APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
526 N.E.2d 579, 172 Ill. App. 3d 318, 122 Ill. Dec. 320 1988.IL.1033
Appeal from the Circuit Court of Cook County; the Hon. Thomas A. Hett, Judge, presiding.
JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and SULLIVAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
After a jury trial, defendant Jeffrey Flynn was convicted of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2(a)) and sentenced to 16 years' imprisonment. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt, he was prejudiced by the trial Judge's failure to properly respond to two written requests from the jury propounded by it during its deliberation, and his sentence is excessive. We reverse and remand the cause for a new trial.
This action arose from an incident which occurred on February 19, 1985, in the apartment of Chestina Humphrey for which defendant was arrested and subsequently charged by indictment on 32 counts (eight counts of aggravated criminal sexual assault, five counts of aggravated kidnapping, five counts of unlawful restraint, five counts of home invasion, and one count each of criminal sexual assault, attempted armed robbery, kidnapping, and armed robbery). Prior to trial, the State nol prossed 25 counts; defendant was therefore charged with one count of aggravated criminal sexual assault, criminal sexual assault, attempted armed robbery, armed robbery, and home invasion. During trial, after the evidence had been presented and prior to the jury's deliberation, the State also nol-prossed the attempted armed robbery charge. A codefendant, Ronald Daniels, was charged and indicted separately with these same offenses. While defendant chose to proceed with a jury trial, Daniels waived his right to a jury trial and chose to proceed by way of a simultaneous bench trial.
The evidence at trial was as follows. Defendant testified that he met Money White (Chestina Humphrey's brother) and Ronald Daniels at approximately 11 a.m., bought himself and the two men some liquor, and later they went to Humphrey's apartment. Present in the apartment were Helen Jones, Humphrey's niece, Jones' 13-year-old son Reginald, Jones' grandmother, R.T. and James White, and Raymond Green. Defendant observed that the men were "packaging up some reefer." Around noon, R.T., James, and Green left the apartment. Defendant, Daniels and Money White continued to drink while Jones was cooking in the kitchen. Sometime thereafter, Jones began flirting with defendant and asked him into a bedroom where they engaged in consensual sexual relations. Defendant subsequently went to the living room and fell asleep on a couch. When he woke up, Humphrey was in the apartment and told him to leave her "place of business." Upon leaving the apartment, defendant discovered that he was missing $75 and told Humphrey, who refused to give him back the money. Defendant then threatened to reveal that drugs were being sold out of the apartment, and Humphrey told him to come back the next day for his money. Defendant insisted on the return of his money immediately, Humphrey offered him nine "Happy Sticks" ("reefer" dipped in PCP), defendant refused the drugs, and Humphrey told him to come back the next day for the money. The next day, while on his way to the apartment to retrieve his money, defendant was arrested; defendant had no weapon or money on his person at that time.
The State presented six witnesses at trial. Helen Jones testified that at approximately 2:30 p.m. she was in the kitchen of Humphrey's apartment when Money White and defendant arrived. Sometime later she heard defendant leave the apartment. Still later, she heard a knock on the door and responded, "Come in." Defendant entered with Ronald Daniels, he "pulled a gun," announced a "stick-up," and told Jones to go to the back of the apartment. Daniels made Helen lay on the floor and threatened her with a stick with nails protruding from it, and defendant and Daniels tied Jones' hands behind her back with a telephone cord. They also tied up Jones' grandmother and Reginald; they put Jones' grandmother into a closet and Reginald was left lying on the floor next to Jones. Money White was in the room but was left untied. Thereafter, defendant handed his gun to Daniels and raped Jones. Daniels then gave the gun back to defendant and he raped Jones. Jones stated that she screamed during this time and defendant told her to be quiet or he would kill her. Defendant subsequently demanded $400 from Jones and, when she stated she did not have any money, defendant told her he had "orders to kill" everyone in the house. Approximately 15 minutes later there was a knock at the door and R.T. White, James White, and Raymond Green entered the apartment. Defendant left the room, came back and threatened Jones' life if she called the police, then left the apartment. Approximately one-half hour later, Jones' brother arrived at the apartment, Jones told him she had been raped, and the police were called.
Reginald Jones testified defendant had come to the apartment the day of the incident, left sometime later, then returned with Ronald Daniels; that he, his mother, uncle and great-grandmother were taken to a back room of the apartment and that they were all tied up except for his uncle; a cloth was placed over his head and he was placed on the floor next to his mother, while his great-grandmother had been put in a closet; Daniels had a stick in his hand; defendant heard a knock on the door and left the room to answer it; he did not hear his mother being raped or fighting off Daniels and defendant; he was later untied by his cousin or great-grandmother; and he thought defendant was still in the apartment after he was untied but Daniels was not there.
R.T. White testified he went to Humphrey's apartment at approximately 3:30 p.m. with his brother James and a friend, Raymond Green; the door was open when they arrived; defendant and Daniels were in the apartment; defendant stuck an object hidden by a coat into his stomach and ordered him to Humphrey's bedroom; Daniels did not come into the bedroom with defendant; defendant ordered the men to lay down on the floor and, when they refused, defendant told them to empty their pockets; when defendant demanded $400 from them, White told defendant he only had 70 cents but that his aunt, Humphrey, would be home at 4 p.m. and she might have some money; that defendant made him look under Humphrey's bed and mattress for money; and he did not see Jones, Reginald, Money White or his grandmother while in the bedroom. White further testified that when Humphrey arrived, defendant grabbed her by her collar, put a small pistol to her head and then forced her into the bedroom; defendant demanded that Humphrey give him her purse, which she did, but he then gave it back to her and demanded that she give him $400 but Humphrey gave him $300; defendant then took White to a bathroom and warned him against calling the police; and White subsequently untied his grandmother. White also testified that he was not a drug dealer.
James White's testimony was substantially the same as his brother's except that he stated that defendant demanded $380 from Humphrey instead of $400 and that when he, his brother and Green first entered the apartment, Daniels left the apartment.
Chestina Humphrey testified that she arrived at the apartment at approximately 4:30 p.m., rang the doorbell at the outer door and knocked on the inner door, and was admitted by defendant, who was holding a gun; that when defendant demanded $500 from her she gave him $300 from her wallet; that she did not have a purse but was carrying her wallet in a bag and that she did not give either to defendant; that defendant told her he wanted the money because it was owed to him by her nephew for some merchandise he took from defendant's gang; that she promised to give defendant $200 if he returned the next day; that defendant placed her in the bedroom with R.T. and James White and Green; and that defendant left the apartment at approximately 5 p.m. Approximately one hour later her nephew called the police. Humphrey also denied waking defendant "from her couch," demanding that he leave the apartment, and taking money from his wallet.
Chicago police officer Freddie Carter also testified with respect to statements he alleged defendant made to him that he did not rape Jones and "would they drop the rape charges in return for the 'other guy.'" Carter could not recall what prompted the statements, since defendant had been arrested for an ...