People v. Williams

358 N.E.2d 58, 44 Ill. App. 3d 143, 3 Ill. Dec. 58, 1976 Ill. App. LEXIS 3458
Appellate Court of Illinois·Decided November 24, 1976·No. 76-16·Published·Cited by 15 cases

Opinion

Mr. PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant was found guilty of unlawful possession of an automobile in violation of section 4—103(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95½, par. 4—103(a)) and sentenced to a term of one to three years. On appeal, he contends he was not proven guilty beyond a reasonable doubt.

McGruder Johnson was tried and convicted along with defendant; however, he did not appeal.

At trial the following pertinent facts were adduced.

For the State:

Fred Sherman

On the evening of February 20, 1974, he discovered his 1970 Buick Riviera missing from the company parking lot, where he had parked it that morning. The next time he saw the car was in March 1974 in the police pound. It was “almost completely stripped.” The fenders, doors, trunk, and hood had been removed.

Rudy Rodriquez

He is a Chicago police officer. On February 22,1974, while on patrol he came across a 1970 Chevelle, missing its engine and transmission. Noticing skid marks, he followed them down a dirt alley to a single-car garage behind a dwelling at 7419 South Parnell.

Pursuant to this observation, he and his partner, Officer Michael Cummings, drove past the garage at about 2 p.m. on March 9,1974. The garage door was open. Standing just inside the garage, on either side of a 1970 Buick Riviera, were defendant and McGruder Johnson. They were removing the “front clip” from the car. The hood, trunk lid, and doors had been removed and were off to the side. The officers, who were in uniform, got out of their marked squad car and approached the men who dropped the “front clip” and ran toward the side door of the garage. They apprehended the suspects before they reached the door.

After a radio check revealed that the vehicle had been reported missing, he arrested both suspects and advised them of their rights. Thereafter, defendant stated, “We can’t take a bust; is there something we can do?” He threatened to charge him with bribery and defendant said nothing further. Later, he ascertained the garage was owned by Johnson’s parents.

On cross-examination he acknowledged that although he drove by the garage once a day between February 22 and March 9 he never looked into the garage windows nor checked the ownership of the garage nor attempted to obtain a search warrant. On the date in question, the garage doors were “open” but not “wide open.” He denied kicking down the doors. He also stated that when the suspects ran, he drew his weapon and told them to stop.

When he first saw the two suspects, defendant’s hands were on the right side of the front fender and Johnson’s hands on the left side of the front fender. They were removing the “front clip” which consists of the fender, bumper, and grill.

He denied saying during a preliminary hearing on May 14,1974, that he saw defendant removing the front hood. He suggested that this was a typographical error in the transcripts, insisting that the hood had been removed before he arrived.

He stated that the reason Officer Cummings did not testify was because Cummings was in narcotics court on the day of the trial.

For defendant:

McGruder Johnson

On March 9, 1974, he lived with his father at 7419 South Parnell. He bought the car in question, which was “supposed to be stolen,” from someone he knew by “being in the street.” This person was to deliver the car, and remove the parts Johnson needed for *150. He did not tell defendant anything about the car until they were arrested.

The police gained entry to the garage by kicking open the side door of the garage. The larger doors were “closed tight.” He was not by the front of the car when the officers entered, but rather he was by the side door of the garage. Neither he nor defendant ran. He did not hear defendant tell police, “I can’t stand another bust; can I make it good to you,” or any words to that effect.

On cross-examination he testified he got the car from “Bump” on about March 6, 1974. He denied knowing the car was stolen. Before the police arrived, he was in the garage for 15 to 30 minutes. He did “nothing” during this time. He denied taking parts off the car.

At the preliminary hearing he heard defendant say he arrived at the garage about one half hour before police. He remembers, however, that he had been cleaning his yard and was putting his rake and tools away in the garage when defendant knocked on the door and walked in. When he went to close the door, the police kicked it open. No one dismantled any of the car that day, although the doors and trunk lid were off the car. He “guesses Bump” removed these parts. He does not remember if the bumper and grill were off the car.

At the conclusion of the closing arguments, Johnson was convicted of theft (Ill. Rev. Stat. 1973, ch. 38, par. 16—1) while defendant was acquitted of this charge. Both defendants were found guilty of unlawful possession of an automobile. (Ill. Rev. Stat. 1973, ch. 95½, par. 4—103(a).) 1 Only defendant Williams appeals here.

Opinion

Defendant first contends he was not proven guilty of unlawful possession. He argues that the uncorroborated testimony of Officer Rodriquez that he was apprehended dismantling a 1970 Buick at midday in an open garage is inherently improbable. Moreover, he argues that this testimony was directly contradicted by Johnson. Defendant also claims this testimony is biased because Rodriquez is a tactical officer. He asserts that tactical officers are policemen “with a proclivity for aggressive arrests and investigations.” He concludes, therefore, that Rodriquez’ testimony, including his assertion that he was caught “stripping” the car is suspect, raising a reasonable doubt as to his guilt.

In a bench trial, the credibility of witnesses is for the trial judge to determine, and his determination will not be disturbed on review unless the evidence is so unsatisfactory as to raise a reasonable doubt as to defendant’s guilt. (People v. Better (1975), 33 Ill. App. 3d 58, 337 N.E.2d 272.) Here, the points argued by defendant do not raise such a doubt.

Although Johnson testified that the garage doors were closed and that neither he nor defendant removed parts from the car, his bias is obvious. Defendant asserts that Johnson pleaded guilty and thus had nothing to gain by his testimony. However, we find no record of a guilty plea by Johnson althoúgh there was discussion of this before trial. Johnson, through his attorney, cross-examined witnesses and made a closing argument to the court. Despite defendant’s assertion to the contrary, Johnson’s testimony must be considered in light of his claim of innocence at trial.

Nor do we agree with defendant that the failure of Officer Cummings to testify raises an inference against the State. People v.

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People v. Williams, 358 N.E.2d 58, 44 Ill. App. 3d 143, 3 Ill. Dec. 58, 1976 Ill. App. LEXIS 3458 (Ill. Ct. App. 1976).

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