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People v. Racanelli





Appeal from the Circuit Court of Cook County; the Hon. Robert Sulski, Judge, presiding.


Defendants, Joseph Racanelli and Johnny Watters, were charged with home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12-11(a)(2)), burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19-1), and murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1). Following a jury trial, verdicts were returned finding each defendant guilty of home invasion and burglary and not guilty of murder as to each defendant. Each defendant was sentenced to concurrent terms of five years for burglary and 12 years for home invasion. Each defendant asserts on appeal that the trial court erred in denying his motion to suppress his oral and written confessions, and that he was not proved guilty beyond a reasonable doubt in the absence of the confessions. We affirm.

On the evening of August 20, 1981, 12-year-old Jimmy Lopez, an eyewitness, went to the apartment of the victim, Robert Reynolds. Lopez watched television with the victim for awhile. Later, Racanelli, Lopez' cousin by marriage, stopped by the apartment. Lopez testified that around 10 p.m. he went to sleep in the victim's bedroom. Sometime later he woke up and saw the victim and Watters in the bedroom. The victim was staggering about the room with a stab wound in his back. Lopez then saw Watters stab the victim in the chest with a butcher knife. Lopez began screaming at Watters to stop. At this point, Racanelli looked into the bedroom and called, "Let's go," to Watters. Lopez stated that Racanelli had a knife in his hand. Defendants then exited through the front door of the apartment.

After the defendants left, Lopez testified that he dressed, padlocked the bedroom door as Racanelli had requested, and left the apartment. On his way out of the apartment, he noticed that two television sets, a stereo, headphones, a radio, speakers and a clock were missing. Lopez stated that he then walked through a vacant apartment next door to that of the victim to get to the back door of the building. Lopez recognized some articles in this apartment, including the headphones and a lamp which had been in the victim's bedroom before he went to sleep. He opened a cupboard in the vacant apartment and saw the knife Watters used to stab the victim lying on the shelf. After leaving the building through the back door, Lopez went to his father's house.

Lopez testified that Racanelli telephoned him a few days later telling him to "keep his mouth quiet" and that "it wasn't supposed to happen like that." Until the police arrested Lopez on September 2, he did not talk with the police about the incident. After the police informed him that he was a prime suspect in the murder and that they intended to try him as an adult, he told them about Racanelli and Watters. Lopez then gave a written statement to Assistant State's Attorney Francis Mahon, Jr.

An assistant public defender, William Kunz, testified that on January 11, 1982, he was present during a conversation with Jimmy Lopez at the public defender's office. He testified that Lopez told him he did not see the stabbing but rather found the victim lying dead next to him on the bed, that he had sex with the victim for money that evening, that the police had beaten him, and that he had made a statement that the police had instructed him to make. On cross-examination, Kunz stated there was no record of the conversation, although he could have summoned a court reporter if he had chosen to do so. Lopez testified that he did not recall talking with anyone from the public defender's office. He further testified that he knew the victim was a homosexual but that he had never had sexual relations with him. Lopez stated that he never told the public defender's office that he did not see the stabbing.

Lopez' testimony regarding the items found in the adjacent apartment was corroborated by Zonhair Dajani, the manager of the victim's apartment building. Dajani testified that he found a lamp and headphones in the unlocked apartment on August 23. He also found a bloody knife on the shelf of a cabinet. Sharon Ellis, a microanalyst, testified that the victim's blood type matched that of the blood found on the knife and on the victim's bed.


Defendant Racanelli argues that the trial court erred in denying the motion to suppress his oral and written statements because the police and prosecution failed to inform him of charges pending against him. At the hearing on his motion to suppress, Racanelli testified that on September 12, 1981, while in Tennessee, he phoned Detective Sappanos because one Johnny Lopez said the police wanted him to be a witness. Sappanos then told him he wanted to use him as a witness but did not tell him there was a warrant for him. Racanelli agreed to come to Chicago and be a witness. On September 18, 1981, he called Sappanos and his partner, who came to Johnny Lopez' house to meet them. They did not tell him about the warrant, did not handcuff him, nor tell him he was under arrest. On cross-examination, Racanelli testified that he could not remember whether the State's Attorney had told him that he was just a witness. He stated that he admitted burglarizing an apartment only after he had been told that he could go home after he made a statement. Racanelli remembered being told that he could see a lawyer but was not sure when that occurred.

Detectives Thomas Keane and Thomas Sappanos testified that Racanelli called them at the police station on September 18 and that they arranged to meet him at Lopez' apartment for the purpose of Racanelli's surrender. Sappanos testified that he had informed Racanelli of the warrant during the telephone conversation on September 18 and in an earlier conversation with him on September 12. During the earlier conversation, Racanelli asked Sappanos what his, Racanelli's, alternatives were. After being told that an arrest warrant had been issued for his arrest and that he had the option to continue to flee or to surrender, Racanelli stated he would prefer to surrender in Chicago. Sappanos testified that although his police report did not reflect that he had told Racanelli there was a warrant for his arrest, his report did state that Racanelli was planning to surrender himself in the near future. Keane testified that Racanelli was told he was under arrest when they left Lopez' apartment and went with the police willingly. He was not handcuffed, fingerprinted or placed in a cell at the police station. Keane stated that he also told Racanelli there was a warrant for his arrest regarding the apartment burglary and murder. Both detectives testified that Racanelli was given Miranda warnings several times, which he indicated he understood, and that he never requested a lawyer.

After arriving at the police station, the detectives called Assistant State's Attorney Robert Kaiser. After Kaiser arrived, he spoke with Racanelli. Detective Keane was also present. Kaiser stated that Racanelli indicated he still wanted to talk to him after Kaiser had explained his office to Racanelli and had given him Miranda warnings. Racanelli indicated that he understood the warnings. After talking with him for about 15 minutes, Racanelli communicated his willingness to make a statement. Kaiser again gave the Miranda warnings. Racanelli stated he understood them and signed a waiver of rights form. Racanelli then made a statement in the presence of a court reporter, Sappanos, Keane and Kaiser admitting his involvement in the apartment burglary. Kaiser stated that he did not tell Racanelli he was only a witness and denied telling him that he would not need a lawyer. After hearing all the testimony, the trial court denied Racanelli's motion to suppress the statements made to the police.

• 1, 2 It is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from that evidence. (People v. Akis (1976), 63 Ill.2d 296, 298, 347 N.E.2d 733.) Where the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. (63 Ill.2d 296, 298-99, 347 N.E.2d 733.) In the instant case, Racanelli's contention with regard to the motion to suppress is essentially a question of credibility. The trial court specifically stated at the conclusion of the hearing that he believed the testimony of the prosecution witnesses. Viewing the case in that posture, the evidence indicates that Racanelli made a knowing and intelligent waiver of his rights before making his statement. If a defendant chooses to speak and does not request a lawyer after being informed of and understanding his Miranda rights, a court may properly find that he understood those rights and chose not to exercise them. (People v. Winston (1982), 106 Ill. App.3d 673, 682, 435 N.E.2d 1327.) In this case, the decision of the trial court was well within the limitation on review that a trial court's findings on a motion to suppress should not be disturbed unless contrary to the manifest weight of the evidence. (106 Ill. App.3d 673, 683, 435 N.E.2d 1327.) Accordingly, this contention is without merit. We find that the trial court did not err in denying defendant Racanelli's motion to suppress his oral and written statements.

• 3 Racanelli additionally urges that the authorities' failure on September 12, 1981, to inform him of the charges pending against him violated his sixth amendment right to counsel. He maintains that formal adversary proceedings were initiated against him on September 3, when the murder complaint was signed against him and a murder warrant was issued for his arrest. He argues, therefore, that he was entitled to know of the pending charges and to have counsel present during his telephone conversations with the police on September 12 and 18. The State responds that Racanelli's sixth amendment right to counsel did not attach on September 3, when an arrest warrant was issued on a complaint signed by a police officer, but instead it attached on November 2 when Racanelli was indicted.

An individual's sixth amendment right to counsel attaches at or after the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information or arraignment. (Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1881-82.) The initiation of adversary proceedings is determined by looking to the point at which the government has committed itself to prosecute and the adverse positions of the parties have solidified. 406 U.S. 682, 689, 32 L.Ed.2d 411, 418, 92 S.Ct. 1877, 1882.

• 4 Illinois law provides that felony prosecutions must be commenced by indictment or information and not by complaint. (Ill. Rev. Stat. 1979, ch. 38, pars. 111-1, 111-2.) Further, only the State's Attorney has the authority to file a felony charge, and a police officer is without that authority to prosecute such a charge. (People v. Pankey (1983), 94 Ill.2d 12, 19, 445 N.E.2d 284.) Thus, the State cannot be said to have filed a formal charge committing itself to the prosecution of Racanelli simply with the filing of a complaint by a police officer.

Illinois courts have expressly held that the issuance of an arrest warrant does not formally charge a defendant with a crime. (People v. Mitchell (1983), 116 Ill. App.3d 44, 47, 451 N.E.2d 934; People v. Dockery (1966), 72 Ill. App.2d 345, 355, 219 N.E.2d 687.) An exception to this rule has been found when the filing of a complaint by a police officer is made at the direction of the State's Attorney. (People v. Owens (1984), 102 Ill.2d 88, 101, 464 N.E.2d 261.) In the case at bar, the complaint for warrant was not filed at the request of the State's Attorney and the rule of Owens is not applicable. We therefore find that Racanelli's right to counsel did not apply to the telephone conversations and that his sixth amendment right to counsel was not violated.


• 5 Defendant Watters contends that the trial court erred in denying the motion to suppress his oral and written statements in light of his low intelligence. Watters, 16 years old at the time of the homicide, testified at the suppression hearing that he was arrested at 5 a.m. when he was awakened by a police officer holding a gun to his head. At the police station, Watters was handcuffed and placed in a small room for about an hour. Two police officers gave him Miranda warnings. Watters testified that he asked to see a lawyer. The police told him that he could see a lawyer when he went to the Audy Home, a juvenile detention center. Watters testified that he did not understand that any statements he might make could be used against him. He also did not understand the warning that he could be tried as an adult. Watters stated that he did understand that he could have a lawyer if he wanted to talk. Watters testified that sometime later a man came into the room, read him Miranda rights, and asked him to sign a statement. The man read the statement and told Watters to read it. Watters initialed the bottom of each page of his statement and printed his name at the end.

Detective Sappanos testified that he and Detective Keane conducted the initial interview with Watters at the police station advising him of his rights. Watters indicated that he understood his rights. Sappanos testified that Watters seemed reasonably intelligent and denied telling Watters that he would have a lawyer at the Audy Home.

During a second interview with Watters, Assistant State's Attorney Mahon testified that he told Watters he was not his attorney but that he worked with the police. He advised Watters of his Miranda rights. Watters stated that he understood his rights and that he was willing to talk. Because he was 16 years old, Mahon told Watters he could be tried as an adult. Watters stated that he understood. Prior to taking Watters' written statement, to which Watters agreed, Mahon explained what questions would be asked of him when the court reporter arrived.

A third conversation ensued in the presence of Mahon, a youth officer named Muscolino, and a court reporter. Watters was again read his rights. He admitted his involvement in the burglary, but stated that Racanelli had stabbed the victim. In addition to signing the written statement, Watters signed a written waiver of rights form. Mahon testified that Watters did not ask to see a lawyer nor did he request that questioning cease. When asked if he could read, Watters responded affirmatively.

Paula Bailey, a Cook County Juvenile Court psychologist, testified that she administered a standard battery of psychological tests to Watters. She testified that he did not exhibit any psychoses but that his results were at a preschool level. She further testified that he had an I.Q. of 54, which is in the moderately retarded range. In her opinion, Watters probably could not understand Miranda warnings unless they were explained in simpler language. On cross-examination, Bailey stated that because these tests were not designed specifically to determine if Watters understood the Miranda rights, she had no personal knowledge as to whether he in fact understood them. She also testified that Watters would not understand the warning that he could be tried as an adult, but probably understood the words "court," "judge," "lawyer," "silent," "free," and "no charge." The witness testified that Watters had six prior station adjustments, three prior referrals to juvenile court, and was probably "street-wise." At the conclusion of the hearing, the trial court found that Watters waived his Miranda rights and denied his motion to suppress his statements made while in police custody.

The determination of whether an accused has waived his Miranda rights depends on whether the defendant in fact knowingly and voluntarily waived those rights. The inquiry as to whether defendant knowingly and voluntarily waived those rights focuses on the totality of the circumstances surrounding the interrogation. (Fare v. Michael C. (1979), 442 U.S. 707, 724-25, 61 L.Ed.2d 197, 212, 99 S.Ct. 2560, 2571-72, reh'g denied (1979), 444 U.S. 887, 62 L.Ed.2d 121, 100 S.Ct. 186, quoting North Carolina v. Butler (1979), 441 U.S. 369, 373, 60 L.Ed.2d 286, 292, 99 S.Ct. 1755, 1757.) When regarding the totality of the circumstances, both the characteristics of the accused and the details of the interrogation must be considered. People v. Stone (1978), 61 Ill. App.3d 654, 659, 378 N.E.2d 263.

• 6-8 The characteristics of the accused which must be examined are those which bear upon his ability to make knowledgeable and independent decisions. Pertinent factors are the defendant's age, intelligence, prior experience with the criminal law and emotional stability. (People v. Stone (1978), 61 Ill. App.3d 654, 659, 378 N.E.2d 263.) Although subnormal mental capacity alone does not render a confession involuntary, it is a factor to be considered in determining the voluntariness and the admissibility of a confession. (People v. Murphy (1978), 72 Ill.2d 421, 437, 381 N.E.2d 677; People v. Hester (1968), 39 Ill.2d 489, 500, 237 N.E.2d 466.) Juvenile confessions are to be carefully reviewed to ensure that they are voluntary and not coerced, suggested, or the product of a juvenile's ignorance of rights, his adolescent fantasy, fright or despair. (People v. Avery (1980), 88 Ill. App.3d 771, 775, 410 N.E.2d 1093.) While the prosecution bears a heavy burden of establishing that a statement was made knowingly, intelligently and voluntarily, where a trial court so finds after application of the proper legal standard, review is limited to whether that finding is contrary to the manifest weight of the evidence. People v. Kincaid (1981), 87 Ill.2d 107, 116-18, 429 N.E.2d 508, cert. denied (1982), 455 U.S. 1024, 72 L.Ed.2d 144, 102 S.Ct. 1726.

• 9 In the instant case, the trial court found that the confession was voluntary and stated that:

"I have testimony before me from a woman who claims that from her testing, at times some part of the test, he demonstrated the ability of a five-year-old or a seven-year-old. I have to take that into consideration. That is part of the totality, but I think his responses and the questions and the degree of difficulty that he might have with the questions that might appear difficult to a person of low intelligence, I think I have to consider all of that."

This statement demonstrates that the trial court did in fact apply the proper standard in evaluating the admissibility of the statements. This finding was supported by evidence that Watters could understand various words, that he appeared to understand the warnings, that he in fact told the police that he understood the warnings, that he testified that he knew he could talk with a lawyer, and that he had had some prior experience with the criminal court system. Although Bailey testified on Watters' behalf, the trial court specifically stated that her testimony was not persuasive. The trial court need not accept an expert's conclusions of fact. (People v. Grice (1984), 121 Ill. App.3d 567, 568, 459 N.E.2d 1122.) Accordingly, the trial court's decision was not against the manifest weight of the evidence.

Watters cites People v. Redmon (1984), 127 Ill. App.3d 342, 468 N.E.2d 1310, in support of his position. In Redmon, the defendant expressly stated during an interview with the police that he did not understand his right to talk to and be represented by a lawyer while being questioned. After this was explained, he asked that questioning cease. Defendant never signed a written waiver of rights form. In contrast in the instant case, Watters indicated at all times during questioning that he understood his rights. According to his own testimony at trial, he understood at the time he was questioned that he could have an attorney if he was willing to talk with the police. Testimony at trial revealed that Watters had several prior experiences with the law while the Redmon defendant had not. We find Redmon inapposite.


• 10 Both defendants advance the argument that they were not proved guilty beyond a reasonable doubt in the absence of their confessions. We disagree. Furthermore, as discussed earlier, the trial court did not err in denying either defendant's motion to suppress his statements admitting participation in the homicide. A reviewing court will not reverse a criminal conviction unless the evidence is so improbable as to raise a a reasonable doubt of a defendant's guilt. (People v. Manion (1977), 67 Ill.2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 1513.) In a jury trial, it is the function of the jury to determine the credibility of the witnesses and the weight to be given their testimony. (People v. Akis (1976), 63 Ill.2d 296, 298, 347 N.E.2d 733.) A court of review will not substitute its judgment for that of the trier of fact where the evidence is merely conflicting. 63 Ill.2d 296, 298-99, 347 N.E.2d 733.

• 11 The material elements of the offense of burglary are entry into a building without authority, or remaining after authority to enter has been withdrawn, with the intent to commit a felony or theft. (People v. Sansone (1981), 94 Ill. App.3d 271, 273, 418 N.E.2d 862.) Defendants' entry into the victim's apartment, although initially with the victim's authority, exceeded that authority when they attacked the victim and removed his property. (See People v. Hudson (1983), 113 Ill. App.3d 1041, 1044-45, 448 N.E.2d 178.) Defendants' confessions, coupled with inferences drawn from Lopez' testimony, establish the specific intent to commit a burglary. Lopez testified that certain items which were in the apartment when he arrived were missing when he left. He recognized several of these articles in the vacant next-door apartment as he exited the building. We find there was sufficient evidence to establish beyond a reasonable doubt that defendants were guilty of burglary.

• 12 Home invasion is the entry without authority of the dwelling place of another by a person not a peace officer acting in the line of duty, knowing that one or more persons is present and intentionally causing injury to any person within such dwelling place. (Ill. Rev. Stat. 1979, ch. 38. par. 12-11(a)(2).) The words "without authority" have the same meaning under the home invasion statute as they do under the burglary statute. (People v. Hudson (1983), 113 Ill. App.3d 1041, 1045, 448 N.E.2d 178.) Therefore, defendants' presence in the apartment was without authority once they attacked the victim and removed his belongings from the apartment. Both defendants knew that the victim was present at the time. Lopez testified that he saw Watters stab the victim before Watters and Racanelli fled. We find that the evidence was sufficient to establish that defendants were proved guilty beyond a reasonable doubt of home invasion.

For the reasons stated, the judgment finding defendants guilty of burglary and home invasion are affirmed.


SULLIVAN, J., concurs.

JUSTICE PINCHAM, dissenting:

I dissent. These defendants should have been granted a severance. Their conflicting defenses during their joint trial violated each defendant's constitutional right to a fair and impartial trial. Moreover, the evidence was insufficient as a matter of law to establish their commission of burglary or home invasion. In addition, Joseph Racanelli's confession was extracted from him in violation of his Federal and State constitutional right to counsel. His confession therefore should have been suppressed.


Joseph Racanelli and Johnny Watters were charged in an indictment with the offenses of murder, armed robbery, burglary, theft, home invasion and armed violence. The offenses were alleged to have been committed in Cook County on August 21, 1981, and Robert Reynolds was the alleged victim.

On their arraignment on the indictment, the public defender of Cook County was appointed as attorney for Joseph Racanelli and private attorney Robin Harris was appointed to represent Johnny Watters. Each defendant entered a plea of not guilty.

The defendants separately confessed, but each defendant denied the fatal stabbing of the deceased and attributed it to the other. Defendant Watters filed a motion for a severance of his trial from the trial of his co-defendant Racanelli on the grounds that Racanelli had made "oral and written statements implicating" Watters; that Racanelli's defense was "in conflict with, inconsistent with and antagonistic toward" Watters and that Watters could not obtain "a fair and impartial trial [with Racanelli] because of the prejudice created by the inconsistent, conflicting and antagonistic defenses." Racanelli's attorney filed a similar severance motion and requested that Racanelli be tried separate from his co-defendant Watters. Both defendants filed motions to suppress their respective confessions, and after evidentiary hearings their suppression motions were denied.

Four days later, on July 14, 1982, the defendants' severance motions were before the court, at which time Thomas Davy, the assistant State's Attorney, stated to the court, "I believe both counsels [for the defendants] have filed motions for severance based on statements, based on inconsistent defenses. The State, having reviewed the motions and the applicable law, I believe that a motion for severance would lie in this particular case so we would not be objecting to that." The court granted the severance motions.

Assistant State's Attorney Donald Devlin, however, on December 14, 1982, requested the trial judge to reconsider his allowance of the defendants' severance motions and asked the court to deny the motions. After considerable argument by the attorneys in support of and in opposition to the State's request that the court reconsider its severance ruling, the trial judge denied the motion for reconsideration and stated, "I'm going to let my order of severance stand." Thereupon, in apparent dissatisfaction with the court's ruling, Assistant State's Attorney Devlin requested "that both defendants be tried in front of two juries at the same time." Defense counsel objected, and after stating that he needed "time to think about it," the trial judge set a trial date for both defendants.

On February 28, 1983, Assistant State's Attorney Devlin again requested the trial judge to reconsider his allowance of the severance motions. The defendants again objected, but this time the trial judge granted the State's request and "allow[ed] the defendants to be joined" for trial. Thereupon, the State's motion to nol-pros the armed robbery, theft and armed violence counts was allowed. The jury selection began and was concluded on March 1, 1983.

A thorough search of the record on appeal fails to reveal what legitimate prosecutorial advantage was sought or obtained by the joint trial of these defendants. It is quite apparent, however, that the infelicitous advantage sought and obtained by the joint trial of the defendants was the presentation to the jury of the defendants' confessed involvement in the offenses and each defendant's attribution of the fatal stabbing of the deceased to the other.

During the trial, Jimmy Lopez, a State's witness, testified that at about 7 or 8 p.m. on August 20, 1981, he went to apartment 93 at 4240 North Clarendon, the apartment of the deceased, Robert Reynolds; that he had known Reynolds for about a year and a half and knew that he was a homosexual. Lopez testified that Reynolds was present when he arrived, that he and Reynolds watched T.V. in the living room, and that later the defendant, Joseph Racanelli, came to the apartment. Lopez stated that after watching T.V., at about 10:30 p.m. he (Lopez) went into the bedroom and went to sleep. Lopez testified that when he awakened the following morning he saw Robert Reynolds and the defendant Johnny Watters in the bedroom and that Reynolds "was staggering around the floor with a stab wound in his back." Lopez testified that he (Lopez) "started yelling," that Watters stabbed Reynolds in the chest with a butcher knife and that Reynolds fell on the bed. Lopez stated that Racanelli, with a knife in his hand, then stuck his head in the door and said to Watters, "Let's go." Racanelli and Watters left out the front door. Lopez stated that he got dressed, locked the apartment door and also left. He stated that in leaving the building he went through apartment 90, an empty apartment on the same floor, and there on the floor he saw Reynold's property — a T.V., a stereo set, headphones, radio, speaker, radio alarm clock, and the knife with which Reynolds had been stabbed by Watters.

The testimony elicited on cross-examination of Lopez and the other prosecution witnesses by the defense attorneys are classic examples of shifting the responsibility for the offenses from one defendant to the other. *fn1 But each defendant, of course, in his defense had the right to endeavor to exculpate himself from involvement in the offenses and attribute the commission of the offenses to someone else, including a co-defendant. The attorney for each defendant was obligated to staunchly and with vigorous tenacity present and pursue such defense. These rights of the defendants and this obligation of their attorneys were not and could not be curtailed, restricted or diminished by the expediency of a joint trial of the defendants.

Assistant State's Attorney Francis J. Mahon, a State witness, testified to the facts and circumstances surrounding Watters' written confession to him, after which he read Watters' confession to the jury. *fn2 Watters confessed that on August 21, 1981, at about 5:30 a.m., he was in Reynolds' apartment at 4240 North Clarendon with Joseph Racanelli to take Reynolds' property. Reynolds woke up and Racanelli stabbed him in the chest with a butcher knife. Lopez told Racanelli to stop. Watters and Racanelli put Reynolds' T.V., radio, earphones and other property in an empty apartment next door and left. When Racanelli's attorney requested the trial judge to inform the jury that Watters' confession was admitted only as to Watters, the trial judge responded, "The jury will be instructed at the proper time."

Assistant State's Attorney Robert Kaiser, a State witness, testified to the facts and circumstances surrounding Racanelli's confession on September 18, 1981. *fn3 Kaiser was then requested to read Racanelli's confession to the jury. Watters' attorney asked the trial judge to admonish the jury that Racanelli's confession was not to be considered as evidence against Watters. The trial judge again responded, "They will be instructed at the proper time." Kaiser then read Racanelli's confession to the jury.

In his confession Racanelli stated that on the evening of August 21, 1981, at Reynolds' invitation, Racanelli went to Reynolds' house and started drinking with Reynolds, and that Racanelli and Reynolds drank about a quart of Bacardi. Reynolds got drunk and went to sleep, after which Racanelli and Watters moved Reynolds' household articles to an empty apartment. While Racanelli was in the empty apartment, he heard Lopez holler. Racanelli returned to Reynolds' apartment "to see what was happening," and that he saw Reynolds fall away from Watters, who had a knife in his hand. Watters stabbed Reynolds and Racanelli asked Watters, "Why did [he] do it?" Later that morning Racanelli gave Watters $30 for Watters' share of the purloined articles. Racanelli disposed of Reynolds' property by sale or gift.

The joint trial of Racanelli and Watters created an impermissible imbroglio that could have been and rightly should have been avoided, simply by a severance. The jury had before it three conflicting versions of the brutal and heinous homicide of Reynolds presented by the State, i.e., the Lopez version, the Watters version, and the Racanelli version. These contradictory renditions were aggravated by the defense attorneys' cross-examination of the State's witness, pursuant to their duty to zealously represent their respective clients, even in an antagonistic defense posture. Their numerous mistrial motions were imperviously overruled.

Neither defendant testified. The only testimony presented on their defense was that of William Kunz, an assistant public defender, to prove up Lopez' impeachment, i.e., that Lopez had said that he did not see the Reynolds' stabbing. The other defense witness, Paula Bailey, a clinical psychologist, testified that she tested Watters and concluded that he was intellectually subnormal.

The assistant State's Attorneys vociferously argued to the jury, with what they perceived to be convincing persuasion, that the evidence abundantly established the guilt of each defendant of murder and the other offenses beyond a reasonable doubt. *fn4

The only admonition the trial judge gave the jury regarding one defendant's confession being inadmissible against the other was Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.08 (2d ed. 1981), that "[a] statement made by one defendant may not be considered by you against any other defendant." This instruction was nothing but a futile and trivial collocation of words. The trial judge also instructed the jury on accountability (IPI Criminal 2d No. 5.03), that "[a] person is legally responsible for the conduct of another person when * * * he knowingly * * * aid[s] the other person in the planning or commission of the offense." The trial judge thereafter encompassed the accountability instruction in the issues instructions on the State's burden of proof to sustain the charges of murder, home invasion and burglary, IPI Criminal 2d Nos. 7.02, 11.22 and 14.06, as to the defendant Racanelli, and then repeated the same instructions as to the defendant Watters.

The jury retired to deliberate. The defendants' repeated and renewed motion for a mistrial, because of the prejudice occasioned by the defendants' joint trial, was again overruled.

During their deliberation, the jury sent out the accountability instruction along with a handwritten note which read:

"Judge, for home invasion purpose, will you please clarify the definition of, (1) intentionally — if injury caused intentionally?, or if intent present on entering premises? (2) injury — personal or monetary?"

The trial judge responded with a note to the jury which read, "You have heard all the evidence and received all the instruction you are entitled to." During their deliberation the following day, the jury sent the trial judge two notes, along with two instructions. One of the instructions was on accountability, IPI Criminal 2d No. 5.03, previously set forth. The other instruction was IPI Criminal 2d No. 3.05, which had been given them and which read, "You should give separate consideration to each defendant. Each is entitled to have his case decided on the evidence and the law which is applicable to him. Any evidence which was limited to one defendant should not be considered by you as to the other defendant." One of the jury's notes inquired, "What degree of murder is being tried? What latitudes are given in reference to a lesser charge?" The other jury's note stated, "One of their statements is contradictory of the other." The trial judge pondered whether the jury was referring to the defendants' statements (confessions), which the jury had in the jury room. The judge directed the jury to continue its deliberation.

The prosecutors' perception of the persuasiveness of the State's evidence was erroneous. The ignominious prosecutorial advantage of the defendants' joint trial failed to fully achieve the ultimate intended purpose. The jury returned verdicts finding both defendants not guilty of the murder. However, both defendants were found guilty of burglary and home invasion, on which findings the court sentenced each defendant to concurrent imprisonment terms of five and 12 years, respectively.

Defendant Joseph Racanelli asserted in his post-trial motion that, "The court erred for two reasons. First, the statements which were then allowed into evidence in the trial of each defendant were inconsistent and deprived each defendant of his right to confrontation. Bruton v. United States (1968), 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620. Second, the defenses were so inconsistent that a single trial deprived each man of a fair trial. * * *. More importantly, the two defendants were put into a position with antagonistic defenses, accusing each other of the crimes charged. On at least five occasions during trial and more-so during closing argument, defense counsel for Watters implied or tried to prove that Joseph Racanelli was framing Johnny Watters, and that Joseph Racanelli committed the murder, home invasion and burglary with Jimmy Lopez." *fn5

The conflict between these defendants was not resolved by and did not terminate on the jury's burglary and home invasion guilty findings, or the imprisonment sentences imposed thereon. In fact, after the trial judge had admonished the defendants of their right to appeal, Racanelli's attorney, an assistant public defender, responded, "Mr. Racanelli intends to appeal. I have not prepared the notice of appeal at this time. Could I present it to your Honor later on today for signing for appointment of the public defender?" (Emphasis added.) Watters' court-appointed private attorney thereupon stated, "Judge, Mr. Watters is also going to appeal, but somebody, I assume, other than the public defender would have to be appointed." (Emphasis added.) Nevertheless, before this court, on this appeal, both defendants are represented by the same attorney, the public defender of Cook County, and in the defendants' joint brief the trial court's denial of their severance motions and the prejudice of their antagonistic defenses on their joint trial are not assigned by their appeal attorney as grounds for reversal.

It is provided in Illinois Supreme Court Rule 615 (87 Ill.2d R. 615(a)) that on appeal, "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." (Emphasis added.) The trial court's denial of the defendants' severance motions and their antagonistic defenses were brought to the attention of the trial court in the instant case, but this would not cause Supreme Court Rule 615 to be inoperative before this court; rather, it enhances its application here. People v. Crossno (1981), 93 Ill. App.3d 808, 417 N.E.2d 827; People v. Benniefield (1980), 88 Ill. App.3d 150, 410 N.E.2d 455; People v. Lagardo (1967), 82 Ill. App.2d 119, 226 N.E.2d 492.


Thus, the threshold sua sponte question presented on this appeal is the ability of the defendants' attorney to firmly and loyally advocate the interest of each defendant before this court. I present this issue; however, I find it unnecessary to resolve it, because in my opinion the evidence is legally insufficient to sustain the guilty findings of burglary and home invasion.

In their confessions the defendants accused each other of committing the homicide. Each assigned antagonistic defenses in the trial court as grounds for their severance motions. Their separate attorneys, by cross-examination and by their arguments to the jury, endeavored to exonerate their respective clients by affixing guilt to the other defendant. Can a single attorney now before this court, with zeal, fidelity and integrity, simultaneously pursue the rights and interests of both defendants?

In People v. Echols (1978), 74 Ill.2d 319, 385 N.E.2d 644, Johnny Wilson, Kenneth Echols and his brother, William Echols, were tried before a jury for a June 5, 1974, burglary of a Decatur tavern. All three defendants were represented by the public defender. During the trial, the evidence established the defendants' presence at the rear door of the burglarized tavern. The trial evidence further established the presence of three unidentified men at the drive-up window of the closed tavern. The defendants were arrested some distance from the tavern in an automobile, in the trunk of which property from the burglarized tavern was discovered. A fingerprint was found on a piece of broken glass from the tavern's drive-up window. The fingerprint on the broken glass matched the fingerprint on a fingerprint card (State's exhibit No. 11) bearing the name Kenneth Echols. An officer testified that he assisted Kenneth Echols in placing his fingerprint on the fingerprint card. When asked to identify the person whom he assisted in placing his fingerprint on the exhibit, the officer did not identify the defendant Kenneth Echols, rather he mistakenly identified the defendant Johnny Wilson. Thereupon, out of the jury's presence, the State sought to obtain the fingerprints of Wilson and Echols. Their attorney successfully resisted the effort.

Testimony was admitted that the fingerprint on the fingerprint card was identical to the print found on the tavern's broken drive-up window glass. In closing argument, the defendants' attorney argued that the ambiguity of the fingerprint evidence diminished its probative value as to all the defendants. He did not argue that the print did not belong to Wilson. In fact, it did not belong to Wilson. It belonged to Kenneth Echols. The State argued to the jury that the print belonged to Echols and the officer was confused by the resemblance between Echols and Wilson. The Echols brothers and Wilson were found guilty of burglary. The supreme court reversed and held:

"[Wilson] contends that the facts of this case demonstrate such hostility between his interests and those of the Echols brothers that the public defender could not adequately represent all three. We agree, and hold that the public defender's representation of the Echols brothers prevented the public defender from loyally representing [Wilson], thereby denying [Wilson] the effective assistance of counsel guaranteed by the sixth and fourteenth amendments to the United States Constitution, and by section 8 of article I of our constitution (Ill. Const. 1970, art. I, sec. 8).

[W]here such hostility [between defendants] is shown to exist, the joint representation of the conflicting interests denies a defendant the effective assistance of counsel, and such denial is presumed to be prejudicial. [Citations.]

Finally, [Wilson] also argues that once the confusion occurred regarding the source of the fingerprint it became obvious that counsel could not give undivided loyalty to both Johnny Wilson and Kenneth Echols. We agree. As the State now concedes, and as the public defender should have known, the fingerprint on the window was not that of [Wilson]. Nonetheless, the public defender resisted the State's and the court's efforts to make that fact clear. Once the confusion occurred regarding the fingerprint, [Wilson's] interests and those of the Echols brothers diverged dramatically. It requires no speculation to reach the conclusion that competent, independent counsel would have advised [Wilson] to resolve that confusion, and would have argued in closing that, on balance, given all of the evidence, [Wilson] never entered the tavern.

Thus, there was a material hostility between the interests of [Wilson] and Kenneth Echols, and the public defender's commitment to Kenneth Echols prevented the public defender from representing [Wilson] with undivided loyalty. [Wilson] therefore was denied the effective assistance of counsel, which denial was prejudicial and was not waived by [Wilson's] silence." People v. Echols (1978), 74 Ill.2d 319, 326, 326-29. (Emphasis added.)

In Echols, the hostility between the defendants arose during the trial, out of the State's efforts to convict the defendants. In the case at bar, the hostility between the defendants occurred long before the trial, when they confessed and exculpated themselves and inculpated each other. Their antagonism was intensified throughout their joint trial. Their hostility before this court is therefore even more devastating.

In People v. Nelson (1980), 82 Ill.2d 67, 411 N.E.2d 261, separate assistant public defenders represented the two defendants on their McLean County joint burglary charge. The defendant John Rogers pleaded guilty. On the defendant William Nelson's jury trial, the co-defendant Rogers was called as a defense witness. Rogers had not been sentenced on his guilty plea, and he relied on his constitutional privilege against self-incrimination in refusing to answer the questions of Nelson's attorney. The jury found Nelson guilty. On appeal before the supreme court, Nelson argued for reversal that in the joint representation of the defendants by the public defenders in the trial court, there was a conflict of interest which denied his constitutional guarantee of the effective assistance of counsel. In Nelson, the supreme court disagreed with Nelson's contention, but in so doing stated:

"The rule, long established in this jurisdiction, is that a criminal defendant in need of representation is entitled to have appointed for him counsel who is free from adverse interests which might prejudice such representation. [Citation.] In furtherance of this principle, it has likewise long been held that an attorney should not be required to represent co-defendants whose defenses are inconsistent, since to do so would inevitably prejudice the defense of at least one client.

* * *. The question to be addressed in cases where co-defendants are jointly represented by one attorney or entity is whether there was an `"actual conflict of interest manifested at trial."' [Citations.] Once such an actual conflict is identified, it is unnecessary for a defendant to demonstrate that prejudice resulted therefrom in order to sustain a finding of a violation of the right to counsel. [Citations.] In formulating that rule, this court relied on Glasser v. United States (1942), 315 U.S. 60, 75-76, 86 L.Ed. 680, 702, 62 S.Ct. 457, 467, where it was said:

`To determine the precise degree of prejudice sustained * * * is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.'" People v. Nelson (1980), 82 Ill.2d 67, 71-73. (Emphasis added.)

As before stated, I do not resolve this conflict of attorney issue because the convictions should be reversed. The evidence is legally insufficient to establish that either defendant committed burglary or home invasion.


The next sua sponte issue presented by this appeal is the validity of the trial court's denial of the defendants' severance motions. Section 114-8 (Ill. Rev. Stat. 1981, ch. 38, par. 114-8) provides:

"Motion for Severance. If it appears that a defendant or the State is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial the court may order separate trials, grant a severance of defendants, or provide other relief as justice may require."

It is quite apparent from the contents of the defendants' confessions, their severance motions and the assistant State's Attorney's initial acquiescence in the defendants' severance motions that the defendants would be (and were in fact) prejudiced by their joint trial and that their severance motions should have been permanently allowed. Instead, the trial judge committed a grievous error when he shifted, abandoned his initial order, reversed himself and denied the severance motions.

The joint trial of the defendants was not only a contest between the State and the defendants, but it was also a lateral cross-accusation match between the defendants. The joint trial of the defendants was a mockery and farcical display of the adversary system between the State and the accused. It eviscerated the State's burden to prove the defendants' guilt beyond a reasonable doubt.

In the United States Supreme Court landmark decision of Bruton v. United States (1968), 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620, the question presented was "whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a co-defendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence." Bruton and Evans were jointly tried before a jury on a Federal charge of armed postal robbery. A postal inspector testified that Evans orally confessed to him that he and Bruton committed the robbery. Pursuant to Delli Paoli v. United States (1957), 352 U.S. 232, 1 L.Ed.2d 278, 77 S.Ct. 294, the trial judge instructed the jury that Evans' confession was inadmissible hearsay against Bruton and had to be disregarded in determining Bruton's innocence or guilt. The court of appeals affirmed. The Supreme Court overruled Delli Paoli and reversed, holding:

"[B]ecause of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extra-judicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.

* * * [I]n Pointer v. Texas, 380 U.S. 400, we confirmed `that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him' secured by the Sixth Amendment, id., at 404; `a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.'

* * * Plainly, the introduction of Evans' confession added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination, since Evans did not take the stand. [Bruton] thus was denied his constitutional right of confrontation.

Here the introduction of Evans' confession posed a substantial threat to [Bruton's] right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the concededly clear instructions to the jury to disregard Evans' inadmissible hearsay evidence inculpating [Bruton], in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination. The effect is the same as if there had been no instruction at all." (Emphasis added.) Bruton v. United States (1968), 391 U.S. 123, 126-28, 137, 20 L.Ed.2d 476, 479-80, 485, 88 S.Ct. 1620, 1622-23, 1628.

In People v. Miller (1968), 40 Ill.2d 154, 238 N.E.2d 407, the motion of defendant Babitsch for a separate trial from his co-defendant Miller on the ground that Miller had made a post-arrest statement incriminating Babitsch was denied. The trial court ordered the prosecutor to delete from Miller's statement any reference to Babitsch. Nevertheless the officer who arrested Miller testified that Miller denied committing the abortion for which the defendants were on trial, but that Miller admitted that defendant Babitsch performed the abortion and said, `We spent the money." The supreme court reversed and held:

"The defendant Babitsch argues that the court should have granted a severance because of the incriminating statement of Miller and also that the admission in evidence of this incriminating statement constituted prejudicial error. It is the rule that when a motion for separate trial is based on the fact that a co-defendant's confession implicates the moving defendant a severance should be granted unless the prosecution declares that the admission will not be offered in evidence at the trial, or if offered that there will be eliminated therefrom any and all reference to the party applying for a severance. (People v. Clark, 17 Ill.2d 486, 490.) In the Clark case a severance was granted but a confession of a co-defendant implicating the defendant was admitted in evidence with a cautionary instruction that it should not be considered by the jury insofar as the defendant's guilt was concerned. We held that the admission of such evidence was reversible error in spite of the cautionary instruction.

* * *. In the present case, Babitsch had requested a severance based upon the possibility that Miller's statement incriminating him might be admitted in evidence. The court denied the request for a separate trial and the very thing which Babitsch had feared occurred. The testimony of the officer that Miller told him that Babitsch performed the abortion was so highly prejudicial to Babitsch that a new trial is required. The State contends that the jury was properly admonished not to consider the evidence. Even if the ruling on evidence on which the State relies could be so construed, the prejudicial effect of the testimony would remain and would be sufficient to require reversal." (Emphasis added.) People v. Miller (1968), 40 Ill.2d 154, 158-59, 238 N.E.2d 407.

Antagonistic defenses were assigned as the grounds for severance motions in People v. McVay (1981), 98 Ill. App.3d 708, 424 N.E.2d 922, People v. McMullen (1980), 88 Ill. App.3d 611, and People v. Jones (1980), 81 Ill. App.3d 724, 401 N.E.2d 1325. The conviction in each case was reversed because the trial judge denied the severance motion. The following language of the court in McVay is applicable to the instant case:

"The rules concerning severance in this situation are well delineated and of long standing authority, expressed as follows:

`* * * Confessions or admissions made by an accomplice outside the presence of a defendant are not admissible against the latter whether or not the parties are jointly tried, and we have repeatedly held that when a motion for separate trial is based on the fact that a co-defendant's confession implicates the moving defendant, a severance should be granted unless the prosecution declares that the admissions or confessions will not be offered in evidence at time of trial, or if offered, that there will be eliminated therefrom any and all reference to the party applying for a severance. * * *.' (People v. Clark (1959), 17 Ill.2d 486, 489-90, 162 N.E.2d 413; People v. Miller (1968), 40 Ill.2d 154, 158-59, 238 N.E.2d 407.)

In both Clark and Miller, the supreme court reversed the convictions based upon the trial court's failure to grant a defense motion for a severance where admissions by a co-defendant implicated the defendant. Also, in both cases, the court concluded that reversal was required despite a cautionary instruction given concerning the evidence. [Citations.] As noted by the court in Clark, `* * * despite the court's efforts to prevent injustice by cautionary instructions as to limitations on the evidence, the prejudicial effect of the co-defendant's confessions inevitably remained. * * *.' [Citation.] The basis for this long-standing rule requiring severance in such situations is the constitutional guarantee of a fair and impartial trial and the conclusion, founded on the plainest principles of justice, that admission of a co-defendant's statement implicating the other party defendant works a substantial and unfair prejudice on the other party. [Citations.]

While the severance rule established and stated in Bruton [citation] rested on a defendant's right to cross-examination as secured by the confrontation clause, the Illinois rule requiring severance in such situations far antedates Bruton and is premised upon fundamental principles of justice and the defendant's right to a fair trial and not merely upon a violation of the right to confront adverse witnesses. [Citations.] Even with the ability to cross-examine, the prejudice to a defendant from the incriminating admission by a co-defendant remains, and a severance should be granted." (Emphasis added.) People v. McVay (1981), 98 Ill. App.3d 708, 715-17.

Parker v. Randolph (1979), 442 U.S. 62, 60 L.Ed.2d 713, 99 S.Ct. 2132, decided three years before McVay, does not validate denial of the defendants' severance motions and their unfair joint trial. In Parker, the defendants' confessions were found by the court to "interlock," for which reason the court held the defendants' severance motions were properly denied and that the defendants were not prejudiced by their joint trial. The opinion does not reveal whether there were any contradictions in the conduct attributed to the defendants in the commission of the offenses in the different confessions, however. Whether confessions (like the confessions in the instant case) which reveal that no violence was prearranged and which attributed infliction of the unplanned fatal blow to a co-defendant, can be considered "interlocking" confessions was not decided in Parker. *fn6 In addition, in the case at bar, unlike in Parker, the defendants' confessions and the defense attorneys' cross-examination and arguments to the jury were flagrant, prejudicial and inflammatory efforts to exculpate one defendant by shifting commission of the offenses to the other defendant. (See Appendices A, B, E, F and G). Moreover, in Parker, unlike in the case at bar, each confession was subjected to a process of redaction in which references to the other defendant were replaced with the words "blank" or "another person."

In the case at bar, the defendants' severance motions should have been allowed. They were irreparably prejudiced by their joint trial. Their convictions should therefore be reversed.


This cause should not be remanded for a new trial, however, for the reason that the State's evidence on which the defendants' guilty findings are predicated is legally insufficient and utterly fails as a matter of law to establish either defendant's guilt of burglary or home invasion. The State's enhanced opportunity to obtain guilty findings of murder against the defendants by their joint trial met with failure. The jury determined, within its province, that the evidence did not prove either defendant guilty of murder beyond a reasonable doubt and found both not guilty, perhaps because of the three conflicting versions by Lopez, Racanelli and Watters of Reynold's fatal stabbing. Although speculation on the reason for the jury's verdicts of not guilty of murder may satisfy a curiosity, such conjecture is otherwise unproductive.

The defendants were also charged with armed robbery. (Ill. Rev. Stat. 1979, ch. 38, par. 18-2.) Section 18-2 provides that, "A person commits armed robbery when he or she [takes property from the person or presence of another by the use of force or by threatening the imminent use of force] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon." Although there may have been sufficient evidence presented to the jury on which it could have found the defendants guilty of armed robbery of Robert Reynolds beyond a reasonable doubt, the State nevertheless elected to nol-pros the armed robbery charge.

There was also a theft charge against the defendants. (Ill. Rev. Stat. 1979, ch. 38, par. 16-1.) Section 16-1 provides, "A person commits theft when he knowingly: (a) obtains or exerts unauthorized control over property of the owner; or * * * (c) obtains by threat control over property of the owner; * * * and (1) intends to deprive the owner permanently of the use and benefit of the property * * *." There may also have been ample evidence presented to the jury on which the jury could have found the defendants guilty of theft of Robert Reynolds' property beyond a reasonable doubt; yet, the State chose to nol-pros the theft charge as well. To engage in suppositions or theories for the State's declination to prosecute the theft and armed robbery charges would not be beneficial.

The State in exercise of its prosecutorial discretion chose to proceed against the defendants only on the murder, burglary and home invasion charges. The burglary charge, in pertinent part, was as follows:

"That on August 21, 1981 at and within said county Joseph G. Racanelli and Johnnie Watters committed the offense of burglary in that they without authority, knowingly entered into a building, to wit dwelling of Robert Reynolds with the intent to commit the crime of theft therein, in violation of ch. 38, sec. 19-1 of the Ill. Rev. Stat. 1979 as amended." (Emphasis added.)

The burglary statute (Ill. Rev. Stat. 1979, ch. 38, par. 19-1), which the defendants allegedly violated, provides:

"A person commits burglary when without authority he knowingly enters or without authority remains within a building * * * with intent to commit therein a felony or theft." (Emphasis added.)

The home invasion allegation was that on August 21, 1981, Racanelli and Watters:

"Committed the offenses of home invasion in that they, not being peace officers acting in the line of duty, without authority knowingly entered the dwelling place of Robert Reynolds, knowingly and had reason to know that one or more persons were present therein, intentionally stabbed and killed Robert Reynolds, within said dwelling place, with a knife, in violation of ch. 38, sec. 12-11(a)(2) of the Ill. Rev. Stat. 1979, as amended." (Emphasis added.)

The home invasion statute (Ill. Rev. Stat. 1979, ch. 38, par. 12-11(a)(2)) provides:

"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 when he or she knows or has reason to know that one or more persons is present and * * * (2) Intentionally causes any injury to any person or persons within such dwelling place." (Emphasis added.)

From the foregoing statute, it is manifest that one of the essential elements of the offenses of burglary and home invasion is the entry into a dwelling (or other edifice) without authority. (People v. Clark (1964), 30 Ill.2d 216, 219, 195 N.E.2d 631; People v. Sansone (1981), 94 Ill. App.3d 271, 273, 418 N.E.2d 862; People v. Bailey (1980), 80 Ill. App.3d 242, 244, 399 N.E.2d 724; and People v. Harris (1975), 33 Ill. App.3d 600, 338 N.E.2d 129.) As the Illinois Supreme Court recently expressed in People v. Del Percio (1985), 105 Ill.2d 372, 374, "The State failed to allege that the defendant entered the victim's home without authority, a necessary and material element of home invasion."

The defendants in the case at bar were charged with entering Reynolds' dwelling without authority. Yet, not one iota of evidence was presented to the jury that Racanelli or Watters entered Reynolds' dwelling without authority. In fact, the State's evidence affirmatively established that Racanelli's entry into Reynolds' dwelling was with authority and by Reynolds' invitation. Lopez' complete testimony of Racanelli's entry into Reynolds' apartment was as follows:

"Q. When you first went to Robert Reynolds' apartment, who was there?

A. Just Robert Reynolds.

* * *

Q. And then did anyone else later come to the apartment?

A. Yes.

Q. And who was that?

A. Joey Racanelli.

Q. Now, after defendant Racanelli came into Robert Reynolds' apartment, on the evening of August 20th, what did you do?

A. I went to bed.

Q. And what did you do after you went to the bedroom?

A. I went to sleep.

Q. About what time would you estimate this to be?

A. About 10:30."

The only other evidence in the record on Racanelli's entry into Reynolds' apartment is Racanelli's confession which was admitted into evidence through the testimony of Assistant State's Attorney Kaiser. Racanelli stated in his confession that he was in Reynolds' apartment at Reynolds' invitation, as follows:

Q. * * * Okay, Joseph, on the night of August 21, 1981, who were you with that evening?

A. Johnnie Watters.

Q. And what did you and Johnnie Watters decide to do at that time?

A. Rob the man's house.

Q. How did you decide that you were going to do this?

A. I went over and started drinking with him.

Q. Did you both go over to his house?

A. Not at first. I did.

Q. This was part of your plan, is that right?

A. Yes.

Q. You were going to drink with him?

A. Not at that time, I was not planning it because he had invited me to drink with him.

Q. But, you and Johnnie Watters then decided to rob Mr. Reynolds?

A. Yes.

Q. Now, how much did you and Mr. Reynolds drink?

A. About a quart of Baccardi.

Q. What happened after you drank that? What did ...

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