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SIXTH DIVISION
June 24, 2005

No. 1-03-2551

PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:

A jury found defendant Corey Baugh guilty of first degree murder, four counts of home invasion, and attempted armed robbery. He was sentenced to consecutive 35- and 15-year prison terms for murder and home invasion, and a 10-year term for attempted armed robbery, to run concurrently to the home invasion term. Defendant contends on appeal that: (1) his home invasion conviction must be vacated because (a) he cannot be accountable for home invasion based on an entry into his own home, (b) home invasion was a lesser-included offense of felony murder, and (c) his conviction of four counts of home invasion may not rest upon a single entry into the home; (2) the trial court erroneously found him fit to stand trial despite expert opinions regarding his narcolepsy; (3) the State's evidence failed to prove his guilt; and (4) he was denied a fair trial by the State's cross-examination of defendant and closing arguments. We agree that defendant's separate conviction of home invasion must be vacated because it was the predicate felony of felony murder. We remand the cause for resentencing on the murder and attempted armed robbery counts but otherwise affirm the judgment of the trial court.

BACKGROUND

On October 24, 2001, two unidentified gunmen entered the home at 233 North Lavergne Avenue in Chicago, attempted to rob the occupants, and shot and killed Kenneth Jones, defendant's brother. Thereafter, defendant was arrested and charged with 12 counts of first degree murder, four counts of home invasion, and one count of attempted armed robbery.

Fitness Hearing

After defendant's case was set for trial, the defense raised the issue of defendant's fitness to stand trial based on his self-reported condition of narcolepsy. Specifically, in July 2002, defense counsel informed the court that defendant wanted a continuance, and defendant himself addressed the court and explained counsel did not interview two important witnesses in his case. Counsel explained why he and defendant disagreed regarding the importance of the two witnesses. Then, counsel added that he also requested a continuance due to defendant's narcolepsy, explaining that "[e]very time I talk to him he seems to nod his eyes, put his head forward. Sometimes it's hard for me to communicate with him." When the court remarked that defendant seemed perfectly lucid and able to communicate in front of the court, counsel responded that the narcolepsy manifested itself at different times and did not happen all the time. When counsel informed the court that defendant was discharged from the Navy as a result of narcolepsy, defendant corrected counsel, stating that he was discharged from the Army. The trial court ordered a fitness evaluation of defendant.

Three clinical interviews were performed on defendant. In her August 2002 report, psychiatrist Dawna Gutzmann opined that defendant was currently unfit to stand trial. She stated that defendant understood the charges against him and the nature of the courtroom proceedings, but suffered from an untreated sleep disorder that caused him to suddenly and unpredictably fall into a deep sleep several times a day. Dr. Gutzmann opined that defendant's disorder impaired him such that he was unable to assist his counsel in his defense. Dr. Gutzmann stated that defendant was not subject to involuntary admission but could be restored to fitness if he received appropriate treatment. In his October 2002 report, psychiatrist Fidel Echevarria essentially concurred with Dr. Gutzmann's earlier opinion, noted his concern that defendant was not currently receiving medication, and opined that the untreated illness had the "potential" to impair defendant's ability to assist his counsel.

In her February 2003 report, Dr. Gutzmann issued another opinion that was consistent with her earlier opinion. Dr. Gutzmann noted that defendant complained of feeling depressed and reported that he fell asleep suddenly three or more times each day and experienced occasional cataplexy (brief episodes of sudden bilateral loss of muscle tone, most often associated with intense emotion) and sleep paralysis (a situation where an individual awakens from sleep and is alert but unable to move his body). Dr. Gutzmann noted that defendant was appropriately groomed and cooperative and maintained appropriate eye contact throughout the interview. Moreover, defendant's speech, motor abilities and mood were normal. He denied any paranoid ideation and hallucinations. His thought processes were coherent and goal directed, and his memory, concentration, reasoning, judgment, insight and impulse control were intact.

At the April 2003 fitness hearing, Dr. Gutzmann testified consistently with her written reports. She testified that defendant reported he could recall and describe the circumstances surrounding the charges against him. Dr. Gutzmann also testified that defendant said he, at times, would fall asleep while standing and lose all muscle tone and fall. Defendant, however, never identified any obstacles--including the narcolepsy-that would impede his ability to assist his attorney in his defense. Defendant told Dr. Gutzmann he would inform his attorney if he became confused about the courtroom proceedings. Dr. Gutzmann added that, during her August 30-minute and February 10-minute interviews with defendant, she never observed any symptoms of cataplexy and defendant did not fall asleep in her presence or appear to nod off. Only defendant's lawyers reported witnessing defendant fall asleep involuntarily. Dr. Gutzmann explained that emotional distress would not make defendant more likely to fall asleep; narcolepsy involved involuntary episodes of sleep and did not appear to be triggered by anything. Moreover, defendant's 1993 hospital medical records indicated that he was not compliant with taking his medication.

Dr. Gutzmann explained that her opinion in her reports that defendant suffered from narcolepsy was based upon his self-reporting, but her opinion at trial was also based upon her review of a 1993 hospital sleep study that confirmed the diagnosis of narcolepsy. Further, she testified that prescription medication could restore defendant to fitness within one to three months.

The trial court accepted the diagnosis of narcolepsy but ruled that there was no credible basis to conclude that narcolepsy impaired defendant to the extent that he was unable to assist counsel in his defense. Specifically, the trial court noted that defendant was present for numerous pretrial court proceedings and always appeared awake, alert and able to comprehend what was gong on. The court took judicial notice that defendant sat at the table with his counsel for 40 minutes during the fitness hearing and there was no indication that defendant ever fell asleep or became confused. Then, at the defense's request, the court signed an order referring defendant to medical services for a medication evaluation, stating: "I don't have a problem with that. If that makes you feel more comfortable in proceeding to trial that's fine."

Trial

At the trial in June 2003, the State presented evidence that in October 2001 defendant ran a sizeable drug business from the house at 223 North Lavergne. It was a well-known drug house, and defendant made about $1,000 a day selling cocaine to 100 people at that location. Defendant stayed at the drug house with his brother Kenneth Jones, his sister Sandra Jones, and his nephew Jeff Jones. Jeff operated a separate drug business out of the same house in competition with defendant.

Robert Hinman testified that he bought drugs from defendant at the drug house for at least six months. On the morning of October 23, 2001, Hinman was at the Erie Street apartment of defendant's mother with defendant and his cousin. About 3 or 4 p.m., defendant made a telephone call and told someone that Jeff was getting too pumped up over on Lavergne and to send somebody over there to take his money and his drugs. After someone delivered drugs to the apartment, Hinman drove defendant to the Lavergne drug house to sell his "stuff." Then, Hinman ran several errands for defendant. At the drug house, Nathaniel Borden sold drugs for defendant, and Kenneth and Sandra usually worked for Jeff.

The house had no electricity and was illuminated by candles. During the early morning hours of October 24, defendant was alone in a back bedroom, and Jeff and his girlfriend were upstairs. Hinman, Kenneth, Borden, and others were sitting in the front of the house, and someone knocked on the door. Hinman was not paying attention, but suddenly two gunmen entered--one had a mask--and told everyone to get on the floor. The gunmen asked where Jeff was, and Sandra reluctantly told them. Then, someone began to beat loudly on the front door, and Kenneth asked the gunmen if he could answer the door. Kenneth answered the door and ran out of the house, and the gunmen ignored him. The masked gunman guarded the group on the floor while the other gunman went to get Jeff. Outside the house, however, Kenneth yelled and threw rocks at Jeff's window to warn him. Both gunmen ran outside, and Hinman heard four gunshots fired. The group thought Kenneth escaped but became concerned when he did not return to the house. Eventually, members of the group went to look for Kenneth and found him dead in the street about half a block away. Then, Hinman called the police. When the police questioned Hinman, he reported the overheard telephone conversation wherein defendant told someone to take Jeff's money and drugs.

Hinman stated that he was an electrician, lived in the suburbs with his mother and used cocaine when he was "playing" but not when he was working. He characterized himself as an "on and off" addict and would visit defendant, hang out and buy drugs from defendant and Jeff. Hinman "probably" smoked crack cocaine at the drug house throughout the day at the time of the incident. Hinman had five felony convictions and was currently incarcerated after pleading guilty to aggravated battery.

Terry Harper lived three houses away from the drug house and knew defendant for over four years. When Harper returned home from work after 11 p.m. on October 23, he saw defendant and Borden sitting on the drug house porch. Defendant came to Harper's house to use the telephone, and Borden used Harper's washroom. Defendant made a 30-second phone call, hung up, told Harper that "they are on their way," and left. Later, Harper went to the drug house, found defendant sleeping in a bedroom, woke him up and asked to have some cocaine on credit. Once Harper received the drugs, he prepared to leave the house, but Sandra answered a knock at the door. Someone pushed Borden back into the house, and two gunmen entered, told everyone to get down on the floor, and asked for defendant and Jeff. Harper testified generally consistently with Hinman's account of the invasion and attempted robbery, adding that one of the gunmen threatened Sandra when she failed to bring a candle and search for Jeff upstairs. When one gunman chased Kenneth out the front door, Harper ran home. Harper stated that at the time of the incident he was addicted to cocaine and basically used it when he was not working. Harper asserted that he was no longer an addict and used cocaine about twice a week.

Sandra Jones testified generally consistently with Hinman and Harper regarding the home invasion and attempted robbery. However, the defense presented the stipulated testimony that Chicago police detective Bella interviewed the witnesses at the scene and noted that Sandra had not witnessed anything and was asleep at the time of the attempted armed robbery.

Nathaniel Borden testified generally consistently with Hinman and Harper regarding the home invasion and attempted robbery. In addition, Borden testified that Hinman and Harper were regular customers and frequent drug users. Borden explained that when he stepped outside the drug house to go home, a man approached him and said he wanted to buy some drugs. Then, the man grabbed the drugs from Borden's hand and pulled out a gun. Another man approached and also pulled out a gun. The men walked Borden back to the house with guns at his back. Either Kenneth or Sandra answered the door, and the men pushed their way into the house behind Borden and ordered everyone on the floor. When Sandra refused to go upstairs and get Jeff, one gunman threatened to shoot her in the head.

Chicago police detective Derrick Johnson was assigned to investigate the murder of Kenneth Jones. He acknowledged that drug dealers sometimes tried to implicate another drug dealer in a criminal case to get rid of competition. On October 25, 2001, Detective Johnson brought Jeff Jones, Borden and Hinman to the police station for questioning. Thereafter, Detective Johnson took defendant into custody about 1 a.m. on October 26. Defendant indicated that he was tired, so Detective Johnson let him sleep until 7 a.m. Defendant indicated that he understood the Miranda warnings, agreed to waive them, and said he did not know anything about the murder. Defendant was then transported to another location where a lie detector test was administered. After defendant returned to the station, Detective Johnson again advised him of the Miranda warnings about 4 p.m., and defendant said he wanted to tell the truth.

Detective Johnson testified that defendant said he called his friend Boone and instructed him to rob Jeff at the drug house because Jeff had become too powerful as a competitor and defendant wanted to bring him down. After Kenneth's murder, defendant met up with Boone, who said the robbery went bad. Boone explained that he was across the street during the robbery and the two gunmen shot Kenneth because they thought he had a gun. Defendant gave the same statement to Assistant State's Attorney (ASA) Andrew Weissberg. Detective Johnson did not recall defendant ever being alone with ASA Weissberg.

ASA Weissberg testified generally consistently with Detective Johnson regarding defendant's statement. However, ASA Weissberg stated that Detective Johnson left the room a couple of times during the interview. Moreover, defendant confirmed that he was never improperly treated by the police and was supplied with food. Defendant did not fall asleep during any time he was in the presence of Detective Johnson or ASA Weissberg.

Defendant testified that he was medically discharged from the Army due to his narcolepsy. He denied ever calling up Boone to set up Jeff's robbery and asserted that he made a phone call to his sister in Hinman's presence while he was at his mother's apartment. Moreover, at Harper's house later that evening, he attempted to telephone his mother but thought it was too late and hung up the phone before the call went through. Defendant made the incriminating statements after being held in custody for 1