APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
523 N.E.2d 130, 168 Ill. App. 3d 978, 119 Ill. Dec. 662 1988.IL.518
Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.
JUSTICE McNAMARA delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA
Defendants Melvin Parks and Joseph Johnson, represented by separate counsel, were jointly tried before a jury and convicted of burglary. The trial court sentenced each defendant to a term of 12 years. On appeal, Johnson contends that the trial court abused its discretion in denying a request for a continuance when his attorney became ill. Both defendants contend that they were denied a fair trial due to improper prosecutorial comments, and that the admission of their post-arrest interlocking confessions was erroneous. Defendants contend further that the trial court erred when it sentenced Parks as a Class X offender and consequently erred in sentencing Johnson to a term proportionate to Park's sentence.
On November 1, 1985, at approximately 1:20 a.m., defendants were arrested in an empty apartment in Chicago. Edelmiro Perez, the building's owner, testified that 2 of the 10 apartments in the building were empty and being remodeled. A neighbor notified him that there were noises in an empty apartment. Perez walked over to the building, saw broken glass in the transom above the front door of the building, discovered the door was blocked from the inside, heard noises, and telephoned the police. Inside, he and the police found the doors to the vacant second- and third-floor apartments were forced open. Perez believed that some power tools were missing and that the paint cans had been moved to the front door. New sinks were being installed in the apartments.
Officers Manuel Delatorre and Jeffrey Messina testified for the State that they were near the apartment building when they heard the call on the radio. They immediately went up to the building, saw the broken window and found that the door had been jammed shut from the inside. They forced their way into the building by kicking in the barricaded door. They found pieces of wood had been wedged between the stairs and the door handle. The officers found nothing in the second-floor apartment, but the door appeared broken. Delatorre entered the third-floor apartment, where the door had been forced open, and he saw defendants jump out the window onto the roof of a one-story shop located between two apartment buildings. The men were arrested. The officers testified that there were several unconnected sinks in the apartment.
Defendants were taken to the police station and questioned separately. Both defendants stated that they had entered the building to steal sinks. Johnson broke the window above the front door, climbed in, opened the door for Parks, and secured the door by placing boards against it. While in the second-floor apartment, they heard police entering, and they moved to the third floor, where they hid until Delatorre entered and they jumped through the window. The officers testified that neither defendant stated they entered the building to drink liquor out of the rain. The officers denied that it was raining that evening. Perez stated that it had been drizzling.
Parks testified that at 12:45 a.m. he went to a liquor store, where he encountered his friend, Johnson. After a Discussion, they decided to have a drink. They reentered the liquor store and bought a pint of rum. They went to a restaurant, found it was closed, and then went to the bus stop intending to take a bus to a restaurant which would be open. The bus stop was located in front of the Perez apartment building. Parks told Johnson the building was abandoned. Defendants decided to drink the rum while they waited for a bus. When it began to rain, they entered the building through an open door and moved upstairs to an empty apartment to avoid the strong odor of urine in the hallway. The second-floor apartment had wet paint on the floor, so they moved up to the third-floor apartment, where they sat and drank rum.
Fifteen minutes later, Johnson went to the window to see if the rain had stopped and noticed police officers had arrived. Parks stood in the open apartment doorway as he watched Officer Delatorre ascend the stairs, draw his weapon, and tell Parks to "freeze." The officers entered the apartment, patted down both defendants, and handcuffed them. Parks denied telling the officers they entered the building to steal sinks and denied that the police asked them about tools or paint cans.
Johnson did not testify, but offered the stipulated testimony that he was taken to the hospital at 4:43 a.m. where Dr. Remilo Hernandez examined him. Dr. Hernandez would have testified that Johnson's breath smelled of alcohol and that his blood-alcohol level was 107.4 milligrams.
The parties stipulated that between 11 p.m. and 2 a.m. that night there was .01 inches, .02 inches, and .051 inches of rain each hour, respectively.
In rebuttal, the State presented evidence that Parks pled guilty and was convicted of robbery in 1980 and was sentenced to four years' probation with the first 20 days spent in prison. Parks pled guilty and was convicted of ...