People v. Tucker

• Decision Date: 21 July 1989
• Docket Number: Nos. 1-87-1377 and 1-87-1378,s. 1-87-1377 and 1-87-1378
• Citation: 542 N.E.2d 804,134 Ill.Dec. 458,186 Ill.App.3d 683
• Parties: , 134 Ill.Dec. 458 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. DeWayne TUCKER and Marvin Ester, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 804

542 N.E.2d 804

186 Ill.App.3d 683, 134 Ill.Dec. 458

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. DeWayne TUCKER and Marvin Ester, Defendants-Appellants.

Nos. 1-87-1377 and 1-87-1378.

Appellate Court of Illinois,

First District, Sixth Division.

July 21, 1989.

Randolph N. Stone, Cook County Public Defender, Chicago (Ellen Fishbein, Hugh Stevens, of counsel), for defendants-appellants.

Cecil A. Partee, State's Atty. of Cook County, Chicago (Inge Fryklund, James E. Fitzgerald, Christine C. Perille, of counsel), for plaintiff-appellee.

Justice QUINLAN delivered the opinion of the court:

The defendants, DeWayne Tucker and Marvin Ester, were convicted in a jury trial in the circuit court of Cook County for possession of a stolen motor vehicle and burglary. Each defendant was sentenced to a three year term of incarceration in the Illinois Department of Corrections. Defendants have now appealed their convictions. We affirm.

During the voir dire proceedings, immediately prior to the beginning of the defendants' trial, the trial judge made certain remarks to the prospective jurors concerning the burden of proof in the case. The court specifically noted that the State had the burden of proof, that the State was required to prove every material allegation of the charges beyond a reasonable doubt, that the defendants "need not prove anything" at trial, and that the defendants were "cloaked with the presumption of innocence," which the court said meant that the defendants had a "slight advantage" at the beginning of the case. After the trial judge had made these general remarks, he then asked the jurors individual questions about whether any of them had ever been a victim of a crime. As a result of this inquiry, the judge learned that one of the prospective jurors, Richard Kaltoft, had been the victim of an automobile crime where his car was broken into and certain automobile parts were taken. The judge told Mr. Kaltoft that the facts of the present case were similar to the incident he had experienced and then asked Mr. Kaltoft a number of questions to ascertain if, in spite of this similarity, Mr. Kaltoft could be fair and impartial to the defendants. Mr. Kaltoft answered that he would be fair, and, following the inquiry, Mr. Kaltoft was picked as a juror in the present case. Defense counsel did not object to the remarks of the trial judge or to the selection of Mr. Kaltoft as a juror.

Once the jury was selected, opening statements were then made, and following the opening statements of the parties, the State presented its first witness, Kristen Towner. Ms. Towner testified that, in the morning of July 28, 1986, her sister and brother-in-law, Jane and William Watkins, from Louisiana, arrived at her home at 5436 South Harper in Chicago, Illinois. The Watkins' arrived at Towner's home in a green Buick Park Avenue automobile, which had Louisiana license plates. Ms. Towner testified that this was the same car that the Watkins' had when she had visited them in Louisiana several months earlier. Ms. Towner also stated that she saw the Watkins' car on July 28, 1986 between five and six o'clock in the evening, and did not observe any damage to the vehicle at that time. She said that she and the Watkins' then went out that evening, and, when they returned at approximately ten o'clock, she again saw the car, still parked in the same spot, and did not notice any damage to the car. The next morning, Ms. Towner testified, the car was gone from that parking spot, and she did not see the car again until a few days later. When she saw the car at that time, she testified that her brother-in-law was again in possession of the automobile, but she noticed that the dashboard of the car was damaged and the "whole drive shaft on the inside of the car had been broken away."

The State next presented the testimony of Eddie Harris, an off-duty police officer. Harris stated that at approximately 11:45 p.m. on July 29, 1986, he was in a building in the 4900 block of South Champlain in Chicago. He said he looked out a window in the direction of a vacant lot below and saw a car pull into the lot. He stated that four black men were in the car and that the two men in the back seat exited the car and walked away, down an adjacent alley. Harris said he then saw the driver, whom he identified in court as the defendant Tucker, and the front seat passenger, whom he also identified in court as the defendant Ester, exit the car. Just after Tucker got out of the car, however, he suddenly got back in the car, and lay down on the front seat where Harris saw him tamper with something under the dashboard of the car. Harris then called the police and reported the incident. Harris returned to the window and saw Tucker in what appeared to be a stooped-down position, doing something to one of the wheels of the car, while Ester stood nearby, looking back and forth. Harris called the police a second time, and shortly thereafter, the police arrived on the scene. Harris stated that once the police arrived, Tucker jumped up, ran, and then suddenly stopped and fell to the ground, at which point Harris saw the police take him into custody. At the same time, Ester had run down the alley and two officers had chased after him, Harris said.

Officer Hanserd, one of the officers who responded to Harris' call, testified next for the State. Officer Hanserd stated that he and two other officers, Officers Kampenga and Skayhill, responded to the call. When the officers arrived on the scene, he said, Tucker was crouched near the wheel of the car, about 25 feet from him. Tucker looked towards the officers, jumped up, and then ran towards them, threw his hands up, stopped and said, "okay, you got me." Officer Hanserd said he then arrested Tucker. He also stated that Officers Kampenga and Skayhill had followed Ester, who had run away, and that they returned shortly thereafter with Ester in handcuffs. Officer Hanserd described the vehicle at the scene as a four-door Buick Park Avenue automobile, Louisiana license plate number 280I873. On examination of the automobile, Hanserd discovered that the trunk lock had been knocked out and was lying on the ground, that the dashboard was damaged, that the steering column had been peeled or stripped allowing the car to be started without a key, that the radio was missing, and that the lug nuts on the tires were loose. After the officers had arrested the defendants, Hanserd said, they took the defendants to the police station.

Next, the State presented Officer Kampenga's testimony. Kampenga testified that when he caught Ester, he searched him and found a "T-bar," which was a tool used to pry off spoked hubcaps. Officer Kampenga said he also noticed the same damage to the car as had Officer Hanserd, but, in addition, he also noticed that the glove compartment lock had been pried open.

Officer Kampenga further stated that after the defendants had been arrested, he checked with the police dispatcher by radio to determine if the vehicle had been reported stolen and was told that the vehicle had been reported as stolen. He obtained the name and phone number of the individual who had reported it stolen from the dispatcher and, subsequently, called that number and spoke to a person on the telephone, who identified himself to Kampenga as William Watkins. He further testified that a short time later a man, who said he was William Watkins, came down to the police station, and showed Officer Kampenga his Louisiana driver's license. This person who identified himself as William Watkins, Kampenga stated, then inspected the car and signed for it, and the car was released to him.

Additionally, in his testimony, Officer Kampenga related that he had spoken to Tucker at the police station and asked him what he had been doing at the scene, and that Tucker had told him that he was there only to steal the tires from the car. Officer Kampenga further testified that a jack was found at the scene on the ground near the front of the car when the defendants were arrested.

At the conclusion of this evidence, the State rested its case. The defense did not present any evidence and, thereafter, the jury found both defendants guilty on the charges of possession of a stolen motor vehicle and burglary. As stated earlier, the trial judge sentenced each defendant to a term of three years' incarceration in the Illinois Department of Corrections.

Defendants raise seven issues on review: (1) whether the remarks of the trial judge during voir dire deprived the defendants of a fair trial; (2) whether the State improperly relied on inadmissible hearsay evidence to establish the ownership of the vehicle for the crime of burglary and to establish that the vehicle was stolen for purpose of the crime of possession of a stolen motor vehicle; (3) whether the evidence established that the defendants were guilty of burglary beyond a reasonable doubt; (4) whether the evidence demonstrated that the defendant Ester was guilty of possession of a stolen motor vehicle beyond a reasonable doubt; (5) whether the statute proscribing possession of a stolen motor vehicle (Ill.Rev.Stat.1985, ch. 95 1/2, sec. 4-103(b)) is unconstitutional; (6) whether the trial court erred when it refused to tender defendant's instruction on the offense of criminal trespass to property; and (7) whether the trial court erred when it gave only one set of jury instructions for both defendants.

The defendants argue that the trial court committed reversible error when it "undercut" the State's burden of proof in the case through its comments during voir dire that the defendant begins the case with a slight advantage. The defendants assert that the trial court further erred during voir dire when, in response to the prospective juror's statement that he had been the victim of a burglary involving a theft of auto parts and vandalism, the court said that the facts of this case were...