Appeal from the Circuit Court of Cook County. Honorable William Prendergast, Judge Presiding.
Petition for Leave to Appeal Denied February 1, 1995.
Manning, Buckley, O'Connor
The opinion of the court was delivered by: Manning
JUSTICE MANNING delivered the opinion of the court:
Defendant, Ramone Moore, was tried by a jury on the charges of attempt first degree murder (720 ILCS 5/8-4, 5/9-1); three counts of home invasion (720 ILCS 5/12-11); two counts of armed robbery (720 ILCS 5/18-2); possession of a stolen motor vehicle (625 ILCS 5/4-103); and aggravated battery with a deadly weapon (720 ILCS 5/12-4). Other charges against the defendant under the indictment were nol prossed by the State before trial.
The jury found defendant not guilty of attempt first degree murder. It found him guilty on two counts of home invasion; however, the court sentenced him to concurrent 60-year terms in the penitentiary for three counts of home invasion. The jury also found defendant guilty on two counts of armed robbery, for which the court imposed concurrent 60-year term sentences on the counts; possession of a stolen motor vehicle for which the court imposed a 14-year extended-term sentence; and aggravated battery for which a ten-year extended-term sentence was imposed.
On appeal defendant contends that (1) the trial court erred by allowing into evidence lineup and in-court identification of him by the victim under circumstances where the victim had earlier inadvertently observed him in an one-on-one show-up encounter in the hospital emergency room; (2) the State violated its discovery obligation by failing to disclose identification witnesses; and (3) statements made by as well as the conduct of the prosecutor during closing argument were so prejudicial as to deny him a fair trial. He also asserts that his appearance in handcuffs in the presence of the jury requires a new trial.
The remaining contentions of error concern the sentencing aspect of defendant's trial. He contends that this cause should be remanded for a new sentencing hearing; (1) because he was improperly convicted and sentenced on multiple counts of home invasion arising from a single entry into one residence; (2) because the court improperly imposed extended-term sentences; and (3) because the court abused its discretion when in sentencing him by failing to consider his rehabilitation potential as a mitigating factor.
The following facts were adduced at trial. On the evening of July 21, 1989, two masked men entered a residence in Hillside, Illinois and robbed the owner, Mr. William Confray and his wife Felicia Confray, of appliances, clothing, jewelry and cash. During the incident, the husband was struck in the head twice with a baseball bat, bound with an appliance cord and subsequently placed in a closet. The assailants then fled in the couple's automobile.
After unloosening themselves the couple telephoned the police. When the police came to their home, the Confrays gave a general description of the assailants and their account of the incident. Mr. Confray described one of the assailants, later identified by him as the defendant, as "the one who wore dark gloves, a dark cloth mask and held a baseball bat over my head prior to striking me." He also said the man had extremely muscular shoulders. The couple described the second man as also wearing a mask. When the second man approached the wife's side of the bed, Mr. Confray tried to sit up at which time he was hit in the head with the bat by the assailant standing over him. After tying up the couple, the assailants demanded a gun. When told there was none in the house, the men then proceeded to take Mrs. Confray's jewelry and other items from the bedroom. The couple next heard the men ransack the house, leave through the garage and start up the car. A few minutes later, the men returned into the house and it was during this time while they placed the Confrays in the closet that Mr. Confray saw defendant's face which no longer was covered by the mask. After giving a statement to the police, the husband was taken to the hospital where he was placed in the emergency waiting area for treatment of his injuries.
In the interim, after hearing a radio dispatch about a home invasion and flight in the owners' car, police from two police departments simultaneously began to search for the vehicle by watching traffic at a nearby expressway. One officer observing a maroon car with a license plate beginning with the number described by one of the victims and found to be registered to their address, followed the suspect car onto the expressway. The officer followed the car when it exited the expressway until it was stopped by a red traffic signal. He then got out of the police car and approached the driver at which time while looking through the driver's window, he noticed the back of the car was filled with items. As the officer announced his office, the light turned green and the driver, later identified as defendant, accelerated, turned and drove west on Harrison Street. The officer then attempted to follow; however, when defendant turned onto Circle Avenue, he lost sight of the car. Another officer, however, who also heard the radio dispatches was waiting on the bridge. Not seeing the car cross over the bridge, he drove into the east service drive on the side of the bridge at which time he saw a black male wearing a black jacket with a diamond shaped emblem on the back jump out of the driver's window of a car and proceed to run until he bolted over the fence alongside the tracks.
A third officer had observed the first officer approach the driver at the stop light and then followed to join in the pursuit. At trial, he stated that he observed "a black male with a black coat with something gold on the back of it" climb a fence, jump down a 17-foot drop and head east on the railroad tracks. By this time, several officers had arrived at the scene. The officers testified that they observed a man run into a jungle-like brush area. The officers then drew their weapons and told the man to get up; however, because the man ...