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September 13, 1995


Appeal from the Circuit Court of Cook County. Honorable John J. Moran, Judge Presiding.

As Modified September 27, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j., And Rizzi, J., Concur.

The opinion of the court was delivered by: Cerda


The Honorable Justice CERDA delivered the opinion of the court:

After a jury trial, defendant, Tony Smith, was convicted of one count of armed robbery (720 ILCS 18-2(a) (West 1992)), two counts of aggravated battery (720 ILCS 12-4(B)(1)(West 1992)), and three counts of home invasion (720 ILCS 12-11(A)(1)(West 1992). He was subsequently sentenced to 30 years' imprisonment. On appeal, defendant asserts that (1) his armed robbery conviction violateddouble jeopardy because the trial court had directed an acquittal on that charge; (2) two of his home invasion convictions must be vacated because only one home invasion occurs as a result of one unauthorized entry; (3) the trial court erred by finding that Lowell Tuff, one of the victims, was unavailable to testify; (4) the testimony of the State's rebuttal witnesses violated the hearsay rule and his right to confrontation; and (5) his due process rights were violated when the State misstated the facts and shifted the burden of proof unto him during closing arguments. For the following reasons, we affirm in part, vacate in part, and remand for resentencing.

Rodney Burton and Chris Spann both testified that on Sunday, November 3, 1991, they were at Lowell Tuff's apartment at 1158 N. Cleveland Street, Apt. 305, in Chicago. The three men had smoked crack cocaine from Friday night until Saturday night. Between 2 and 2:30 p.m. Sunday afternoon, they were sitting in the living room listening to the radio when there was a knock on the door. Tuff answered the door and four or five men rushed in, some with guns pointed, and told the three victims to lie on the floor. Both Burton and Spann identified defendant as one of the attackers who was carrying a gun.

The attackers threatened to kill the three victims if they did not tell them where the drugs and money were. While defendant and other attackers beat the three victims with a stick and kicked them repeatedly, other attackers searched the apartment looking for drugs and money.

When no drugs or money were found, the attackers told the victims to take off their clothes, which were then searched. While the victims were unclothed, the attackers heated a metal ice chopper on the stove and burned the backs of Burton and Spann, then beat them with a wooden stick.

About 45 minutes into the attack, defendant and several other attackers took Tuff from the apartment. Burton and Spann could hear Tuff's screams from the apartment next door. A few minutes later, defendant and Tuff returned to Tuff's apartment. The beatings against Burton and Spann resumed while Tuff got dressed.

Eventually, Tuff was able to escape. As most of the attackers chased him, Burton and Spann heard gunshots in the hallway. When the attackers returned to the apartment, they resumed beating Burton and Spann. About 15 to 20 minutes later, one of the attackers saw the police coming, so they all ran away. Burton and Spann locked the door until the police arrived at the apartment. After they dressed, they were taken to Grant Hospital and released the same day.

Chicago police officer Porter Goosby testified that he was stoppedby a man on the street at 5:15 p.m. on November 3, 1991. As a result of the conversation with the man, Goosby went to 1158 North Cleveland Street, Apartment 305, where he found Burton and Spann in the ransacked apartment. Burton and Spann both had visible bruises and injuries on their bodies.

Chicago Police officer Edward King testified that he arrested defendant on November 8, 1991. During his investigation, King went to 1158 North Cleveland Street, Apartment 305, where he recovered a metal ice chopper/hoe with a wooden handle. The next day, King took Burton to the police station to have his injuries photographed.

Louis Schubrych and Kenneth Harris, investigators for the Cook County Sheriff's Police, testified that they attempted to personally serve Tuft with a subpoena. On October 7, 1992, Schubrych left a subpoena at 9327 South Wallace Street in Chicago where there was no answer. On December 28, 1992, Harris left a subpoena at that same address. Schubrych then unsuccessfully tried to serve Tuff on December 29, 1992, at 1158 North Cleveland Street, Apartment 305. There, Schubrych spoke with the security personnel in an effort to locate Tuft, but was unsuccessful.

At the close of the day's evidence, the trial court told the State in a sidebar that they did not have to formally rest until the next day, but that for judicial economy and time management, defendant's motion for a directed verdict would be heard. After the trial court granted defendant's motion on several counts, court was adjourned for the day.

The next morning, the State asked that Tuff be found unavailable to testify. The assistant State's attorney explained that additional attempts had been made to locate Tuft: the Cook County jail and the morgue were checked and Detective Kill was asked to look for him.

After the trial court found Tuft unavailable, the transcript of his November 12, 1991, preliminary hearing testimony was read. Defendant objected on the basis that there had already been a directed verdict on his armed robbery charge. The trial court explained, however, that the verdict had not been directed and that the proceedings that occurred on the previous day were for time management purposes only.

At the preliminary hearing, Tuff had testified under oath that he was at his apartment at 1158 North Cleveland Street, Apartment 305, with Burton and Spann on November 3, 1991. When Tuff answered a knock on his door, defendant, whom he had known by sight for nearly two years, forced his way into the apartment with the other attackers. Defendant was holding a gun. The attackersordered Tuff, Burton, and Spann to lie on the floor and demanded to know where the drugs and ...

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