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12/03/96 PEOPLE STATE ILLINOIS v. RAYMOND JOHNSON

December 3, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RAYMOND JOHNSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Fred Suria, Jr., Judge Presiding.

Released for Publication January 29, 1997.

The Honorable Justice Rakowski delivered the opinion of the court. Zwick, P.j., and Leavitt, J., concur.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Following a bench trial, defendant was found guilty of first degree murder, home invasion, and residential burglary. He was sentenced to 80 years for murder and concurrent terms of 30 years and 10 years for home invasion and residential burglary, respectively. Defendant appeals his convictions and sentences contending: (1) the trial court erred in denying his motion to suppress a statement made at the time of his arrest based on a violation of Miranda; (2) the trial court erred in denying his motion to suppress a confession based on its involuntariness; (3) the trial court erred in denying his motion to suppress a confession based on his inability to knowingly and intelligently waive his Miranda rights due to his substance abuse; (4) the trial court erred in admitting the victim's hearsay statement as an excited utterance; (5) the trial court erred in sentencing defendant on the home invasion and residential burglary convictions where these offenses are lessor included offenses of felony murder; (6) the trial court erred in sentencing defendant to an extended 80-year sentence; (7) the trial court erred in considering defendant's substance abuse as an aggravating factor in sentencing; and (8) the mittimus must be corrected to reflect the proper sentences imposed. Pursuant to Supreme Court Rule 23 (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994), issues two and three are the only publishable issues. We affirm defendant's convictions and sentences.

FACTS

Defendant was charged with the murder of Halina Grochowski, which occurred on September 5, 1992.

Defendant's court-reported statement indicated that Halina was his girlfriend and, until two months prior to her death, they had lived together. Following their breakup, they continued to see each other as she was tutoring him for his GED examination.

At 1 or 2 a.m. on September 5, 1992, defendant called Halina because he wanted money for drugs. He told her he had something important to tell her and had money for her. She agreed to meet in the lobby of her building. Defendant arrived at the building and the guard, who knew defendant, let him in. Defendant told the guard he was visiting another friend who lived in the building.

When defendant knocked on Halina's door, she refused to open it. After reminding defendant he was not allowed there, Halina told him to back away from the door and she went into the hallway. Halina attempted to close the door, defendant put his foot in, and said "Baby, let me in." Halina told defendant they could go downstairs to the lobby. Defendant responded "Baby, I don't want nobody to see me up here, to call the police on me," so he pushed his way into the apartment. In an effort to determine whether Halina had any money, defendant asked her for change for a $50. She told him she did not have change. Defendant then asked to use the bathroom. After agreeing, Halina told defendant to hurry up so they could go downstairs.

When defendant came out of the bathroom, he said Halina was getting on him about not touching any of her things. According to defendant, she was talking loud and saying she did not want him to steal her belongings. To keep her quiet so the neighbors would not hear and call the police, defendant put his right hand over her mouth and his left hand against the back of her head. He forced Halina into the bedroom, closed the door so no one would hear, and sat on top of her on the floor. So Halina could not scream, defendant attempted to tie a bathrobe belt across her mouth. Because she was struggling, defendant was unable to do this. Halina then stated in a loud voice, "You bastard, what are you doing?" Defendant struck her in the eye with his fist and continued to hit her at least 15 to 20 times. When Halina ceased struggling, defendant took a quilt from the bed and wrapped her in it. He also pulled the phone cord from the wall. Defendant searched for money in her living room and purse but found none. He then wrapped Halina's microwave in a plastic bag and put it in the living room. He went back to the bedroom and saw blood coming from Halina's mouth and nose. He then saw she was attempting to get up so he stomped on her stomach by jumping up and landing on her with his feet. He took the microwave and left the apartment.

When he encountered the security guard in the lobby, he told the guard Halina had gone off on him, pulled a knife, and he was taking his belongings. The security guard advised defendant he could not leave with the package until the guard was sure it was defendant's. Defendant told the guard his mother was waiting outside for him. The guard told defendant they would go out and see. When the guard did not see defendant's mother and asked him about it, defendant stated she must have left.

The guard again insisted they go back inside so he could ascertain that defendant's package was his. Defendant refused to go back in. The guard then asked him which apartment he had come from and defendant replied "501." Defendant said he told the guard the apartment number because he knew Halina was hurt real bad. Defendant then fled.

The security guard from Halina's building, Kevin George, testified on behalf of the State by way of stipulation. According to him, after defendant fled, he called the police. When they arrived at approximately 1:50 a.m., Halina would not let them in because she did not believe they were the police. After the police left, Halina called her neighbor, who then called the security guard. The guard entered Halina's apartment and called the paramedics. The police were called back to the apartment around 4 a.m., but when they arrived, they found that Halina had been taken to the hospital.

Officers Carol Blakely and Alfred King testified that after leaving Halina's apartment around 4 a.m., they went to the hospital and interviewed her in the emergency room. When they asked her what happened, she told them her boyfriend, defendant, had beaten her up and taken her microwave. She also told them where defendant lived.

The police went to defendant's address and found that someone with defendant's last name signed the register at 2:10 a.m. They advised the security guard to call if that person came back downstairs. The police returned to defendant's residence at approximately 7 a.m. When they entered the lobby, defendant was at the security station. The police placed defendant under arrest and read him his Miranda rights, which he stated he understood. According to the police, defendant stated, "You are here about Halina. I did it because I needed some drugs." They asked defendant where the microwave was and he told them. After recovering it, they took defendant to the police station.

Detectives Reiter and Spencer interviewed defendant when he arrived at the station. Detective Reiter testified at the suppression hearing and at trial. During the first interview, at approximately 11 a.m., Spencer was present but did not question defendant. Defendant was given Miranda warnings and he stated he wanted to talk because he wanted to get things off his chest. He told the officers he had used cocaine. Defendant then made an oral statement. He also told the officers he only intended to steal money to get cocaine and had not really wanted to hurt Halina. Defendant was interrogated for approximately 40 minutes and then returned to his cell. When this interview ceased, Reiter found out Halina had died during surgery.

Reiter returned to defendant around noon. He found defendant on his knees praying. Reiter took defendant back to the interview room and told him Halina died. Defendant became upset and refused to believe Reiter. Defendant again gave a statement, similar to the first. A short while later, defendant and Reiter were joined by Assistant State's Attorney Scott Anderson. Anderson gave defendant his Miranda warnings, to which defendant responded he understood. Defendant again gave an oral statement. Anderson contacted his supervisor, Anita Alvarez, who came to the station. At approximately 3:30 p.m., defendant gave a court-reported confession. Defendant was allowed to read the statement and he made corrections.

Defendant filed motions to suppress both the statement he made to the arresting officers and his court-reported confession. The trial court denied both motions.

ANALYSIS

A. Miranda Warnings

[The following material is nonpublishable under Supreme Court Rule 23].

[The preceding material is nonpublishable under Supreme ...


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