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08/05/88 the People of the State of v. Peter Redisi

August 5, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PETER REDISI, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

527 N.E.2d 684, 172 Ill. App. 3d 1003, 123 Ill. Dec. 221 1988.IL.1231

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. UNVERZAGT and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Defendant, Peter Redisi, was charged with home invasion, residential burglary, and aggravated battery in an information filed in the circuit court of Lake County. (Ill. Rev. Stat. 1987, ch. 38, pars. 12-11, 19-3, 12-4(a).) A jury found him guilty of all three of the offenses charged. The circuit court vacated judgment on residential burglary and aggravated battery and sentenced defendant to a 45-year extended term of imprisonment for the home invasion.

Defendant raises five issues on appeal. Defendant contends that (1) the State failed to prove beyond a reasonable doubt that he was one of the people who committed the offenses; (2) assuming arguendo the evidence was sufficient to prove that he was one of the persons who committed the offenses, the State failed to prove beyond a reasonable doubt that defendant, when he entered the house, knew or had reason to know that one or more persons were present, and so failed to prove that a home invasion was committed (Ill. Rev. Stat. 1987, ch. 38, par. 12-11); (3) he was denied due process of law because the home invasion count of the information charged that he "entered the dwelling of William Ditton . . . having reason to know William Ditton to be present within that dwelling" (emphasis added) but the jury instructions permitted conviction of home invasion if the State proved "[that] when [defendant] entered the dwelling place he knew or had reason to know that one or more persons was present" (emphasis added); (4) the home invasion statute violates due process of law because the "had reason to know" language is vague and standardless; and (5) he was improperly sentenced to an extended term of imprisonment because none of the statutory aggravating factors permitting the imposition of an extended term was present (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5- 3.2(b).) We affirm the conviction for home invasion, vacate the sentence, and remand for resentencing.

The evidence tended to establish that William Ditton arrived home at 6:15 p.m. on Saturday, April 19, 1986. Ditton's wife was away on a trip to Duke University, and his two children were at school, so he was alone. Several lights were on a timer, so from the outside of the house Ditton could see lights on in the hallway, the center entry hallway, the living room on the first floor, and the master bedroom on the second floor. The house has three outside doors -- a patio door in the kitchen, a back door in the hallway, and a front door in the hallway. All three were locked.

Ditton left his car in the driveway, went into the kitchen, and then went downstairs to the rec room to watch "Wheel of Fortune" on television. After "Wheel of Fortune" ended, Ditton went upstairs to the kitchen, made himself something to eat, and went back downstairs. He did things other than watch television for awhile and, when he finished eating, went upstairs to put his dishes in the dishwasher. Ditton went back downstairs and, at 8 p.m., began to watch "Golden Girls" on television.

While watching "Golden Girls," Ditton heard a noise that he attributed to the icemaker until he heard something running around upstairs. He slowly and quietly went up to investigate. When he was near an open staircase on the first floor, he could hear noise on the second floor. As he got to the end of the staircase, he saw towels and pillow cases from the linen closet on the floor at the bottom of the stairs. Earlier that night, when he had arrived home, he had walked through that area, and the towels and pillow cases had not been there.

Ditton came around the end of the staircase and saw a man he later identified as defendant. Defendant was wearing black gloves and dark clothes. He had dark hair, which Ditton later noticed was heavy and very oily. He had a dark complexion, looked like he needed a shave, and looked to be about Ditton's age. Ditton later estimated his height to be about 5 feet 6 inches or 5 feet 8 inches. Ditton did not notice any scars.

There is no wall between the living room and the hallway, and defendant was kneeling in the area between the two, rolling figurines into a towel. When he finished this, he looked up and saw Ditton. Ditton grabbed the still kneeling defendant, getting an arm around his neck. Ditton pulled defendant backwards into the living room, and noticed that defendant was not fighting back. Ditton was squeezing defendant's throat. Defendant (who has severe asthma) was breathing heavily and started gasping for air as Ditton was pulling him back. Ditton got to an end table and picked up a heavy ashtray. Defendant grabbed Ditton's arm, started struggling, and called for help. Someone other than defendant hit Ditton over the head.

Ditton, who sees very well with his glasses but without them cannot clearly see things close to him, lost his glasses at this point. Broken parts of them were later found in the area where the struggle occurred.

After he was hit, Ditton pushed defendant into the other person and ran downstairs. He called the police on the telephone. The police came, talked to Ditton, and searched for evidence. A briefcase not belonging to the Dittons was found in the house. It contained a Radio Shack police calling guide and miscellaneous jewelry. A fingerprint found on the briefcase was not defendant's.

Ditton went to Highland Park Hospital, where he received six stitches for a laceration to his head. That night, friends took him from the hospital to the Deerfield police station. At the request of the officers there, Ditton looked at a group of photographs. He did not have his glasses and could not see the photographs very well. Ditton could not pick anything out, even though one of the photographs he was shown was of defendant. As he could not see, Ditton told the police there was no sense in his looking at the photographs. He went over his description with the police. The police took Ditton home, where they walked through the house with him to make sure it was secure.

On April 24, 1986, Ditton went back to the Deerfield police station. They showed him another group of photographs. Ditton identified a photograph of defendant as a photograph of the man he had seen kneeling and with whom he had struggled. On October 1, 1986, Ditton returned to the Deerfield police station. He viewed a corporeal line up and identified defendant as that man. On February 17, 1987, during his testimony at defendant's trial, Ditton identified defendant as that man.

Defendant presented an alibi defense. His evidence tended to establish that he was planning to go to Florida to work for his son's ex-wife's mother, Lena Bellon. He was to leave on April 20, 1986. At about 10 a.m. on April 19, 1986, he picked up his grandchildren at the home of his former daughter-in-law. She asked him to have the children back before 5 p.m., so he returned them to their home at about 4:30 p.m.

Defendant, his sister Frances Redisi, their ailing 75-year-old mother, and Frances' son lived in a house at 617 North Racine Avenue in Chicago. On April 19, 1986, between 6 p.m. and 6:30 p.m., defendant drove Frances to play bingo. On the way, they picked up Frances' friend, Christine Mary Donati, at Racine and Grand. Santa Marie Delgado Church, where bingo was to be played, was about four blocks away. They arrived there at sometime between 6:15 p.m. and 6:30 p.m.

Jacqueline Menconi and her sister Mary Catalano are first cousins to defendant and Frances. They are partners in business as real estate brokers. On April 19, 1986, they arrived at defendant's house at about 7 p.m. Defendant and his mother were there when they arrived. Defendant left and picked up Frances and Christine at sometime around 9:30 p.m. and 9:45 p.m. They dropped Christine off and went home, arriving at around 10 p.m. Jacqueline Menconi and Mary Catalano left at sometime after 11 p.m., at which time defendant was still present.

Defendant left for Florida the next morning, Sunday, April 20, 1986. He had called Lena Bellon the prior Friday or Saturday for directions. Bellon testified that he called again on Sunday afternoon from Atlanta, Georgia. Defendant called her again on Monday morning when he arrived in Port Ritchie, Florida. They met at about 7 a.m. or 7:30 a.m. at a Convenient Store so Bellon could lead him back to the trailer where her daughter was living. According to Bellon, it is a 22-hour drive between Port Ritchie and Chicago, and it is a 14-hour drive between Atlanta and Chicago.

Defendant first contends the evidence was insufficient to prove beyond a reasonable doubt that he was the man with whom Ditton struggled the night of April 19, 1986. The evidence on this issue set the identification of defendant by Ditton against the alibi testimony presented by defendant. The applicable rule is that a trier of fact is not obliged to disregard positive identification testimony in order to believe the testimony of a defendant's alibi witnesses. (People v. Berland (1978), 74 Ill. 2d 286, 307, 385 N.E.2d 649, 658, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63; People v. Green (1980), 88 Ill. App. 3d 929, 932, 410 N.E.2d 1003, 1006.) Accordingly, where a positive identification is made, a guilty verdict may be sustained even though there may be otherwise uncontradicted alibi evidence. People v. Speck (1968), 41 Ill. 2d 177, 194, 242 N.E.2d 208, 218, rev'd on other grounds (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279., Defendant begins his argument on this issue with an excellent Discussion of the well-known weaknesses of eyewitness testimony, concluding.

"finding that the eye witness is both 'credible' and 'positive' is not determinative of whether the identification is sufficient to support a conviction beyond all reasonable doubt. The eye witness may be both honest and positive and yet mistaken.", Defendant here has treated credibility as merely a matter of honesty. However:

"Credibility is dependent upon the willingness of the witness to tell the truth and upon his ability to do so. His ability to tell the truth of an event as to which he purports to possess personal knowledge is the product, in turn, of the accuracy of his perception, his powers of recordation and recollection, and his capacity to communicate." (M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 607, at 316 (4th ed. 1984).)

Thus, contrary to the implication of defendant's argument, an honest witness may nonetheless lack credibility. Moreover, to the extent defendant is arguing contrary to the rule that a trier of fact may believe a positive identification over an uncontradicted alibi, he is arguing for a change in the law which would have to come from our supreme court rather than from this court.

Ditton's identification of defendant was positive and consistent. He identified defendant first at a photographic lineup five days after the offense, next at a corporeal lineup approximately 5 1/2 months after the offense, and finally at trial approximately 10 months after the offense. He never wavered from this identification. Thus, the evidence was sufficient for the ...


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