Appeal from the Circuit Court of Cook County; the Hon. Paul A.
O'Malley, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant, Kenneth Harris, was convicted of home invasion, aggravated battery, robbery, and rape in connection with an attack on 79-year-old I.B. He was also convicted of home invasion, aggravated battery, and robbery in connection with an attack on 93-year-old B.G. Defendant received sentences of 5 years for the aggravated-battery convictions, 7 years for the robbery convictions, and extended-term sentences of 60 years for the home invasion and rape of I.B., all to be served concurrently. An extended-term sentence of 60 years for the remaining home-invasion conviction was made consecutive to the latter two 60-year sentences.
On appeal defendant contends (1) he was denied a fair trial by the joinder of separate charges in a single trial, and (2) the imposition of consecutive 60-year extended-term sentences was an abuse of discretion.
The following pertinent testimony was adduced at trial. I.B. was, on January 16, 1984, a 79-year-old tenant living on the second floor of a building at 678 North Dearborn in Chicago. At about 5:30 p.m. that day, while getting her mail in the first-floor vestibule of the building, she saw a man, identified by her in court as the defendant, enter the building. Back on the second floor she again saw the defendant. When she ran for her open door he grabbed her from behind by the neck and carried her into the apartment. The defendant demanded money from I.B., taking from her a purse containing $25. He threatened to kill her, choked her, and demanded more money and her diamonds. When she tried to escape he dragged her back, throwing her headfirst to the floor. He then tore off her clothes and had forcible sexual intercourse with her. After that act he asked her how old she was. I.B. lost consciousness. When she came to she was bleeding from her head. She crawled out of the apartment, down the stairs, and out to the street where a tenant came to her aid and called the police. She subsequently identified the defendant from an array of photographs.
B.G., 94 years old at the time of the trial, testified that on January 18, 1984, she was living on the fifth floor of the Croyden Hotel, at 616 North Rush in Chicago. Shortly after midnight that morning, she mailed a letter on the first-floor vestibule. A man, subsequently identified by her as the defendant, got on the elevator with her and got off with her on the fifth floor. When she unlocked her door the defendant grabbed her by the neck from behind and pushed her inside.
The defendant asked her where her jewels were, then took from her person a money bag containing about $500. When B.G. pleaded with defendant not to harm her he said she was too old, that he would not rape her. She was then struck on the jaw, losing consciousness until a neighbor, Jerry Dillon, arrived. Dillon testified that he found B.G. on the floor at 3:15 that afternoon. She was conscious, but incoherent, wearing only a slip. Her clothes were scattered on the floor.
B.G. testified that she could remember nothing more until she found herself in the hospital weeks later. However a police detective testified that on January 21, 1984, he showed B.G. an array of photographs. Because of her injuries she could not then speak but she selected a photograph of defendant and handed it to the detective. He asked if that looked like her attacker, and she nodded her head affirmatively. At trial B.G. was asked if she saw her attacker in the courtroom. She pointed to the defendant, saying, "It looks like that man."
Frankie England testified that she saw the defendant at a tavern some time on the evening of January 17, 1984. He had about $600 in large bills, which he told her he obtained from a lady at the Croyden Hotel. England admitted that at the time of that incident she was a prostitute and a frequent user of heroin who shared drug expenses with the defendant.
Two Chicago police officers testified that under questioning about these incidents defendant admitted attacking the women. Defendant stated that on January 16, 1984, he followed an older woman into a building on Dearborn just south of Chicago Avenue. He followed her upstairs and grabbed her from behind when she opened her door, forcing her inside. He demanded and received money and then hit the woman several times in the face.
Defendant also told the officers that on January 18, 1984, he followed another woman into the Croyden Hotel. When she opened her door he pushed her inside from behind, holding her by the neck. He struck the woman several times in the face and obtained four or five hundred dollars hidden in the stocking she was wearing. He then forced the woman to disrobe and lie on the bed, purportedly so she would not follow him out.
• 1 We first consider defendant's contention that the joinder of these charges for trial in a single proceeding was improper. A defendant may be placed on trial in one proceeding for separate offenses if those offenses are part of the same comprehensive transaction. (Ill. Rev. Stat. 1985, ch. 38, par. 111-4(a).) The trial court has substantial discretion in determining the propriety of joinder (People v. Peterson (1982), 108 Ill. App.3d 856, 439 N.E.2d 1103), and its determination will not be reversed absent a showing of abuse of that discretion (People v. Mikel (1979), 73 Ill. App.3d 21, 391 N.E.2d 550).
Among the factors to be considered are: physical and temporal proximity of the acts charged, identity of evidence to be presented, similarities in the acts, and whether there was a common method of operation by the perpetrator. (People v. Duncan (1985), 133 Ill. App.3d 489, 478 N.E.2d 1125.) Thus, in People v. Tate (1982), 106 Ill. App.3d 774, 436 N.E.2d 272, the defendant was charged with home invasion and attempted rape at one location and home invasion and aggravated battery at another location a mile away and one hour later. The reviewing court found that the trial court did not abuse its discretion in denying a motion to sever the charge, noting, inter alia, similarities in the method of gaining entry, the method of attack, and the descriptions of the attacker.
• 2 In this cause the offenses occurred within approximately two blocks and within about 31 hours. In each instance the offender followed elderly women to their apartments, grabbed them around the neck from behind, and forced them into their apartments. Both women were beaten and robbed of money. Both were asked about jewels. One victim was raped and had all her clothes removed except her stockings. The other was told she was too old to be raped, but when she regained consciousness she was wearing only a slip. Statements made by defendant to the police included admissions relating to both attacks. Of these factors, the physical proximity, the common method of operation, and the common type of victim all support the trial court's determination to grant the State's motion. Although the time period is greater than the one-hour span involved in Tate, that factor alone is not dispositive. People v. White (1984), 129 Ill. App.3d 308, 472 N.E.2d 553 (approving joinder of charges relating to acts occurring two and seven months apart).
We do not find the two cases cited by defendant to be controlling or persuasive. In People v. Bricker (1974), 23 Ill. App.3d 394, 319 N.E.2d 255, the defendant allegedly committed the armed robbery of a desk clerk in a Bloomington hotel as well as the armed robbery of a service-station attendant south of Bloomington. The offenses occurred within a three-hour period. However the reviewing court, in finding improper joinder, expressly noted that nothing in the record established a concerted plan of action or scheme linking the two crimes, which were committed several miles apart. In People v. York (1975), 29 Ill. App.3d 113, 329 N.E.2d 845, the defendant was accused of having sexual intercourse with two minor stepdaughters over a period of years. Even though the reviewing court found that the acts charged were of a similar character and constituted parts of a common scheme or plan, the court also found that the acts were not part of the same comprehensive transaction. The York court may have been influenced by the fact that one of the victims testified that she was pregnant by the defendant, a fact which the court believed to have been improperly introduced. In any event we find that the facts in this cause clearly established that the two series of offenses were part of a comprehensive transaction so as to permit their joinder for trial.
• 3 We also find no merit to defendant's contention that the sentences imposed were excessive. Defendant does not dispute that the Class X felonies of home invasion and rape may statutorily result in extended-term sentences of 60 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-2.) Nor does he contend that extended-term sentences may not be imposed consecutively. (People v. Jordan (1984), 103 Ill.2d 192, 469 N.E.2d 569.) He contends only that the sentences were an abuse of discretion. Among the factors to be considered as a basis for an extended-term sentence are commission of a felony accompanied by exceptionally brutal or heinous behavior and commission of a felony against a person 60 years of age or older. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b).) Consecutive sentences may be imposed if the court is of the opinion that such sentences are required to protect the public from further criminal conduct by the defendant. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(b).) Where the offenses were part of a single course of conduct with no change in the criminal objective, one of the offenses must have been a Class X or Class 1 felony and severe bodily injury must have been inflicted. Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(a).
This 30-year-old defendant had previously served a jail term for attempted murder. His attack on one victim caused her to lose one eye and also broke her jaw. His attack on the other victim broke her jaw and teeth, fractured her ribs, and caused her to have a heart attack. These acts were characterized by the sentencing judge as "revolting, heinous, * * * inhuman, depraved." The judge also found that society needed to be protected from the defendant. Given these facts and these findings we find no basis for disturbing the sentences imposed.
SULLIVAN, P.J., concurring.
JUSTICE PINCHAM, dissenting:
I dissent. Despicable crimes were committed upon two elderly women who were most deserving of society's protection. The horrors took place in their homes, where they were most entitled to safety, security and sanctuary. The crimes were committed against them at night. The offender should be severely punished, but even he, as contemptible as he may be, is entitled to the rule of law which should not have been distorted however strong the temptation to do so may have been. In my judgment, the trial court erred in granting the State's joinder motion and trying the defendant simultaneously for offenses which arose out of two unrelated criminal transactions. Section 111-4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 111-4(a)) provides:
"(a) Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act, or on 2 or more acts which are part of the same comprehensive transaction." (Emphasis added.)
In the case at bar, the offenses that were charged were not based on two or more related acts which were part of the same comprehensive transaction.
Indictment number 84 C 923 alleged that the defendant on January 16, 1984, committed the offenses of rape, aggravated battery, home invasion, robbery, kidnaping, aggravated kidnaping, unlawful restraint and residential burglary of I.B. These charges arose out of acts which were committed upon I.B. at about 5:30 p.m. in her second-floor apartment at 678 North Dearborn in Chicago.
The defendant was charged in indictment number 84 C 924 with committing the offenses of robbery, aggravated battery, home invasion, kidnaping, aggravated kidnaping, residential burglary and unlawful restraint upon B.G. on January 18, 1984. These charges arose out of acts which were committed upon B.G. at about 1 a.m. in her fifth-floor apartment at 616 North Rush Street, Chicago.
Although the trial court stated when the indictments came before the court that the State had filed a written motion "to join for consolidated purposes for a trial the two indictments of the People versus Kenneth Harris, 84 C 923 and 84 C 924," the written motion is not in the appeal record. The assistant State's Attorney argued to the trial court in support of the State's motion to consolidate the two indictments for trial:
"It is clear that it is discretionary on the part of the trial court. * * * The Sockwell case [People v. Sockwell (1977), 55 Ill. App.3d 174, 371 N.E.2d 100] gives [a] precise test as the margins for determining whether or not separate ...