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08/19/87 the People of the State of v. King George Frisby

August 19, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KING GEORGE FRISBY, JR., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

512 N.E.2d 1337, 160 Ill. App. 3d 19, 111 Ill. Dec. 700 1987.IL.1205

Appeal from the Circuit Court of Cook County; the Hon. Thomas A. Hett, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant King George Frisby, Jr., was charged by indictment with home invasion (Ill. Rev. Stat. 1983, ch. 38, par. 12-11(a)(2)) and residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-3). After a jury trial during which defendant represented himself, he was convicted of home invasion and acquitted of residential burglary. After trial, the trial Judge denied defendant's motion for a new trial and sentenced him to 30 years in the Illinois Department of Corrections for the home invasion conviction.

Defendant appeals and raises the following contentions: (1) the State failed to prove defendant's guilt beyond a reasonable doubt since it failed to establish two elements of the home invasion offense, namely, that defendant knowingly entered a dwelling and that defendant knew or had reason to know that one or more persons were present in the building; (2) the State failed to prove defendant guilty beyond a reasonable doubt where the in-court identifications of defendant were unconstitutionally unreliable and tainted by a suggestive custodial "show-up," and where the identifying witnesses failed to give police a physical description of defendant prior to the alleged "show-up"; (3) defendant was denied a fair trial where the prosecutor, during opening and closing statements to the jury, impermissibly commented on defendant's failure to testify, misstated the facts and law, and personally vouched for the credibility of a witness, and where the trial court erred in failing to exercise its discretion to consider the jury's request to read the testimony of a trial witness; (4) the trial court abused its discretion in imposing a sentence of 30 years' imprisonment in light of defendant's potential for rehabilitation and the nature of the offense; and (5) the circuit court of Cook County did not have jurisdiction to punish defendant for the commission of a felony.

For the reasons stated below, the decision of the circuit court of Cook County is affirmed.

At trial several eyewitnesses testified for the State, including Diane Fowler, Cheryl Caruth, Lamont Simpson, and two Chicago police officers. Defendant also called Fowler and Caruth, in addition to calling several other witnesses to testify on his behalf. The trial testimony revealed the following facts.

On August 10, 1984, at about 4 a.m., Diane Fowler, Cheryl Caruth, Charles Simpson, and Sherry Holmes were outside on the back porch of the second floor of a house located at 4323 South Wells in Chicago. The porch faced the front of another building located at the same address. Fowler lived with her mother in the front house. Caruth lived in the rear cottage with her boyfriend, Lamont Simpson. Caruth and Lamont Simpson had been living in the back building since some time in June 1984. Fowler's mother owned the rear structure.

Fowler testified that some rehabilitation work was begun on the rear building in May. For about a year prior to the time when Caruth and Lamont Simpson moved in, the cottage had been abandoned. At the time of the subject incident, the rear windows were boarded over and the front, second-floor door was nailed shut. Caruth testified that access to the structure was possible through the front and rear doors leading to the basement.

Shortly before 4 a.m. on August 10, Caruth left the others on the back porch and went into the rear building. She went to the bedroom, removed her clothes, turned on a radio, and lay down in bed next to Lamont Simpson, who was sleeping.

Meanwhile, from the back porch Fowler observed two men walk from the direction of the alley behind the rear structure through the gangway to the front of the rear structure. She saw them try to open the basement door, but the door did not open. Then they climbed the stairs at the front of the cottage and tried to open the door at the top of the stairs. The door had been nailed shut, and the men were not able to open it. They looked into the living room window next to the second-floor door. The bedroom in which Caruth and Lamont Simpson were lying and in which the radio was playing is on the same floor as the living room.

The two men then went back downstairs and walked toward the alley. Fowler saw that the first man down the stairs held what appeared to be a gun in his hand. Holmes heard a banging noise coming from the back of the cottage. She then went inside the front house and called the police. Fowler remained on the porch.

Caruth heard noises at the back of the building and therefore awakened Lamont Simpson. Meanwhile, a light in the basement of the rear building went off. Two individuals climbed the interior stairs of the building shouting, "Freeze, it's the police." Lamont Simpson jumped out of bed and went to the doorway of the room. When the men reached the top of the stairs, Lamont Simpson saw that they were holding guns. Lamont backed inside the bedroom doorway and stooped down. The two men approached the bedroom, and one, asserted by Caruth to be defendant, announced a stickup. The men told Lamont Simpson to come out of the room. The second intruder (not asserted to be defendant) struck Lamont Simpson on the head and knocked him to the floor. The two men hit Simpson again, kicked him in the head, and forced him to lie face down on the floor outside the bedroom.

The intruder alleged by Caruth to be defendant stood in the bedroom doorway. He asked Caruth if she was pregnant. Caruth replied that she was. He turned to the other intruder and told him, "The bitch is pregnant." The intruders refused to let Caruth or Lamont Simpson put on any clothes. There was no light on inside the bedroom; however, a streetlight in the alley behind the cottage provided some light in the room. Police officer Karpil testified at trial that the alley light was about three houses down from the cottage and did provide light to the area.

When the intruder alleged to be defendant then turned away momentarily, Caruth stooped down to pick up a sheet to cover herself. She also picked up a glass mug from beside the bed. The intruder asked Caruth what she had in her hand, and ordered her to put down the object. Caruth testified that, with the mug in her hand, she came within an arm's reach of the intruder she identified as defendant. Around this time, Caruth and Lamont Simpson saw a light shine up through the window. Caruth identified the light as a police light. After she saw the light, Caruth went to the window and shouted that there were two men inside with guns attempting to hold her up.

The unidentified intruder ran and dove through a closed window in the living room. The intruder identified as defendant ran and also tried to dive through the same window. Before he could get through the window, however, Simpson hit him with a stick at least twice around the head and shoulders. The second intruder eventually jumped through the window.

Meanwhile, Fowler was still on the back porch of the front house. She heard a crashing sound and saw first one person and then another jump through the window of the rear building. Fowler testified that the second person had difficulty jumping through the window as he was struggling with someone inside the cottage. After leaving the cottage, the two intruders ran past the back porch where Fowler was sitting to the gangway which lies alongside both the front and rear buildings and stretches from the street to the alley. Fowler lost sight of the intruders as they ran through the gangway toward the front of the house.

By this time, Chicago police officers Karpil, McMahon, Sarabia, and Castanada had arrived on the scene. Officers Karpil and McMahon positioned their car in the alley behind the rear building. Officers Sarabia and Castanada stationed their car on the street at the gangway in front of the front house. Karpil walked with his flashlight to the gangway and began walking through the gangway toward the street. The gangway itself was not lighted, but Karpil testified that from his position at the alley end of the gangway, there was enough light that he could see Sarabia and his car parked at the street end of the gangway. Sarabia stood on the street side of his car, looking over the hood, directly down the gangway. Sarabia testified that from this position, there was enough light that he was able to see Karpil.

Karpil and Sarabia then heard someone yell, "It's bona fide, he has got a gun." Then they heard a crashing sound. Karpil testified that it was the sound of glass breaking. Sarabia saw two black males running in the gangway toward the street, one following the other. The second person appeared to be carrying a gun. Karpil began chasing the men. Sarabia drew his gun and ordered the men to stop. Sarabia did not fire when the men ignored his command, because he could see police officers behind the pair. Sarabia again ordered the men to stop. He also ordered the second man to drop the gun he was carrying. The individual in front, the defendant, then obeyed and lay on the ground. The second man leapt over defendant, continued to run, and never was apprehended. Sarabia fired three shots at the second man as he fled. The fleeing assailant dropped his gun, a plastic pistol, which later was recovered.

Defendant then was handcuffed. Fowler, Caruth, and Lamont Simpson came to the front of the house where defendant was being held by police. Fowler and Caruth identified defendant as one of the intruders. Lamont Simpson was unable to identify defendant. At the time of his arrest, defendant had a cut over his left eyebrow. Type B human blood, which is defendant's blood type, was found on his tee shirt. Later, there was human blood found on some of the glass fragments found on the sill of the broken window and the stairs of the cottage.

Defendant was taken to the police station and searched there. An open package of nuts which contained one or two pieces of glass was found in defendant's shirt pocket. Defendant was asked to comb his hair. Glass fragments were found in the hair from his head. Chicago police department microanalyst Ray Lenz analyzed the comb, hair, and glass fragments found on defendant as well as the glass from the broken window. Lenz, who testified at trial as the State's expert, concluded that there was a great probability that the glass from defendant's hair and the glass from the broken window could have come from the same pane.

Photographs of the rear cottage and portions of the areas surrounding the cottage were introduced at trial by both defendant and the State. I

On appeal defendant initially contends that the State failed to prove his guilt beyond a reasonable doubt since the State failed to establish two elements of the offense of home invasion, namely: that defendant knowingly entered a dwelling, and that defendant knew or had reason to know that one or more persons were present in the building.

A

First, defendant asserts that the State failed to prove that he was consciously aware that the building he entered was a dwelling. Defendant states that the rear cottage appeared abandoned in that some windows on the basement level were boarded; the front, second-floor door was nailed shut; and the electric meter, located on the side of the building in such a position that it would have been visible to defendant, was broken, indicating that there was no electricity being supplied to the house.

Defendant also argues that the "reputation" of the structure during recent months prior to the occurrence is relevant to the issue of defendant's knowledge. At trial defendant called his own witnesses to establish that during some months prior to the occurrence, the building appeared to be abandoned. Defendant notes on appeal that in the home invasion statute (Ill. Rev. Stat. 1983, ch. 38, par. 12-11), the legislature specifically proscribed knowing entry into a "dwelling," rather than the more general "structure" or "building."

The State responds that the evidence showed that the building was a "dwelling" within the meaning of the statute (Ill. Rev. Stat. 1983, ch. 38, par. 2-6), in that it was used and intended to be used as a home and residence. Specifically, all of the witnesses at trial described the building as a house, and Caruth and Lamont Simpson had been living there since June 1984. The purpose for which a structure is used, rather than the nature of the structure, determines whether it is a "dwelling place." People v. Bales (1985), 108 Ill. 2d 182.

Further, the State asserts that the evidence shows that defendant had reason to know that the building was a dwelling place of another. The witnesses at trial described the building as a house. Further, the building had doors and glass windows on the second floor in place and secured. Defendant's own witnesses even testified that the house had undergone renovation during the months prior to the occurrence. In addition, Caruth had turned on a radio in the bedroom that night. The bedroom and the living room were on the same floor, and one room opened up into the other. As defendant peered into the living room window, the State argues, it was likely that he could have heard the radio.

Additionally, there was a light on in the basement before and just after the intruders entered the building. The intruders allegedly entered the building through a hole in the basement wall which had been boarded up. Therefore, the State asserts, the light in the basement would have been visible to defendant no later than when he and the other man allegedly removed the board from the outside wall.

We find that the knowledge requirement has been met. The evidence and the reasonable inferences to be drawn therefrom support a finding beyond a reasonable doubt that defendant had reason to know that the building was the dwelling place of another. (People v. Bales (1985), 108 Ill. 2d 182.) While it is possible or probable that defendant and his cohort were not able to hear the radio playing while they stood outside the building, nevertheless, the remaining contentions of the State regarding the apparent purpose of the building, its appearance, and the conduct of the intruders adequately support the jury's finding.

B

With regard to the second element, defendant asserts that the evidence fails to indicate a substantial probability that defendant knew or had reason to know that one or more persons were present in the building. Defendant asserts that the evidence of the actual presence of Caruth and Simpson, without more, is insufficient to prove defendant's knowledge of their presence. Defendant notes the State's failure to present evidence to indicate, for example, that lights were on which were visible from the outside, that there were any cars in the driveway or around the house, or that there were any voices or other ...


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