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People v. Wharton

October 28, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSEPH A. WHARTON, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macon County No. 99CF1814 Honorable Scott B. Diamond, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

UNPUBLISHED

A jury acquitted defendant, Joseph A. Wharton, of home invasion (720 ILCS 5/12-11 (West 1998)) but deadlocked on the remaining two counts, armed robbery (720 ILCS 5/18-2(a) (West 1998)) and residential burglary (720 ILCS 5/19-3(a) (West 1998)). The trial court entered a judgment of acquittal on the count of home invasion and declared a mistrial on the other two counts. Invoking collateral estoppel and double jeopardy, defendant filed a motion to bar the State from reprosecuting him for the alleged armed robbery and residential burglary. The trial court denied the motion, and, pursuant to Illinois Supreme Court Rule 604(f) (188 Ill. 2d R. 604(f)), defendant appeals from that ruling. We reverse.

I. BACKGROUND

On February 2, 2000, the State filed three counts against defendant, numbered V, VI, and VII. Defendant pleaded not guilty to all three counts. Count V (home invasion) stated:

"[O]n or about November 28, 1999, in the County of Macon, Illinois, [defendant] did commit the offense of HOME INVASION, [i]n - 1 -that said defendant, not a peace officer acting in the line of duty, knowingly, and without authority, entered the dwelling of Darin Hill and James Foreman, located at 375 Olympic Lane #96, Decatur, Macon County, Illinois, knowing or having reason to know Darin Hill and James Foreman to be present within that dwelling and intentionally caused injury to Darin Hill in that said defendant struck Darin Hill in the head with a gun."

Count VI (armed robbery) stated:

"[O]n or about November 28, 1999, in the County of Macon, Illinois, [defendant] did commit the offense of ARMED ROBBERY, [i]n that said defendant, while armed with a dangerous weapon, a gun, took property[,] being a cellular [tele]phone, pager, and U.S. [c]urrency, from the presence of Darin Hill and James Foreman, by threatening the imminent use of force."

Count VII (residential burglary) stated:

"[O]n or about November 28, 1999, in the County of Macon, Illinois, [defendant] did commit the offense of RESIDENTIAL BURGLARY, [i]n that said defendant knowingly, and without authority, entered into the dwelling place of Darin Hill and James Foreman, located at 375 Olympic Lane #96, Decatur, Macon County, Illinois, with intent to commit therein a theft."

The trial court read a statement of the case to the prospective jurors, paraphrasing the three counts quoted above. In stating the charge of home invasion, the trial court said: "It is alleged *** that *** [d]efendant *** intentionally caused injury to Darin Hill in that he struck Darin Hill in the head with a gun." During his opening statement, the prosecutor said there would be evidence that an intruder "struck [Darin Hill] in the back of the head with what he believed to be a gun."

The trial lasted three days, May 17, 18, and 19, 2000. The State's first witness was Darin Hill, 19 years old. He testified that on November 28, 1999, he resided in apartment No. 96 at 375 Olympic Lane. He shared the apartment with James Foreman. The apartment had a sunken living room, and upstairs there were two bedrooms, his and James's. At approximately 6 p.m., Darin and his girlfriend, Tiffany McQueen, arrived at the apartment and watched television, alone, in the living room, for about two hours. At approximately 8 p.m., James arrived and went to his bedroom. Darin and Tiffany stayed in the living room for a couple more hours, watching television.

Darin testified that at approximately 10 or 10:30 p.m., there was a knock on the door upstairs. He went upstairs and put his eye to the peephole. Seeing no one and suspecting a prank, he opened the door and looked into the hall. He caught a glimpse of someone in a ski mask and coat running around the corner. The mask was a dark color, perhaps blue. "A split second" later, this person smashed him in the nose with what Darin believed was a gun (although he "really [did not] know what [he] got hit with," it happened so fast). Darin spun around and bent over, covering his nose, and as he ran into the apartment, the assailant pursued him and hit him on the back of the head. Darin's shoulder collided with James's bedroom door, and he fell to the floor, unconscious.

When Darin awoke, blood was running from his nose and the back of his head onto the carpet. He testified he saw James lying face down on his bed and Tiffany getting up from his own bed. Darin asked if "they" were gone. Receiving no response, he staggered to his feet, went to a bathroom, and wiped the blood off his face. Then he looked for a telephone. The one in the dining room was ripped out of the wall. Tiffany's cellular telephone was missing from her purse, and James's was missing from his bedroom. Darin found his own cellular telephone in his bedroom and called his brother. When the prosecutor asked Darin why he did not call the police, he said he did not know. His brother drove him to the emergency room, where there was a police officer, and Darin told the officer of the robbery. The wound on the back of Darin's head required stitches. He also had a concussion, broken nose, and swollen hand.

Darin admitted on the stand that he told the police "a different story" "[f]rom what [had] really happened." He falsely told the police officer that Tiffany and James were not present in the apartment during the robbery. He was afraid if he revealed Tiffany was there, her parents would not let her come over any more. He did not know why he had lied about James. He also told the officer, incorrectly, that he was standing in the hall, unlocking the door, when the assailant approached him from behind and hit him on the back of the head.

The day after the robbery, when Darin returned to his apartment, he discovered that not only the cellular telephones but also his pager, his keys, and the "face" to his compact-disc player and car stereo were missing. Two weeks later, he told the Decatur police precisely what had happened, including who was in the apartment when the robbers entered.

Darin testified he never gave defendant permission to enter his apartment and he did not even know him. He had no personal knowledge that the assailant who entered his apartment on November 28 was indeed defendant, because "[t]he only person [he] saw had a mask on" and he never heard the assailant speak. He did not know Franklin Small, either (a name that would emerge again in the trial). Darin testified, however, that he was acquainted with James's friend, Cory Zimmer, who had been to the apartment three times. Darin and James frequently threw parties in their apartment.

Tiffany McQueen, 19 years old, testified that when Darin went upstairs from the living room to answer the door, she heard a commotion, as if someone were "being thrown into the wall and pushed around," and Darin saying, "Stop it!" The stairway had only three or four steps. She stood on the couch to see what was happening. At the top of the stairs, a "[s]hort, kind of skinny" man in a white stocking cap pointed a handgun at her face. She sat down, and he descended the stairs and said, "Come with me." She glanced up at him quickly and looked back down. He had no ski mask on. Scared for her life, she noticed only that he had light-colored eyebrows--"[n]ot brown, but not blond." When she did not immediately stand, he said move or he would shoot.

They went upstairs, she first and he behind her. He told her to go to the "back bedroom" (Darin's bedroom) and warned her, "[D]on't say anything, don't move[,] or I will hurt you." On the way to the bedroom, she saw Darin lying on the floor, by James's door, and a man crouching over him with his knee in his back and pointing a gun at the back of his head. She stepped over Darin.

As Tiffany lay on Darin's bed, someone called out, "Cory, are you all right?" She testified she did not recognize that voice. Right before the intruders departed, one of them said, "I should kill one of you mother-fuckers," and the man sounded like Cory Zimmer. (She had encountered Cory a couple of times in the past, when he came with James to her parents' house.) The bed was by a window, and she heard the footfalls of two or more people running on the sidewalk outside. Then Darin came into the bedroom, blood streaming down his neck.

According to Tiffany, "all [three] of our cell[ular] [tele]phones were gone" after the robbery: hers, Darin's, and James's. Darin's keys were gone, too, but she used a spare set to drive Darin's Blazer to her parents' house. A detective of the Decatur police department, Patrick Campbell, showed her some photographs, but she did not recognize anyone in them. James Foreman, 21 years old, testified he arrived at the apartment at 9 p.m. Soon afterward, he went to his bedroom and got ready for bed because he had to work the next day. As he lay in bed, watching television, he heard wrestling and commotion in the apartment. A body struck his bedroom door. He grabbed a baseball bat, opened the door, and saw two men in the apartment. One of them, wearing a ski mask, pointed a handgun at his face and told him to lie facedown on the bed. James obeyed. Then, shoving the handgun into the back of his head, the man said, "Give me your money," or words to that effect. James told him it was on his dresser, in the closet. The man snatched up the cash (no more than $200, according to James) and left the bedroom. To James's knowledge, no other money was anywhere else in the apartment.

James testified he heard a name, "'Cory, Cory[,]' twice[,] and then someone said[,] 'I will kill one of you mother-fuckers.'" He recognized none of the voices, however, and knew more than one person named Cory, including Cory Zimmer. None of the Corys, other than his friend, Cory Zimmer, had ever been to the apartment. Cory Zimmer had been to the apartment 5 to 10 times, but on November 28, 1999, he had no authority to be there. James had no knowledge that Cory Zimmer was one of the intruders. He did not know Franklin Small, Gary Fischer, or defendant. On December 7, 1999, James told Campbell that the man in the ski mask might have been black, because the neck and the skin visible through the eye holes appeared to be dark, but because the apartment was dark, James was uncertain. He estimated the man to be 5 feet 10 inches to 6 feet tall and to weigh 160 to 190 pounds.

Jason Boesdorfer, a detective of the Decatur police department, testified that at 12:03 a.m. on November 29, 1999, he went to Decatur Memorial Hospital to speak with the victim of a battery. The victim, Darin Hill, had a laceration on the back of his head and on his left hand. Boesdorfer photographed the injuries. With Darin's consent, he searched the apartment and saw blood on the carpet. Boesdorfer described Olympic Village as an apartment complex with a main road running through it, north and south. East and west, off this road, there were parking lots, and before the road dead-ended, it turned west.

Donna Scott testified that defendant was her cousin and Cory Zimmer was her ex-boyfriend. At approximately 2 p.m. on November 28, 1999 (when she and Cory were still together), Cory picked her up at her mother's trailer in his maroon Caprice automobile. Because he had been drinking, she drove. After driving around Decatur and discussing their plans for the day, they stopped at the house of Gary Wharton, another of her cousins and defendant's brother. They went inside and visited for a couple of hours. Defendant, Gary Wharton, and Amanda Russell were there. As she sat ...


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