People v. Span

• Citation: 109 Ill.Dec. 218,509 N.E.2d 1057,156 Ill.App.3d 1046
• Decision Date: 03 June 1987
• Docket Number: No. 86-0082,86-0082
• Parties: , 109 Ill.Dec. 218 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Earlie SPAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1057

509 N.E.2d 1057

156 Ill.App.3d 1046, 109 Ill.Dec. 218

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Earlie SPAN, Defendant-Appellant.

No. 86-0082.

Appellate Court of Illinois,

Second District.

June 3, 1987.

Rehearing Denied July 20, 1987.

G. Joseph Weller, Office of State Appellate Defender, Elgin, Charles M. Schiedel, Deputy Defender, Peter L. Rotskoff, Office of State Appellate Defender, Springfield, for defendant-appellant.

Robert J. Morrow, State's Atty., Geneva, William L. Browers, Deputy Director, State's Atty. Appellate Service Com'n, Elgin, Richard L. Salon, Chicago, for plaintiff-appellee.

Justice WOODWARD delivered the opinion of the court:

Following a jury trial, the defendant, Earlie Span, was found guilty of the offenses of residential burglary and possession of a stolen automobile. During the trial, the State had nol-prossed a charge of felony theft that had been pending against the defendant. Defendant was sentenced to six years' imprisonment for residential burglary and four years imprisonment for possession of a stolen automobile. Defendant appeals.

The defendant was arrested with codefendant, John Croom, but the two were scheduled to be tried separately. Prior to trial, defendant's attorney informed the court and Croom's attorney that he intended to call Croom as a witness at defendant's trial. Croom's attorney informed the court that in the event Croom was called to testify, he would exercise his fifth amendment right not to testify.

The case was called for trial on September 30, 1985. On that date, the defendant's attorney informed the court that he had been unable to locate two alibi witnesses. The defendant indicated that he did not want a continuance and was willing that the trial proceed without these witnesses. The defendant's attorney then stated:

"Your Honor, I might ask him [the defendant] something else. Is it your choice to proceed today without the testimony of Mr. John Crume [sic ] who you have indicated was going to clear you of this offense?"

After a discussion between the court, the assistant State's Attorney, and the defendant's attorney regarding the duty of the State to turn over to the defendant any evidence favorable to the defendant, the following colloquy took place:

"THE COURT: But the State has taken the position they're going to dispose of your case before they dispose of the co-defendant's case. They're putting you in a situation where the co-defendant can't be called by your lawyer and made to testify because he has a right to remain silent. Now, I pointed that out to you when you were arraigned, or whoever arraigned you pointed that out, so they're kind of in the driver's seat. They get to choose who goes first, I guess. Now, knowing that, do you want to go ahead today, or would you like to have it continued?

THE DEFENDANT: I would like to just go ahead."

At trial, the State's evidence showed the following: On July 16, 1985, the home of Mrs. Anita Y. Glenn was burglarized. Mrs. Glenn was awakened either by the sound of car doors slamming or the sound of her Cadillac diesel automobile starting up. She then went to her front door and turned on the porch light. She saw her car backing out of the driveway. She observed someone on the passenger side of the car, but she could not see the driver of the car. After she called the police, she noticed that her purse, which contained six $20 bills, credit cards, and her car keys was missing. The purse was found the next day outside of her neighbor's home. Mrs. Glenn also noticed that her kitchen window had been opened and the screen cut.

Some 40 minutes later, Illinois State Trooper David Spahn was on patrol when he heard the report of the stolen Cadillac. He then observed Mrs. Glenn's Cadillac at I-290 and Mill Road. He began to follow the vehicle and called for backup officers. He then activated his lights and siren. A chase ensued which reached speeds upwards of 100 miles per hour. After the Cadillac came to a stop, both individuals in the Cadillac left the vehicle and ran in different directions, with State Trooper Spahn and the other officers in pursuit. During the foot chase, Spahn heard gunfire but did not know where it came from. Both individuals, the driver of the car, John Croom, and the passenger, the defendant, were apprehended and taken into custody. They were transported separately to the Addison police station where they were searched. From Croom, the police recovered a black jacket, gloves, six $20 bills, and assorted jewelry. The defendant had no property in his possession. However, a six-inch sewing gauge with a sharp point was found on the seat in the police car where defendant had been sitting, which had been searched prior to transporting the defendant.

The defense presented the testimony of Alan Span, the defendant's brother, who stated that shortly after 2 a.m. on July 16, 1985, he heard a knock at the door. He got out of bed, went to the window, and saw a medium sized car going down the hill. He did not see who was in the car. The defendant did not testify.

The defendant was found guilty of residential burglary and possession of a stolen automobile and was sentenced to a term of six years imprisonment for residential burglary and a term of four years imprisonment for possession of a stolen automobile. This appeal followed.

Defendant contends, first, that he was not found guilty of possession of a stolen automobile beyond a reasonable doubt.

Defendant relies on People v. Evans (1962), 24 Ill.2d 11, 179 N.E.2d 657. In Evans, the defendant was charged with burglary when stolen property was found in the trunk of the car in which he was a passenger and was convicted. The supreme court reversed his conviction on the basis that Evans was only a passenger in the car, and the stolen property was found in the trunk of the car. Since Evans neither owned the car nor possessed a trunk key, the court, relying on People v. Abrams (1935), 360 Ill. 594, 196 N.E. 801 (evidence that defendant was riding as a passenger in a recently stolen automobile held to be insufficient to show that the defendant was in possession of the car), concluded that the fact that the stolen property was found in the trunk of the car was not evidence of the Evan's guilt.

The State relies on People v. Williams (1976), 44 Ill.App.3d 143, 3 Ill.Dec. 58, 358 N.E.2d 58. In that case, Williams was convicted of possession of a stolen automobile. He argued on appeal that the State had failed to prove he had knowledge that the car was stolen, a necessary element of the offense. In affirming his conviction, the court stated as follows:

"Defendant's knowledge may be established by proof of circumstances that would cause a reasonable person to believe property had been stolen. [Citation.] Here, defendant was found removing the front clip from a Buick Riviera which Johnson [the codefendant] had recently acquired. Defendants had already removed the hood, trunk lid, and doors, although there was no evidence that these parts were damaged or required replacement. Even if defendant was not specifically informed that he was 'stripping' a stolen car, this fact should have been apparent to him. He cannot ignore the obvious and then assert his ignorance as a defense.

Moreover, defendant's actions and statement at the time of his arrest indicate he actually knew that the car had been stolen. Defendant's knowledge may be inferred from the 'surrounding facts and circumstances * * * including the acts and declarations of the accused.' [Citation.] In the instant case, defendant's flight when approached by police and his subsequent attempt to bribe the officers following his apprehension are inconsistent with his claim of innocence. [Citations.]" 44 Ill.App.3d 143, 147, 3 Ill.Dec. 58, 358 N.E.2d 58.

The State also distinguishes Evans on the basis that in Evans, the court reasoned that neither possession nor knowledge was present under the facts of that case, where as in the case before us, the defendant was unquestionably aware of the presence of the stolen property in question, i.e., the Cadillac.

A reviewing court may not set aside a jury's verdict unless the evidence is so improbable as to create a reasonable doubt as to defendant's guilt. (People v. Thompson (1981), 93 Ill.App.3d 995, 49 Ill.Dec. 468, 418 N.E.2d 112, cert. denied (1982), 458 U.S. 1109, 102 S.Ct. 3490, 73 L.Ed.2d 1371.) Here, a high speed chase followed by defendant's flight on foot are inconsistent with defendant's claims of innocence. Although defendant seems to suggest that he ran from the car because he was frightened by gunfire, the origin of those shots was unknown and occurred during the foot pursuit, not before it. We conclude therefore that the defendant was found guilty of possession of a stolen automobile beyond a reasonable doubt.

Next the defendant contends that he was not found guilty of residential burglary beyond a reasonable doubt.

In People v. Housby (1981), 84 Ill.2d 415, 50 Ill.Dec. 834, 420 N.E.2d 151, our supreme court held, that in light of the decision of the United States Supreme Court in County Court of Ulster v. Allen (1979), 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777, prior Illinois decisions holding that the exclusive and unexplained possession of recently stolen property is sufficient, standing alone and without corroborating evidence, for a conviction of burglary could no longer be applied. The supreme court allowed the presumption only if the following three-pronged test was satisfied: (1) that there be a rational connection between a defendant's recent possession of property stolen in the burglary and his participation in the burglary; (2) that the defendant's guilt of the burglary is more likely than not flowing from his recent, unexplained, and exclusive possession of burglary proceeds; and (3) that there is corroborating evidence of defendant's guilt. 84 Ill.2d 415, 424, 50 Ill.Dec. 834, 420 N.E.2d 151.

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