Appeal from the Circuit Court of Cook County. No. 98 C4 40765 Honorable Frank DeBoni, Judge Presiding.
The opinion of the court was delivered by: Justice Reid
Following a jury trial, the defendant, Natale Saraceno, was found guilty of one count of residential burglary and as a result of his criminal background, he was sentenced as a Class X offender to serve 20 years' imprisonment. The issues Saraceno raises on appeal are whether:
(1) the trial court improperly stated Illinois Pattern Jury Instruction, Criminal No. 3.15 (4th ed. 2000 (hereinafter IPI Criminal)) when it was submitted to the jury; (2) the trial court improperly restricted the testimony of witnesses; (3) the State made improper remarks during its closing argument; (4) the trial court erred when it refused to consider Saraceno's pro se motion for a new trial which alleged ineffective assistance of counsel; and (5) the mandatory Class X sentencing provision of section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 2000)) violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons that follow, we reverse the decision of the trial court and remand this cause for a new trial.
At trial, Beverly Verner testified that on May 4, 1998, she lived in Berwyn, Illinois, with her father. At the time, Verner said that her next-door neighbor was having his roof replaced and that there were workmen on his roof. The neighbor's house was located on the western side of Verner's home.
At approximately 1:30 p.m., Verner was in her bedroom lying down watching television when someone rang her front doorbell. The door to her bedroom was closed and she was the only person in the house. Verner testified that she did not answer the door because she was not feeling well and she was not expecting visitors.
After the front doorbell stopped ringing, the back doorbell began to ring. Again, Verner did nothing. After the back bell stopped, the front doorbell began ringing again. Verner did not answer the door. Next, the front doorbell stopped ringing, and the backdoor bell began ringing again. Verner still did not answer the door.
Verner testified that at approximately 1:50 p.m. she heard "creeping" in the house. Verner said that she has hardwood floors and she could hear someone walking slowly in the house. Verner testified that she heard someone walk from the kitchen through various rooms in the house. Verner testified that the noise was not familiar to her. She explained that when her father walked through the house it made a different sound. Verner picked up her telephone and dialed 91 and sat in her bed waiting to dial the last number to 911.
Verner then saw her bedroom doorknob turn slowly. When she saw a gloved hand opening the door, she completed dialing the last number to 911. Verner described the gloves as big rugged, gray gloves.
When her bedroom door opened, Verner saw a man standing in the doorway. He was approximately three feet from where she was sitting on her bed. Verner said that she could see the man's face and that she in fact focused on his face. She identified the man as Saraceno.
Verner then yelled and said "who are you and what are you doing here?" She then proceeded to tell the 911 operator that she had a home invader. The intruder then shut her door. After speaking to the 911 operator, Verner telephoned her father but was unable to contact him. She then called and spoke to her brother.
Verner testified that while she was on the phone trying to contact her father and brother, she could still hear the intruder walking around her house. After speaking to her brother, Verner said, she walked to the window and waited until she heard the police outside. She testified that it took the police approximately two minutes to arrive.
When the police arrived, Verner explained to them what happened and gave them a description of the intruder. She testified that she told the police that the intruder was Hispanic, with deep-set eyes, and that he was wearing a baseball hat and a T-shirt. Verner also testified that she thought that she noticed a tattoo on the intruder's arm, although she could not remember if she conveyed this information to the police officers. The police officer with whom she was speaking relayed the description over the radio.
Approximately a minute later, she was asked to walk over to her window and look outside. When Verner looked out of her window, she saw Saraceno standing between two officers. She informed the officers that he was the man who had entered her home. After identifying Saraceno, Verner said that she went outside on the porch to take one last look at Saraceno out of curiosity. Verner testified that when she saw Saraceno she said "that's him." Verner said that she also looked at the other men who were working on her neighbor's roof and that none of them resembled the man who entered her home.
Verner was then taken to the back of her house to its rear entrance. There she saw damage to the back door. The door had been jimmied opened. Later that afternoon, at approximately 3:30 p.m., Verner was exiting the rear of her house where she saw tools on the ground. In particular, she saw "a long rod iron, like a hook," and a pair of gloves that were similar to those that were worn by the man who had entered her apartment. She said the gloves were lying on the ground approximately seven feet from her backdoor.
Detective Becvar testified that on May 4, 1998, at approximately 1:50 p.m. he was on duty and received an assignment concerning an intruder. When he arrived at Verner's apartment, he observed damage to her rear door. Becvar said that there were chips around the doorknob and he could see that the doorjamb had been pried. However, he did not see a pry bar or work gloves near the rear entrance. Becvar met with Officer Haennicke and Verner. Verner described the intruder as being "a male Hispanic wearing a black baseball cap, tee-shirt with deep set eyes." Officer Haennicke radioed the description to the other units.
Approximately 30 seconds later, Sergeant David Ehle responded by radioing that he had an offender who matched the description. Based on that transmission, Becvar had Verner approach the front window of her apartment. Becvar testified that Verner "instantly said, that's him."
Ehle testified that on May 4, 1998, he was working with Sergeant Ken Zolecke. At approximately 1:50 p.m., they received an assignment concerning a home invasion and proceeded to Verner's apartment. As they were en route, they received a radio transmission of the description of the intruder. Ehle testified that the description was of a "male Hispanic with a tee-shirt and deep set eyes."
After arriving, Ehle observed a Hispanic male walking toward a vehicle parked on the street, approximately four houses away from Verner's residence. As Ehle approached the man and called to him, Ehle noticed that the man also had deep set eyes. Sergeant Ehle testified that Saraceno was wearing a white T-shirt, but he was not wearing a black baseball cap nor was one ever recovered. Ehle asked the man to accompany him back to Verner's residence. Ehle then radioed Officer Haennicke and told him that he was bringing the subject back to Verner's house.
After standing in front of Verner's home with Saraceno, Ehle received a radio communication from Detective Becvar, who said that Verner had identified the man as the intruder. Ehle then took Saraceno into custody.
Stephen McCord, called by the defendant as a witness, testified that he was working for Trent Roofing on May 4, 1998. McCord was the foreman on the roofing job that was located next door to Verner's home. McCord testified that he had known Saraceno for approximately five to six years. McCord said that there were nine members on his work crew that day, including Saraceno. Saraceno arrived at work at 7 a.m. McCord testified that Saraceno was wearing a white T-shirt but that Saraceno did not wear a hat that day.
McCord testified that from noon until Saraceno left the worksite, Saraceno was on the roof working. When Saraceno left the roof, McCord saw him leave his tools on the roof, climb down the ladder, use a hose to wash off and walk toward his car. McCord saw Saraceno get into his car and start it after several attempts. At this point, the police arrived and ordered everyone off the roof. The police were asking the workers questions. McCord then saw Saraceno come back "to see what was going on." One of the officers pulled Saraceno aside and shortly thereafter, Saraceno was placed under arrest.
The jury found Saraceno guilty of one count of residential burglary and he was sentenced to serve 20 years' imprisonment. On February 4, 2000, ...