APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
529 N.E.2d 980, 175 Ill. App. 3d 371, 124 Ill. Dec. 863 1988.IL.1314
Appeal from the Circuit Court of Cook County; the Hon. Fred. G. Suria, Judge, presiding.
PRESIDING JUSTICE LORENZ delivered the opinion of the court. SULLIVAN and MURRAY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Following a jury trial, defendant Ronald Richardson was convicted under the Criminal Code of 1961 of home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12-11(a)(2)) and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(1)). He received concurrent sentences of 30 years' imprisonment for home invasion and five years' imprisonment for aggravated battery, and on appeal, he raises the following four issues: (1) whether the trial court erred when it instructed the jury on the definition of a dangerous weapon; (2) whether he was denied a fair trial by the State's alleged improper comments during closing argument; (3) whether the aggravated battery conviction should be vacated because it was carved from the same physical act as the home invasion conviction; and (4) whether the trial court erred in sentencing him without a presentence report. We affirm.
Defendant was indicted for armed robbery, home invasion, armed violence, unlawful restraint, and two counts of aggravated battery. The State prosecuted him for one count each of armed robbery, home invasion and aggravated battery.
At trial, the complaining witness, James Franklin, testified that on May 26, 1985, at approximately 2 a.m., Diane Pullin, an acquaintance, arrived at his apartment. She brought a man with her whom Franklin did not know, and at trial, Franklin identified him as defendant. While they were in the hallway of the apartment building Franklin lived in, defendant placed a gun at Franklin's head, forced him back into his apartment, and hit him in the head with the gun. Another man entered the apartment and both he and defendant asked Franklin, "[Where's] the money?" Defendant hit Franklin four or five more times with his fists and Franklin told him he only had two jars of pennies. Defendant blindfolded and tied Franklin up. Defendant and the other man ransacked the apartment, took Franklin's keys, and locked him in his apartment. When the men left, Franklin freed himself and called the police.
Franklin testified the men took two jars of pennies, several pairs of shoes, two television sets, his deceased wife's identification, his wallet with identification and credit cards, bank checks, and a portable sewing machine. Franklin's injuries included a swollen lip, a lump on the head, and a bloody nose.
Officer John Ciszewski testified that in the late evening of May 27, 1985, nearly two days after the robbery, he stopped defendant for traffic violations and when he was asked for identification, defendant produced credit cards and a United States Post Office identification card under the name James W. Franklin. On his mobile computer, Ciszewski checked Franklin's name with defendant's birth date, height, and weight but there was no driver's license issued under Franklin's name with that information. Defendant was then arrested.
Franklin identified defendant in a lineup as the man who robbed and beat him. While in custody, police discovered defendant had Franklin's and his deceased wife's identification in his possession. Certain pieces of Franklin's identification were altered with defendant's picture and birth date.
Defendant testified he lived with Pullin, who was his fiancee, and Phyllis Banks. He explained that he had Franklin's identification because he was involved in a check-cashing scheme with Franklin, Pullin, and Banks. Defendant testified that Franklin gave Pullin and Banks blank checks with his signature and his identification to enable Pullin to cash the checks. Pullin gave defendant the identification that he altered so he could cash the checks in Indiana. Defendant explained that he would purchase expensive items, such as video cassette recorders and television sets, with Franklin's checks and then resell the items "on the street." According to defendant, this was done with Franklin's consent. Defendant further testified that he had never been in Franklin's apartment and did not rob or beat him.
In rebuttal, Franklin denied giving Pullin and Banks his checks and identification and denied ever seeing defendant prior to the robbery.
During deliberations, the jury sent two notes to the Judge; one requested a definition of the term "dangerous weapon," and the other requested a clarification of the two jury instructions on home invasion. The court defined the term and explained the two instructions on home invasion. Several hours later, the jury found defendant guilty of home invasion and aggravated battery but was unable to reach a unanimous decision on armed robbery. The court entered judgment on the charges of home invasion and aggravated battery. The State dismissed the armed robbery charge. Defendant's motion for new trial was denied.
A sentencing hearing was held but a presentence investigation report was not prepared as required under section 5-3-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-3-1). Instead, defendant was sentenced based on a pretrial investigation report prepared three months prior to the hearing which the court apparently believed was a presentence investigation report.
Defendant claims the court's definition of "dangerous weapon" was erroneous and that it removed the jury's exclusive fact-finding province. During deliberations, in response to the jury's question, "[We] would like you to define exactly what a dangerous weapon could be in this case," the court stated, over defense counsel's objection:
"That if you believed, and I underscore if you believe, you are the sole arbiters as to what facts are in this case, if you believe the victim's testimony that the defendant had a handgun whether loaded or unloaded, operable or not operable, when used as a bludgeon it is a dangerous weapon.", Defendant contends that the definition was erroneous because it ...