People v. Jones, 80-583

• Decision Date: 18 June 1981
• Docket Number: No. 80-583,80-583
• Citation: 53 Ill.Dec. 43,97 Ill.App.3d 619,423 N.E.2d 235
• Parties: , 53 Ill.Dec. 43 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert Lee JONES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 235

423 N.E.2d 235

97 Ill.App.3d 619, 53 Ill.Dec. 43

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert Lee JONES, Defendant-Appellant.

No. 80-583.

Appellate Court of Illinois, First District, Fourth Division.

June 18, 1981.

James J. Doherty, Public Defender, Chicago, for defendant-appellant; Donald S. Honchell, Asst. Public Defender, Chicago, of counsel.

Richard M. Daley, State's Atty., Chicago, for plaintiff-appellee; Marcia Orr, Richard F. Burke, Dean C. Morask, Asst. State's Attys., Chicago, of counsel.

LINN, Justice.

At the conclusion of a jury trial in the circuit court of Cook County, defendant, Robert Lee Jones, was found guilty of theft (Ill.Rev.Stat.1977, ch. 38, par. 16-1) and was sentenced to a four year prison term.

On appeal, defendant contends: (1) the trial court improperly instructed the jury; (2) the improper jury instruction and the prosecutor's closing argument emphasized defendant's silence at the time of his arrest; (3) the prosecutor's closing argument improperly emphasized defendant's failure to testify; and (4) the trial court, prior to sentencing, erroneously failed to determine whether defendant should receive treatment under the Dangerous Drug Abuse Act. Ill.Rev.Stat. 1977, ch. 911/2, par. 120.1.

We affirm.

Factual Background

Officer Thomas Patterson testified that at 5 p. m. on September 27, 1979, he and his partner, John Roman, were patrolling a Chicago Transit Authority elevated station. They were dressed in civilian clothing. Patterson observed defendant standing on the sidewalk in front of the station. He saw defendant approach various persons and show them the contents of a shopping bag. From a distance of ten feet, he noticed that the shopping bag which defendant held contained clothing garments attached to hangers. It appeared that price tags were affixed to the garments and the garments were hanging over the side of the shopping bag. After watching defendant for a short time, Patterson walked over and stood next to defendant, and looked into the shopping bag. Patterson again observed numerous garments on coat hangers. Each garment had a "full" price tag attached to it. Patterson explained that a "full" price tag is one which is divided into three consecutive parts. The price tags attached to the clothing indicated that the clothing came from Carson, Pirie, Scott and Company (Carson).

Patterson further testified that he had purchased clothing from Carson's store on numerous occasions. Each article of clothing which he purchased had a "full" price tag attached to it. In Patterson's experience, the salesperson always detached the first part of the three part price tag and then removed the clothing from the hanger prior to wrapping the clothing and completing the sale.

Patterson further asserted that after observing the clothing in defendant's shopping bag, he identified himself to defendant as a police officer and asked defendant "where he had gotten the clothing." Defendant shrugged his shoulders. Patterson then took the shopping bag from defendant, opened it up, and saw that each piece of clothing was on a hanger and had a "full" price tag attached. Patterson identified this clothing at trial as the clothing he had recovered from defendant's possession and which had been in the shopping bag. After Patterson looked through the shopping bag, he asked defendant "if he would come into the station with us so we could check out where this merchandise was from." He then advised defendant of his constitutional rights. The defendant indicated he understood his rights. Defendant and Patterson then went to the police station where Patterson later determined the value of the clothing to be $543.00.

Wayne Malchin, who had worked for one and a half years as a security dispatcher for Carson's State Street store, testified that he was familiar with the sales procedure utilized by Carson's salespersons. Malchin asserted that when an item is purchased from a Carson's store the salesperson removes the hanger and the first portion of the price tag before placing the item into a bag.

Malchin also explained that the code numbers on the price tags indicated that the item would be sold in a particular Carson store and department. Malchin also stated that the price tags contain a season number which indicates what month the item will be sold. Malchin examined the code numbers on the price tags of the clothing which Patterson had recovered. Malchin stated the tags disclosed that the clothing came from the Carson's store located on State Street and was available for sale in early September. Malchin also identified the hangers as property of a Carson's store and stated that he had observed clothing similar to that recovered from defendant on sale in Carson's State Street store on September 27, 1979.

On cross-examination, Malchin again asserted that the code numbers on the price tags indicated the clothing was scheduled for sale in the month of September. He acknowledged that the time could have been September 1, but he did not think the clothing would have been available for sale before then. Malchin also explained that the price tags are attached to the clothing before it arrives at a Carson's store.

On redirect-examination, Malchin said that the price tags indicated the merchandise belonged to Carson and that the hangers also belonged to Carson. On recross-examination, Malchin admitted that the hangers did not bear Carson's name.

Maurice McKatherne, a Carson's store detective for two years, testified that on September 27, 1979, he was sent to the police station by the manager of Carson's security. There, McKatherne observed Carson's merchandise and he identified this merchandise at trial. He also described the significance of the code numbers printed on the price tags.

McKatherne further explained the sales procedure utilized by Carson's salespersons. This explanation was substantially the same as the explanation given by Malchin. McKatherne also asserted that the Carson price tag is attached to sale merchandise before the merchandise arrives at the store. He also stated that the clothing is placed on hangers before "it hits the floor." He acknowledged that clothing merchandise is placed on hangers before it arrives at the store.

On cross-examination, McKatherne asserted that the code number reflected on the price tags of the recovered merchandise indicated the clothing would be available for sale in September. The items could not have been on sale any earlier than September because they would not have "hit the floor." Although McKatherne did not know when the items with that particular code number would reach the warehouse, he did not think the items could have been in the warehouse for months. McKatherne explained that then the "tags (wouldn't) go on them for months. The tags won't go on until they hit the floor." He admitted that he did not know when the items would be tagged, but he knew that the items were tagged when they arrived at the store.

On redirect-examination, McKatherne testified that he knew that the merchandise at trial had not been purchased by a customer because the price tags had not been separated or divided but remained intact.

The defendant did not present any evidence. The jury returned a guilty verdict. This appeal followed.

OPINION

I

Defendant first contends that the trial court erred in giving the instruction tendered by the State which permits an inference of theft from unexplained possession of recently stolen property. The instruction which defendant argues deprived him of a fair trial states:

"If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by theft."

See Illinois Pattern Jury Instructions, Criminal No. 13.21 (2d ed. 1971).

Defendant argues that the instruction was improperly given because the State failed to show the property in defendant's possession was recently stolen. We disagree.

To warrant an inference of guilt from possession of stolen goods, the possession must be exclusive and recent. Recent possession is ordinarily a question of fact for the trier of fact. (People v. Malin (1939), 372 Ill. 422, 24 N.E.2d 349.) Precise time limits cannot be fixed as to when, as a matter of law, exclusive possession of stolen goods ceases to be recent. (People v. Pride (1959), 16 Ill.2d 82, 156 N.E.2d 551.) Whether a defendant's possession of stolen goods at a particular time is too remote to permit the inference that he had stolen the goods at an earlier time is a question of fact. People v. Pride; People v. Malin.

The crux of the issue here is that the State could not determine exactly when the merchandise was stolen from Carson's store because Carson did not report the merchandise stolen. Defendant was apprehended with the merchandise on September 27. Both McKatherne and Malchin testified that the code number on the tags on the recovered merchandise indicated the merchandise was intended to be displayed in the store for sale in September, and that therefore the merchandise was probably taken from the store in September. McKatherne and Malchin also acknowledged, however, that the price tags were attached to the merchandise before it reached the store and therefore the merchandise could have been taken before it reached the store in September.

Defendant argues that this evidence indicates that the merchandise could have been stolen months before defendant was apprehended. McKatherne's testimony, however, belies such a notion. When asked whether the tagged merchandise could have been sitting in a warehouse for months, McKatherne responded that it could not because "The tags (in that instance) wouldn't go on them for months. The tags won't go on until they hit the floor (of the store)."

The clear import of this testimony, in our view, is that the merchandise...