Appeal from the Circuit Court of Winnebago County; the Hon.
John Layng, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Steven Pettit, Robert Carr, Jr., and Gerald Rein were charged by information in the circuit court of Winnebago County with home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a)(1)), and Pettit was also charged with aggravated battery. Ill. Rev. Stat. 1981, ch. 38, par. 12-4(b)(1).
Pettit's motion for severance was granted. Carr and Rein were convicted in a bench trial, and Pettit's trial proceeded immediately thereafter before the same judge. Pettit was convicted of both charges. Each defendant's post-trial motion was denied; Carr and Rein were each sentenced to eight years' imprisonment. Pettit received concurrent terms of four years for aggravated battery and 10 years for home invasion. Each defendant appealed, and these cases were consolidated for our consideration.
On Tuesday, March 17, 1981, Robert Carr, Jr., Steven Pettit, and Gerald Rein went to the home of Duane Moore. Moore had recently sold them drugs which they believed to be bad. Using the pretense of wanting more drugs, and claiming not to be upset about the bad drugs already delivered, they convinced Moore to have his source, Ned Bassett, come over to the house with a delivery of additional drugs. When Bassett arrived, Pettit, Carr and Rein each pulled out a gun and held the two men hostage. They then forced Bassett to lead them to the home of his source, Steve Anderson. That residence was the lower apartment in a two-story house on North Court Street in Rockford, Illinois. Carr, Pettit and Rein brought Bassett and Moore with them to that apartment. Anderson was not home, but a babysitter, Mary Lynn, was there with the four-year-old son of Anderson's girlfriend.
The three defendants broke into the apartment and held Lynn hostage together with Bassett and Moore, and George Meek, who came down from the upstairs apartment where he lived with Mary Lynn when he heard her scream. After 1 1/2 to two hours waiting for Anderson to return, Meek, Mary Lynn, the child, Bassett and Moore were forced to go upstairs to Meek's apartment where the defendants continued to hold that group of people hostage for another two hours waiting for Anderson to return. During that two-hour wait, Pettit repeatedly beat Ned Bassett, and when Bassett finally began to fight back, two shots were fired. The first shot discharged into the ceiling; the second shot hit Bassett in the right thigh and traveled into his right calf. Shortly thereafter the three defendants left the apartment, taking Bassett and Moore with them.
Three issues are presented: (1) Whether Pettit, Carr and Rein were proved guilty of home invasion; (2) Whether Pettit was proved guilty of aggravated battery, and (3) Whether Pettit was denied due process based on comments made by the judge at the conclusion of Carr and Rein's trial concerning Pettit's role in the incident.
The same argument is made on behalf of all three defendants. They point out that the home invasion statute proscribes entry of the dwelling place of another "when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present * * *." (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a).) The premises involved was a house which was used as two apartments. The owner of the house, Steve Anderson, lived on the main floor level with his girlfriend and her four-year-old son; George Meek and Mary Lynn lived upstairs. Anderson was their landlord. Before leaving Moore's house, Bassett was made to "write down the plans of the house [Anderson's] and how to get in it." Bassett testified Pettit made him write down the plans of the house because Pettit "wanted to know all of the exits, bushes and all, surroundings, the garage and the upstairs and the downstairs." Bassett testified he thought Anderson lived alone at the house; Bassett was not aware that different people lived upstairs. Bassett also testified that the doorway he and Pettit entered led only into the lower apartment; there was no other passageway or doorway once entry had been made through the outside aluminum door and the inside door which Mary Lynn had opened in response to Bassett's knock.
There was testimony tending to show that there was a common hallway used by occupants of the upper and lower apartments for access to the outside. However, the door to that hallway was not the door through which the three defendants entered; they entered through the door which faces south, and which is the "front" door of the lower apartment.
The defendants argue that since all the people present in the house were in the lower level apartment at the time Pettit decided they should all move upstairs, the defendants knew or had reason to know that no one was present in the upper apartment. The defendants point out that a reviewing court should give effect to the actual intention of the legislature (People v. Beam (1979), 74 Ill.2d 240; People v. Scott (1974), 57 Ill.2d 353), and may discover legislative intent by considering the evil to be remedied. People v. Dednam (1973), 55 Ill.2d 565.
The defendants' suggestion that the "evil to be remedied" or prevented by the home invasion statute, the unlawful entry of an occupied dwelling, is consonant with the clear language of the statute and is in accord with express judicial interpretation of the statute. (People v. Robinson (1980), 89 Ill. App.3d 211, 214-15.) In rejecting a due process attack on the statute, the Robinson court determined that the offense of home invasion consists of two parts: unauthorized entry and the use or threat of force by the invader while armed with a deadly weapon or intentional injury by the invader upon an occupant. (89 Ill. App.3d 211, 214.) It found the statute was not unconstitutionally vague because "[i]t informs all who might be tempted that they cannot, with impunity, enter another's dwelling, with reason to believe that the other is home, and therein threaten force with a deadly weapon or actually injure the occupant." People v. Robinson (1980), 89 Ill. App.3d 211, 214-15.
The State urges rejection of the defendants' argument that no home invasion occurred because the defendants were aware everyone was downstairs and no one was upstairs. The State argues the record shows that Mary Lynr, the child, and Pettit preceded everyone upstairs, and that Carr and Rein must have been aware of their presence since they followed them up. The State similarly argues that Pettit entered the upstairs three separate times: first, to check to see if anybody else was up there; second, when he decided everyone should move upstairs in order to surprise Anderson when he returned, and third, after he had gone back downstairs to carry Duane Moore, who was in a wheelchair, upstairs. At the time of Pettit's last entry, the State notes that he had to be aware that Mary Lynn and the child at least were present in the upstairs apartment, because he had told them to lie down on the bedroom floor.
The State posits the home invasion statute does not require that persons be "within" or "at home" or that the dwelling be "occupied," only that persons be "present" when entry is made. It concludes, therefore, that the victims need not be within the dwelling, they must simply be at the site of the crime. In support, the State cites People v. Pavic (1982), 104 Ill. App.3d 436. The defendant there gained access to the circuit breaker of the victim's apartment, and switched it to the "Off" position. When the victim left her apartment to restore her electrical service, the defendant entered the apartment. The Pavic court upheld the defendant's conviction for home invasion, finding that the victim was "constructively" present in the apartment. The court considered that the evidence supported the inference that the defendant knew the victim was home, and deliberately lured her out of the apartment by subterfuge so that he could gain entrance. (People v. Pavic (1982), 104 Ill. App.3d 436, 447.) The court expressed its belief its holding was consonant with the legislative intent in that the victim was within the class of people the statute was designed to protect, and that the defendant's conduct was of the type of harm the statute was enacted to prevent. 104 Ill. App.3d 436, 447-48.
The defendants find Pavic distinguishable and not dispositive, and we agree. The statute is not ambiguous, and resort to definition of the word "present" is unnecessary. As the Pavic court stated: "The emphasis of the home invasion statute * * * is solely to protect the personal safety of people in their homes." 104 Ill. App.3d 436, 447.
The evidence here shows positively that no one was present in the upstairs apartment at the time the defendant Pettit decided everyone should go upstairs. Pettit and Mary Lynn had already surveyed the upstairs for the express purpose of seeing "if there was anybody else up there." Nor was anyone "constructively" present as in the Pavic case. George Meek was not "lured" out of the upstairs apartment so that the defendants could invade his home. The stated purpose of having everyone go upstairs was to make it look to Anderson like no one was downstairs, and he would then have to go upstairs where the defendants were waiting in ambush for him.
Certainly a home invasion occurred here; but it was an invasion of Anderson's home, not Meek's, and the defendants were not charged with the invasion of Anderson's home. The evidence, in fact, fails to show that the defendants "knowingly entered the dwelling place of another [Meek's]." Ned Bassett testified he drew the defendants a plan of the house, including the upstairs. He also testified that, although he had been buying drugs from Anderson for two to three years, he thought Anderson lived alone, was not aware that different people lived upstairs, and that he did not know Meek or Mary Lynn prior to the night of the occurrence. George Meek testified he told defendant Pettit that "we [he and Mary Lynn] were baby-sitting for Anderson."
The relief requested by the defendants here was reversal; however, this court took note of arguments made by defense counsel at the two trials to the effect that the evidence at most showed defendants were guilty, perhaps, of kidnaping, unlawful entry, aggravated assault or aggravated battery. This court agreed that the evidence indeed would have sustained conviction of all three defendants for aggravated battery, Carr and Rein on accountability principles. Consequently, pursuant to the broad powers granted by Supreme Court Rule 615(b)(3) (87 Ill.2d R. 615(b)(3)), this court reduced the degree of offense to aggravated battery which it considered was a lesser included offense of home invasion.
• 1, 2 In a petition for rehearing subsequently denied by this court, the defendants argued aggravated battery is not a lesser included offense of the subsection of the home invasion statute with which they were charged; i.e., section 12-11(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a)(1)). Defendants note that "[f]or an offense to be a lesser included offense, it must not have any element not included in the greater offense so that it is impossible to commit the greater offense without necessarily committing the lesser." (People v. Rudd (1980), 90 Ill. App.3d 22, 26.) Defendants point out battery requires either bodily harm or physical contact of an insulting or provoking nature, and aggravated battery requires inter alia, the use of a deadly weapon during the commission of a battery. Defendants argue that since the precise offense with which they were charged can be committed whether or not injury occurs and that the offender need only be armed with a deadly weapon, it is possible to commit the greater offense of home invasion without also committing aggravated battery. Consequently, the defendants argue aggravated battery may not be considered a lesser included offense of home invasion. The defendants suggested in their rehearing petition that aggravated assault (Ill. Rev. Stat. 1981, ch. 38, par. 12-2) is the lesser included offense to which their convictions should be reduced.
Upon this court's invitation to the State to respond to the defendants' petition for rehearing, the State declined to submit an argument in support of reducing the degree of the offense. Instead, citing People v. Mays (1982), 91 Ill.2d 251, it asserted that the law on the concept of lesser included offenses is not yet settled.
In Mays, the defendant appealed his conviction for rape contending, inter alia, that battery was a lesser included offense of rape and, therefore, that the court erred in refusing his tendered jury instruction as to that offense. The appellate court agreed that battery was a lesser included offense of rape, and remanded the cause for a new trial. (People v. Mays (1981), 93 Ill. App.3d 352.) The supreme court reversed and reinstated the circuit court's judgment.
In so reversing, the supreme court noted that although an "included offense" is defined in the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 2-9):
"The definition * * * does not indicate which of the following is determinative in deciding if a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the ...