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People v. Smith

OPINION FILED MAY 19, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LEROY SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Adam N. Stillo, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Following a bench trial in the circuit court of Cook County, defendant, Leroy Smith, was convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2), armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), two counts of home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12-11), and four counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4). Defendant was sentenced to concurrent terms of imprisonment of 20 years for home invasion, armed violence, and armed robbery, and seven years for each count of aggravated battery.

Defendant appeals his convictions, arguing that (1) he was convicted improperly of armed robbery and home invasion because the complainant did not tell the police of these offenses on the day of the incident; (2) the trial court erred in permitting the State to introduce in rebuttal an oral statement made by defendant that had not been revealed to defendant pursuant to his pretrial discovery request; (3) the record does not reveal a knowing and intelligent jury waiver; (4) the convictions for four counts of aggravated battery must be vacated because (a) the trial court imposed sentence for only one count of aggravated battery and (b) the same physical act was the basis for the aggravated battery and armed violence convictions; and (5) defendant's sentence for armed violence is improper.

The State concedes that defendant's armed violence conviction should be vacated on the authority of People v. Haron (1981), 85 Ill.2d 261, 422 N.E.2d 627. We affirm defendant's convictions for aggravated battery, home invasion, and armed robbery and vacate his conviction for armed violence.

FACTS

Defendant was tried on July 20, 1981. At the commencement of the proceedings, defense counsel informed the court that "Mr. Smith is requesting a trial by Court rather than a jury; he will sign a jury waiver." The jury waiver form signed by defendant appears in the record.

Minnie Robertson was the first witness called by the State. She testified that on December 22, 1980, she lived in an apartment in Chicago with Roman Allen. She was at home alone at 8:15 p.m. when defendant, whom she called "Lamont," came to her door. Robertson testified that she was acquainted with defendant, having met him several times at a lounge she went to with her boyfriend. Defendant had never been in her apartment before.

When Robertson opened the door defendant grabbed her by the throat and pushed her back into the apartment. Defendant "snatched" the telephone out of the wall, told her to put her hands up, and asked if she had any money. When Robertson said no, defendant struck her on the head several times with a "bullworker" exercise instrument and an iron pipe. Defendant then struck Robertson in the face, breaking her jaw and displacing nine teeth. Her left hand was broken in several places and the little finger severed. When she fell to the floor defendant continued to strike her with the iron pipe and kicked her several times, leaving his footprint on her back. Robertson testified that defendant threatened to shoot her; she did not see a gun. He told her to answer him but she could not because of her facial injuries. She testified that she saw defendant take her television and stereo and leave.

A Chicago police officer testified that he went to Robertson's apartment on December 22 pursuant to a radio call. He found Robertson in the hall covered with blood. She was taken to the hospital where she was treated for two broken arms, two broken hands, a broken jaw, and a bruised back. More than 100 stitches were needed to close her head wounds, a finger was amputated, and plastic surgery on her left eye was necessary.

Robertson was interviewed by two policemen on the night she was injured. She identified defendant to them as her attacker and said defendant had told her that "he was going to get my mother, my family if I told anyone, and he said he had a gun." Robertson said she did not see the gun. She did not mention to the policemen that any property had been taken.

Defendant testified that on December 22, 1980, he was at home recuperating from a kidney operation. At 5 p.m. his mother answered a telephone call for defendant from Minnie Robertson, whom he had dated previously. He went to Robertson's apartment at 5:30 and talked with her until 6:30. They both drank wine and became intoxicated. Defendant testified that he began to feel sick and that he did not want Robertson's boyfriend to find him in her apartment, so he tried to leave. Defendant and Robertson began to fight over defendant's jacket and slapped each other. Defendant stated that Robertson tried to grab him, he pushed her, and she lost her balance and fell through a glass table. She got up and grabbed the door to prevent him from leaving. He shut the door forcefully, catching her fingers. When he pushed the door off her fingers it hit her in the face. Robertson refused defendant's help and defendant left.

Defendant denied hitting Robertson with any object and denied taking anything from her apartment. Defendant's mother and brother corroborated defendant's testimony that Robertson had called him. They both testified that defendant was not carrying any goods when he came home. Defendant was arrested at his home on December 28, 1980.

After the defense rested, the State called Chicago police officer Robert Smitka as a rebuttal witness. Defendant's objection to the officer's being called was overruled; the witness was directed by the court to "confine your testimony solely to rebuttal." Officer Smitka testified that defendant told police on the day he was arrested, "I don't know what you are talking about. I wasn't there." Officer Smitka said during cross-examination by defense counsel that he had included this statement in his police report of the incident, but two or three pages of the report had been lost. The following exchange then took place:

"[Defense counsel]: We are at a disadvantage here. Apparently there are other pages of the report and we haven't got it.

The Court: Were you aware there were some ...


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