Appeal from the Circuit Court of Cook County No. 00 CR 16875 (01) Honorable Michael Brown, Judge Presiding.
The opinion of the court was delivered by: Justice Cahill
JUSTICE CAHILL delivered the opinion of the court: Following a bench trial in 2002, defendant Willie Hampton was convicted of eight counts of aggravated criminal sexual assault with a firearm (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)) and sentenced to 84 years in prison. On appeal, we remanded the case and ordered the trial court to conduct a forfeiture by wrongdoing hearing and grant a new trial if defendant did not forfeit his confrontation rights. People v. Hampton, 363 Ill. App. 3d 293, 301, 842 N.E.2d 1124 (2006). We also vacated four of defendant's convictions for aggravated criminal sexual assault and one count of home invasion and found that sentencing enhancements added to the aggravated criminal sexual assault convictions violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. 1, §11). Hampton, 363 Ill. App. 3d at 309-10. The State filed a petition for leave to appeal with the Illinois Supreme Court to contest our ruling on the sentencing enhancements issue. The supreme court found we prematurely considered the constitutionality of the sentencing enhancements, vacated the portions of our opinion addressing that issue and remanded this cause to the trial court for an evidentiary hearing on forfeiture by wrongdoing. People v. Hampton, 225 Ill. 2d 238, 245, 867 N.E.2d 957 (2007). On remand, the trial court found defendant forfeited his right to confront a witness against him and reinstated his convictions and 84-year prison sentence.
On appeal, defendant contends that: (1) the State failed to establish he forfeited his right to confront a witness against him at trial; (2) the 15-year enhancements added to four of defendant's aggravated criminal sexual assault convictions violate the proportionate penalties clause of the Illinois constitution; (3) one of defendant's convictions for home invasion must be vacated because both convictions rest on the same illegal entry into the victims' home on June 21, 2000; and (4) four of defendant's eight convictions and sentences for aggravated criminal sexual assault must be vacated where the evidence showed there were four acts of sexual penetration. The State contests the first issue but concedes the last three points. We now affirm the trial court's forfeiture ruling, and in accord with the State's concessions, we vacate one home invasion conviction, vacate four aggravated criminal sexual assault convictions and remand for resentencing on the four remaining criminal sexual assault convictions.
The evidence at trial established that defendant, co-defendant Cory Durr and an unknown male illegally entered Y.N.'s home in Chicago at 3 a.m. on June 21, 2000. Defendant and the unknown male raped Y.N. then fled to a house located at 6450 South Hoyne Avenue. Shortly after, defendant, Durr and Maurice Alexander were arrested at that location.
The State called 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 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 on the ground that the statement 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 from inside 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 who came from the basement 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 assault 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.
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 gave "very little weight" to the defense witnesses who testified they heard Y.N. tell police that defendant was not involved in the crime.
Defendant was convicted of eight counts of aggravated criminal sexual assault with a firearm (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 to six years on the remaining four counts of aggravated criminal sexual assault, also to run concurrently with the other sentences.
On direct appeal, among other claims, defendant contended that under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), his sixth amendment right to confrontation (U.S. Const., amend VI) was violated when Durr's statement was admitted into evidence. Hampton, 363 Ill. App. 3d at 300. The State agreed that there had been a Crawford violation but argued that defendant forfeited his right to assert a confrontation clause challenge because he wrongly procured Durr's silence. Hampton, 363 Ill. App. 3d at 300. We vacated and remanded this case to the trial court "for an evidentiary hearing on the State's forfeiture-bywrongdoing claim." Hampton, 363 Ill. App. 3d at 301. We held that if defendant were found not to have forfeited his right of confrontation, he would be entitled to a new trial. Hampton, 363 Ill. App. 3d at 301. We also vacated defendant's four convictions for aggravated criminal sexual assault and one count of home invasion and found that the 15-year firearm enhancements added to each of defendant's aggravated criminal sexual assault convictions were unconstitutional under the proportionate penalties clause. Hampton, 363 Ill. App. 3d at 309-10.
The State petitioned the Illinois Supreme Court for leave to appeal our finding that the 15-year add-on for aggravated criminal sexual assault was unconstitutional. Hampton, 225 Ill. 2d at 240. The supreme court granted the appeal, found we prematurely considered the constitutionality of the 15-year firearm add-on and vacated the portions of our opinion addressing issues other than the forfeiture by wrongdoing. Hampton, 225 Ill. 2d at 245. The supreme court remanded this case to the trial court for an evidentiary hearing on whether defendant forfeited his right to assert a confrontation clause challenge by wrongdoing. Hampton, 225 Ill. 2d at 245.
On remand, the following evidence was presented at the evidentiary hearing.
Officer Travis Armstead testified that he was acting as lockup keeper on January 1, 1997, when he came into contact with defendant as part of his duties. Defendant listed his mother, Francine Hampton, as a contact person while being processed.
Officer David Stock testified that he was working in the intelligence unit at the Centralia Correctional Center on July 2, 2002. Stock was informed by a mail room employee of a suspicious letter. The letter was addressed to inmate Cory Durr with a return address of "guess who?" and signed by "Black." After investigating, Stock learned that defendant, with the nickname of "Black," was a co-defendant in Durr's case. The letter directed Durr on how to testify, and Stock believed "it was communication that should not be taking place." Stock contacted his supervisor and forwarded the letter to the Cook County State's Attorney's office on July 12, 2002. Durr never saw the letter.
After the letter was mailed, Stock began reviewing phone conversations between Durr and defendant's mother, Francine Hampton, recorded on Centralia's phone system. Stock transferred some of the conversations onto cassette tapes and sent them to Assistant State's Attorney Lawrence O'Reilly, who was prosecuting defendant's case.
In August 2002, when Durr returned from testifying in defendant's case, Durr saw Stock and said "[y]ou don't play fair, Stock."
Nicholas Richert, a DNA expert for the Illinois State Police, testified that defendant's DNA matched that found on the flap of the envelope sent to Durr.
The State entered into evidence defendant's birth certificate showing his mother to be Francine Powell and his father to be Willie Hampton and phone records showing that the phone number dialed by Durr was registered to Francine Hampton.
The State entered into evidence a transcript of Durr's testimony from the hearing of People v. Francine Hampton, 02 CR 19850 (Cir. Ct. Cook Co.) on July 7, 2004. Francine was charged with suborning perjury and communicating with Durr in connection to defendant's trial but found not guilty. Durr testified at the hearing that he had known Francine since defendant was a little boy and felt close to her. He called Francine several times from prison, including May 14, 2002, May 25, 2002, May 29, 2002, and June 27, 2002. He knew that he was going to be a witness at defendant's trial in June 2002 and spoke with Francine and defendant's family about "what he was going to do." He denied that Francine suggested he testify falsely, told him specific words to repeat at defendant's trial, offered him anything in return for testimony or influenced his testimony at defendant's trial. He denied Francine told him to "just plead the Fifth" or "plead the Fifth, if push come to shove and somebody try to make you do it, all you know is [defendant] wasn't there." He said he "already had that in my mind what I was going to do."
The State entered into evidence the "guess who?" letter addressed to Durr and dated June 28, 2002. It is included in the record on appeal and reads in part:
"C-Dub, what's up lil brother! Nothing much with me. You know I started trial on the 24th. Man Dog I was nervous as hell. Yogi [the victim] came and got down on me. But her testimony wasn't as strong as I thought it was going to be. My lawyer said if she shows any doubt on the stand we are going to win. He said she showed doubt when the police first took us to her house and the 911 call. Because she said she knew who I was all the time right if that was the case why didn't she tell the police it was me from the start and she had several opportunities too. Then the part about the rape. In her original statement she said I had on a condom. On the stand she wasn't sure if I had one on or not. And you know my D.N.A. test was negative. You should of heard the police on the stand. Do you remember the black lady and man that arrested us and took us to yogi house? They wasn't at court! It was 2 white dudes. They kept [messing] up! Dog they were [messing] up so bad one time my lawyer asked them a question about where they took us to. One officer said they took us to yogi house first. The other said they took us straight to the police station. The [expletive deleted] was crazy. That hype bitch came to court too. But she wasn't on [anything]!! I think the [S]tate really need[s] you to get down on me to get a conviction. Because they are going to use you on the 16th of July. I spoke with my lawyer about the issue[.] [H]e said the best thing for you to do is to plead the [fifth]. He said you could tell your mother to call the [public defender] and get him to file a motion for you to plead the [fifth] so you don't have to come back here. But I think that [the public defender] is on their side. You can just plead the [fifth] when you get here. He said the [S]tate is [going to] try to scare the [expletive deleted] out of you but there[']s nothing they can do. NOTHING!!! Plus[,] I heard this from the judge[']s mouth. He said if a person does not want to testify[,] he or she [does not] have to. So dog, don't let them spook you. Don't get down on me man. O.K.
Well Dog I'm about to be up. Make sure you call my momma o.k. Love family tell your old 'g' I said hello. I'm out[.] Black"
The audio recordings and transcript of the phone calls made between Francine Hampton and Durr were admitted into evidence and are also part of the record on appeal. Relevant parts of the recordings are as follows: May 14, 2002:
"CORY DURR (CD): That's it. ([I]naudible) then they'll say (inaudible). They'll try to call me as a witness. I wrote him a couple times (inaudible).
FRANCINE HAMPTON (FH): Okay. Do you know -- what you gonna -- do you know what to say when they -- if they call you?
CD: I don't know what they talking about, man. I ain't got nothing for them. I say, I taking the fifth.
CD: So he ain't got nothing to worry about. Tell him it's all good." May 24, 2002:
"CD: ([I]naudible) when you talk to (inaudible) I'm sending it there cause I gotta send it there first and then (inaudible) gotta send it to him."
"FH: Yeah. They sure trying to use your statement against [defendant] cause that's all they got. That's the only thing they got is your statement. They can't find (inaudible).
FH: ([I]naudible) but I didn't know what he was talking about. I say you want to write [defendant].
FH: You, you need this address (inaudible).
CD: I told him -- I wrote a letter and I told him I'm gonna send it to you. FH: Yeah, that's what I been waiting for (inaudible).
FH: They must have took your letter that you sent to [defendant].
CD: Yeah, that's what I think cause they --
FH: Yeah. Did you say anything in it?
CD: No, uhn. Just told him, man, don't worry about nothing, everything will be cool. He told me -- the lawyer said he was worried about me coming back and testify (inaudible) I told him, he ain't got nothing to worry about.
([I]naudible). Be cool. I asked him how he was doing.
FH: Well, I need to know what you gonna say.
CD: ([I]naudible) I'm planning on saying nothing. They can't make me talk. FH: Huh? Can you do that?
CD: Yeah. Well, I pleaded the fifth. What can I do?
FH: I don't know, (inaudible). They can't give you no more time.
FH: I told you I think it's best that you, that you say, I tried to say it from the beginning (inaudible).
CD: Well, he wasn't there with us. Right.
FH: ([I]naudible) he wasn't there, they kept on beating me and telling me, yes, he did, yes, you did.
FH: So I just went on and agreed with what they said. But why did you take the time. Cause I just don't like, you know, (inaudible) going to jail anyway.
FH: ([I]naudible) really wasn't fair. I don't, I don't remember (inaudible) being there (inaudible).
CD: But I told the public defend[er], I told him, told him that, that I didn't know that I -- that what I was signing. I thought it was -- they told me I was signing something to say that (inaudible) the question.
CD: And once I found out what it was, it was too late to, you know what I'm saying, take it back.
CD: So I -- it took a little time to go ahead and get out. ([I]naudible[.]) FH: Right, right.
CD: That's really it. And anything else I ain't got nothing to say about that. I already took my time.
FH: They, they gonna probably make you say (inaudible) was there. CD: They -- ain't nothing happening. ([I]naudible[.])
FH: Cause see sometimes you get there and say I plead the fifth and then they're saying, I don't know. I don't know. But I know you gonna handle it.
CD: I got that. Tell him don't worry about it. FH: All right.
CD: Man, when you talk to him tell him don't even worry about ...