The People Of The State Of Ill. v. Mcgee

• Citation: 924 N.E.2d 612,398 Ill.App.3d 789,338 Ill.Dec. 406
• Decision Date: 05 March 2010
• Docket Number: No. 1-07-1309.,1-07-1309.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Marcus McGEE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

398 Ill.App.3d 789
924 N.E.2d 612
338 Ill.Dec. 406

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Marcus McGEE, Defendant-Appellant.

No. 1-07-1309.

Appellate Court of Illinois,
First District, Sixth Division.

March 5, 2010.

924 N.E.2d 613

COPYRIGHT MATERIAL OMITTED

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Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, and Marion Buckley, Assistant Appellate Defender, of Office of the State Appellate Defender, Chicago, IL, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago, IL (James F. Fitzgerald, Alan Spellberg and Kathleen Warnick, Assistant State's Attorneys, of counsel), for Appellee. (Kathryn Roy, a bar-taker/law clerk in Criminal Appeals Division of the Cook County State's Attorney's office, assisted in the research and writing of the brief.)

Presiding Justice CAHILL delivered the opinion of the court:

Defendant Marcus McGee was found guilty of residential burglary after a bench trial and sentenced to 15 years' imprisonment. He contends on appeal that the State failed to prove beyond a reasonable doubt that the uninhabited building he entered was a dwelling place within the meaning of the statute, or that he was aware of that fact. He also contends that his sentence was excessive and that the trial court erred by deferring a ruling on his motion in limine to bar the use of evidence of earlier convictions to impeach his credibility until after he testified, and also by ruling in favor of the State on that motion.

Before trial, defense counsel made an oral motion in limine to bar the State from using as impeachment defendant's earlier convictions for burglary and residential burglary or convictions more than 10 years old, under People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971). The State responded that it would not introduce earlier convictions in its case-in-chief but reserved the right to introduce such evidence as impeachment if defendant testified. The court asked defense counsel if he had case law supporting his position, and counsel stated he would provide such to the court before defendant testified. The court reserved ruling on the motion.

At trial, Monique Henderson testified that her parents' house in Maywood, Illinois, was damaged in a fire on November 18, 2004. Personal belongings remained in the house after the fire, including clothes, a book bag and furniture. She visited the area daily to check on the condition of the house and its contents and to spend time there.

About 6 p.m. on April 10, 2005, Henderson went to the house with her mother, Nancy Hugo. Henderson went to the back of the house, and Hugo went to the front. When Henderson walked onto the porch and opened the back door, she noticed it was unlocked and one of the windows was broken. She saw defendant standing inside, about five feet away, carrying a kitchen knife and a CD case. Henderson then heard Hugo say, “what are you doing in my house?” Defendant looked up, and Henderson closed the door and ran to the fence at the end of the backyard. Henderson then spoke to Hugo on her cell phone, verified that someone was inside the house and called the police.

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While Henderson was on the phone, she saw defendant and another person run out of the house through the back door. Defendant dropped Henderson's book bag on the porch stairs and said “I don't want any trouble,” as he exited the backyard. About five minutes later, police arrived with defendant. Henderson identified defendant as the person she had seen inside the building.

On cross-examination, Henderson said nobody had lived in the building since the fire. She said the top floor of the house was ruined by the fire and there was a blue tarp covering a window on that floor. She explained that at the time of the burglary, she was planning to move back into the house.

Nancy Hugo testified that she owned the building at 1216 South 3rd Avenue in Maywood and had lived there with her family since 1982. She also testified that she checked on the condition of the house daily following the fire. On April 10, 2005, the building contained furniture, appliances and other personal belongings.

About 6 p.m. that evening, Hugo went to the house with Henderson and noticed a hole in a board that had been covering a front window. Hugo then walked to the front door while Henderson went around to the back. Hugo saw a man coming out of the house through the hole in the board, holding a violin case. He looked at her, said “I'm sorry,” and went back into the house. Hugo then said, “what are you doing in my house?” and called Henderson on her cell phone. Hugo told Henderson that there was a man in the house, and Henderson replied that there was another man in the back. Henderson called police, who later arrived with defendant.

On cross-examination, Hugo said that the house had gone into foreclosure after the burglary, and she sold it at a sheriff's auction in December 2006. She said nobody lived in the building between the burglary and the sale.

Maywood police detective Joseph Peck testified that about 6 p.m. on April 10, 2005, he received a dispatch of a possible burglary at 1216 South 3rd Avenue and drove to that location. On arrival, Peck spoke with Henderson, who described one of the offenders as a black male with a bald head, about 6 feet tall and weighing 200 pounds. Peck broadcast that description over the radio and inspected the house. He recovered a blue book bag from the rear porch, which Henderson identified as hers, and a violin case. Defendant was later brought to the building by Maywood police officer Escamilla and identified there by Henderson as the person she saw drop a book bag and exit the rear of the house.

Officer Escamilla testified that shortly after 6 p.m. on April 10, 2005, he received a radio dispatch of a burglary at 1216 South 3rd Avenue and a description of one of the offenders. While driving in the area, he saw defendant running away from the location of the burglary. Escamilla approached defendant and saw that he was sweating heavily. He told defendant there was a burglary in progress and asked him to accompany him to the scene of the crime because he resembled the description of the offender. Escamilla drove defendant to the house, where he was identified by Henderson.

Maywood police officer Patrick Grandberry testified that on April 10, 2005, he was assigned as an evidence technician to process evidence in connection with a burglary. At the police station, he inventoried a cell phone, pagers, toothpaste boxes, a CD case, a photo album and other items found inside a blue book bag he was given by Detective Peck. Grandberry showed these items to Henderson and Hugo, who

924 N.E.2d 616

identified them as theirs. He also took latent fingerprints from one of the toothpaste boxes and sent the prints along with a copy of defendant's fingerprints to the Illinois State Police crime lab for further analysis.

The parties stipulated that, if called, Mary Beth Thomas would testify that she was a forensic scientist and expert on fingerprint identification. Her examination of the fingerprints on the toothpaste box taken by Officer Grandberry revealed they were made by defendant.

Defendant testified. He said that on April 10, 2005, he was 49 years old, had recently been released from prison and was living on the streets when he saw a “burnt-up” building at 1216 South 3rd Avenue with garbage in the yard. He went through the garbage and was picking up some of it when a woman asked him what he was doing there. He raised his hands, said he was not doing anything and left. Defendant further testified that he did not think anyone lived in the building and that the objects in the yard were garbage because there was fire damage.

In rebuttal, the State introduced certified copies of defendant's July 9, 2002, felony conviction for aggravated unlawful use of a weapon and his July 23, 1997, felony conviction for aggravated robbery. Defense counsel objected, claiming the probative value of the convictions was outweighed by their prejudicial effect. After considering arguments from both parties on the probative and prejudicial nature of the convictions, the court admitted them.

The court then found defendant guilty of residential burglary, stating that the crucial issue was whether the State proved beyond a reasonable doubt that the building was a dwelling place. The court found that the home was not abandoned because the family intended to return to it, noting that the first floor contained personal property which was boxed and bagged and was secured by locked doors.

On appeal, defendant first contends the State failed to prove him guilty of residential burglary beyond a reasonable doubt. He claims that the State failed to establish that, under the statute, the building he entered was a dwelling and so his conviction should be reduced to the lesser included offense of burglary.

Where a defendant challenges the sufficiency of the evidence, the standard of review is whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Hall, 194 Ill.2d 305, 330, 252 Ill.Dec. 653, 743 N.E.2d 521 (2000). This standard recognizes the responsibility of the trier of fact to resolve conflicts in the testimony, weigh the evidence and draw reasonable inferences from the evidence. People v. Campbell, 146 Ill.2d 363, 375, 166 Ill.Dec. 932, 586 N.E.2d 1261 (1992). A reviewing court will not set aside a criminal conviction unless the evidence is so unreasonable or improbable as to raise a...