Appeal from the Circuit Court of Kane County; the Hon. Paul W.
Schnake, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 31, 1984.
Defendant, Larry Austin, was convicted of murder, two counts of felony murder, burglary and home invasion following a jury trial in the circuit court of Kane County. In a separate jury trial in the circuit court of Kane County, defendant, Phillip Gillespie, was convicted of home invasion and three counts of aggravated battery arising out of the same events. We agreed to consolidate the defendants' separate appeals pursuant to a stipulation of the parties. On appeal, defendants contend: (1) that they were not proved guilty of home invasion beyond a reasonable doubt; and, (2) that the trial court erred in granting the State's motion in limine precluding inquiry as to the citizenship of certain of the State's witnesses. Additionally, defendant Austin contends that the admission of certain statements made by him after his arrest was in violation of Supreme Court Rule 402(f) (87 Ill.2d R. 402(f)).
On the evening of December 23, 1981, a number of Hispanic men were gathered in an apartment at 321 Center Street, Elgin, Illinois. This apartment was the dwelling of Marcial Escobar. The men had been drinking, playing cards, and gambling. During the course of the evening, a woman was at the apartment, apparently for purposes of prostitution. She left and returned, accompanied by another woman and a man. These three people, who were not identified, left after a brief time. Approximately one hour later, two other men, identified in their respective trials as defendants, came to the apartment and entered by kicking the door open. Austin was carrying a .22-caliber rifle, and Gillespie a shotgun. Upon entering the apartment, the two men yelled something and fired the guns. Defendant Austin allegedly shot first, wounding Eustorgio Calixto, who later died of his wounds. Gillespie then fired his weapon, hitting Jose Covarubias. Several other men also were shot, including Marcial Escobar and Margarito Aguirre, but it is not clear which defendant fired these shots. Covarubias, Aguirre, and another man grabbed Gillespie, taking the shotgun, and held him until police arrived. Austin fled the scene, continuing to fire his weapon from outside the apartment.
On January 13, 1982, Austin was placed under arrest and was advised of his Miranda rights. Later that day, at the request of Austin, a conversation was held between Austin and Captain Smith of the Elgin police department. Officer David Jensen was also present. Austin asked Smith if he could get the death penalty for his crime and Smith replied that the death penalty did apply but that that was the State's Attorney's decision to make. Defendant stated he did not want to get the death penalty, and Captain Smith advised that before any decision could be made, Austin would have to go through his rights again and talk to his attorney. Defendant indicated he wanted to think about whether to talk with the assistant State's Attorney.
Captain Smith on his own initiative contacted the assistant State's Attorney, indicating that Austin might make a statement. The next morning, on January 14, 1982, defendant was introduced to Mr. Van Der Snick, the assistant State's Attorney. In the conversation which followed, Austin stated that he wanted to make sure that the two girls did not get charged with murder, and that he did not want to get the death penalty. The Miranda warnings were repeated, both orally and in writing, and Austin indicated that he understood each of his rights. He then repeated his inquiries to the State's Attorney regarding the death penalty and the fate of the two women. Mr. Van Der Snick advised Austin that he would not seek the death penalty and that he could not discuss the fate of the two women until further investigation was made. Austin then gave a taped statement which was later transcribed and signed.
The juries respectively found defendant Austin guilty of murder, two counts of felony murder, burglary, and home invasion, and defendant Gillespie guilty of home invasion and the aggravated batteries of Escobar, Covarubias, and Aguirre. Austin's convictions for felony murder were subsequently vacated, and judgment was entered on the remaining verdicts in both cases. Defendant's post-trial motions were denied. Austin was sentenced to concurrent terms of 20 years' imprisonment in the Department of Corrections for murder, 20 years for home invasion and seven years for burglary. Gillespie was sentenced to concurrent terms of 20 years' imprisonment for home invasion and five years' imprisonment for each aggravated battery conviction.
We first address defendant Austin's contention that his inculpatory statements to the police made after his arrest on January 13, 1982, were admitted into evidence in violation of Supreme Court Rule 402(f) (87 Ill.2d R. 402(f)). That rule provides that any plea discussion not resulting in a guilty plea is inadmissible against the defendant. Defendant argues that his statements to the police and the assistant State's Attorney were in the nature of plea negotiations and were therefore inadmissible.
The purpose of Supreme Court Rule 402(f) is to encourage the negotiated disposition of criminal cases through elimination of the risk that the accused enter plea discussions at his peril. (People v. Hill (1980), 78 Ill.2d 465, 472, 401 N.E.2d 517; People v. Friedman (1980), 79 Ill.2d 341, 351, 403 N.E.2d 229.) However, not all statements made with the hope of some concession are necessarily plea discussions. (People v. Victory (1981), 94 Ill. App.3d 719, 722, 419 N.E.2d 73.) In People v. Friedman (1980), 79 Ill.2d 341, 403 N.E.2d 229, the court recognized that there is a distinction between a statement made in the furtherance of a plea discussion and an otherwise independent admission which is not excluded by the rule. (79 Ill.2d 341, 353, 403 N.E.2d 229; see also People v. Victory (1981), 94 Ill. App.3d 719, 419 N.E.2d 73.) The Friedman court established a two-prong test for determining whether a defendant's unsolicited statement was plea-related and therefore inadmissible. First, the court must consider whether the accused exhibited a subjective expectation to negotiate a plea, and, second, it must determine whether this expectation was reasonable under the totality of the objective circumstances. (People v. Friedman (1980), 79 Ill.2d 341, 351, 403 N.E.2d 229.) Where the defendant's subjective expectations are not explicit, the objective circumstances surrounding defendant's statement take precedence in evaluating defendant's subsequent claim that the statement was plea related. (People v. Friedman (1980), 79 Ill.2d 341, 353, 403 N.E.2d 229.) The Friedman court noted that "[b]efore a discussion can be characterized as plea related, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State." 79 Ill.2d 341, 353, 403 N.E.2d 229.
In the present case, any subjective expectation to negotiate a plea was not explicit. Defendant never requested of either the police or the assistant State's Attorney to "make a deal" (cf. People v. Hill (1980), 78 Ill.2d 465, 401 N.E.2d 517; People v. Friedman (1980), 79 Ill.2d 341, 403 N.E.2d 229), nor did he ever convey to them any offer to plea bargain (see People v. Victory (1981), 94 Ill. App.3d 719, 723, 419 N.E.2d 73). Defendant did not ask Captain Smith to contact the State's Attorney for him, and he did not testify as to what his expectations were. (94 Ill. App.3d 719, 723, 419 N.E.2d 73.) Under these circumstances, the objective facts surrounding defendant's statements take precedence in evaluating defendant's claim that his statements were plea related. People v. Friedman (1980), 79 Ill.2d 341, 353, 403 N.E.2d 229.
Two of defendant Austin's statements apparently are in question here. Defendant's initial statement to Captain Smith inquiring as to whether the death penalty applied in his case was, in our opinion, merely a statement indicating defendant's concern over his fate and was designed to elicit Smith's opinion on that rather than to initiate plea negotiations. (See People v. Victory (1981), 94 Ill. App.3d 719, 419 N.E.2d 73, wherein defendant asked an officer whether the State's Attorney would be willing to plea bargain because defendant could not "afford to take an armed robbery charge.") We consider defendant's statement here as more in the nature of an admission of guilty knowledge rather than a subjective expectation or attempt to enter into plea discussions. 94 Ill. App.3d 719, 724, 419 N.E.2d 73.
• 1 Similarly, defendant's statement to the assistant State's Attorney regarding the fate of the two women and the applicability of the death penalty cannot be characterized as "plea-related" under Supreme Court Rule 402(f) (87 Ill.2d R. 402(f)). That statement was given after he had already received assurances from the State's Attorney that the death penalty would not be sought. The State's Attorney also advised defendant prior to his statement that the fate of the two women could not be discussed at that time. Thus, with respect to this second statement, it cannot be said that the "rudiments of the negotiation process" were present. (People v. Friedman (1980), 79 Ill.2d 341, 353, 403 N.E.2d 229.) Defendant at no time indicated a willingness to enter a plea of guilty in return for concessions by the State. The State's assurances were received prior to, and independent of, defendant's subsequent incriminating statement. There was no testimony supporting defendant's position that leniency would be granted only upon the condition that defendant confess to the crime. There were no offers made by either defendant or the State's Attorney in relation to an entry of a plea of guilty. In fact, there was no real negotiating process at all. Under these circumstances, we believe the trial court's admission of the statements was not error.
• 2 Next we consider the defendants' contention that they were not proved guilty of home invasion beyond a reasonable doubt. A person who is not a peace officer acting in the line of duty commits home invasion when, without authority, he or she knowingly enters the dwelling place of another at a time when he or she knows or has reason to know that one or more persons are present inside and (1) while armed with a dangerous weapon uses or threatens force against any person within the dwelling or (2) intentionally causes injury to any person within the dwelling. (Ill. Rev. Stat. 1981, ch. 38, par. 12-11.) The records establish that defendants entered the apartment, in which Marcial Escobar lived, without authority. They were not police officers executing their duties. They were armed with a shotgun and a rifle, each of which was fired, and each defendant hit at least one of the persons inside the apartment. Several of the other occupants also were injured, although it is not clear which of the assailants fired the shots which caused these injuries. However, defendants claim they were not proved guilty beyond a reasonable doubt as there was insufficient evidence to show that they knew or had reason to know that there were people inside the apartment.
Under section 4-5 of the Criminal Code of 1961, knowledge of a material fact includes "awareness of the substantial probability that such fact exists." (Ill. Rev. Stat. 1981, ch. 38, par. 4-5.) Because of its very nature, knowledge is ordinarily proven by circumstantial evidence, rather than by direct proof. (People v. Farrokhi (1980), 91 Ill. App.3d 421, 427, 414 N.E.2d 921.) However, the State must present sufficient evidence from which an inference of knowledge can be made, as the inference must be based on ...