The opinion of the court was delivered by: Justice Fitzgerald
Released for publication.
The question before us in this case is whether defendant's extended-term sentence, pursuant to section 5-8-2(a)(1) of the Unified Code of Corrections (730 ILCS 5/5-8-2(a)(1) (West 1994)), complies with the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We find that it does.
Defendant, Scott Hopkins, was convicted of first degree murder (720 ILCS 5/9-1 (West 1994)), armed robbery (720 ILCS 5/18-2(a) (West 1994)), aggravated battery (720 ILCS 5/12-4 (West 1994)), and home invasion (720 ILCS 5/12-11 (West 1994)). The circuit court of De Kalb County sentenced defendant to an extended term of 75 years' imprisonment on the first degree murder conviction and a concurrent 20-year sentence on the armed robbery and the home invasion convictions. The appellate court affirmed the convictions, vacated the 75-year sentence, and remanded the cause with directions. No. 2-99-0678 (unpublished order under Supreme Court Rule 23). The State filed a petition for leave to appeal, raising one issue, the propriety of the appellate court's reversal of defendant's extended-term sentence. 177 Ill. 2d R. 315(a). In responding to the petition for leave to appeal, defendant requested cross-relief on the question of whether the appellate court erred in affirming his conviction. 177 Ill. 2d R. 315(a); 155 Ill. 2d R. 318(a). For the following reasons we affirm in part and reverse in part.
On July 29, 1995, police found the body of 70-year-old Burdette Johnson. He had been hit over the head with a frying pan and stabbed more than 15 times with a screwdriver to the chest and neck. He remained in a coma for nearly a month before succumbing to his wounds.
Defendant was charged with first degree murder, aggravated battery, armed robbery, and home invasion. On September 20, 1996, after a jury trial, he was found guilty on all counts. On December 26, 1996, the trial court granted defendant's motion for a new trial based on the State's failure to disclose to defense counsel that a witness, Mark Slater, had been promised that he would not be prosecuted in exchange for his testimony.
Defendant's second trial began on February 1, 1999. At the second jury trial, Glen Butler testified that Johnson lived on the first floor of a two-unit home. Butler rented the second-floor apartment from Johnson. Mark Slater, his roommate, lived with him in the upstairs apartment. Slater's friend, June Gibson, often came to the apartment and kept some of her belongings there. On July 29, 1995, at approximately 7 p.m., Butler was with Johnson in the downstairs apartment. Slater and defendant were in the upstairs apartment drinking beer. After telling Slater and defendant to keep the noise level down because they were disturbing Johnson, Butler left to go to work around 8:30 p.m.
While in the upstairs apartment, defendant asked Slater if Johnson had any money. Defendant then told Slater that he was going to get some money from Johnson's apartment. At that point, Slater testified, he left the apartment and went to visit some friends, Tim and Mary Cunz. He remained at the Cunz's for approximately 5 or 10 minutes before walking a few blocks to Hallgren Park. While at the park, Slater saw Gibson drive by. After about 15 minutes he returned to his apartment.
The defendant returned to the apartment approximately 10 minutes after Slater. He asked Slater if he wanted some beer. Defendant then went downstairs and returned with a six-pack of beer. After finishing the beer, defendant went downstairs to get some cigarettes. When he returned the second time, Slater saw that he was wearing a pair of white surgical gloves. He told Slater not to go downstairs because "it was not a pretty sight." Slater testified that defendant told him that he stabbed Johnson in the shoulder, temple and the neck. Defendant had scratches both on his neck and his shoulder.
Defendant and Slater left the apartment together and walked to Hallgren Park. At the park, Slater saw defendant throw a washcloth with some stains on it into a garbage can. Slater then told defendant that he was going to return to the house to check on Johnson. He found Johnson covered in blood and called 911. Slater waited at the scene until the ambulance and the police arrived. The police checked Slater for the presence of blood but found none. Slater did not tell the police that defendant stabbed Johnson until he was transported to the police station for further questioning.
At the police station, Detective Gary Spangler examined Slater's clothes and body for the presence of blood. Detective Spangler found no blood on Slater. Based on Slater's interview, police officer's located a rag, a piece of cloth, and a screwdriver in a trash can in Hallgren Park.
June Gibson, a recovering crack cocaine addict, testified that during the mid-afternoon of July 29, 1995, she saw Slater and defendant drinking beer in the backyard of Johnson's house. Later that evening, she and a friend, Jenny, drove by Hallgren Park and saw Slater alone. As she drove past him, Slater waved. About 30 to 40 minutes later, Gibson and Jenny stopped at the park and gave Slater some cigarettes. They then stopped at the Cunz's residence so that Gibson could drop off a dress before going to the De Kalb Motel.
At the motel, Gibson waited until a girlfriend, Brenda Parkins, arrived. Gibson and Parkins left the motel to buy some beer and cigarettes and drove past Johnson's house. After noticing that the lights were off, Gibson decided to check on Johnson. Gibson testified that she entered the house through Butler's apartment. When she entered, there were still no lights on in Johnson's apartment. However, when she looked downstairs two minutes later, all of the lights and the television were on.
As she descended the stairs, she called for Johnson and heard a noise that sounded like someone falling. When she reached Johnson's apartment, she saw Johnson, lying on the living room floor, reaching for his cane. She also saw defendant, who was not wearing a shirt, and was gripping the handle of a screwdriver. When defendant turned toward her, Gibson ran to the apartment upstairs and then down the back stairs to the car.
Gibson did not tell Parkins what she had seen. Instead, they drove around for a while before returning to Johnson's house. By that time, the police had arrived and taped off the area around the house. Gibson did not talk to any of the police officers at the scene. Instead, she testified, she returned home and called 911. She asked the 911 operator why the area was roped off. When the operator told her that she could not provide Gibson with any information, Gibson responded, "I just want to know if somebody's dead."
In response to the 911 call, Officer Johathan Castilow went to the De Kalb Motel to see June Gibson. He testified that she told him that "Scott" had hurt Johnson. Gibson refused to go to the police station with Officer Castilow. Instead, Gibson prepared a statement for the police two weeks following the incident. She stated in the statement that she opened the door to Johnson's apartment, looked in and saw defendant standing in the hallway leading to Johnson's kitchen or bathroom and that she saw Johnson sitting in a chair. She further stated that defendant was wearing shorts and a tank top. In the statement she did not state that she saw defendant holding a screwdriver in his hand. Gibson later testified at trial that she did not remember preparing the statement and that she lied about Johnson's location because she did not want to cooperate with the police.
Bonnie Fleicher, defendant's mother, testified that on August 1, 1995, she found defendant lying on the porch of her home. He told her that he had been sleeping under a bridge. She informed him that the police were looking for him. Defendant then took a shower and went to his sister's house in St. Charles. Fleicher did not see any stains on defendant's shirt, other than sweat stains under the armpits.
Detective Spangler obtained a warrant to search Fleischer's home for the clothes worn by defendant on the night of the murder. He found the clothes in a laundry basket. The shorts had a pattern of stains that appeared to be blood similar to the pattern of ...