Appeal from the Circuit Court of Lake County. No. 08-CF-3797 Honorable George Bridges, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.
¶ 1 Following a September 2009 jury trial, defendant, Rickie T. Nichols, was convicted of two counts of aggravated criminal sexual assault and sentenced to the statutory minimum of 32 years in prison. On appeal, defendant argues that (1) the trial court erred in denying his motion to quash his arrest and suppress items seized from a shed located at the home of defendant's friend and co-defendant, Stephen Knighten; and (2) his 32-year sentence violates both the proportionate penalties and the due process clauses of the Illinois Constitution. For the following reasons, we affirm.
¶ 3 In October 2008, defendant and Stephen Knighten were charged in a four-count indictment for their attack on the victim, K.H., which occurred on September 9, 2008, in Zion. Counts I and II charged aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 2008)), and counts III and IV charged criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2008)). Counts II and IV charged defendant for Knighten's actions, under an accountability theory. See 720 ILCS 5/5-2 (West 2008). Defendant, who was born on April 13, 1992, was under 17 years of age when the assault occurred and hence normally would have been subject to proceedings under the Juvenile Court Act of 1987 (705 ILCS 405/1--1 et seq. (West 2008)). Because he was over 15 years of age and was charged with aggravated criminal sexual assault, however, the automatic transfer statute (705 ILCS 405/5-130 (West 2008)) required that he be tried as an adult.
¶ 4 In November 2008, defendant filed a motion to quash his arrest and suppress evidence. He sought suppression of two jackets, a hat, an air pistol, and a glove, all of which were seized by police during the search of a backyard shed at 3005 Elisha Avenue, the home of Knighten and his family. In its written response, the State asserted that defendant lacked standing to contest the search and seizure because he had no reasonable expectation of privacy in the shed.
¶ 5 At the hearing on the motion, the defense called three witnesses: (1) Zion police officer Joseph Richardt; (2) Kelly Turnipseed, Knighten's mother and the owner of the property at 3005 Elisha Avenue on September 9, 2008; and (3) defendant.
¶ 6 Richardt testified that, at 9:58 p.m. on September 9, 2008, he received a report of a sexual assault "that had just occurred" in the area of 29th Street and Elisha Avenue. The suspects were described as "two male black subjects wearing ski masks, one wearing a blue jacket and the other wearing a camouflage jacket." Richardt also recalled that the dispatcher had said that at least one of the suspects "had a weapon" (Richardt did not specify what kind of weapon). Richardt drove in his squad car to the intersection of 31st Street and the alley that runs between Elisha Avenue and Sheridan Road. He then drove north in the alley toward 30th Street. Richardt saw two individuals behind the Parkside Motel at 3070 Sheridan Road and paused to "ask them whether or not they had seen anyone in the alley in reference to the subjects [the police] were looking for." The individuals said that they had not seen anyone in the alley. At this point, Richardt estimated, about three or four minutes had transpired since he received the dispatch.
¶ 7 Richardt testified that he then continued north in the alley. After passing several homes, Richardt stopped behind 3005 Elisha, which was about a block north of where the assault reportedly occurred. Although Richardt had passed several homes that had storage sheds in their backyards, what "struck [his] attention" about the property at 3005 Elisha was that its backyard shed appeared to be open or to have no doors at all. Richardt testified that there were no street lights in the alley, and he could not recall if there was a light in the backyard at 3005 Elisha. Richardt could not see into the shed, which was about 50 feet from his squad car. Richardt notified dispatch that he was going to check the shed. Soon, other officers arrived. Richardt and another officer then opened the gate in the chainlink fence that surrounded the property and walked the approximately 30 feet to the shed. Richardt could not recall definitely whether the shed doors were open or there were no doors at all. Richardt and the other officer entered the shed and saw two coats, one on the floor and the other on a workbench. Richardt noticed that the coats matched the description of the coats described by the dispatcher. Richardt did not recall seeing other items in the shed, but he was aware that other items were later recovered, including ski masks and an air pistol. Richardt acknowledged that he had no warrant to search the property at 3005 Elisha, had not been granted permission by any occupant to search the property, and had no warrant to arrest defendant or Knighten.
¶ 8 Richardt testified that, after seeing the coats, he directed other officers to "secure [the] possible evidence" while he and other officers "observ[ed] the house." After about five minutes, two men matching the description given by the dispatcher emerged from the house. The men were later identified as Knighten and defendant. Richardt told the men to stop, but they ignored him and fled back into the house. Officers then went to the door of the home and were granted permission by Turnipseed to search the premises. Defendant and Knighten were found inside and arrested.
¶ 9 Turnipseed testified that, on September 9, 2008, she arrived home from work at about 8:45 p.m. Defendant arrived with Knighten at about 9 p.m. She did not know where they had been. At about 10 p.m., she heard a knock on her door. She opened the door to find her house "surrounded" by the police. The police asked her if anyone else was in the house, and she replied that her son and his friend were there. The police then remarked that there had been an "occurrence" that night and that they had found "a couple [of] jackets, a gun[,] and a hat" in her backyard shed. Turnipseed allowed the police to enter and search her house. They asked to see defendant and Knighten, and Turnipseed summoned both of them. Turnipseed testified that she did not give the police permission to enter her yard nor did the police present her with a warrant to search her shed or her house.
¶ 10 Turnipseed testified that defendant and Knighten had been friends for two years and that defendant had been to Turnipseed's home before September 9, 2008. Turnipseed testified that the shed in her backyard is "old" and has no doors. Turnipseed stores her lawnmower, rakes, and shovels in the shed, and Knighten stores his bicycle and weightlifting equipment there. According to Turnipseed, defendant also "used" the shed. Asked specifically how defendant "used" the shed, Turnipseed answered that defendant would "hang out" in the shed and lift weights with Knighten. Also, defendant would "put his bike in [the shed] sometimes *** when he would come over."
¶ 11 Defendant testified that he had known Knighten for about two years. He never lived at 3005 Elisha but had been there several times before September 9, 2008. The questioning continued:
"Q. [H]ave you ever been in the shed in [Knighten's] back yard?
Q. Would you ever leave any items of property in the shed in [Knighten's] back yard?
Q. Specifically, what would be those items?
Q. And you would leave your bike in the shed?
Q. And would you ever hang out with [Knighten] in the shed in his back yard?
Q. And what would you do there?
A. Lift weights; listen to music."
Defendant testified that he was at Knighten's home on the night of September 9, 2008. He wore a blue jacket, which he placed in the shed. Defendant never gave the police permission to search the shed.
¶ 12 The trial court agreed with the State that defendant had no reasonable expectation of privacy in the shed at 3005 Elisha. The court reasoned:
"While it is true here that the defendant used the [shed] with his friend, as clearly shown by the evidence here, there was no evidence that the defendant would use *** the shed by himself. There was no evidence that he had the ability to control or exclude others from the shed or from this back yard.
There was some evidence that, in fact, he would put his bike in the shed[,] and the defendant testified that he actually put his jacket in the shed on occasions. There was no evidence that he stored any property there; that the bike or jacket was only there until he left.
This Court also did not hear any evidence at all about this defendant having the ability or rather being responsible for anything in the shed."
¶ 13 The court, noting the "case law that says we should not decide cases based solely on the issue of standing," raised sua sponte the issue of exigent circumstances. The court's factual findings and legal conclusions are lengthy, but we quote them in their entirety:
"Essentially, the evidence that this Court has heard is that officers are dispatched to this area shortly after a violent crime, a sexual assault, has been committed. It's a matter of minutes or hours, not days, that the officers that are in this area here are searching for two male blacks with ski masks, one wearing some type of a blue jacket and another wearing a camouflage jacket. In checking the area where Officer Richardt notices a shed, he testified that this shed was again within the immediate area, a matter of blocks away from where they were searching; that he initially spoke with two gentlemen in the area to determine whether or not the suspects had went past him, and he was informed that they were not, so he continued to check the area where he ultimately saw a shed; that he didn't recall if the shed had doors or, in other words, whether or not the doors were open on the shed or the shed didn't have doors, but he saw a shed. He testified that he could not see in. He was in the area searching for suspects; they had a description.
He then went into the yard of the home to search the shed. He testified that when he peered into the shed, he saw what he believed was a ski mask and jackets and a handgun[,] and [he] notified dispatch, basically put that out on his radio, seeking assistance. Other officers arrived.
While he was there, two male blacks came out of the house. He secured the area because the coats matched the description, and ultimately, they went to the home and spoke with the occupant, Ms. Turnipseed, and subsequently obtained permission to search the residence.
This Court believes the issue for this Court to decide on this matter in light of the State's motion is whether or not these facts that the officer had would create exigent circumstances to allow them to go on the property and conduct a search. There are a number of factors that the Court must look at to determine whether or not exigent circumstances would warrant or justify this search, and one of those is whether or not the crime *** had recently been committed; whether there was any deliberate or unjustified delay by police during which time they could have obtained a warrant; whether or not it was a serious offense, some type of a crime of violence; whether or not there was a reasonable belief that the suspects were armed and whether the police officers were acting on probable cause, and the list goes on, and I believe a number of those can be answered with the evidence here.
First of all, we know that we were dealing with a serious offense that had recently been committed and that a handgun was involved. I believe, looking at the totality of the circumstances, that assuming the defendant had standing, the officer had exigent circumstances to enter the back yard and look into what he believed was an open shed to determine whether or not armed suspects were in that building or in that shed, and when he did so, he noticed clothing that matched the description of the offenders, and I believe that it was all reasonable."
¶ 14 The trial court denied the motion to quash and suppress. The case proceeded to a jury trial. As defendant does not dispute the sufficiency of the evidence against him, our recitation of the evidence at trial is limited.
¶ 15 K.H. testified that, on the evening of September 9, 2008, she was at her boyfriend Randy Kneeland's home at 29th Street and Emmaus in Zion. At one point, she left and walked the four blocks to her own home at 3003 Elizabeth. After remaining at home for about 15 minutes, K.H. left and walked to a gas station at 29th Street and Sheridan Road, where she bought a snack. She remained at the gas station for about three minutes before leaving for Kneeland's. While walking down 29th Street, she saw two men emerge from an alley that intersected with 29th Street. One man was wearing a camouflage jacket and the other man a "black hoodie." These men were later identified as Knighten and defendant, respectively. As the men passed her, defendant grabbed K.H.'s arm and put what appeared to be a "black pistol"*fn1 to her side. K.H. then saw that defendant had a ski mask over his face. Both men took K.H. by the arms and led her, with the gun still pointed at her side, behind some bushes at the side of an apartment building. There, the men told K.H. to get on her knees as they pushed her down. Defendant then forced his penis into K.H.'s mouth while holding the gun to her head. After about two minutes, defendant withdrew his penis and ejaculated onto K.H.'s face and jacket. Defendant then ran off while Knighten forced his penis into K.H.'s mouth. After "a couple of seconds," Knighten withdrew his penis and ran off.
¶ 16 When K.H. was asked to clarify "who was holding the gun," she said: "The first-when they were taking their turns, the first guy with the blue ski mask [defendant], he was holding it, and then he gave it to the guy in the [camouflage] jacket [Knighten]." Elsewhere, K.H. testified that she saw the gun for "two minutes at most" during the attack.
¶ 17 K.H. testified that, after the attack, she went to Kneeland's and told him what had happened. Kneeland called the police.
¶ 18 K.H. testified that she was not wearing a watch on the night of September 9, 2008. She gave varying testimony about the chronology of events that night. Her testimony contained all of the following statements: (1) she "was at [Kneeland's house] at 8:30 p.m."; (2) she "left [Kneeland's] at 8:30 p.m. and *** went home"; (3) she was "at [Kneeland's] house at about [9 p.m.]"; (4) she "was walking back from [Kneeland's] house" "at approximately [9 p.m.]"; and (5) she "left [her] house at 9:40 p.m.," approximately.*fn2
¶ 19 K.H. acknowledged that, in her written statement that she had given to the police on the night of the attack, she did not mention that ...