People v. Levin

• Decision Date: 25 January 1991
• Docket Number: No. 2-89-0933,2-89-0933
• Citation: People v. Levin, 566 N.E.2d 511, 207 Ill.App.3d 923, 152 Ill.Dec. 824 (Ill. App. 1991)
• Parties: , 152 Ill.Dec. 824 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jeffrey S. LEVIN, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 511

566 N.E.2d 511

207 Ill.App.3d 923, 152 Ill.Dec. 824

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jeffrey S. LEVIN, Defendant-Appellant.

No. 2-89-0933.

Appellate Court of Illinois Second District.

Jan. 25, 1991.

G. Joseph Weller, Deputy Defender, Thomas A. Lilien, Daniel D. Yuhas, 4th District Appellate Defender, Arden J. Lang, Asst. Defenders, Office of State Appellate Defender, Springfield, for Jeffrey Levin.

Michael J. Waller, Lake County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, State's Attys. Appellate Service Com'n, 4th Dist., Springfield, for the People.

Presiding Justice REINHARD delivered the opinion of the court:

Following a jury trial in the circuit court of Lake County, defendant, Jeffrey S. Levin, was convicted of the offense of residential burglary (Ill.Rev.Stat.1989, ch. 38, par. 19-3(a)) and was sentenced to 20 years' imprisonment.

Defendant raises the following issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether the trial court committed reversible error by allowing testimony describing a jacket which defendant was wearing during a traffic stop several months after the offense; (3) whether the trial court committed reversible error in barring a defense witness from testifying as a sanction for a discovery violation; and (4) whether defendant's 20-year sentence was properly imposed.

The incident giving rise to the charges against defendant took place on January 3, 1989, at a residential subdivision in Deer Park, Illinois. Several items of jewelry were taken from the home of Joann Daddono after the home was entered by force. Several weeks later, a neighbor, Ronald Ezsak, identified defendant from an array of police photographs as the man he saw at the home at approximately the time the burglary occurred. Defendant was arrested and subsequently indicted for the offenses of residential burglary and theft, although the State later proceeded to trial on the residential burglary charge only. Defendant filed a motion to suppress the identification made of him by Ezsak because it was allegedly influenced by suggestive police procedures. Among the statements made by Ezsak in his testimony at the hearing on defendant's motion was his testimony that he had observed defendant from a distance of approximately 75 feet. The trial court denied defendant's motion to suppress Ezsak's identification.

Before opening arguments in defendant's jury trial, defendant made a motion in limine to exclude testimony from an Arlington Heights police officer regarding the type of jacket defendant was wearing when he was stopped for a traffic violation on April 11, 1989. Defendant contended that there was no specific identification linking his jacket and the one worn by the man Ezsak observed approximately four months earlier. Defendant contended that the testimony regarding the jacket would be unduly prejudicial. The trial court denied the motion, finding that the probative value of the evidence outweighed its potential prejudicial effect.

At trial, Joann Daddono testified that she lived at 226 Court LaGrove in Deer Park, Illinois. On January 3, 1989, she left her home at approximately noon to take her daughter to preschool. When Daddono returned home at approximately 1:20 p.m., she saw a police car in her driveway. The burglar alarm in her house was ringing loudly, and the back door was broken. She noticed footprints in the snow which went between the front and back of her house and between the back of the house and Long Grove Road. Upon inspection, she discovered that several thousand dollars worth of jewelry normally kept in her bedroom was missing.

Ronald Ezsak testified that he lived next to Daddono on Court LaGrove, which he described as a cul-de-sac. As he was working in the second-floor office of his home on January 3, 1989, he faced out of a window from which he could see Daddono's home. At approximately 12:45 p.m., he saw a man drive into Daddono's driveway and approach the front door, where he rang the doorbell a number of times. The man then ran or walked quickly around to the back of Daddono's house where Ezsak could no longer see him. The man returned a few minutes later holding his coat over his left arm. He described the coat as a dark gray or green waist-length ski jacket with a white band running horizontally across the back at shoulder level. The man then got back into his car and drove away.

He further stated that the car he saw drive into Daddono's driveway was a white, full-size, two-door Buick LeSabre with tinted windows and gray velour interior. Ezsak identified a white, two-door automobile with tinted windows depicted in two photographs, People's exhibits Nos. 5 and 6, as a full-size, two-door Buick LeSabre of the same type as the vehicle he saw. The parties stipulated that the automobile depicted in the photographs was a 1980 Buick Electra two-door coupe registered to defendant on January 3, 1989.

Ezsak testified that, later in the day as he was retrieving mail from his mailbox, he saw a policeman walking around Daddono's house. Ezsak related to the officer what he had seen. Subsequently, on January 26, 1989, Ezsak identified from an array of six photographs a photograph of defendant as the man he had seen at Daddono's house. He also identified defendant in court as the man he saw at Daddono's home.

Ezsak also testified that he never heard a burglar alarm and that, although the automobile depicted in People's exhibits Nos. 5 and 6 was of the same type as the one he had seen, he could not positively identify it as the same car. When asked by defense counsel how close his home is to Daddono's home at their closest point, Ezsak responded:

"A. 60, 70, 80 feet, perhaps a little more.

Q. And where you were seated in that window, that is another 10, 20 feet further?

A. Perhaps.

Q. So when you saw this gentleman out in the the driveway, he could have possibly been at least 100 feet away from you; is that correct?

A. Possibly."

Ezsak indicated on defendant's exhibit No. 4, a photograph showing the two houses, the distance between him and the man observed. Ezsak testified that he has 20/20 vision and does not wear corrective lenses.

Officer Richard Mulder of the Lake County sheriff's office testified that he was dispatched to Daddono's residence in response to the burglar alarm on January 3, 1989, and he arrived there at approximately 1:15 p.m. Upon arriving at the house, he heard the burglar alarm ringing and found the rear service door of the home "kicked in." He observed footprints in the snow between the front and back of the house which appeared to have been made by a tennis shoe. Mulder stated that he also found a set of footprints between the back door of the home and Long Grove Road near the house.

Arlington Heights police officer Thomas Seleski testified that on April 11, 1989, he stopped defendant for a traffic violation. The jacket worn by defendant on this date was a lightweight, waist-length, greenish or light blue jacket with a horizontal gray or silver stripe. The stripe was on both the front and back sides of the jacket at approximately chest height. On cross-examination, Seleski testified that "greenish, light blue" is equivalent to aqua colored, and he pointed to a juror's shirt which he characterized as "a darker color but a hue of that." Defense counsel noted that the color of the juror's shirt was "a dark to medium green."

Deputy Paul Krawczuk of the Lake County sheriff's department, an evidence technician, testified that he was unable to find any latent fingerprints at Daddono's residence. He stated that he did not test for fingerprints on the rear door of the house.

Before the defendant presented evidence, the State made a motion to exclude the testimony of two defense witnesses who had not been disclosed to the State until that morning. Of importance here is the testimony of John Price, a private investigator, who would have testified that he visited the scene of the offense the prior afternoon and measured the distance from which Ezsak identified defendant to be 217 feet. Defendant indicated that Price's testimony was important because this distance was more than twice that estimated by Ezsak in his testimony. Price would also testify that the distance between the Daddono house and the location at which defendant's alibi witness would place him at the time of the offense was approximately 38 miles. The prosecutor objected to Price's testimony on this point, however, because she had not been informed of it beforehand. Under such circumstances, the prosecutor stated, she could not independently investigate Price's measurements to insure that they were accurate.

The trial court ruled that Price could not testify regarding his measurement of the distance between the two houses, but Price would be allowed to use a tape measure to demonstrate to the jury what a distance of 100 feet looks like. The court also ruled that Price could testify regarding the mileage between Daddono's home and the restaurant where defendant was purportedly located when the offense was committed.

David Karczewski, an alibi witness, testified that he owned a commercial cleaning company and had employed defendant as a window washer on occasion in the past. He had lunch with defendant on January 3, 1989, at an International House of Pancakes restaurant in Chicago. Karczewski testified that he met defendant at Karczewski's office at approximately noon or shortly thereafter, and, after a 40-minute lunch, Karczewski returned to his office at about 1 p.m. Karczewski stated that he noted this date in his log book, which he neglected to bring to court with him, but he did not note this date on his desk calendar.

Defendant's girlfriend, Rhonda Barad, testified that defendant's Buick automobile had a white leather interior.

Price, the private investigator,...