{ "id": 2490465, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERRY LOCKETT, Defendant-Appellant", "name_abbreviation": "People v. Lockett", "decision_date": "1990-04-16", "docket_number": "No. 1-88-2407", "first_page": "981", "last_page": "986", "citations": [ { "type": "official", "cite": "196 Ill. App. 3d 981" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "108 S. Ct. 189", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "98 L. Ed. 2d 141", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "484 U.S. 866", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600961, 602306, 601928, 602185, 601226, 601419, 600171, 601904, 600947, 599189, 602105, 602074, 601179, 599390 ], "opinion_index": 0, "case_paths": [ "/us/484/0866-08", "/us/484/0866-12", "/us/484/0866-13", "/us/484/0866-02", "/us/484/0866-09", "/us/484/0866-10", "/us/484/0866-03", "/us/484/0866-05", "/us/484/0866-01", "/us/484/0866-06", "/us/484/0866-07", "/us/484/0866-11", "/us/484/0866-04", "/us/484/0866-14" ] }, { "cite": "504 N.E.2d 172", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3575484 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0097-01" ] }, { "cite": "109 S. Ct. 236", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "102 L. Ed. 2d 226", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "488 U.S. 895", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1495425, 1495201, 1493480, 1494986, 1495436, 1495373, 1495437, 1494669, 1495343, 1493778, 1495475, 1495443, 1495474, 1495195, 1494653 ], "opinion_index": 0, "case_paths": [ "/us/488/0895-08", "/us/488/0895-02", "/us/488/0895-11", "/us/488/0895-12", "/us/488/0895-13", "/us/488/0895-05", "/us/488/0895-01", "/us/488/0895-09", "/us/488/0895-15", "/us/488/0895-07", "/us/488/0895-04", "/us/488/0895-10", "/us/488/0895-03", "/us/488/0895-14", "/us/488/0895-06" ] }, { "cite": "518 N.E.2d 1362", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 289", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3615800 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0289-01" ] } ], "analysis": { "cardinality": 556, "char_count": 10559, "ocr_confidence": 0.775, "pagerank": { "raw": 4.3776877221195043e-08, "percentile": 0.2748104233103938 }, "sha256": "5e5a51e5a524ec2288f3b8ca35ef52516f260c1f6b241428e3c3e5c7843a0869", "simhash": "1:130b122d7306d7bd", "word_count": 1735 }, "last_updated": "2023-07-14T18:37:27.698771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERRY LOCKETT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nGerry Lockett was charged with residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19\u20143), convicted after a jury trial, and sentenced to eight years\u2019 imprisonment. Lockett appeals, arguing that improper voir dire produced a biased jury and that he was improperly sentenced as a repeat offender. For the reasons below, we affirm.\nAt about 3 a.m. on November 27, 1987, Allan Cannon entered his apartment, which he shared with his sister, at 1057 West Berwyn in Chicago. Cannon noticed a broken window in his sister\u2019s bedroom. He then saw a man, whom he did not know, standing about six feet away from him in the apartment hallway. The only light came from the bathroom off the hallway. The man said to Cannon, \u201cI know your sister.\u201d Cannon fled the apartment to call the police from the nearby El station. Outside his apartment, Cannon saw the man running down an alley. Cannon described the man to police as a dark black man with curly hair, about 5 feet 5 inches, weighing about 200 pounds.\nCannon returned to his apartment and noticed that his bicycle had been placed on his bed, and that his sister\u2019s baby clothes, which had been packed in bags, had been thrown all over. Although the apartment was in a general state of disarray, which Cannon admitted was not uncommon, nothing had been taken.\nA short time later, the police caught a man matching the description about three blocks from the apartment. The police returned to the apartment with the suspect, whom Cannon identified as the intruder. The suspect was the defendant, Gerry Lockett. Lockett was charged with residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19\u20143), and criminal trespass to residence (Ill. Rev. Stat. 1985, ch. 38, par. 19\u20144), and granted a jury trial.\nDuring voir dire, the trial court instructed the prospective jurors of the defendant\u2019s right not to testify, stating:\n\u201cUnder the law, under our constitution, anyone accused of a crime has \u2014 as a matter of fact, you don\u2019t have to be accused of a crime to know what\u2019s the privilege against self-incrimination.\nWhen a person is accused of a crime, the State, as I told you, has the only burden of proof, and the accused person doesn\u2019t have to prove anything at all.\nNow, should a person on trial before you not take the witness stand, his decision not to take the witness stand should not, in any way, be the basis of inference regarding the question of guilt or innocence.\nNow, do any of you have any problem in abiding with that principle of law? If you think you might have a problem, accepting that, abiding by it, during your service as jurors, please raise your hand. [No response indicated.]\u201d\nDefense counsel made no objection to the trial court\u2019s statement until after the jury had been selected and sworn, when he asked the court to clarify its statement. The trial court read the jury the substance of Illinois Pattern Jury Instructions, Criminal, No. 2.04, (2d ed. 1981) (IPI Criminal 2d), which defense counsel said would be acceptable. The jury subsequently received IPI Criminal 2d No. 2.04 again as part of the jury instructions.\nFour of the jurors had been victims of crime, three of whom had been victims of burglaries. The trial court questioned the four individually about their experiences, and asked whether their experiences \u201cwould affect [their] ability to be fair and impartial as a juror.\u201d Each answered that he could be fair and impartial. Defense counsel objected to the extent of the questioning, requesting that the court ask them whether they were confident that they could be impartial. The trial court denied the request, stating that the issue of their impartiality had been sufficiently covered.\nNevertheless, the trial court later asked each of the four, \u201cAre you confident you could decide a case on trial before you solely on the basis of the evidence that you hear and my instructions to you regarding law?\u201d The trial court subsequently denied defense counsel\u2019s motion to dismiss the burglary victims for cause. Counsel exercised no peremptory challenges to excuse the burglary victims, although the peremptory challenges had not been exhausted.\nThe jury found Lockett guilty of residential burglary, a Class 1 felony. Lockett was sentenced to eight years\u2019 imprisonment as a repeat offender (Ill. Rev. Stat. 1985, ch. 38, par. 1005\u20145\u20143(c)(8)), due to prior convictions for burglary, which were presented at the sentencing hearing. Lockett appeals both conviction and sentence.\nLockett argues that the trial court failed to assure that the jury would be fair and impartial, the evidence was insufficient to support the verdict, and he was improperly sentenced because the prior convictions were not alleged in the indictment or proved at trial. Lockett\u2019s arguments are without merit.\nLockett first contends that the jurors were improperly instructed on the defendant\u2019s right not to testify, but this contention was waived. Counsel failed to object when the allegedly improper instruction was given, and later, when the objection was made, counsel accepted the trial court\u2019s suggestion for curing any error. Even had the argument not been waived, there was no indication of error. The trial court clearly, if not eloquently, communicated to the prospective jurors that the defendant had a right not to testify, and that the exercise of that right should not be inferred as an indication of guilt or innocence. Finally, the jurors received IPI Criminal 2d No. 2.04, which addresses the defendant\u2019s right not to testify. The jury was properly and adequately instructed.\nLockett also contends that the voir dire of the burglary victims was improperly restrictive and the trial court abused its discretion in denying the motion to dismiss for cause. The State argues that Lockett\u2019s objection to the jurors was waived for failure to exercise an available peremptory challenge. We disagree. The objection was preserved by counsel\u2019s motion to dismiss for cause. (E.g., People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362, cert. denied (1988), 488 U.S. 895, 102 L. Ed. 2d 226, 109 S. Ct. 236.) Nevertheless, the trial court properly exercised its discretion to deny Lockett\u2019s request.\nThe questions and procedures of voir dire should reasonably assure that any prejudice or bias would be discovered. (People v. Morgan (1987), 152 Ill. App. 3d 97, 504 N.E.2d 172, cert. denied (1987), 484 U.S. 866, 98 L. Ed. 2d 141, 108 S. Ct. 189.) Here, the record shows that the trial court asked each of the four crime victims detailed questions about the crimes each had suffered, and specifically asked each whether he could remain impartial. The trial court denied counsel\u2019s request to further explore the issue of impartiality, but when the jurors were impanelled, the trial court did, in fact, use the language requested by defense counsel, asking each juror, including the burglary victims, whether he was confident that he could remain impartial. The record supports the conclusion that the trial court sufficiently explored the issue of the jurors' impartiality to have revealed any prejudice or bias and, therefore, properly denied counsel\u2019s motion to dismiss the burglary victims.\nLockett next challenges the sufficiency of the evidence, arguing that Allan Cannon\u2019s identification was not reliable, given the low light in the apartment and the short time that he had to look at the intruder. The record indicates, however, that Allan Cannon was a credible witness who encountered an intruder at close range for a sufficient length of time, with enough light, to identify him clearly. The circumstances of the arrest corroborated Cannon\u2019s identification: Lockett matched Cannon\u2019s description and was arrested within three blocks of Cannon\u2019s apartment shortly after the encounter in the apartment. The undisputed facts support the identification of Lockett as the intruder.\nLockett also argues, without merit, that the evidence could not support an inference of his intent to commit a theft. But when Cannon entered his apartment, he found a broken window and later noticed a rock and broken glass on the floor, indicating that the window had been broken from the outside. Cannon also discovered contents of the apartment had been rearranged and thrown about. Even assuming that Lockett was, as he said, an acquaintance of Cannon\u2019s sister, and that the Cannons, as defense counsel implied, were less than diligent housekeepers, Lockett\u2019s presence, without permission, in the dark, empty apartment, at 3 a.m., supported the jury\u2019s inference of intent to commit a theft.\nFinally, Lockett challenges his sentence as a repeat offender. The Unified Code of Corrections provides that, within specified criteria which Lockett met, a defendant convicted of a Class 1 or Class 2 felony, after two previous convictions for Class 2 or greater felonies, shall be sentenced as a Class X offender. (Ill. Rev. Stat. 1985, ch. 38, par. 1005\u20145\u20143(c)(8).) But Lockett argues, without merit, that he was improperly sentenced because the State failed to allege his prior convictions in the indictment and prove them at trial.\nLockett incorrectly contends that the repeat offender statute elevated the crime of residential burglary from a Class 1 felony to a Class X felony and, therefore, the prior convictions should have been alleged in the indictment and proven at trial, instead of at the sentencing hearing. Section 5\u20145\u20143(c)(8) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005\u20145\u20143(c)(8)) does not elevate the class of a crime; the statute merely sets forth criteria under which a defendant convicted of a Class 1 or Class 2 felony shall be sentenced according to guidelines of a Class X felony. Even had the State failed to prove all the elements of a hypothetical \u201cenhanced\u201d residential burglary, the error would have been harmless because Lockett\u2019s sentence of eight years fell within the statutory range for both Class 1 and Class X felonies. Lockett was properly sentenced.\nAffirmed.\nBUCKLEY, P.J., and CAMPBELL, J., concur.", "type": "majority", "author": "JUSTICE O\u2019CONNOR" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Christine Perille, Special Assistant State\u2019s Attorney, and Inge Fryklund and James Fitzgerald, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERRY LOCKETT, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201488\u20142407\nOpinion filed April 16, 1990.\nRandolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Christine Perille, Special Assistant State\u2019s Attorney, and Inge Fryklund and James Fitzgerald, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0981-01", "first_page_order": 1003, "last_page_order": 1008 }