{ "id": 349633, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK A. DAMICO, Defendant-Appellant", "name_abbreviation": "People v. Damico", "decision_date": "1999-11-24", "docket_number": "No. 2\u201498\u20140333", "first_page": "203", "last_page": "220", "citations": [ { "type": "official", "cite": "309 Ill. App. 3d 203" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "186 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243853 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "11-12", "parenthetical": "modified upon denial of rehearing" }, { "page": "14-15" }, { "page": "16-18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0001-01" ] }, { "cite": "183 Ill. 2d 425", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209985 ], "year": 1998, "pin_cites": [ { "page": "431-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0425-01" ] }, { "cite": "136 Ill. App. 3d 878", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564379 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "880" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/0878-01" ] }, { "cite": "163 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477642 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "107" }, { "page": "107" }, { "page": "107" }, { "page": "107" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0093-01" ] }, { "cite": "204 Ill. App. 3d 686", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2575051 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0686-01" ] }, { "cite": "169 Ill. 2d 183", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909165 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "187" }, { "page": "185" }, { "page": "187-88" }, { "page": "188-89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0183-01" ] }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "53 Ill. 2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2926044 ], "year": 1972, "pin_cites": [ { "page": "240", "parenthetical": "torn photograph found in the deceased's bedroom should have been excluded where its relevance depended upon unproved assumptions - that it had been torn recently and deliberately and by the deceased" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0228-01" ] }, { "cite": "284 Ill. App. 3d 597", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260372 ], "year": 1996, "pin_cites": [ { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0597-01" ] }, { "cite": "165 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483560 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "341" }, { "page": "341" }, { "page": "341-42" }, { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0305-01" ] }, { "cite": "198 Ill. App. 3d 748", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2474125 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "754" }, { "page": "753" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0748-01" ] }, { "cite": "98 L. Ed. 2d 798", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 602206, 11300959 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "814" }, { "page": "814" }, { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/us/484/0400-01", "/us/347/0396-01" ] }, { "cite": "484 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 602206 ], "weight": 6, "year": 1988, "pin_cites": [ { "page": "414" }, { "page": "655" }, { "page": "415" }, { "page": "655-56" }, { "page": "416-17" }, { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/us/484/0400-01" ] }, { "cite": "257 Ill. App. 3d 405", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2891173 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "414" }, { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/257/0405-01" ] }, { "cite": "207 Ill. App. 3d 923", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2555549 ], "weight": 7, "year": 1991, "pin_cites": [ { "page": "933" }, { "page": "933" }, { "page": "933" }, { "page": "933" }, { "page": "933" }, { "page": "933-34" }, { "page": "934" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0923-01" ] }, { "cite": "262 Ill. App. 3d 781", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850460 ], "year": 1994, "pin_cites": [ { "page": "788" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0781-01" ] }, { "cite": "253 Ill. App. 3d 948", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5421209 ], "year": 1993, "pin_cites": [ { "page": "953" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0948-01" ] }, { "cite": "262 Ill. App. 3d 796", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850630 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "803" }, { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0796-01" ] }, { "cite": "420 U.S. 162", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11643095 ], "weight": 6, "year": 1975, "pin_cites": [ { "page": "180" }, { "page": "118" }, { "page": "908" }, { "page": "180" }, { "page": "118" }, { "page": "908" } ], "opinion_index": 0, "case_paths": [ "/us/420/0162-01" ] }, { "cite": "143 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592134 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "518" }, { "page": "518" }, { "page": "519" }, { "page": "519-20" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0501-01" ] }, { "cite": "174 Ill. 2d 379", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223619 ], "year": 1996, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0379-01" ] }, { "cite": "162 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477551 ], "year": 1994, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0450-01" ] }, { "cite": "178 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385528 ], "year": 1997, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0065-01" ] } ], "analysis": { "cardinality": 1446, "char_count": 39877, "ocr_confidence": 0.755, "pagerank": { "raw": 1.3261869568574846e-07, "percentile": 0.6278232823612496 }, "sha256": "1381d1ecf7f43458d4cfa67158de453f0916d39d3186a5b342243338f95301ec", "simhash": "1:9a23fb8a764a0db5", "word_count": 6626 }, "last_updated": "2023-07-14T20:36:09.526568+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK A. DAMICO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GALASSO\ndelivered the opinion of the court:\nFollowing a jury trial, the defendant, Frederick Damico, was found guilty of the offenses of aggravated battery (720 ILCS 5/12 \u2014 4(a) (West 1996)), for which he was sentenced to 5 years in the Department of Corrections; home invasion (720 ILCS 5/12 \u2014 11 (West 1996)), for which he was sentenced to serve 30 years in the Department of Corrections; and aggravated arson (720 ILCS 5/20 \u2014 1.1. (West 1996)) for which he was sentenced to serve 25 years in the Department of Corrections. The sentences imposed on the defendant for aggravated battery and home invasion were ordered to be served consecutively. The defendant appeals.\nOn appeal, the defendant raises the following issues: (1) whether the trial court erred in refusing to conduct a pretrial fitness hearing; (2) whether the trial court erred in excluding testimony of a codefendant\u2019s statement as a sanction for the defendant\u2019s failure to comply with discovery; (3) whether the trial court erred in limiting the defendant\u2019s presentation of evidence that a person other than the defendant may have committed the crimes charged; (4) whether the entry of judgment and sentence on the aggravated battery charge violates the one-act-one-crime rule; and (5) whether the sentencing order must be modified to include day-for-day good conduct credit.\nGiven the nature of the issues raised, we need not set forth the trial testimony at length. According to the testimony at trial, Scott Worley, the victim, identified the defendant as the man who attacked him in the early morning hours of February 18, 1997, inflicting serious injuries on him. The victim identified the defendant as his attacker, although he did not know the defendant prior to the attack. A fire was also started in the victim\u2019s house. Several witnesses testified that the defendant had been recruited to retaliate against the victim for an alleged theft by the victim of a cell phone and a radar detector. According to Shawn Hille\u2019s testimony, he accompanied the defendant to the victim\u2019s home. He observed the defendant kick in the front door and turn on a flashlight. Hille did not go inside the house but saw the flashlight moving around. He heard the defendant say \u201cWhat\u2019s up now, m-----f- \u2014 ?\u201d Hille then heard some sounds of wrestling around and sounds as if someone were beating someone.. He then heard a sound like a skull crack. Jason Canas, another witness, testified that he was present when the defendant struck the victim on the head with an ax, four or five times. Halle\u2019s and Canas\u2019s testimony also indicated that the defendant was responsible for setting fire to the victim\u2019s house. Both Hille and Canas had been charged in connection with the attack on the victim. Hille testified without an agreement with the State. Canas agreed to testify truthfully about the incident in exchange for not receiving any jail or prison time for his participation in these offenses.\nThe defendant presented an alibi defense through the testimony of Dolly Stewart and Anastasia Smith (Stacy), his former girlfriend. None of the tests on the physical evidence recovered in this case connected the defendant to the offenses in this case, nor was the weapon used in this case ever recovered. The defendant did not testify.\nAny additional necessary facts will be set forth in connection with the issue to which they pertain.\nThe defendant contends, first, that the trial court erred in refusing to conduct a hearing to determine if the defendant was fit to stand trial on these charges. The defendant does not argue that he was unfit to stand trial but, rather, that the facts and circumstances surrounding his psychological health prior to the start of the trial, compounded by his recent use of Luvox, a medication, raised a bona fide doubt as to his fitness. As a result, the trial court was required to hold a fitness hearing.\nPrior to trial on the charges in this case, the defendant was arrested on unrelated charges. On October 16, 1997, after a preliminary hearing on the unrelated charges, the defendant was held in direct criminal contempt of court following an outburst in which he accused the trial judge and the prosecutor of conspiring to keep him incarcerated. At a pretrial status hearing held on October 24, 1997, in connection with the offenses in the present case, the defendant apologized for his \u201crude\u201d behavior. He stated to the trial judge that he had had a great deal of stress as of late and that he had just been placed on medication for his behavior. The defendant further stated that he felt he needed more time on the medication as he had only been on it for a few days and that the medication was \u201cdragging [him] down.\u201d He was not sure he wished to continue with his present counsel. Defense counsel explained to the trial judge that the defendant was taking Lu-vox, which had recently been approved for use in the United States and which was used to treat obsessive compulsive disorder. The trial judge advised defense counsel that, if he felt that the defendant was not able to cooperate or assist in his own defense, defense counsel should file the appropriate motion. The trial court then stated as follows:\n\u201cWell, there is nothing this court observes. Mr. Damico is much calmer day [sic], but I didn\u2019t find probable cause and yank his bond today, so I can understand him being a'little more aggravated last week when I found probable cause against him and threw him into custody. So it is a different setting. He is quiet, subdued, and his affect is appropriate for the occasion.\u201d\nThe trial in this case commenced on October 27, 1997. Prior to the start of the trial, defense counsel filed a petition to have the defendant examined to determine if he was fit to stand trial. The petition alleged that on October 21, 1997, the defendant was diagnosed by Dr. Modir of the Jane Addams Mental Health Facility as suffering from obsessive compulsive syndrome, for which he was prescribed the drug Luvox. The petition further alleged that the medication had altered the defendant\u2019s demeanor, causing him to be drowsy and affecting his recall and that, as a result, a bona fide doubt existed as to the defendant\u2019s fitness to stand trial. The petition further alleged that, based upon defense counsel\u2019s observations of the defendant\u2019s lack of ability to recollect and recall occurrences relating to the charges pending against him and observations as to his behavior, the defendant was not able to meaningfully assist in his defense.\nThe trial judge noted that Luvox did not appear to be a psychotropic drug, but a drug for the treatment of depression. None of the listed side effects appeared to relate to any cognitive impairment. Wdien the trial court asked for other symptoms indicating that the defendant was unfit to stand trial, defense counsel stated as follows:\n\u201cWell, I believe that the most significant indication was as I attempted to prepare for today\u2019s beginning of the trial and discussing his case with him, with the defendant, he was unable often to provide me with information or new information or confirmation of facts that he had provided with me [sic] on previous occasions. He was unable to follow certain lines of thought as we attempted to put together defenses. That would be my main concern. That at the present time I don\u2019t feel that he is able to help me, assist me as we go through the trial, as witnesses are called, as testimony and as evidence is presented under his present condition which the court noticed Friday, I believe and it appears the same to day [sic], he is at times inaudible in his speech, and often times seems to be off in space somewhere. That would be my biggest problem is that I don\u2019t believe at this point he is able to assist me as the trial proceeds.\u201d\nAfter discussing the dosage of the medication being administered to the defendant, defense counsel concluded as follows:\n\u201cCertainly the demeanor of the defendant has changed considerably. The combativeness that was present in a court hearing at which I wasn\u2019t in attendance but what is on the record in which this court held the defendant in contempt certainly is not present. Now, in some cases I guess that would be good. However, in this case it appears to me that there is a lack of interest or inability to concentrate on the issues at hand, and that is basically why I filed the petition.\u201d\nDefense counsel offered to produce a witness, who was familiar with the defendant, to testify.\nThe trial court denied the petition. The court noted that the obsessive compulsive disorder diagnosis did not, in and of itself, indicate that the defendant could not cooperate with defense counsel or was not otherwise fit to stand trial. The court also noted that the defendant had been examined by a psychiatrist a week prior to trial but nothing else requiring treatment was found. Finally, the court noted that lapses of memory could be a product of a variety of things, e.g., if the defendant had made up stories originally to give to defense counsel, he might have trouble remembering them.\nIn Illinois, a defendant is presumed fit to stand trial and will be considered unfit only if, because of the defendant\u2019s mental or physical condition, the defendant is unable to understand the nature and purpose of the proceedings against him or her or to assist in his or her defense. People v. Griffin, 178 Ill. 2d 65, 79 (1997). Because of the fundamental constitutional nature of the fitness requirement, once facts are brought to the attention of the trial court, either from observation of the defendant or the suggestion of counsel, that raise a bona fide doubt of the defendant\u2019s fitness to stand trial, the trial court has a duty to hold a fitness hearing. People v. Brandon, 162 Ill. 2d 450, 456 (1994); see 725 ILCS 5/104 \u2014 11(a) (West 1996). Whether a bona fide doubt as to a defendant\u2019s fitness has arisen is generally a matter within the discretion of the trial court. People v. Sandham, 174 Ill. 2d 379, 382 (1996).\nRelevant factors that a trial court may consider in assessing whether a bona fide doubt of fitness exists include a defendant\u2019s \u201c \u2018irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial.\u2019 \u201d People v. Eddmonds, 143 Ill. 2d 501, 518 (1991), quoting Drope v. Missouri, 420 U.S. 162, 180, 43 L. Ed. 2d 103, 118, 95 S. Ct. 896, 908 (1975). It is undisputed, however, that there are \u201c \u2018no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.\u2019 \u201d Eddmonds, 143 Ill. 2d at 518, quoting Drope, 420 U.S. at 180, 43 L. Ed. 2d at 118, 95 S. Ct. at 908. Some doubt of a defendant\u2019s fitness is not enough. People v. Walker, 262 Ill. App. 3d 796, 803 (1994).\nIn addition to the allegations contained in the pretrial petition for a fitness hearing, the defendant points to the information concerning his mental and emotional health contained in his presentence report. According to the defendant, he has been in and out of psychiatric institutions since he was a child. At age 13, he was hospitalized for suicide attempts, depression, and family problems for a period of about four months. Later he spent time in Wilson Center, a place for troubled youths located in Minnesota. He was hospitalized in Chicago for the same problems in 1988. The file notes from Dr. Modir, who saw the defendant just prior to the trial in this case, indicated that the defendant could be suffering from posttraumatic stress syndrome, multiple substance abuse, and intermittent explosive disorder and could have a borderline personality disorder. Luvox was prescribed due to the defendant\u2019s nightmares and to help him with stress during the day.\nThe defendant points out that, according to the Physicians\u2019 Desk Reference, Luvox is a psychotropic medication. See Physicians\u2019 Desk Reference 2891-94 (1998 ed.) (hereinafter PDR). He concedes that he is not entitled to a presumption of unfitness solely by virtue of his use o,f psychotropic medication. See 725 ILCS 5/104 \u2014 21(a) (West 1996). However, he argues that, given his history of depression, the dose of Luvox (100 milligrams per day although the recommended beginning dosage is 50 milligrams per day) he was taking may have caused side effects that harmed his ability to assist in his defense.\nA defendant may be competent to participate at trial even though his mind is otherwise unsound. Eddmonds, 143 Ill. 2d at 519. Fitness speaks only to a person\u2019s ability to function within the context of a trial; it does not refer to competence in other areas. Eddmonds, 143 Ill. 2d at 519-20. No single factor in itself raises a bona fide doubt of a defendant\u2019s fitness to stand trial; the fact that a defendant suffers a mental disturbance or requires psychiatric treatment does not necessarily raise a bona fide doubt. Walker, 262 Ill. App. 3d at 803. Even evidence of extreme disruptive behavior and a sociopathic personality does not compel the conclusion that a bona fide doubt exists as to a defendant\u2019s fitness to stand trial. People v. Smith, 253 Ill. App. 3d 948, 953 (1993).\nThe defendant argues that an evaluation of the medication and its possible side effects should have been presented to the trial court. He points out that, according to the PDR, premarketing studies of Luvox involving primarily depressed patients showed that approximately 1% developed hypomania or mania and that the medication could produce impaired cognitive and motor performance. However, a review of the PDR indicates that the warning to patients necessitated by such potential impairment concerns the operation of heavy machinery, including automobiles, as opposed to normal thought processes. See PDR at 2892.\nAt the time the petition for fitness was presented, the trial court and defense counsel discussed the potential side effects of Luvox, which included nausea, drowsiness, general weakness, headache, dry-mouth, insomnia, and dizziness. Other than his comment at an earlier proceeding that the medication was dragging him down, there was no indication that the defendant was suffering from these side effects or that they were preventing him from cooperating with defense counsel.\nMoreover, as the trial court noted, the defendant was examined by Dr. Modir shortly before trial in this case. It was Dr. Modir who prescribed Luvox for the defendant. While the doctor\u2019s notes reflect' that the defendant had certain mental problems, there was nothing in the notes that indicated that Dr. Modir questioned the defendant\u2019s fitness to stand trial or that the medication he prescribed for the defendant would interfere with his fitness to stand trial.\nBased upon the record in this case, we conclude that the trial court did not abuse its discretion in determining that the defendant did not raise a bona fide doubt as to his fitness to stand trial and, therefore, no fitness hearing was required.\nNext, the defendant contends that the trial judge erred when he struck evidence of a codefendant\u2019s confession as a sanction for a discovery violation.\nDolly Stewart, who was 16 years of age at the time of the offenses in this case, testified that she lived with the defendant and Stacy, the defendant\u2019s girlfriend, at their apartment. On the night of February 17, 1997, the defendant, Stacy, and she were at the apartment celebrating the defendant and Stacy\u2019s two-year anniversary. According to Dolly, the defendant was present in the apartment all evening except for around 3 a.m., when he left the apartment for around 10 minutes.\nDolly further testified that on either August 30 or 31, 1997, she was at a gas station with a group of people that included Shawn Hille. At that time she had a conversation with Hille in which he told\" her that he had \u201caxed\u201d the victim \u201cand that he was going to have to do it to [the defendant] too.\u201d On cross-examination, Dolly testified that she did not tell the police about what Hille had said and had only the previous Sunday told defense counsel about the statement. She also testified that defense counsel took notes of her statement.\nIn his own testimony in this case, Shawn Hille denied telling anyone he had \u201caxed\u201d the victim.\nOutside the presence of the jury, the prosecutor advised the trial court that he had not been furnished with a copy of defense counsel\u2019s summary of Dolly\u2019s statement and requested that her testimony as to Hille\u2019s stating that he had \u201caxed\u201d the victim be stricken. Defense counsel argued that Dolly had been on the list of witnesses furnished to the State but that neither the State nor the police had ever chosen to interview her. As an alternative to striking her testimony, defense counsel suggested that the prosecutor be allowed the opportunity to interview Dolly. The trial court acknowledged that the State should have interviewed Dolly prior to trial but concluded that, since Dolly had already testified, a delay of the proceedings was not appropriate. The trial court concluded that the exclusion of the testimony was required by the supreme court rules regarding discovery disclosures. The trial court then instructed the jury that they were to disregard Dolly\u2019s testimony that Hille had told her that he had \u201caxed\u201d the victim.\nSupreme Court Rule 413(d) provides in pertinent part as follows:\n\u201cSubject to constitutional limitations and within a reasonable time after the filing of a written motion by the State, defense counsel *** shall furnish the State with the following material and information within his possession or control:\n(i) the names and last known addresses of persons he intends to call as witnesses, together with their relevant written or recorded statements, including memoranda reporting or summarizing their oral statements ***.\u201d 134 Ill. 2d R. 413(d).\nUpon learning of a party\u2019s failure to comply with an applicable discovery rule, the circuit court \u201c \u2018may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such order as it deems just under the circumstances.\u2019 \u201d People v. Johnson, 262 Ill. App. 3d 781, 788 (1994), quoting 134 Ill. 2d R. 415(g)(i). The correct sanction to be applied is left to the trial court\u2019s discretion, and the trial court\u2019s judgment is given great weight. People v. Levin, 207 Ill. App. 3d 923, 933 (1991). Sanctions imposed for discovery violations should be fashioned to meet the circumstances of the particular case with the ultimate objective of compelling compliance, not punishing a party for the oversight or the errors of his attorney. Levin, 207 Ill. App. 3d at 933. In Illinois, the sanction of preclusion is limited to only the most extreme cases of discovery violations. Levin, 207 Ill. App. 3d at 933. When the exclusion of evidence is employed by the trial court, that decision will be closely scrutinized on appeal. People v. White, 257 Ill. App. 3d 405, 414 (1993). The exclusion of evidence must not encroach upon the defendant\u2019s right to a fair trial. White, 257 Ill. App. 3d at 414.\nThough a trial court may impose sanctions for the failure to comply with discovery rules, courts cannot ignore the fundamental character of a defendant\u2019s right under the compulsory process clause of the sixth amendment (U.S. Const., amend. VI) to offer testimony of witnesses in his favor. Levin, 207 Ill. App. 3d at 933; Taylor v. Illinois, 484 U.S. 400, 414, 98 L. Ed. 2d 798, 814, 108 S. Ct. 646, 655 (1988). Where a party\u2019s explanation for its failure to disclose a witness (or as in this case a witness\u2019s statement) reveals that the omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the compulsory process clause to exclude the witness\u2019s testimony. Levin, 207 Ill. App. 3d at 933; Taylor, 484 U.S. at 415, 98 L. Ed. 2d at 814, 108 S. Ct. at 655-56. Regardless of whether the discovery violation caused prejudice to the prosecution, willful and blatant violations merit the most severe sanctions. Levin, 207 Ill. App. 3d at 933-34; Taylor, 484 U.S. at 416-17, 98 L. Ed. 2d at 815, 108 S. Ct. at 656.\nIn this case, defense counsel offered no explanation for his failure to turn over his summary of Dolly\u2019s statement. However, as Dolly herself confirmed, she first told defense counsel of Hille\u2019s statement only a few days before the defendant\u2019s trial commenced. Dolly was listed as a defense witness, yet the State never chose to interview her prior to trial. See People v. Shriner, 198 Ill. App. 3d 748, 754 (1990). The trial court placed emphasis on the fact that, as Dolly had already testified, a delay would not cure the failure to disclose the statement. However, the prosecutor did not object to her testimony as to Hille\u2019s statement on any basis other than the failure to disclose it; had the statement been disclosed prior to trial, the prosecutor would have been prepared to cross-examine her on it. Granting a delay for the prosecutor to question Dolly would have permitted the prosecutor to prepare to cross-examine her about the circumstances of Hille\u2019s statement to her. Moreover, Shawn Hille, the State\u2019s own witness, had already testified and denied making any such statement to anyone.\nThe trial court here made no finding that the defense counsel willfully or blatantly failed to turn over the summary of Dolly\u2019s statement to the State. There is no evidence that defense counsel withheld Dolly\u2019s statement intentionally to gain some tactical advantage or to disrupt the proceedings. People v. Shriner, 198 Ill. App. 3d 748, 753 (1990). While we agree with the trial court that the supreme court rules are not merely suggestions but are in fact rules to be followed, under the circumstances in this case, including the fact that Dolly was listed as a witness in the case but the State chose not to interview her and that Hille testified that he did not make such a statement to anyone, we conclude that the trial court abused its discretion in excluding Dolly\u2019s testimony as to Hille\u2019s statement to her, rather than imposing a lesser sanction on the defendant that would have cured any prejudice to the State.\nWe now must determine if the error was harmless. The error here involves the defendant\u2019s federal constitutional right to present witnesses on his behalf, and before a federal constitutional error can be held harmless, a reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendant\u2019s conviction. Levin, 207 Ill. App. 3d at 934. In order to find the error harmless, we must find beyond a reasonable doubt that the jury\u2019s verdict would not have been different had the jury been allowed to consider Dolly\u2019s testimony that Hille told her he had \u201caxed\u201d the victim.\nThe issue is one of credibility. In finding the defendant guilty of the offenses in this case, the jury chose not to believe Dolly\u2019s alibi testimony on the defendant\u2019s behalf. There is no reasonable basis for assuming that the jury, having rejected her alibi testimony would, however, choose to believe her testimony that Hille, rather than the defendant, attacked the victim. Even if it could be argued that Dolly\u2019s credibility had been damaged in the eyes of the jury because the trial court struck the portion of her testimony relating to Hille\u2019s statement, Stacy Smith provided the same alibi for the defendant in her testimony.\nMoreover, the victim in this case identified the defendant as his attacker, and the defendant does not argue that his identification was flawed in any way. In addition to the testimony of Hille and Canas, the State also presented the testimony of Betty Jo Busker and Nicole Tip-ton, both of whom testified to the circumstances surrounding the recruitment of the defendant to \u201cscare\u201d the victim because the victim had allegedly stolen items from Jason Schultz, a friend of theirs. Betty Jo described the defendant as wearing black clothing that night; the victim had described his attacker similarly. Both women testified to driving over to the victim\u2019s house with the defendant, Hille, and Canas. Neither woman went inside the victim\u2019s home, nor did they see where the defendant went. However, according to Nicole, when the defendant returned to the car, he was carrying an ax.\nGiven the evidence of the defendant\u2019s guilt in this case, we conclude that the error in excluding the testimony of the defendant\u2019s witness, Dolly Stewart, as to the statement to her by Shawn Hille was harmless beyond a reasonable doubt. We therefore need not address the defendant\u2019s alternative argument that defense counsel\u2019s failure to meet his discovery obligation rose to the level of ineffectiveness of counsel.\nNext, the defendant contends that the trial court erred when it limited the testimony of one of the defense witnesses.\nJames Steele, who lived in the apartment above the victim, testified that Curtis Christian, also known as \u201cRooster,\u201d lived in a building straight across from the backyard of the building that Steele and the victim lived in. Steele would see Rooster in the victim\u2019s apartment on \u201cpayday,\u201d which was toward the end of the month when the victim received his social security check. Rooster would usually show up on Saturdays. According to Steele, he saw Rooster in the victim\u2019s apartment on the Saturday of the first weekend of February 1997. Rooster was carrying a hickory stick that he usually brought with him for these end-of-the-month visits.\nFollowing an objection by the prosecutor, defense counsel made an offer of proof. According to the offer of proof, Steele would testify that, at the beginning of February 1997, Rooster threatened to bash in the victim\u2019s head with the hickory stick. Mr. Steele would further testify that, on the night of the attack on the victim, he observed the lights in Rooster\u2019s apartment go out immediately upon the arrival of the emergency personnel and that the next day, when he was in Rooster\u2019s apartment, he noticed that the hickory stick, which was always kept in the kitchen, was no longer there. The trial court allowed Steele to testify as to Rooster\u2019s threat against the victim, but not as to the lights going out or the missing hickory stick.\nSteele subsequently testified that Rooster threatened to use his stick on the victim if he did not pay him the money he owed him for drugs. On cross-examination, Steele testified that the victim would pay Rooster at the beginning and at the middle of each month.\nA defendant may attempt to prove that someone else committed the crime with which he is charged; however, this right is not without limitations. People v. Lewis, 165 Ill. 2d 305, 341 (1995). Generally, the test for admissibility of evidence is whether such evidence tends to prove the particular offense charged. Lewis, 165 Ill. 2d at 341. Whether what is offered as evidence will be admitted or excluded depends upon whether it tends to make the question of guilt more or less probable. Lewis, 165 Ill. 2d at 341-42. Where the offered evidence is uncertain or speculative, the trial court in its discretion may properly reject it. Lewis, 165 Ill. 2d at 342. A trial court\u2019s determination of whether evidence is relevant and admissible will not be reversed absent a clear abuse of discretion resulting in manifest prejudice to the defendant. People v. Pursley, 284 Ill. App. 3d 597, 603 (1996).\nWe agree with the trial court that the evidence concerning the timing of the lights going out in Rooster\u2019s apartment was too speculative to be admissible. As the trial court pointed out, there could be any number of innocent explanations as to why the lights went out. Other than the defendant\u2019s speculation, there is nothing in the evidence that connects the lights in Rooster\u2019s apartment going out to the offenses in this case or that makes it more probable that it was Rooster who attacked the victim in this case.\nWe also agree with the trial court that the fact that the hickory stick was not in its usual place in Rooster\u2019s kitchen did not indicate that the stick was missing as opposed to merely being in another part of Rooster\u2019s apartment. The relevancy of the fact that the hickory stick was not in its usual place depends upon whether the hickory stick was in fact missing, which was not shown by the evidence. See People v. Newbury, 53 Ill. 2d 228, 240 (1972) (torn photograph found in the deceased\u2019s bedroom should have been excluded where its relevance depended upon unproved assumptions \u2014 that it had been torn recently and deliberately and by the deceased).\nTherefore, we conclude that the trial court did not err in excluding those portions of James Steele\u2019s testimony relating to observing the lights go off in Rooster\u2019s apartment and the absence of the hickory stick from Rooster\u2019s kitchen after the offenses in this case were committed.\nNext, the defendant contends that, since his convictions of the offenses of home invasion and aggravated battery are based upon the same conduct, his conviction of aggravated battery must be vacated as violative of the one-act-one-crime rule.\nIn People v. King, 66 Ill. 2d 551 (1977), our supreme court stated as follows:\n\u201cPrejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. \u2018Act,\u2019 when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.\u201d King, 66 Ill. 2d at 566.\nIn People v. Rodriguez, 169 Ill. 2d 183, 187 (1996), the supreme court subsequently held that the King doctrine likewise applies to cases in which consecutive sentences are imposed.\nThe information in this case charged that the defendant committed the offense of aggravated battery in that in committing a battery he \u201cintentionally caused great bodily harm to Scott Worley in that he struck Scott Worley in the head with a blunt object, fracturing the skull of Scott Worley.\u201d The information further charged that the defendant committed the offense of home invasion in that he, \u201cnot a peace officer acting in the line of duty, knowingly, and without authority, entered the dwelling of Scott Worley, *** knowing Scott Worley to be present within that dwelling and intentionally caused injury to Scott Worley in that he struck Scott Worley in the head with a blunt instrument.\u201d\nIn Rodriguez, the defendant was found guilty of aggravated criminal sexual assault and home invasion based upon his conduct in entering the bedroom of the 13-year-old victim and sexually assaulting her while brandishing a handgun. Rodriguez, 169 Ill. 2d at 185. The appellate court vacated his home invasion conviction on the basis that the two offenses were based upon the same physical act: threatening the victim with a gun. Rodriguez, 169 Ill. 2d at 187-88.\nThe supreme court reversed the appellate court decision in part, stating as follows:\n\u201cApplying King to the present case, we conclude that the aggravated criminal sexual assault offense and the home invasion offense were based on separate acts. Although both offenses shared the common act of defendant threatening the victim with a gun, \u2018[a] person can be guilty of two offenses when a common act is part of both offenses.\u2019 [Citation.] Defendant\u2019s unlawful entry into the victim\u2019s bedroom was an overt or outward manifestation that supported a different offense, i.e., home invasion. \u2018As long as there are multiple acts as defined in King, their interrelationship does not preclude multiple convictions ***.\u2019 (Emphasis added.) [Citation.] Thus, the convictions of both aggravated criminal sexual assault and home invasion are proper where defendant committed multiple acts ***. [Citation.]\u201d Rodriguez, 169 Ill. 2d at 188-89.\nSimilarly in the present case, both offenses shared the common act of the defendant striking the victim with a blunt instrument causing him injury. However, the defendant\u2019s unlawful entry into the victim\u2019s house, i.e., home invasion, supported his conviction for that offense. Therefore, the defendant\u2019s convictions of both aggravated battery and home invasion do not violate the King doctrine.\nThe defendant relies on People v. Monigan, 204 Ill. App. 3d 686 (1990). In that case, the appellate court vacated the defendant\u2019s aggravated battery conviction on the basis that it was based upon the same physical act, i.e., the beating of the victim underlying his home invasion conviction. Monigan, 204 Ill. App. 3d at 690. In light of the discussion in Rodriguez concerning the definition of the term \u201cact,\u201d we chose not to follow Monigan.\nHowever, we further conclude that, under the facts in this case, aggravated battery is a lesser included offense of home invasion. In People v. Novak, 163 Ill. 2d 93 (1994), our supreme court adopted the \u201ccharging instrument approach\u201d to identify a lesser included offense. This approach looks to the facts alleged in the charging instrument in identifying a lesser included offense. Novak, 163 Ill. 2d at 107. Under this approach, an offense is deemed to be a lesser included offense if it is described by the charging instrument. Novak, 163 Ill. 2d at 107.\nThe charging instrument approach does not require the lesser crime to be a theoretically or practically \u201cnecessary\u201d part of the greater crime. Novak, 163 Ill. 2d at 107. Rather, the lesser crime need only relate to the greater to the extent that the charging instrument describes the lesser. Novak, 163 Ill. 2d at 107. The \u201c \u2018lesser offense must have a broad foundation in the instrument charging the greater,\u2019 or at least \u2018set out the main outline of the lesser offense.\u2019 [Citation.]\u201d Novak, 163 Ill. 2d at 107.\nIn People v. Gorney, 136 Ill. App. 3d 878 (1985), the defendant was found guilty of aggravated battery and home invasion. The reviewing court reversed the defendant\u2019s conviction of aggravated battery, holding that the aggravated battery was a lesser included offense of home invasion where the State relied on the defendant\u2019s act in striking the victim in the face in order to support the home invasion charge, as well as causing bodily harm to support the aggravated battery charges. Gorney, 136 Ill. App. 3d at 880.\nLikewise, in the present case, the State relied on the defendant\u2019s act of striking the victim with a blunt object causing him injury to support both the home invasion and the aggravated battery charges.\nMultiple convictions based upon a single act cannot stand where a defendant is convicted of more than one offense if some are lesser included offenses. People v Smith, 183 Ill. 2d 425, 431-32 (1998). The defendant\u2019s conviction of and sentence for aggravated battery must be vacated.\nFinally, the defendant contends that this cause must be remanded to the trial court for the issuance of a corrected mittimus to reflect the defendant\u2019s eligibility for day-for-day good conduct credit.\nThe defendant committed the offenses in this case on February 18, 1997. Therefore, the defendant was subject to the truth-in-sentencing provision of Public Act 89 \u2014 462, which took effect on May 29, 1996 (Pub. Act 89 \u2014 462, eff. May 29, 1996). The State acknowledges that Public Act 89 \u2014 404, in which the legislature first enacted the truth-in-sentencing legislation, was held unconstitutional as violative of the single subject rule. See People v. Reedy, 186 Ill. 2d 1, 11-12 (1999) (modified upon denial of rehearing). However, the State argues that the truth-in-sentencing provisions of Public Act 89 \u2014 462 have never been held invalid and that therefore the defendant here was properly sentenced under the provisions of Public Act 89 \u2014 462. In the alternative, the State argues that if Public Act 89 \u2014 462 is unconstitutional, the defendant\u2019s sentence is void, and the cause must be remanded for sentencing.\nIn Reedy, our supreme court rejected both of the State\u2019s arguments. The court stated as follows:\n\u201cNext, the State contends that, although Public Act 89 \u2014 404 may have violated the single subject rule, it was not the act under which defendants were sentenced. The State claims that, instead, Public Act 89 \u2014 462 is the law which applied to defendants\u2019 cases. The State\u2019s argument is disingenuous at best. Public Act 89 \u2014 462 is comprised of a simple amendment adding the offense of predatory sexual assault of a child to the list of offenses to which the truth-in-sentencing law applies. The State argues that this amen-datory language of Public Act 89 \u2014 462 somehow validated all of the truth-in-sentencing provisions of Public Act 89 \u2014 404 and, therefore, served as the curative legislation needed to bring the truth-in-sentencing law outside of single subject rule scrutiny.\nAs the State correctly asserts, the Illinois legislature has the power to enact curative legislation. [Citations.] We note, however, that such legislation must exhibit on its face evidence that it is intended to cure or validate defective legislation. *** In the case at bar, however, Public Act 89 \u2014 462 does not recodify the language of the truth-in-sentencing provisions of Public Act 89 \u2014 404. It only inserts an additional offense to be included in the truth-in-sentencing provision. Moreover, it is entirely devoid of curative language that would validate any actions taken in reliance upon Public Act 89 \u2014 404. We conclude, therefore, that Public Act 89\u2014 462 did not serve as curative legislation for any portion of Public Act 89 \u2014 404.\u201d Reedy, 186 Ill. 2d at 14-15.\nThe above discussion makes it clear that, contrary to the State\u2019s argument, Public Act 89 \u2014 462 may not be considered as though Public Act 89 \u2014 404 never existed. Rather, in Public Act 89 \u2014 462, the legislature tried but failed to enact curative legislation for Public Act 89 \u2014 404.\nThe supreme court also rejected the State\u2019s argument that the defendant\u2019s sentence is void and that the cause must be remanded for resentencing. The court found no justification for disturbing any statutorily sound sentence imposed against any defendant under the void truth-in-sentencing law. Reedy, 186 Ill. 2d at 16-18. As the State does not argue that the defendant did not receive a sentence for home invasion within the statutory guidelines, there is no need to remand this cause for resentencing.\nThe defendant\u2019s convictions of and sentences for home invasion and aggravated arson are affirmed. The defendant\u2019s conviction of and sentence for aggravated battery are vacated. The judgment is modified to reflect that the defendant is entitled to day-for-day good conduct credit against his sentence for home invasion.\nAffirmed in part and vacated in part; modified as to sentence.\nINGLIS and McLAREN, JJ., concur.", "type": "majority", "author": "JUSTICE GALASSO" } ], "attorneys": [ "\u25a0 G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Michael E Bald, State\u2019s Attorney, of Freeport (Martin E Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Robert E. Davison, of DePaepe & Davison, of Springfield, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK A. DAMICO, Defendant-Appellant.\nSecond District\nNo. 2\u201498\u20140333\nOpinion filed November 24, 1999.\nRehearing denied January 24, 2000\n\u25a0 G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nMichael E Bald, State\u2019s Attorney, of Freeport (Martin E Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Robert E. Davison, of DePaepe & Davison, of Springfield, for the People." }, "file_name": "0203-01", "first_page_order": 223, "last_page_order": 240 }