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02/17/89 the People of the State of v. Raymond L. Fountain

February 17, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RAYMOND L. FOUNTAIN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

534 N.E.2d 1303, 179 Ill. App. 3d 986, 128 Ill. Dec. 698 1989.IL.199

Appeal from the Circuit Court of Cook County; the Hon. Gerald T. Rohrer, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Following a bench trial, defendant Raymond Fountain was found guilty of aggravated battery and home invasion (Ill. Rev. Stat. 1985, ch. 38, pars. 12-4(a), 12-11(a)(1)). He was sentenced to four years' imprisonment for aggravated battery and seven years for home invasion, the sentences to run concurrently. On appeal, defendant contends: (1) he was denied due process of law as a result of ineffective assistance of counsel; (2) the court erred in admitting two of plaintiff's exhibits and considered evidence "not in the record"; (3) the trial court impermissibly allowed amendment of the home invasion count of the indictment prior to trial; (4) he was not proved guilty beyond a reasonable doubt; and (5) the court improperly admitted a victim impact statement at his sentencing hearing. For the reasons set forth below, we affirm.

At trial, complainant Steven Halas stated that on May 21, 1986, at approximately 11 p.m., he was walking in the parking lot of the apartment complex where he lived in Des Plaines, Illinois; his doctor had recommended this exercise as therapy because he had injured his leg five years earlier, it had been amputated below the knee, and he wore a prosthesis. At that time, he heard music and people "hollering" back and forth. He also heard rocks bouncing off the cars in the parking lot and determined they were being thrown by people from the viaduct area nearby. He then shouted to whoever was throwing the rocks to stop. Receiving no response, he climbed a 25-foot hill to the area above the viaduct and saw several people drinking beer; he was unable to determine how many people were present because it was dark. He then approached defendant and told him to leave or else he would call the police. Defendant stated he and his group were not going to leave. Halas repeated that he was going to call the police and, upon turning to leave, defendant grabbed him by his left shoulder; in response, he grabbed defendant's arm to defend himself, and defendant struck him over the left eye with a beer bottle, which broke in the process. Although Halas was bleeding profusely, he wrestled defendant to the ground because defendant would not let him go, he was able to hold defendant down, and he told defendant he was going to call the police and was taking defendant's wallet so he could identify him. Halas then got off defendant, walked to his apartment, and called the police.

Halas further testified that while he was talking to the police, he heard the sound of breaking glass at the back of the apartment building, scuffling in the hallway, and someone kicking at his back door. He related this disturbance to the police and they told him to stay on the line. He then saw the frame of his door break and defendant came running into the apartment screaming in a high-pitched voice. Halas told defendant to "be cool" in an attempt to calm him. Defendant proceeded to tackle Halas and they both fell to the ground, pulling the telephone out of the wall in the process. Halas was able to get defendant under him and "kneel on him." After telling defendant he was going to keep him there until the police arrived, defendant yelled to his friends for help. Two male friends of defendant's entered the apartment, and one of them, William Petrucci, caught Halas from behind, held a wooden two-by-four over his head, and said, "If you don't get off of him, I will have to hit you." Halas then let defendant go and, upon leaving the apartment, one of his friends picked up his wallet.

Thereafter, Halas observed that his apartment was "demolished"; blood was everywhere, his apartment door and kitchen telephone were broken, his kitchen stove was damaged and chairs were knocked over, and other items in the living room were knocked over. In the hallway he saw a rock and broken glass and, next to the rear entrance, a window, screen and the frame of the door had been broken.

Halas talked to the police upon their arrival and was then taken to a hospital where he received 56 stitches; his face had been lacerated above his left eye, reaching the muscle, resulting in his inability to raise his eyebrow, and his left and right cheekbones were also lacerated. While at the hospital, Halas talked to police lieutenant Ronald Russell and identified Petrucci from a set of photographs as the person who threatened him with the two-by-four. At a subsequent meeting with Russell at his office, Halas identified defendant as his assailant from a second set of photographs.

Pamela Holby, called as a witness for the prosecution, testified that she lived in the garden apartment across from Halas. She was watching television on May 21, 1986, at approximately 11 to 11:30 p.m., when she heard a loud crash which sounded like breaking glass at the rear of her apartment. She then heard someone ringing her doorbell, banging on her door, and turning the doorknob. When she opened the window curtains, she saw two men -- defendant and another individual -- standing at her door. One man held a two-by-four in his hand. As she looked in the hallway, she also saw broken glass and a rock on the floor. Defendant told Holby he had to get his (expletive) back. Immediately thereafter both men left when the person holding the two-by-four told defendant that they had the wrong apartment. Holby then went to her kitchen to telephone the police and heard a loud bang and wood cracking, which sounded like it was coming from Halas' apartment. She also heard screaming, someone running, and then "someone" saying, "I don't want to have to do this but I will waste you with this two-by-four if you don't let him go." She then heard Halas respond, "Fine, I will let him go." Thereafter, she heard someone come out of Halas' apartment into the hallway and, after she heard the door shut, she saw "legs run past her kitchen window."

When Holby went to her rear door, she heard Halas open his door and observed blood on his doorbell, the stairs, and on the walls. She also saw Halas standing in the hallway with a shirt pressed over his eye and blood on his hand, arm and face and, when he removed the shirt from his eye, she saw that the top of his eyebrow was hanging over his eye and bleeding. Holby further testified that when the police arrived they asked her to identify one of the suspects but she did not do so, even though she recognized Petrucci as the person holding the two-by-four, because she was afraid. Some days later at the police station, however, she identified Petrucci, as the person holding the two-by-four, and defendant from the two sets of photographs previously shown to Halas.

Defendant testified on his own behalf. Contrary to Halas' version of the events on May 21, 1986, he stated that initially he was celebrating his graduation from high school with some friends at the railroad tracks over the viaduct, drank four to six beers, slipped and fell six feet from a concrete ledge, and hurt his ankle. He did not ask his friends to take him to a hospital, although he was in great pain and felt like throwing up, but instead, climbed onto another slab of concrete because it was cold and therefore comfortable in his injured condition. One of his friends then placed a radio next to his head, turning the volume up, and he closed his eyes because of the pain in his ankle. While in this position, Halas suddenly came upon him and proceeded to yell at him, accusing him of throwing rocks at the cars in the parking lot. Defendant said he was alone at that time; his friends had apparently left the area. Defendant further stated that Halas grabbed him, yanking him to his feet, and hit him on the side of his head with a closed fist; he kept slapping him every time he tried to speak; when Halas pushed him to the ground, he grabbed a bottle and broke it on the concrete in the hope that in doing so he would make Halas leave him alone; that instead of leaving, Halas "came right for" him and grabbed him around the neck; Halas then wrestled him to the ground and proceeded to strangle him and bang his head into the concrete; he subsequently struck Halas across his face with the beer bottle; and Halas finally left him alone after taking his wallet.

Defendant further testified that he followed Halas but could not really see because he had blood in his eyes and he remembered telling one of his friends, who apparently had returned, that Halas took his wallet. Upon arriving at the apartment complex, defendant stated that he kicked out the window to the building which he had seen Halas enter, and he "yelled for his wallet." (Defendant also later stated that he had keys to the security door of the building, because his girl friend lived in the same building, and he used the keys to enter the building.) He then proceeded to pound on all the doors in the hallway until his friend pointed him to Halas' door; he banged on Halas' door and told him to come out with his wallet or he would come in; when Halas did not come out, he put his shoulder to the door, the door opened, and he saw Halas talking on the telephone and "went after him"; he wrestled Halas to the floor and, in doing so, the telephone came away from the wall; his friend, Petrucci, came into the ...


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