Appeal from the Circuit Court of Cook County No. 00 CR 16875 Honorable Preston L. Bowie, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cahill
MODIFIED ON DENIAL OF REHEARING February 27, 2006
Defendant Willie Hampton was convicted of eight counts of aggravated criminal sexual assault and two counts of home invasion with a firearm and sentenced to 84 years in prison. Defendant raises five arguments on appeal: (1) the admission of a co-defendant's written statement violated defendant's sixth amendment right under the United States Constitution (U.S. Const., amend VI); (2) defendant's 21-year sentences for aggravated criminal sexual assault violate the prohibition against double enhancement; (3) defendant's sentences for aggravated criminal sexual assault violate the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, *11); (4) defendant's convictions and sentences on four counts of aggravated criminal sexual assault and one count of home invasion violate the one-act, one-crime rule; and (5) defendant's sentence on the remaining home invasion count violates the proportionate penalties clause of the Illinois Constitution. Our resolution of this case requires that we address the first issue in light of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). Our analysis compels us to vacate defendant's convictions and remand to the trial court with directions.
The following evidence was presented at defendant's bench trial.
Y.N. testified that on June 21, 2000, at approximately 3 a.m., she was asleep in her home located at 2016 West 65th Street in Chicago. Y.N. was awakened by defendant, who placed a gun to her head and told her to get out of bed and give him money and "weed." Y.N. recognized defendant despite the fact that he wore a nylon stocking over his head. Y.N. and defendant lived in the same neighborhood and had attended elementary school together.
Y.N. told defendant she did not have money or drugs in the house. Defendant asked Y.N. for house keys, which Y.N. gave to him. Defendant took the keys and unlocked the back door to the house. A man wearing a black-hooded sweater came inside. Y.N. later recognized this man as Cory Durr, whom Y.N. also knew from the neighborhood. A third man also entered the house. The third man wore a nylon stocking over his head, and Y.N. could not identify him.
Defendant and the unidentified man took Y.N. to her bedroom and threatened to kill her if she did not reveal where she was hiding money and drugs. Y.N. continued to deny that she had money or drugs in the house. The unidentified man hit Y.N. in the mouth with his gun. Y.N. then told the men that there might be money in her brother Redrick's bedroom.
Redrick was home asleep with his girlfriend, Emma Hails, at the time. Y.N. and defendant went to Redrick's bedroom. Redrick unlocked the door and defendant and Y.N. entered. Defendant held a gun to Y.N.'s head and told Redrick to give him money. Redrick gave defendant $100. Redrick and defendant began to argue and defendant hit Redrick in the head with his gun.
Defendant took Y.N. back into her bedroom. Defendant asked Y.N. whether she had a telephone. Y.N. said she had a phone in the kitchen. Defendant told Y.N. to cut the cord on the phone. As defendant and Y.N. moved toward the kitchen, Shelby, Y.N.'s other brother, emerged from his bedroom in the basement. Defendant told Shelby to lie on the floor.
Defendant and Y.N. then went back into Y.N.'s bedroom. Y.N. told defendant to take whatever he wanted. Defendant took some jewelry and then went into the living room with Y.N. and the unidentified man. The unidentified man ordered Y.N. to take off her clothes, which she did. Defendant and the unidentified man then took Y.N. into her bedroom. The unidentified man told Y.N. to get on her knees, and he inserted his penis into Y.N.'s mouth. Defendant, who was standing behind Y.N., put his finger, and then his penis, into Y.N.'s vagina. After a few minutes, Y.N. was told to turn around. Defendant then inserted his penis into Y.N.'s mouth while the unidentified man put his penis into Y.N.'s vagina. The unidentified man stopped the assault suddenly and ran out of the bedroom. Defendant grabbed an Aldi's bag that was filled with Y.N.'s clothes and followed him. Y.N. called the police once the men left her house.
Chicago police officer Daniel Ludwig testified he received a call at approximately 4 a.m. on June 21, 2000, that a robbery had taken place at Y.N.'s address and three black males were seen fleeing the scene. Ludwig and his partner were driving in the area of the alleged robbery when they saw three black males getting out of a blue Chevy Cavalier. One of the men carried an Aldi's grocery bag, which he threw in the car after seeing Ludwig. All three men went into a house located at 6450 South Hoyne Avenue.
Officer Ludwig went to Y.N.'s house and spoke with Y.N. and the other witnesses. Based on information he received, Ludwig went back to the area where the three men were seen leaving the blue Chevy Cavalier. Ludwig retrieved the Aldi's bag from the car and took it to Y.N., who identified the bag as the one taken by defendant. Ludwig then went back to 6450 South Hoyne Avenue and knocked on the door. Ludwig could see the three men looking out a second-floor window but nobody answered the door. Ludwig called the Chicago fire department to make a forced entry into the house. On entering, Ludwig took custody of defendant, Cory Durr and Maurice Alexander. The men were taken to Y.N.'s house for an identification. Y.N. identified defendant and Durr as two of the men in her home earlier that morning. Y.N. had not identified defendant and Durr in her earlier conversations with Ludwig.
The State called Cory Durr to testify. Durr was serving an eight-year prison term after pleading guilty to charges relating to this case. Durr invoked his fifth amendment right against self-incrimination at defendant's trial and refused to answer questions relating to the crime. The trial court told Durr he had no fifth amendment right under the circumstances and could be held in contempt of court if he refused to answer the State's questions. Durr still refused to talk about the crime but admitted giving a handwritten statement to an assistant State's Attorney on June 22, 2000.
The State moved to admit Durr's statement under section 115-10.2 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.2 (West 2000) (allowing, in limited circumstances, hearsay statement of a witness who refuses to testify despite court order to do so)). Defendant objected to the statement on the ground that it violated his right to confront the witness. The court admitted the statement, which was then read into evidence.
Durr said the following in his statement to the assistant State's Attorney. Durr met defendant and Maurice Alexander in the early morning hours of June 21, 2000. Defendant told Durr that he and Alexander were on their way to "break into a house and go steal some money." Durr decided to go along. All three men went to defendant's house at 6450 South Hoyne Avenue to pick up guns. They then walked to Y.N.'s house. Defendant told Durr to stand on the back porch of Y.N.'s house and watch for police. After about two or three minutes, defendant opened the back door to the house and let Durr inside. Durr stood in the kitchen while defendant yelled at Y.N., demanding that she give him money. After about 10 or 15 minutes, Durr walked into the living room. Durr saw defendant and Alexander "tearing up the room looking for money." Alexander told Durr to go back into the kitchen and continue looking out for the police. Durr heard someone coming upstairs from the basement. Defendant came into the kitchen, pulled his gun out and ordered the man to lie on the floor. Durr stayed in the kitchen for another 15 minutes. He then went into Y.N.'s bedroom. Durr saw defendant and Alexander sexually assaulting Y.N. He then went back into the kitchen. Defendant and Alexander came "charging towards the door" approximately 5 to 10 minutes later. All three men left Y.N.'s house and ran to defendant's house.
The State offered by way of stipulation the testimony of Officer John Kosiewicz and forensic chemist Julie Wessel. If called as a witness, Kosiewicz would testify he recovered two fingerprints from a bathtub located in Y.N.'s house. If called as a witness, Wessel would testify she received the fingerprint impressions recovered by Kosiewicz. She compared the fingerprints with fingerprints on a card marked by defendant. Wessel concluded that the fingerprints lifted from Y.N.'s bathtub were made by defendant. It was also stipulated that semen recovered from Y.N.'s vagina was tested and compared to a DNA sample taken from defendant. The results were inconclusive.
Defendant called Tamika Stewart to testify. Stewart said she went to defendant's home between 10 and 10:30 p.m. on June 20, 2000. Defendant was asleep when she arrived. Stewart stayed at defendant's house playing cards with friends until approximately 1 or 1:30 the following morning. Stewart did not see defendant leave the house.
Stewart was outside later that morning when the police took defendant into custody. Stewart said she saw the police take defendant, who was wearing only his boxer shorts, to Y.N.'s house a short distance away. Stewart said she went to Y.N.'s and heard Y.N. tell police that defendant was not involved in the crime.
Stewart also testified that she had attended a Father's Day barbeque at Y.N.'s house a couple of days before the incident. Defendant was also at the barbeque. Stewart stayed outside most of the time but went inside to use the bathroom and to get a plate.
Nina Moore testified she was outside when police drove to Y.N.'s house with defendant in the car. Moore heard the police ask Y.N. whether defendant was one of the men who entered her house earlier that morning. Y.N. responded that he was not.
LaShawn Nicholas testified she went to defendant's house at approximately 2 a.m. on June 21, 2000. Defendant went to sleep shortly after Nicholas arrived. Nicholas left the house at approximate 3:45 a.m. Nicholas was outside Y.N.'s house when the police asked Y.N. to identify defendant. Nicholas heard Y.N. tell police that defendant was not one of her attackers.
Barbara Murray testified that she received a phone call on June 21, 2000, prompting her to go to defendant's house. Murray saw police take defendant and Durr out of defendant's house in their boxer shorts and place them in a squad car. Murray followed the squad car to Y.N.'s house. The police brought Y.N. outside and asked her to identify defendant. Murray heard Y.N. tell the police that she knew defendant and that he was not one of her attackers.
The defense offered by way of stipulation the testimony of Tina Winters. If called as a witness, Winters would testify that she had been "very friendly" with Y.N. for approximately 10 years. Y.N. told Winters a day or two after the incident that defendant was not one of her attackers. Y.N. was later called as a rebuttal witness and denied saying these things to Winters. It was also stipulated that Winters had been convicted of forgery and theft.
Following closing argument, the trial court found defendant guilty on all counts. The court said it "particularly found persuasive the statements of Mr. Cory Durr in that his statements were consistent with the testimony of the victim in this case." The court also found persuasive defendant's fingerprint on the bathtub and the testimony about the Aldi's bag. The court gave "very little weight" to the defense witnesses who testified they heard Y.N. tell police that defendant was not involved in the crime. The court believed this testimony was inconsistent with the fact that police arrested defendant after leaving Y.N.'s house.
Defendant was convicted of eight counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(4), (a)(8) (West 2002)) and two counts of home invasion with a firearm (720 ILCS 5/12-11(a)(3) (West 2002)). The court sentenced defendant to 21 years on four counts of aggravated criminal sexual assault, to run consecutively, for a total of 84 years in prison. Defendant was sentenced to 21 years in prison for each of the home invasion counts, to run concurrently with the other sentences. Defendant was also sentenced ...