Appeal from the Circuit Court of Cook County. No. 00 CR 9261 Honorable Thomas M. Davy, Judge Presiding.
The opinion of the court was delivered by: Justice Hall
Following a bench trial, the defendant, Jerry Scott, was convicted of robbery and residential burglary and sentenced to five years' imprisonment in the Department of Corrections. The defendant appeals, raising the following issues: (1) whether the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt of residential burglary; (2) whether the defendant's robbery conviction is inconsistent with the finding that the defendant was not guilty of armed robbery; and (3) whether the defendant is entitled to a reduction of his sentence.
The defendant was charged by information with the offenses of home invasion, armed robbery and residential burglary. He waived his right to a jury trial. The pertinent testimony at the defendant's bench trial is summarized below.
Cleotha Carter, the 45-year-old victim, testified that a 1993 automobile accident completely damaged his left side. He is blind in his left eye and walks with a cane.
On March 8, 2000, at approximately 11:30 a.m., the defendant knocked on the door of Mr. Carter's apartment. Believing that the defendant, whom he had known for a year, was there to play chess with him, Mr. Carter turned to get his chess set. When he turned around, the defendant was holding a gun at his side in his left hand and pointed at Mr. Carter. In his right hand, the defendant had Mr. Carter's LINK card and a money order, which had been on top of Mr. Carter's television set. Mr. Carter explained that a LINK card is used in place of food stamps to purchase groceries. On March 8, 2000, Mr. Carter had a $75 balance on the LINK card. The money order was for $500, but it had not been filled out yet.
Mr. Carter told the defendant "don't be playing no damn games." The defendant responded, "I'm not playing no M.F. games, I'm sick." Mr. Carter added that the defendant told him that he needed "dog food," which Mr. Carter understood to mean heroin. The defendant then demanded Mr. Carter's LINK card code number, which permits a store to accept the card. Mr. Carter started to give the defendant the number, but the defendant remembered that he knew the number from other trips he had made with Mr. Carter to the grocery store. The defendant cocked the hammer of the gun back and backed out of Mr. Carter's apartment.
After the defendant left the apartment, Mr. Carter called 911. Mr. Carter then accompanied the police as they rode around the area searching for the defendant. The defendant was apprehended a short time later. The police returned the LINK card to Mr. Carter, but he never got the money order back.
Mr. Carter acknowledged that he had been imprisoned for auto theft, forgery and possession of an illegal weapon. He was last released from prison in 1992. He did spend time in the lockup in 1995.
On cross-examination, Mr. Carter denied that he had used crack cocaine on March 8, 2000. He denied that he had been convicted of theft in 1990. However, when defense counsel presented a certified copy of the conviction, Mr. Carter stated that, while he could have been convicted in 1990, he did not recall pleading guilty and being sentenced to two years' imprisonment consecutive to another case in which he pleaded guilty to possession of a stolen motor vehicle. According to Mr. Carter, his 1993 accident caused him to have difficulty remembering things in the past. He acknowledged that in 1995 he twice pleaded guilty to theft and was sentenced to time served in one case and time served and a fine in the other.
Mr. Carter denied calling anyone else before calling the police to report what had happened. He did not recall telling a detective and an assistant State's Attorney that he had called Officer Clemons, a police officer in the 6th District, his brother, Lamark Carter, who was the warden at the Joliet Correctional Center, and his sister-in-law to tell them what had happened.
Mr. Carter denied that he went to the Swan Foods store earlier in the day on March 8, 2000, to obtain money to buy crack cocaine. He further denied giving a bag of cocaine to the defendant and leaving the grocery store with a young lady to return to his apartment and smoke the cocaine with her. Mr. Carter also denied telling the defendant to meet him later.
Mr. Carter did recall a conversation he had with a police officer at his apartment in which he told the officer that the defendant and he were having a normal conversation until the defendant picked up the LINK card and told Mr. Carter that he was taking it because he was sick and needed "dog food," referring to heroin.
Mr. Carter acknowledged that at the defendant's preliminary hearing, he had testified that the gun was in the defendant's right hand and the LINK card and money order were in the defendant's left hand. Mr. Carter described the gun as black with brown handle grips. He had never seen the defendant with a gun prior to March 8, 2000.
On redirect examination, Mr. Carter acknowledged that at the defendant's preliminary hearing, he had testified that the defendant did not take the LINK card and the money order from Mr. Carter's person. *fn1
Bashar Fakhoury, owner and manager of Swan Foods, testified that he was working at the store on March 8, 2000, and did not recall seeing either Mr. Carter or the defendant in the store.
The State then rested. The trial court denied the defendant's motion for a directed finding.
The parties then stipulated that if Officer J. McGee were called as a witness, he would testify that from a custodial search of the defendant following his arrest, the police retrieved a LINK card belonging to the victim. However, the search revealed no money, gun, money order, receipt or any illegal drugs. Officer McGee would further testify that in his conversation with Mr. ...