Appeal from the Circuit Court of Cook County. No. 07 CR 21144 Honorable Timothy Joseph Joyce Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Connors concurred in the judgment and opinion.
¶ 1 This appeal arises from a February 27, 2009 judgment entered by the circuit court of Cook County which found the defendant, Preston Herron (Preston), guilty of intimidation, home invasion, armed robbery, and aggravated kidnapping. Preston was sentenced to 24 years' imprisonment for his offenses. On appeal, Preston argues that: (1) plaintiff-appellant the People of the State of Illinois (the State) failed to prove beyond a reasonable doubt that Preston was involved in any of the offenses that were charged against him due to the deficiencies in the witnesses' identifications; (2) his sentence for aggravated kidnapping is void because it violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11); and (3) his sentence for aggravated kidnapping is void and therefore should be vacated, leaving his other sentences intact. For the following reasons, we affirm in part and vacate in part the judgment of the circuit court of Cook County. We remand the matter for resentencing.
¶ 3 On the morning of May 1, 2006, Cynthia Pitchford (Cynthia) was at home with four of her family members including: her husband, Clarence Pitchford (Clarence); her 17-year-old son, Cornelius Sanders (Cornelius); her 14-year-old daughter, Brittney Pitchford (Brittney); and her 7-year-old son, Clarence Pitchford, Jr. (Clarence, Jr.). The family's home is an apartment located at 3832 W. Lexington, Chicago, Illinois. While the children were getting ready for school, Cornelius heard a knock at the front door. Cornelius asked who was knocking, and a man outside the door said he was looking for Cynthia. As Cornelius opened the door, two men forced their way into the apartment. The first man wore a full ski mask and was carrying a gun. The second man was wearing a half-mask that covered the bottom part of his face, leaving his eyes exposed. The second man held his hand in his pocket as if he was carrying a gun. Cynthia tried to push Brittney and Clarence, Jr., into Brittney's bedroom to keep them out of danger but the man with the gun told all the family members to gather in the living room.
¶ 4 The man with the gun demanded that the family members listen to and follow his instructions. The instructions called for Cynthia to drive the man with the gun to the Currency Exchange where she worked and give him the money that was in the safe. The other family members were to stay in the living room with the second man until that man received the signal to leave. The man with the gun threatened to harm Cynthia's oldest son Cordell, who was in prison at the time, and to shoot Clarence, Jr., if the family did not comply with his orders. Cornelius testified that while the two men were in the house, they referred to each other as "Lord." Cornelius also testified that the second man knew intimate details about the family, such as his brother's prison status and all of the family members' names.
¶ 5 Cynthia went to her bedroom to get her car keys and then left with the man holding the gun. Cynthia drove to the Currency Exchange at 1219 S. Kedzie, Chicago, Illinois, as the man with the gun concealed himself in the backseat. Once they arrived at the Currency Exchange, Cynthia parked as she normally does for work. The man with the gun told her that another man standing outside the Currency Exchange would be watching her. Cynthia was told to go inside, retrieve the money from the Currency Exchange, and return to the car with the money. Cynthia and the man with the gun got out of the car and Cynthia went inside. She did not see where the man with the gun went. Once she was inside, Cynthia crawled on the floor and called her co-worker, Contessa Lindsey (Contessa), and told her to call the police. Cynthia then went to the safe and considered how much money she should give to the man with the gun. She knew from working the night before that the safe contained around $170,000, but she only took out $21,000. Cynthia returned to the car with the money and the man with the gun returned to the car as well. Cynthia explained the denominations of the money and gave it to the man with the gun. He checked the money and then left. Cynthia waited in the car for the police to arrive. After they arrived, the police escorted Cynthia to the police station.
¶ 6 Meanwhile, as Cynthia was taken to the Currency Exchange, the other family members remained in the living room with the second man. Cornelius and Brittney testified that the second man watched the family members in the living for about 10 minutes or so. Cornelius testified that the second man paced around the room a lot. Brittney testified that he sat in a computer chair and did not pace a lot. Cornelius recalled that the second man was wearing dark clothes, dark pants and black shoes, which were Nike Air Force One's. Brittney testified that the second man wore a colorful yellow, blue and white jacket. Cornelius and Brittney stated that while the second man was there, the house telephone rang but he did not allow them to answer it. After about 10 minutes, the second man received a call on his cell phone. He then left the house and on his way out the door he said "God bless." Cornelius then saw him get into a light blue and aqua Grand Prix and watched the car drive away. Cornelius could not see the driver. The police then arrived at the family's home.
¶ 7 The police escorted Clarence, Cornelius, Brittney and Clarence, Jr., to the police station. When they arrived, Cynthia was already speaking to police officers about the incident. Cornelius testified that on the way to the police station he began thinking about who the second man could have been. Cornelius testified that after arriving at the police station and talking with Brittney, he believed that Preston was the second man in the home invasion. Cornelius and Preston had known each other for about four years before the incident on May 1, 2006. Cornelius testified that he knew Preston from the neighborhood and that they used to socialize. Cornelius testified that he and Preston were not friends, but they had friends in common and had smoked marijuana together more than 100 times. Cornelius also testified that he and Preston had engaged in two fistfights in the past. One fight occurred two years before the home invasion incident and the other fight occurred six to eight months before the home invasion. Cornelius claimed that despite the fistfights, he and Preston had put aside their differences and he had no feelings of animosity toward Preston. When considering the identity of the second man in the home invasion, Cornelius testified that he began to realize that he recognized the man's voice, the shoes he was wearing, his mannerisms, and the language he was using. Cornelius stated that the two men's use of the word "Lord" in identifying one another suggested to him that the men were members of the Vice Lords street gang. Cornelius also stated that he recognized the second man's black Air Force One shoes as the same as those he knew to be owned by Preston. Cornelius testified that Preston also often used the term "God bless" upon departure. Cornelius stated that the combination of these factors, as well as his conversation with Brittney at the police station, confirmed his belief that Preston was the second man in the home invasion.
¶ 8 Brittney testified that once Cornelius told her that he thought Preston was the second man in the home invasion, she agreed with him and believed that she recognized Preston as well. She recalled that on the day before the incident, she saw Preston wearing the same colorful jacket as the second man in the home invasion. Brittney testified that she recognized Preston's mannerisms, described him as "jumpy," and stated that he "acts like he has Tourette's." After Brittney and Cornelius discussed their recollections, they were reunited with Cynthia. Cornelius and Brittney told Cynthia that they believed Preston was the second man in the home invasion and Cynthia agreed with their identification. Cynthia admitted in her testimony that she was greatly influenced by the discussion with her children in deciding that Preston was the second man in the home invasion. Cynthia recognized Preston's mannerisms and described him as "hyper." She also stated that Preston had a wandering eye. Cynthia testified that both men in the home invasion were wearing dark clothes and that the second man was wearing a hood in addition to a half-mask.
¶ 9 After Cynthia spoke with her children, she gave Preston's name to Detective Ryan Miller (Detective Miller). Detective Miller found Preston's picture in a police database and placed it in a photo lineup with other pictures. Cynthia picked out Preston's picture from the photo lineup. Later that day around 2 p.m., Detective Miller along with Detective Steven Amato (Detective Amato) and Detective Robert Fujara (Detective Fujara) went to talk to Cornelius at his grandmother's home located at 3304 W. Lexington, Chicago, Illinois. Detectives Miller and Amato showed Cornelius the same photo lineup that Cynthia was shown at the police station. Cornelius also picked Preston's picture out of the photo lineup. Preston was held in custody of the Cook County sheriff's department from May 9, 2006 through June 9, 2006, and in jail from August 28, 2006 through June 21, 2007, on charges unrelated to the instant case.
¶ 10 On September 21, 2007, Cynthia was working with Contessa at the Currency Exchange at 1219 S. Kedzie, Chicago, Illinois. While she was working, Cynthia heard a voice that she immediately recognized as Preston's voice. Cynthia stood up, told Contessa that Preston was the man that was speaking, and locked the door. Cynthia testified that Preston then asked her why she locked the door. Cynthia replied "you know why." Preston said "Oh, you talking about the home invasion." Cynthia replied "yeah." Cynthia then called her boss to tell him what was happening and Contessa called the police. Officer Harold Rodriguez (Officer Rodriguez) responded to the call and arrived at the Currency Exchange 15 to 20 minutes later with his partner. Officer Rodriguez talked to Cynthia and then called the police station to verify that Cynthia had made a prior case report. He then placed Preston under arrest.
¶ 11 On September 22, 2007, Detective Andy Li (Detective Li) was assigned to investigate the home invasion. Detective Li interviewed Cynthia and she told him that she believed that Preston was the second man in the home invasion. Later that night, Detective Li conducted a physical lineup with Preston and three other subjects. Detective Li brought in Brittney and Cornelius to view the lineup and they each individually identified Preston as the second man in the home invasion. Preston was ...