The opinion of the court was delivered by: Presiding Justice Gordon
Appeal from the Circuit Court of Cook County. Honorable James P. Flannery, Judge Presiding.
The defendant, Cedric Lee, was found guilty by a jury of home invasion, residential burglary, aggravated battery of a senior citizen and aggravated battery and was sentenced to concurrent terms of 22 years, 15 years, 7 years and 7 years imprisonment, respectively. On appeal, he raises the following issues: (1) that he was denied his constitutional right to a trial by jury when the Judge failed to respond to two notes sent by the jury during deliberations; (2) that his conviction for aggravated battery must be reversed since that offense is a lesser included offense of aggravated battery of a senior citizen; (3) that his sentence was based on an unconstitutional statute; and (4) that the mittimus must be corrected to reflect the trial Judge's oral pronouncement of sentence. For the reasons discussed below, we affirm defendant's convictions for home invasion, residential burglary and aggravated battery of a senior citizen; we modify defendant's sentences on the home invasion and aggravated battery of a senior citizen convictions; and we vacate defendant's conviction and sentence for aggravated battery.
The defendant was charged with the commission of multiple offenses arising out of an incident that occurred on the evening of September 9, 1995 in the convent of the Our Lady of Guadalupe Church in Chicago. A citizenship drive was being conducted in the basement of the church from 9:00 a.m. to 4:00 p.m. Applicants were charged $95 as an application fee (paid by money order) and $20 for the paperwork (paid in cash).
Francisco Velazquez, a citizenship applicant at the church on September 9, 1995, testified that, at about mid-day, he saw an African American male, whom he identified in court as the defendant, walk into the basement and converse with a lady who was processing the applications. Velazquez stood three feet from the man and described him as being a bit taller than 5 feet 7 inches and having a medium dark complexion, short hair, and a bit of a mustache. He testified that the man was wearing a short sleeve, red and blue shirt and long pants. Velazquez also testified that he identified the defendant in a lineup on September 12, 1995 as being the man who was present in the church basement.
Latisa Gusman, a citizenship application processor, testified that she saw an African American man, later identified by her in court as the defendant, come into the church basement on the afternoon of September 9. The man walked up to her table, asked her for food, and glanced down at the pile of money orders on the table. She described the man as having a little mustache, some chin hair, short hair on top of his head with a ponytail in the back, light-colored eyes, and a medium complexion. She stated that the man wore a short-sleeved, light-colored shirt and long, dark pants. Gusman testified that she made a photographic identification of the defendant on September 11, 1995 and a lineup identification on September 12, 1995. She stated that she was positive of her identifications of the defendant.
Sister Consuelo Hernandez testified, through an interpreter, that on September 9, 1995, shortly before 7:00 p.m. mass, she was going up the stairs in the convent to bathe. At that time, she was wearing a silver ring and a medal. Sister Hernandez was 65 years old. She heard a sound like someone had broken the door but ignored the noise. After her shower, she went downstairs to the first floor living room and saw a man sitting on the couch. The man, who was approximately two meters from her, wore a discolored bluish shirt, long blue pants and white tennis shoes. She described the man as having short, black hair, no facial hair and green eyes. She stated that he grabbed her by her neck chain, breaking the chain. As she bent over to pick the chain up, the man began hitting her on her back. He grabbed a hatchet, raised it to threaten her, and asked her for money. Sister Hernandez stated that after the encounter, the ring she was wearing was missing and her medallion lay in a pool of blood.
Sister Hernandez testified that she made a photographic identification of the defendant on September 11, 1995 while she was hospitalized for the injuries she sustained as a result of the attack. When asked to make an in-court identification of the man who attacked her, Sister Hernandez pointed to the defendant but stated, "Could it be that one? It looks like him. It could be him. Could it be that one?" She also stated, "I believe I can see but after so many months."
The parties stipulated that Sister Hernandez suffered multiple injuries, was hospitalized, and received intensive rehabilitation until November 16, 1995. She sustained swelling of her right eye; bruises to her face, forehead, neck and right eye; swelling to the left and right sides of her face; fractured nasal bone; and contusions to her neck, left upper chest, shoulders and upper arms. The parties further stipulated that the doctors could not evaluate Sister Hernandez's eyes on September 10, 1995 due to severe contusion and non-opening of the eyes.
Sister Regina Bernal, who was 78 years old at the time of trial, testified that, while preparing for 7:00 p.m. mass on September 9, 1995, she heard Sister Hernandez scream that a man was hitting her. She returned to the convent and saw the left leg and left arm of a man who was trying to open the door. She also saw Sister Hernandez lying on the floor next to a sofa in a pool of blood. On the second floor of the convent, drawers had been opened and pillows, blankets and sheets were turned upside down. A television, VCR, gold wristwatch, and small hatchet were missing.
Officer Fernando Carvajal of the Chicago Police Department testified that on the night of September 9, 1995, he received a tip from a clerk at a liquor store located near the convent. The clerk stated that a person named Gary White tried to sell a gold watch, broach and ring to him. Carvajal located White and questioned him. White gave Carvajal the three items of jewelry. Carvajal further testified that White told him that he found the items in a garbage can. White took Carvajal to the garbage can and, upon searching the can, Carvajal found a pair of blue jeans with a red substance on them. (The parties stipulated that human blood was found on the pants and that the blood on the pants was consistent with blood drawn from Sister Hernandez. They also stipulated that White's gym shoes tested negative for human blood.)
Chicago Police Officer Joseph Ramirez testified that he received the broach, ring and watch from Officer Carvajal on September 9, 1995. He further testified that he took the items to the hospital for viewing by Sister Hernandez and that she identified the ring.
Gary White testified at trial concerning his acquisition of the broach, ring and watch. He also stated that he had a full-grown beard and weighed 106 pounds on September 9, 1995. He testified that he weighed 165 pounds at the time of trial. White stated that he first saw the blue jeans, introduced into evidence by the State, when they were recovered by the police from the garbage can.
At trial, Gary White and the defendant tried on the blood stained blue jeans. There was a 2-to-3-inch gap between White's waist and the front button of the pants. When the defendant tried on the pants, his underwear appeared above the jeans and there was "not much curling" on the bottom of the pants.
At the Conclusion of the trial, the jury convicted the defendant of home invasion, aggravated battery, aggravated battery of a ...