Appeal from the Circuit Court of Cook County; the Hon. Robert
Sklodowski, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 5, 1985.
Following a joint jury trial, defendants Carmichael Morrison, Tommie Newton and Edward Stokes, each represented by separate counsel, were convicted of seven counts of home invasion and six counts of attempted armed robbery. (Ill. Rev. Stat. 1981, ch. 38, pars. 12-11 and 8-4, respectively.) Morrison was sentenced to concurrent extended terms of 50 years for home invasion and 25 years for attempted armed robbery; Newton was sentenced to concurrent terms of 14 years for each offense; and Stokes was sentenced to concurrent terms of 22 years for home invasion and 14 years for attempted armed robbery. On appeal, defendants, individually or jointly, contend that: (1) they were erroneously charged, convicted and sentenced on multiple counts of home invasion and attempted armed robbery; (2) the conviction and sentence for attempted armed robbery must be vacated as a lesser included offense of home invasion; (3) the trial court erred in reading defendant Morrison's aliases to the jury prior to voir dire and in permitting the State to refer to the aliases at trial; (4) the State failed to prove all of the elements of home invasion beyond a reasonable doubt; (5) they were prejudiced by the State's withholding of evidence favorable to defendants; (6) the State's offer to stipulate to police reports at trial severely prejudiced the defense; (7) they were denied effective assistance of counsel; (8) the trial court erred in failing to hold an evidentiary hearing on defendant's motion for a new trial; (9) the trial court improperly tried and sentenced defendant Newton in absentia; (10) the State's improper remarks during closing argument substantially prejudiced defendants; (11) the trial court's erroneous oral jury instructions for both offenses constituted reversible error; and (12) the trial court erred in sentencing defendant Morrison to extended-term sentences. For the reasons stated herein, we affirm in part, vacate in part and remand for resentencing as to all defendants on the offense of home invasion.
The charges against defendants stem from an incident which occurred at approximately 11 p.m. on October 23, 1981, at the apartment of Delvey, Arnearry, Tyronne and Felisia Smith, located in Chicago. According to the State's evidence, the Smiths, Maria Morris, Rocky Hunter and Milton Lee were present in the Smiths' third-floor apartment when defendant Newton buzzed the apartment's intercom and asked for Delvey Smith. Delvey told his brother, Tyronne, to "buzz" Newton into the building and then he left the apartment to meet her on the third-floor landing so as to avoid a confrontation between Newton and Maria Morris, Delvey's fiancee. When Delvey met Newton on the third-floor landing, he saw defendant Morrison coming up the stairs with a gun aimed at him. Defendant Stokes, also armed, followed immediately behind Morrison. Stokes swung at Delvey with his gun but missed him because Delvey knelt down and covered his head with his hands. While Delvey was in this position, one of the three defendants searched his pockets and took $300 in cash. At gunpoint, defendants ordered Delvey to knock on his apartment door. Rocky Hunter opened the door and defendants rushed in, shouting "Police," and pushing Delvey into the living room with the others.
In the living room, Stokes held Tyronne, Arnearry, Delvey, Rocky Hunter and Milton Lee at gunpoint and ordered them to remove their jewelry and put it on the glass top coffee table. Meanwhile, Morrison and Newton walked to the back of the apartment, where Felisia Smith was washing dishes, and ordered her to join the others in the living room and to remove her jewelry. When Hunter removed his watch and dropped it onto the table, it caused a loud noise which momentarily distracted Stokes. At that instant, Arnearry jumped Stokes, who reacted by firing his gun twice in the direction of the couch. No one was hit. Morrison heard the commotion in the living room and came around the corner, aiming his gun in the general direction of the victims. Tyronne then jumped up and grabbed Morrison's wrists, wrestled him to the ground and managed to take possession of the gun. Once disarmed, Morrison attempted to leave the apartment, but was followed down the building stairs into the vestibule by Tyronne, where the fight continued.
Felisia Smith had entered the living room area just as Arnearry leaped toward Stokes. In the resulting confusion, she ran out of the apartment to her boyfriend's house.
Prior to the struggle over the guns, Maria Morris, who had been in the bathroom at the time defendants entered the apartment, had opened the bathroom door when she heard voices and was confronted by Morrison, pointing a gun in her face. He told her to stay in the bathroom. Shortly thereafter, Newton opened the bathroom door and told Maria to get out and go into the living room with the others. As Maria was walking toward the living room, she heard two shots, and ran out of the apartment toward Felisia's boyfriend's house.
Officer Michael Grymes of the Chicago Police Department testified that on the night in question, he and his partner responded to a radio message of a man with guns on South Essex in Chicago. When they arrived on the scene, Grymes observed Tyronne Smith and Morrison in the apartment vestibule. Tyronne was holding a gun and Morrison was on the floor. Grymes also observed two men struggling in the window of a third-floor apartment in the same building. Grymes and his partner entered the vestibule with guns drawn and told Tyronne to drop the gun. Tyronne handed him the gun and told Grymes that he was not the "one," but that Morrison had been trying to rob him. Meanwhile, Chicago police officers McGavock and Williams arrived and proceeded to the third-floor apartment.
Officer McGavock testified that on October 23, 1981, while responding to a radio message of a woman calling for help, he and his partner saw Felisia Smith running eastbound in the 770 block of Kingston, apparently in a hysterical state, wearing a bathrobe and no shoes. The officers followed Felisia to a nearby apartment, where they talked to her, then proceeded to 7707 South Essex, where they saw Maria Morris standing in the street. When Officer McGavock and his partner entered the building, they observed two males in the building vestibule with Officer Grymes and his partner. McGavock then proceeded to the Smiths' third-floor apartment, where he saw Delvey Smith and Stokes struggling in the living room near the front window. Stokes was holding a gun and Delvey was holding Stokes' wrist. McGavock took the gun from Stokes and made a protective pat-down search.
In contradiction to the State's evidence, defendant Stokes testified that on October 23, 1981, he, Newton, and Morrison went to Delvey Smith's apartment to purchase cocaine. When Delvey opened the lobby door of the apartment, Stokes informed him that they had a diamond cluster ring and $450 in cash with which to make the drug purchase. Defendants and Delvey then proceeded upstairs to the Smiths' apartment to complete the transaction. Milton Lee, Rocky Hunter, Arnearry and Tyronne Smith were in the Smiths' apartment at the time.
While Stokes was sitting in the living room, he heard Delvey and Morrison arguing about the payment in another room. When they began to "tussle" with each other, Milton Lee and Arnearry jumped up and ran into the other room. Stokes attempted to leave the apartment, but Arnearry struck him on the head with a gun. Stokes then grabbed for the gun and began struggling with three or four people, all of whom were trying to force him to release the gun. Stokes denied hearing any gunshots during the struggle and further denied that either he or the other defendants were armed with guns when they entered the Smiths' apartment.
On the third day of trial, following the testimony of the State's first witness, the court excused the jury and admonished defendant Newton, who was the only defendant out on bond, that if she failed to appear for court at any time, she would be tried and sentenced in absentia. Newton acknowledged that she understood the court's admonishment. When trial resumed on the fourth day, defendant Newton was present. At the conclusion of that day's proceedings, the court informed all those present, including defendant Newton, that trial would resume the following day (Friday) at 11 a.m. When defendant Newton failed to appear by noon the next day, and her counsel was unable to contact her, the court excused the jury for lunch and discussed with all counsel the procedure for proceeding with trial in absentia. The court also informed counsel for Newton that if Newton did not appear when trial resumed following lunch recess, he would advise the jury that the trial would commence on the following Monday in absentia. All counsel indicated that they understood the procedure. When defendant Newton failed to appear following lunch recess, the court admonished the jury as to the provisions of the Criminal Code of 1961 regarding the wilful absence of a defendant at trial and continued the proceedings to 9:30 a.m. on the following Monday. When defendant Newton failed to appear on Monday, trial resumed in absentia and was concluded the following day. Newton also failed to appear at the sentencing hearing.
Defendants Newton and Morrison first contend that it was reversible error to charge, convict and sentence them for seven counts of home invasion when there had been only one entry. Similarly, defendants argue that it was reversible error to carve six counts of attempted armed robbery out of a single act. In response, the State argues that defendants waived these issues by failing to object to the number of counts either at trial or in their post-trial motions.
• 1 As a general rule, failure to object at trial or in a post-trial motion acts as a waiver to raising the issue on appeal. (People v. Jackson (1981), 84 Ill.2d 350, 418 N.E.2d 739.) However, the waiver rule is not absolute. Supreme Court Rule 451(c) (87 Ill.2d R. 451(c)) provides for relaxation of the rule when error has occurred which acts to prejudice substantial rights of the defendant. (People v. Jenkins (1977), 69 Ill.2d 61, 370 N.E.2d 532.) We find such an error exists with respect to the multiple counts of home invasion.
The identical issue regarding home invasion was addressed recently by this court in People v. Ammons (1983), 120 Ill. App.3d 855, 458 N.E.2d 1031, which we find dispositive. In Ammons, defendants entered an apartment in which six people were present, including four children. Defendants were charged, convicted and sentenced on two counts of home invasion, each count alleging an intentional injury to a different person. In vacating one of the two counts, the Ammons court stated:
"Under subsection (1) [of the home invasion statute], there must be a threat with a dangerous weapon to any person or persons, or (2) intentional injury to any person or persons. This language can be contrasted with other statutes, e.g., battery [citation], where the conduct is phrased as against an ...