Appeal from the Circuit Court of Cook County; the Hon.
Lawrence I. Genesen, Judge, presiding.
PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 8, 1987.
Defendant was charged in a 15-count indictment with home invasion, residential burglary, attempted armed robbery, aggravated battery, attempted murder, and armed violence. Following a bench trial in the circuit court of Cook County, he was found guilty of home invasion and armed violence and sentenced to 25-year terms of imprisonment. He was also found guilty of residential burglary and attempted armed robbery and sentenced to 15-year terms, which were to be served concurrently with the terms previously entered, as well as with the 5-year term of imprisonment imposed on his aggravated-battery conviction. In this appeal defendant contends that his residential-burglary and armed-violence convictions must be vacated because they were based upon the same entry as his home invasion conviction, and, secondly, that the trial court abused its discretion in sentencing him to such lengthy terms of imprisonment.
The record shows that the incident giving rise to the charges against defendant occurred in the Dziak family home at 324 South La Grange in La Grange Park, Illinois, on Sunday evening June 17, 1984. About 10:15 p.m. Mrs. Dziak was reading a newspaper in the living room of her home while her husband slept and her 29-year-old son, Tom, was watching television in another room.
Tom Dziak testified that about this time he saw someone in the dining room walking toward his mother with a gun in his hand. He walked in and faced the hooded gunman, who then threw a knapsack at him and said, "You know what I want; you know what I want." Tom took the knapsack, told the gunman he did not know what he wanted, and struck him on the head with it. A struggle ensued in which he managed to wrestle the gunman to the floor in the kitchen, sat on top of him, and applied a choke hold. While he had the gunman in this position, Dziak felt a sharp pain in his lower back and realized that he had been stabbed with a knife. Mrs. Dziak came to Tom's assistance and placed her knee on the gunman's back. Meanwhile, Mr. Dziak telephoned the police, and when they arrived, one of them mistook Tom for the intruder and placed a gun to his head. When the officer realized his mistake, he ordered the intruder to drop the knife, then handcuffed and unmasked him; at this time defendant's identity as the intruder was revealed.
Tom Dziak further stated that he was taken to the hospital by ambulance that evening, where he was treated for the lacerations on his back, then released. During cross-examination he stated that he did not recall defendant ever mentioning the name "Tim" when he was in the house, but acknowledged that at some point during the encounter he realized that the gun defendant was carrying was not functional. He also stated that he did not observe anything abnormal about defendant's speech or gait but did detect an odor of alcohol about him. He also stated that he did not see the knife until he was stabbed with it.
Elizabeth Dziak testified that about 10:15 p.m. she left the living room and was proceeding to the kitchen when she encountered a hooded gunman coming toward her. When her son Tom entered the room, the intruder turned toward him and said, "Tim, give me what you owe me," then threw a knapsack at him. Tom backed up and hit him on the head with the knapsack, then chased him out to the kitchen where he wrestled him to the floor. She responded to Tom's call for help by placing her knee on the man's left shoulder and at this time observed the knife which he held in his left hand. When the police officers arrived, she directed their attention to the intruder and was present when they handcuffed and unhooded him; she identified defendant as that person.
Officer Edward Dwyer stated that he responded to the burglary call at the Dziak residence, and when he arrived saw three people involved in a struggle in the kitchen. He observed a woman and two men struggling with a knife and placed his hand on the arm which was holding it. He also saw a revolver in Tom Dziak's hand and told him to drop it. He then took possession of the knife, which was being waved about, and with the assistance of officer Murray, handcuffed the intruder, patted him down, and removed the hood from his face, revealing defendant's identity. The officer did not detect any alcohol about defendant at that time, and did not observe anything unusual about his speech, eyes, or walk at the station.
When he realized that Tom Dziak had been stabbed, he called an ambulance and later that evening observed the lacerations on his lower back; he stated that they were about 1 1/2 inches long but not that deep. He also recovered the gun, knife, hood, and knapsack from the Dziak residence and inventoried them at the La Grange police department facility.
The State rested its case in chief and defendant moved for a directed finding on all counts. The court granted defendant's motion as to counts 8 and 10, which alleged aggravated battery to Mrs. Dziak, but denied the motion as to the remaining charges.
Defendant then testified in his own behalf setting forth the defenses of mistake and intoxication. He related that two weeks prior to his entry into the Dziak residence, he was at a "casual" party in the vicinity where he was introduced to a person named "Tim." He was told that Tim would return a profit on any money entrusted to him within a few days, and defendant gave him $500. Defendant never heard from him again and his subsequent attempts to locate him were unsuccessful.
On the night in question, he stated that he ate dinner and had a few beers with a friend about 6 p.m., then took some medication to alleviate the pain he was experiencing as a result of some dental work. He stated that the combination of the pills and alcohol made him energetic and that his thoughts turned to doing something about the "Tim" situation. Accordingly, he rode his bicycle to the residence at 324 South La Grange, where, armed with a toy gun and wearing a mask which he made out of the rag he carried to clean his bicycle, he approached the door carrying a knapsack. He then scratched at the door of the residence, a routine which he had observed at the parties he attended in the area, and walked in without waiting for a response. He heard music inside which he associated with a party, but now realized that the sounds were probably emanating from a television set.
When he encountered Mrs. Dziak, he asked for Tim and the money he owed him. At that point he realized that he was in the wrong house and attempted to apologize and leave; however, he was prevented from doing so by Tom Dziak, who accosted him and held him in a "death grip" on the floor. He then recalled that he was carrying a knife in a sheath on his belt and attempted to defend himself with it. The police arrived shortly thereafter, and he was arrested and taken to the station.
Officer Murphy testified in rebuttal that he transported defendant to the station and interviewed him about 10:35 p.m. He stated that he did not observe anything unusual about defendant's speech; defendant spoke clearly and had no problem answering questions, and he further observed that he had good balance. In order to determine if defendant was under the influence of drugs or narcotics at the time, the officer conducted a light test where he observed that defendant's eyes dilated with the light and returned to a normal condition; this indicated to him that defendant was not under the influence of any drugs or alcohol. He acknowledged that he detected a slight odor of alcohol on ...