People v. Vahle, 14046

• Decision Date: 26 May 1978
• Docket Number: No. 14046,14046
• Citation: 17 Ill.Dec. 620,60 Ill.App.3d 391,376 N.E.2d 766
• Parties: , 17 Ill.Dec. 620 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond VAHLE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 766

376 N.E.2d 766 60 Ill.App.3d 391, 17 Ill.Dec. 620 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Raymond VAHLE, Defendant-Appellant. No. 14046. Appellate Court of Illinois, Fourth District. May 26, 1978.

[60 Ill.App.3d 392]

Page 767

[17 Ill.Dec. 621] Richard J. Wilson, Deputy State Appellate Defender, Richard E. Cunningham, Asst. Deputy Defender, Springfield, for defendant-appellant.

Robert J. Bier, State's Atty., Quincy, Robert C. Perry, Deputy Director, State's Attys. Appellate Service Commission, James G. Condon, Staff Atty., Springfield, for plaintiff-appellee.

STENGEL, Presiding Justice.

Following a jury trial in the circuit court of Adams County, defendant, Raymond Vahle, was convicted of burglary and sentenced to a term of 11/2 to 5 years' imprisonment to be served concurrently with a 1 to 3 year sentence he was then serving.

Defendant presents three issues for review. First, he claims the doctrines of double jeopardy and collateral estoppel barred the State from bringing him to trial for burglary after having first revoked his probation based on his commission of the same offense. Second, he claims the prosecutor's remarks to the jury during closing argument were improper and denied him a fair trial. Finally, defendant argues that he is entitled to credit for time spent in custody prior to his release on bond on the burglary charge and also for time he spent in custody pending revocation of his probation.

On November 25, 1975, a Kentucky Fried Chicken restaurant in Quincy, Illinois, was burglarized, and defendant and his uncle, Jerome Vahle, were arrested the same night and charged by information with the [60 Ill.App.3d 393] burglary. Defendant posted bond on December 1 and was released. Subsequently it was learned that defendant was on probation for an earlier burglary (Case No. 73-CF-120), and a petition to revoke probation was filed on the grounds that defendant had violated the terms of his probation by committing the Kentucky Fried Chicken burglary. Defendant was reincarcerated January 7, 1976, on the probation revocation charge and has remained in custody since that time, having been unable to post the $10,000 bond.

A probation revocation hearing was held in March 1976. The State presented testimony of three police officers and the owner of the burglarized restaurant. Defendant countered with his own testimony and that of his uncle, but the court determined that a preponderance of the evidence indicated defendant had violated his probation by committing the burglary. On April 26, 1976, the court imposed on defendant a sentence of 1 to 3 years in Case No. 73-CF-120.

Defendant and his Uncle Jerome were tried for burglary by a jury on June 15, 1976. The same witnesses who had testified at the revocation hearing testified at the trial, except that the manager of the burglarized restaurant, rather than the owner, testified at trial. Officer Maddox of the Quincy Police Department stated that he was driving home from work at approximately 4 a. m. on November 25, 1975, when he saw a car with its engine running parked in front of the Kentucky Fried Chicken restaurant. Maddox also observed a person crouching next to the restaurant and when the officer pulled his car next to the parked car, the person who had been crouching ran to the back of the building and disappeared. The glass front door of the restaurant was broken out and two sets of footprints led from the car to the door, while only one set

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[17 Ill.Dec. 622] of prints led back from the restaurant to the parked car. Jerome Vahle was sitting in the passenger side of the car and Maddox arrested him.

Officer Watercutty testified that he went to the Kentucky Fried Chicken restaurant on the night in question to assist Maddox and that they both followed the tracks of the fleeing person to 15th and Jackson Streets. The defendant was arrested at 15th and Ohio Streets shortly thereafter, and Officer Maddox testified that defendant was the man he had seen fleeing from the restaurant. Glass particles were embedded in the bottom of defendant's shoes.

Defendant and Jerome Vahle admitted they were at the Kentucky Fried Chicken restaurant at the time in question, but denied committing the burglary. Defendant testified he noticed the broken glass door while driving past the restaurant and stopped to investigate the damage. Defendant explained that he fled when Officer Maddox arrived because he was on probation. The jury returned verdicts finding both Raymond Vahle and Jerome Vahle guilty of burglary.

[60 Ill.App.3d 394] Defendant's first contention on appeal is that the doctrines of double jeopardy and collateral estoppel barred the State from bringing him to trial on the charge of burglary after having first revoked his probation on the grounds that he had committed the same offense. Defendant cites People v. Grayson (1974), 58 Ill.2d 260, 319 N.E.2d 43, in which our supreme court, relying on Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, held that the acquittal of a defendant on a charge of armed robbery precluded the State from subsequently revoking the defendant's probation based upon his commission of the same crime. The court reasoned that because an issue of ultimate fact, whether defendant was the armed robber, had been determined by a valid and final judgment, the State was collaterally estopped from relitigating that issue in any subsequent action. Defendant contends that in the instant case the only real issue of ultimate fact, his credibility, was decided at the probation revocation hearing and thus the State was estopped from relitigating that issue in a burglary trial.

The Second District Appellate Court in People v. Warne (1976), 39 Ill.App.3d 894, 350 N.E.2d 836, cert. denied, 429 U.S. 1107, 97 S.Ct. 1139, 51 L.Ed.2d 559, decided precisely the issue presented here by distinguishing Grayson and holding that the State was collaterally estopped from relitigating an issue in a second prosecution only if the earlier decision on that issue negatived the possibility of guilt in the later prosecution. In Warne, as in the case at bar, the probation revocation hearing resulted in a finding that defendant committed the criminal act, and the court therefore ruled that the State was not precluded from prosecuting the defendant on the burglary charge. The view in Warne was followed in People v. Howell (1977), 46 Ill.App.3d 300, 4 Ill.Dec. 837, 360 N.E.2d 1212. Defendant Vahle acknowledges this adverse ruling, but urges this court to refuse to accept the "artificial limitation" placed on Grayson.

We believe the Warne court's limitation on Grayson was proper and is controlling here. As the Supreme Court noted in Ashe, the doctrine of collateral...