the time of trial, the jury was able to observe the appellant's appearance and make reasonable inferences therefrom. Furthermore, within 20 minutes of the incident, a blue and white car was stopped about two miles south of the burglary scene by police. Inside the car were two males, Grincavich, and the appellant. As in Peacock, we conclude that the circumstantial evidence sufficiently proves beyond a reasonable doubt that the appellant accompanied Grincavich into the Fraley home.

Intent must ordinarily be proved circumstantially by inferences drawn from conduct evaluated in its factual environment. In the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building containing personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. Such an inference, like other inferences, is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft as the most likely purpose. (People v. Johnson (1963), 28 Ill.2d 441, 443, 192 N.E.2d 864, 866; James, 24 Ill.App.3d 112, 115, 320 N.E.2d 20, 22.) Consequently, it is not necessary to prove that anything was taken to support a burglary conviction. People v. Clark (1964), 30 Ill.2d 216, 219, 195 N.E.2d 631, 633...