People v. Curry

May 1, 1998

1-95-3677

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
HOMER CURRY, ) The Honorable
) David A. Erickson,
Defendant-Appellant. ) Judge Presiding.

JUSTICE HARTMAN delivered the opinion of the court:
A jury found defendant Homer Curry guilty of two counts of
aggravated kidnapping, armed robbery, and aggravated battery.
Defendant appeals his convictions and concurrent 15-year sentences,
raising as issues whether (1) the State proved the corpus delicti
for aggravated kidnapping, armed robbery, and aggravated battery;
(2) he was denied a fair trial where the circuit court failed to
instruct the jury sua sponte as to the presumption of innocence and
burden of proof; (3) imposition of his 15-year sentence was an
abuse of discretion; and (4) the circuit court erred in entering
judgment on both aggravated kidnapping counts and in sentencing him
to 15-years' imprisonment for aggravated battery.
On March 14, 1994, defendant was arrested with nine other
individuals and subsequently charged with the aggravated
kidnapping, armed robbery, and aggravated battery of Rynalder
Williams.
The State presented the testimony of several police officers
and introduced defendant's written statement, given to police after
his arrest. According to defendant's statement, on March 13, 1994,
at 2:30 a.m., he and his friend, "Bobby," were driving in his
uncle's Oldsmobile Toronado behind another vehicle containing three
other men known to defendant, Darryl Banister, Brad Johnson, and
Darnell Floyd. Using walkie-talkies to communicate between the two
automobiles, Banister pointed out a white Mercedes driven by
Rynalder Williams and told defendant to follow it. Although
defendant had never seen Williams, he understood that he was
following the Mercedes in order to rob Williams. To that end, the
men in the other car proceeded to Williams' home, while defendant
followed the Mercedes to a club called the "Godfather," which
Williams entered. When Williams returned to his vehicle, defendant
radioed the men waiting by Williams' garage and again followed the
Mercedes.
As Williams drove into his garage, defendant and Johnson ran
after him, while Banister and Floyd, armed with handguns, ordered
him to lie on the floor. Williams was then handcuffed, a cap was
pulled over his head, and he was placed in the Toronado's trunk.
Taking both automobiles, defendant and the others then drove to
Darren Streeter's house, where they brought Williams into the
basement.
While in the basement, Streeter placed masking tape over
Williams' eyes, covering the cap. He also took $1800 from him in
addition to several business cards, which defendant burned.
Streeter then struck Williams on his legs and head.
After moving Williams to the second floor of the house,
defendant told him to call his cousin to ask for money. Initially
asking for $100,000, Banister lowered the demand to $40,000;
Williams' cousin was then told that if he did not provide the money
he would never see Williams again. Asking for more time, Williams'
cousin promised to call back. After several calls, it was agreed
that the $40,000 would be brought to an Amoco gas station on
Ashland Avenue in Chicago.
Defendant and Floyd followed in the Toronado, while Johnson
and "Bobby" drove to the Amoco station. Parking the Toronado,
defendant exited and walked to Johnson's automobile; using
Williams' cellular phone, defendant and Johnson spoke to Williams'
cousin and told him to drop off the money. Shortly thereafter,
Williams' cousin dropped a bag at the station, which Johnson
recovered. Defendant then drove Johnson back to Streeter's house.
En route, defendant and Johnson discovered that the bag
contained, not money, but scraps of paper. Once back at the house,
defendant telephoned Williams' cousin, asking him why he was
"playing" with them. Defendant then allowed Williams to speak with
his cousin, but while on the phone, defendant struck Williams'
upper knees with a baseball bat. Shortly thereafter, defendant
heard Williams scream and turned to see Streeter burning Williams'
hand with an iron. According to defendant, at this time, he had
decided that, as soon as Williams' cousin called back, he would
release Williams. Before Williams could be unbound, however, the
police arrived at the house.
Among the several police officers arriving at Streeter's house
were Chicago Police Detectives John McMurray and Michael McDermott.
Testifying at trial, McMurray and McDermott explained how the
investigation began. On March 13, 1994, at 8 p.m., Williams'
cousin, Adrian Bardo, entered a police station and spoke with
Chicago Police Officer Louise Galvan. After her conversation with
Bardo, Galvan notified McMurray who, after gathering additional
information from Bardo, asked him to use the telephone in the
station to make several phone calls. Once those calls were
completed, preparations were made to follow Bardo, driving his own
vehicle, to the gas station at Ashland Avenue and Van Buren Street
in Chicago. Prior to leaving, McMurray filled a paper bag with
pieces of newspaper and gave Bardo a police radio. In addition to
McMurray and his partner, who drove together in an unmarked squad
car, another unmarked squad car with two officers and an unmarked
van containing three other police officers, including Detective
Michael McDermott, followed Bardo to the gas station.
At the gas station, Detective McMurray observed a gold Honda
parked in the station lot and an individual standing next to the
Honda. Within minutes, a Toronado drove into the station and
parked next to the Honda. McMurray then observed defendant exit
the Toronado, walk to the Honda and enter the driver's seat of the
Honda. Bardo then drove into the station, tossed the paper bag out
of his vehicle, and drove away. The individual standing by the
Honda picked up the paper bag, entered the Honda, and the Honda and
the Toronado then left the station.
Detective McMurray, in his vehicle, joined Detective
McDermott, in the van, in pursuit of the Toronado. During the
chase, McDermott observed a black automatic handgun thrown from the
passenger side of the Toronado. Unable to stop to recover the
weapon, McDermott continued the pursuit, which reached speeds in
excess of 100 m.p.h. The vehicle chase ended when the occupants,
Darnell Floyd and Derrell Adams, jumped from the Toronado and ran.
McDermott and his partner gave chase on foot and, after a three-
block chase, caught both Floyd and Adams. A search incident to
arrest revealed that Floyd possessed a credit card belonging to
Williams; and Adams held a large amount of cash. Several of
Williams' personal papers and a walkie-talkie were recovered from
the Toronado.
After speaking with Adams and Floyd, Detectives McDermott,
McMurray and other officers proceeded to 2029 W. Washburn in
Chicago, where McMurray noticed the gold Honda parked in front of
the house. McMurray entered, went up to the second floor of the
house, and observed defendant standing over Williams, attempting to
remove his cap. McMurray saw that Williams' hands were bound
together with masking tape and tape was wrapped around both his
neck and his eyes, holding the cap in place. Telling defendant and
Williams to lie on the floor, McMurray searched the room and
recovered a baseball bat, an iron, a cellular phone and a pager.
Shortly thereafter, McMurray searched the Honda, finding a walkie-
talkie and the paper bag containing newspaper.
Following the arrests of the occupants of 2029 W. Washburn,
Detective McDermott, on March 15, 1994, proceeded to 33 East 119th
Street in Chicago. There, after knocking on the door and stating,
"police," he heard running. Searching the building, McDermott
eventually discovered Darryl Banister, holding a loaded .25 caliber
automatic weapon, crouched in the darkened basement.
The prosecution also presented testimony from Cherry Page,
defendant's aunt and owner of the Oldsmobile Toronado, who stated
defendant had borrowed that vehicle on March 13, 1994. Prior to
resting, the prosecution introduced into evidence several
photographs depicting injuries to Williams' knees, hand and head.
Defendant then presented the testimony of Samantha Benamon,
who had been in Streeter's house on March 13, 1994. According to
Benamon, she had been awakened that morning by knocking, but did
not see who had entered the house. Sometime later, while she was
in the room she rented, she heard the police enter the house, yell
"freeze," and tell everyone to lie on the floor. On the floor,
Benamon was handcuffed to Williams, who neither complained nor
asked for police assistance. Although testifying that she had not
heard any unusual sounds that day, Benamon admitted that, on March
13, 1994, she told an officer that she had heard a disturbance or
fight on the second floor.
On his own behalf, defendant testified that he had not
kidnapped Williams, but instead had conspired with him and the
others to extort money from Williams' family. Defendant explained
that on March 12, 1994, in the late evening, he was drinking with
Adams, Banister, Johnson and Floyd. After traveling to several
different bars, defendant and Adams stopped at "The Godfather,"
where defendant met Williams for the first time. Joined shortly by
Banister, Floyd and Johnson, defendant and the others devised a
plan whereby they first drove to Williams house and left his car in
the garage. From there, they traveled to Streeter's house, where
they stayed in the basement for several hours, drinking and
watching television. To pay for food and alcohol, Williams gave
Johnson and Adams his money.
According to defendant, it was Williams' idea to ask his
family for the $40,000 ransom; sometime that evening, Williams
volunteered to telephone his cousin Adrian Bardo for that purpose.
After several calls making arrangements, defendant and the others,
without Williams, picked up the paper bag at the gas station.
Discovering that the bag contained no money, Johnson threw the bag
away and, with defendant, returned to Streeter's house, where
defendant spoke with Williams, trying to discover what had gone
wrong. It was then that the police arrived, ordered everyone to
lie down and handcuffed defendant.
According to defendant, at no time had Williams been tied up,
struck, burned, or restrained. He further stated that he gave a
false statement implicating himself and the others to "cover" for
Williams, expecting that Williams would do the same for him.
Attempting to impeach the testifying officers, defendant also
called Chicago Police Detective John Solecki, who testified that he
had prepared an 18-page report of the incident after speaking with
several witnesses and all the officers involved in the
investigation. Explaining that the report was a summary, he
admitted that the report failed to indicate that Detective McMurray
initially found defendant standing over the victim; rather, the
report reflected that both defendant and Williams were lying
facedown when police entered the second floor.
A jury found defendant guilty of two counts of aggravated
kidnapping, armed robbery, and aggravated battery. Denying
defendant's motion for a new trial, the circuit court entered
judgment on the findings and sentenced defendant to four concurrent
15-year sentences. Defendant appeals.
I
Defendant initially contends that the State failed to prove
the corpus delicti of each individual charge.
A conviction based upon a defendant's statement will be upheld
where evidence corroborating the statement is admitted.
Corroboration may be satisfied by proof of the corpus delicti.
People v. Willingham, 89 Ill. 2d 352, 359, 432 N.E.2d 861 (1982).
To prove the corpus delicti, the State must establish both injury
or loss and criminal agency. Willingham, 89 Ill. 2d at 359. The
State therefore must present evidence aliunde of a defendant's
confession that tends to show the commission of the offense and is
corroborative of the statement. People v. Furby, 138 Ill. 2d 434,
446, 563 N.E.2d 421 (1990). Once there is a showing of
corroboration, however, the confession may be utilized in
determining whether the corpus delicti has been proved. People v.
Howard, 147 Ill. 2d 103, 127, 588 N.E.2d 1044 (1991). The other
evidence, apart from the confession, need not prove the offense
beyond a reasonable doubt or even correspond to the confession in
every particular; rather, it need only tend to inspire belief in a
defendant's confession or statement. Furby, 138 Ill. 2d at 450-51.
Defendant's initial assertion that the State failed to present
any independent or corroborating evidence that the crime of
aggravated kidnapping occurred must be rejected where, as here, the
record reveals ample evidence, apart from the confession, that the
crime took place. The independent evidence established that
Williams' cousin entered the police station and, assisted by the
detectives, made several phone calls and proceeded to an Amoco gas
station with both a police radio and a "drop" bag. At the gas
station, defendant and his companion picked up the bag and drove
away. Shortly thereafter, Detective McMurray arrived at the house
on Washburn and observed defendant standing over Williams,
attempting to remove the cap that had been taped over Williams'
eyes. McMurray further noticed that Williams' hands were bound
together with the tape.
This evidence, coupled with the recovery of the walkie-
talkies, tends to prove, consistent with defendant's statement,
that defendant and his companions planned to rob Williams in his
garage, moved him to the house on Washburn, and kept him there,
bound and immobile, until the demanded ransom was paid. See People
v. Bounds, 171 Ill. 2d 1, 45-46, 662 N.E.2d 1168 (1995). Moreover,
the State's evidence apart from the defendant's statement need not
prove beyond a reasonable doubt that the offense occurred; rather,
the evidence need only tend to show that the crime occurred.
People v. Cloutier, 156 Ill. 2d 483, 503, 622 N.E.2d 774 (1993).
Likewise, it is unnecessary that the independent evidence disprove
every possibility, other than kidnapping, that might have explained
the circumstances of the ransom demand and Williams' confinement.
People v. Montes, 192 Ill. App. 3d 874, 881, 549 N.E.2d 700 (1989).
Here, the independent evidence, viewed in conjunction with
defendant's statement, detailing the kidnapping plan, proved the
corpus delicti of aggravated kidnapping.
II
In a similar vein, defendant asserts that the State failed to
prove the corpus delicti of armed robbery. Again, however, the
evidence independent of defendant's statement tends to show that an
armed robbery was committed. Evidence was adduced that both
Banister and Floyd possessed handguns; Banister, at the time of his
arrest, and Floyd, just prior to arrest. Moreover, when arrested,
Floyd was found in possession of a large amount of cash and Adams
had Williams' credit card. Also, the Toronado in which they were
riding contained several of Williams' personal papers. This
evidence, independent of defendant's confession, sufficiently
corroborated the confession as to the armed robbery. See People v.
Bell, 233 Ill. App. 3d 40, 49-50, 598 N.E.2d 256 (1992).
In combination, the independent evidence and defendant's
statement detailing how the men, using walkie-talkies to
communicate, followed Williams, waited at his garage, held him at
gunpoint, transported him to the house on Washburn, and took his
cash and property, established the corpus delicti of armed robbery.
III
Defendant next asserts that the corpus delicti of aggravated
battery was not proved, pointing to the lack of medical evidence
regarding Williams' injuries and their cause. Nevertheless, the
independent evidence, namely, the photographs depicting the
injuries to Williams' hand, head and knees, and the recovery of the
iron used to burn his hand, tends to show that an aggravated
battery occurred. The photographs depicting the injuries, coupled
with defendant's statement detailing how those injuries were
inflicted with the iron, established the corpus delicti of
aggravated battery.
IV
Defendant further contends that the State failed to prove him
guilty of aggravated battery beyond a reasonable doubt.
In the instant case, Williams was burned with an iron on his
hand, resulting in a painful and obvious injury. The jury heard
how Williams screamed when burned and also viewed the photographs
depicting Williams' injuries. Defendant's argument must fail
where, as here, the evidence, viewed in the light most favorable to
the State, permits a rational jury to conclude that Williams
suffered great bodily harm. See People v. Kitchen, 159 Ill. 2d 1,
636 N.E.2d 433 (1994).
V
Defendant next asserts that he was denied a fair trial when
the circuit court failed sua sponte to instruct the jury as to the
State's burden of proof and as to his presumption of innocence.
See Illinois Pattern Jury Instructions, Criminal, No. 2.03 (2d ed.
1981).
Generally, a party who desires a specific instruction must
offer it and request that the court tender it; the circuit court
has no obligation to instruct on its own motion. People v. Layhew,
139 Ill. 2d 476, 485-86, 564 N.E.2d 1232 (1990). Nevertheless, in
criminal cases, fundamental fairness concerns require a court to
see that the jury is instructed on the elements of the crime
charged, on the presumption of innocence and on the burden of
proof. Layhew, 139 Ill. 2d at 486. Although error, a circuit
court's failure to instruct as to burden of proof and presumption
of innocence does not automatically result in a finding that
defendant's constitutionally protected right to a fair trial has
been violated. Layhew, 139 Ill. 2d at 486. A reviewing court must
look to all the circumstances to determine whether defendant
received a fair trial, "including all the instructions to the jury,
the arguments of counsel, whether the weight of the evidence was
overwhelming, and other relevant factors." Layhew 139 Ill. 2d at
486, quoting Kentucky v. Whorton, 441 U.S. 786, 789, 60 L. Ed. 2d 640, 99 S. Ct. 2088 (1979).
In the case sub judice, the court did not tender, nor did
defendant offer, an instruction as to the State's burden of proof
or defendant's presumption of innocence. Notwithstanding this
fact, the jury was apprised fully of defendant's presumption of
innocence and the State's burden of proof; defendant, therefore,
was not denied his right to a fair trial. First, the circuit
court, addressing the venire as a whole, emphasized that the
complaint, although charging defendant with criminal acts, gave
rise to "no inference of guilt and should not be taken as any
inference of guilt against [defendant]." The court emphasized the
State's "burden of proving [defendant's] guilt during the trial
beyond a reasonable doubt, and the burden always stays" with the
State. On numerous other occasions before the venire, the court
reiterated that defendant was presumed innocent and need not
present any evidence. Likewise, the court, while questioning the
venire, continually referred to the State's burden of proof beyond
a reasonable doubt.
The potential impact resulting from the circuit court's
failure to instruct the jury was further mitigated by the State's
numerous references to its burden of proving defendant guilty of
each offense beyond a reasonable doubt. Referring to the elements
of the individual offenses, the State repeatedly argued that it had
proved each element, and thus defendant, guilty beyond a reasonable
doubt. Following the language of the soon-to-be tendered
instructions, the assistant state's attorney also emphasized that
the elements of each charge must be proved beyond a reasonable
doubt.
The jury was expressly informed in other written instructions
given by the court that defendant must be proved guilty beyond a
reasonable doubt. Each of the instructions defining the elements
of the charged offenses provided that "to sustain the charge ***
the State must prove" each of the elements "beyond a reasonable
doubt." The jury was sufficiently instructed as to the applicable
law in the present case.
VI
Defendant next contends that the circuit court abused its
discretion in sentencing him to a 15-year prison term.
Specifically, defendant maintains that his sentence was grossly
disparate from that of his codefendant, Darren Streeter.
Mere disparity between a sentence given to a defendant
convicted in a jury trial and another imposed upon a defendant who
pled guilty, without more, does not mandate a reduction in
sentence. People v. Banks, 241 Ill. App. 3d 966, 984, 609 N.E.2d 864 (1993). Nevertheless, a disparate sentence imposed upon a
codefendant is justified only by a more serious criminal record or
greater participation in the offense. People v. Milton, 182 Ill.
App. 3d 1082, 1093, 538 N.E.2d 1227 (1989).
In the instant case, defendant asserts that Streeter received
a 10-year sentence in exchange for his plea of guilty despite the
fact that he had three prior convictions. The record, however,
does not contain Streeter's criminal background, the charge to
which he pled guilty, his pre-sentence investigation report, or any
other relevant information to facilitate a comparison between
defendant and Streeter.
To prevail, defendant must demonstrate that he and the other
codefendant were similarly situated with respect to background,
prior criminal history, and potential for rehabilitation. People
v. Cooper, 239 Ill. App. 3d 336, 363, 606 N.E.2d 705 (1992). Where
a reviewing court is unaware of the factors upon which the
sentencing court of a codefendant relied, it cannot determine
whether or not the disparity is justified. Cooper, 239 Ill. App.
3d at 363. Defendant has not presented an adequate record to
facilitate comparison and his argument must therefore fail. See
Milton, 182 Ill. App. 3d at 1094.
VII
Defendant lastly argues, and the State concedes, that the
circuit court erred in entering judgment on both aggravated
kidnapping charges and in sentencing him to a 15-year sentence for
aggravated battery.
Initially, one of defendant's convictions for aggravated
kidnapping must be vacated; defendant committed one kidnapping and,
therefore, cannot be guilty of, and sentenced to, two counts. See
People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977); People v.
Owens, 109 Ill. App. 3d 1150, 441 N.E.2d 908 (1982). Although
defendant urges remandment for resentencing on the remaining
charge, it is unnecessary in this case because the record reflects
that the circuit court did not rely upon the second aggravated
kidnapping conviction in sentencing defendant; instead, the court
explicitly indicated that it was sentencing defendant on the Class
X aggravated kidnapping charge (Ill. Rev. Stat. 1989, ch. 38, par.
10-2(a)(1)). See People v. Burrage, 269 Ill. App. 3d 67, 80, 645 N.E.2d 455 (1994). Accordingly, the second charge of aggravated
kidnapping (Ill. Rev. Stat. 1989, ch. 38, par. 10-2(a)(3)) is
vacated.
Defendant's 15-year sentence for aggravated battery also must
be vacated as beyond the permissible range for a Class 3 felony.
See 720 ILCS 5/12-4(e) (West 1994); 730 ILCS 5/5-8-1(a)(6) (West
1994). Supreme Court Rule 615(b)(4) grants authority to reduce the
punishment imposed upon a defendant by the circuit court. 134 Ill.
2d R. 615(b)(4). Defendant's 15-year sentence is therefore reduced
to five years, to be served concurrently with his 15-year sentence
for aggravated kidnapping and armed robbery. See People v.
Muhammad, 257 Ill. App. 3d 359, 629 N.E.2d 106 (1993).
For the foregoing reasons, defendant's convictions for
aggravated battery, armed robbery and one count of aggravated
kidnapping are affirmed; his second conviction for aggravated
kidnapping is vacated; and his sentence for aggravated battery is
reduced to five years.
Affirmed in part and vacated in part.
THEIS and HOURIHANE, JJ., concur.