Appeal from the Circuit Court of Cook County. No. 07 CR 13744 Honorable Stanley Sacks, 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 Harris concurred in the judgment and opinion.
¶ 1 Following a bench trial in the circuit court of Cook County, defendant Leonard Williams was convicted of armed robbery, aggravated vehicular hijacking and aggravated battery. Subsequently, he was sentenced to concurrent terms of 22 years of imprisonment for armed robbery and aggravated vehicular hijacking, and 5 years of imprisonment for aggravated battery. On direct appeal, the defendant argues that: (1) defense counsel provided ineffective assistance of counsel at every stage of the criminal proceedings; and (2) a new sentencing hearing is warranted where the 15-year sentencing enhancements imposed by the trial court were void or, in the alternative, the sentence imposed should be reduced. For the following reasons, we affirm the judgment of the circuit court of Cook County as to the defendant's convictions for armed robbery, aggravated vehicular hijacking and aggravated battery. However, we vacate the sentences for armed robbery and aggravated vehicular hijacking and remand the cause for resentencing on those two convictions.
¶ 3 On June 10, 2007, Chicago police officers responded to a call to investigate a car stripping in progress at 5345 South Hoyne Avenue in Chicago, Illinois. As a result, the police arrested the defendant, along with co-defendant Courtney Robinson (co-defendant Robinson), near the crime scene. Thereafter, on July 5, 2007, the defendant was charged with armed robbery (count I), aggravated vehicular hijacking (count II), aggravated unlawful use of a weapon (counts III to VI), unlawful use of a weapon by a felon (counts VII and VIII), aggravated battery (counts IX to XII), and aggravated unlawful restraint (count XIII).
¶ 4 On February 11, 2009, attorney Howard Towles*fn1 filed an appearance on behalf of the defendant in this case and in another case against the defendant.*fn2
¶ 5 On April 1, 2009, defense counsel filed a "motion to suppress identification and quash arrest," which pertained to the facts of an unrelated case involving the defendant upon which the State had elected not to proceed. On May 19, 2009, defense counsel refiled a "motion to suppress identification and quash arrest" (motion to suppress), which pertained to the facts of the instant case. In the motion to suppress, defense counsel argued that at the time of the defendant's arrest, the defendant was not engaged in any illegal conduct and that no arrest warrant existed to justify his arrest. The motion to suppress further stated that the police lineup, from which one of the victims identified the defendant as the perpetrator, was unreliable, and requested that the identification be suppressed and "any arrest, charge, or evidence obtained therefrom be [q]uashed."
¶ 6 On August 3, 2009, at a hearing on the motion to suppress, the defendant presented the testimony of two witnesses--Officer Timothy Moran (Officer Moran) and Detective John Richter (Detective Richter). Officer Moran testified that on June 10, 2007, at 11:15 p.m., he and his partners were assigned to respond to an anonymous 911 call of a car stripping in progress at 5345 South Hoyne Avenue in Chicago, Illinois. Upon arrival at the location, Officer Moran observed, in the rear lot of an abandoned residence, a car elevated on four milk crates with its tires missing and its hood and trunk open. The police officers ran a check of the license plate of the vehicle and discovered that it was reported to have been taken in a vehicular hijacking earlier in the evening. Approximately one minute later, two black men, who were both empty-handed, walked from a nearby alleyway toward the vehicle. As the two men approached the vehicle, Officer Moran and his partners announced their presence, at which point the two men, one of whom was later identified as the defendant, fled back to the alleyway. The police officers then chased the suspects on foot. During the chase, Officer Moran observed the defendant reach into his waistband and toss "a shiny object" to the ground. Subsequently, Officer Moran apprehended the defendant and recovered a handgun, which was the "shiny object" tossed by the defendant during the chase. Although Officer Moran testified that no arrest warrant existed for the defendant, he had a "suspicion" that the defendant was armed. On cross-examination, Officer Moran testified that upon placing the defendant under arrest and mirandizing him, Officer Moran walked the defendant back to the site where the defendant had disposed of the shiny object which turned out to be a gun. Pursuant to a custodial search of the defendant's person, Officer Moran found a remote starter and car keys to the hijacked vehicle. The police officers also found a wallet, driver's license, and miscellaneous documents belonging to one of the carjacking victims, Tremon Moore (Tremon), next to the alleyway where the defendant's handgun was recovered. According to Officer Moran, the defendant was wearing a white tee-shirt, blue jeans and hair braids at the time of his arrest.
¶ 7 Detective Richter testified that on June 11, 2007, after the defendant had been arrested by the police, he investigated the crime scene at 5345 South Hoyne Avenue in Chicago, where he saw a vehicle that fit the description of a vehicle taken in an earlier aggravated vehicular hijacking. Subsequently, Detective Richter conducted a police lineup at the police station. Detective Richter stated that prior to conducting the police lineup, he was not aware of what physical descriptions Tremon may have provided to other police officers regarding the hijackers. Detective Richter noted that both Tremon and his girlfriend, who was also a victim of the hijacking, viewed the police lineup separately. He testified that Tremon's girlfriend was unable to identify either the defendant or co-defendant Robinson in the police lineup. On cross-examination, Detective Richter testified that Tremon identified the car keys and wallet recovered from the crime scene as his property, identified the handgun as the one used against him in the vehicular hijacking, and identified the defendant in the police lineup as one of the offenders.
¶ 8 Following the parties' arguments, the trial court denied the motion to suppress, finding that the police had a reasonable suspicion to stop the defendant after the foot chase and had probable cause to arrest him after recovering the handgun from the alleyway. The trial court further found that the police lineup was not suggestive and that it was "one of the best lineups" the court had ever seen. All six men in the lineup were close in age and five men, including the defendant, wore a white tee-shirt and blue jeans.
¶ 9 On November 6, 2009, a bench trial commenced. During opening statements, defense counsel stated that the case was one of identification and that the police had arrested the defendant because he fit "a general description which was listed on a flash message." Defense counsel also noted that Tremon had known the defendant and the defendant's family for many years and that Tremon recognized the defendant's voice during the crime.
¶ 10 The State presented the testimony of Tremon, who testified that he was a 37-year-old postal worker and Dione Montgomery (Dione) was his girlfriend of nine years. On June 10, 2007, at approximately 11 p.m., he and Dione were at 1300 West 64th Street near Ogden Park in Chicago. Dione was seated in the passenger seat of her car, which was parked directly behind Tremon's car. Tremon was standing at the rear part of his vehicle when a man in a "dark hoody" approached him, drawing a silver revolver and demanding that Tremon empty his pockets. Tremon's pockets contained his mobile telephone, keys, wallet, a pocket Bible and some cash. At that same moment, a second man, wearing a "white hoody" and red bandanna over the lower part of his face, approached Dione's car. Although the second man's face was partly covered by a bandanna, Tremon could still "pretty much" see his face and identified the defendant in court as the man with the white hoody. The man in the dark hoody then placed Tremon into the backseat of Tremon's vehicle, while he sat in the front passenger seat. The defendant then entered the driver's seat of Tremon's vehicle and drove away. Shortly after the trio left the scene of the carjacking in Tremon's vehicle, the car's engine suddenly shut off due to its antitheft system. Tremon then explained to the two offenders that he needed to reset the alarm system, after which the man in the dark hoody, who was then sitting in the front passenger seat of the car, exited the vehicle and forced Tremon to change seats with him. As Tremon reentered the vehicle to sit in the front passenger seat, the man in the dark hoody struck him on the side of his head with the barrel of a gun, causing a gash. Tremon then reached under the steering wheel of the car and reset the code for the alarm system, which then allowed the defendant to restart the car and continue driving. As they approached the intersection of 61st Street and Loomis Boulevard, the defendant pulled over to the side of the road and allowed Tremon to escape by climbing out of a side window of the car so as not to reactivate the antitheft alarm. The defendant and the man with the dark hoody drove away in Tremon's car. Tremon then called the police. Later, he went to a hospital where he received three staples to close his head wound. On June 11, 2007, at approximately 9 p.m., Tremon positively identified the defendant from a police lineup as one of the two offenders who had robbed him. Tremon testified that it was only when he viewed the police lineup that he first recognized the defendant, also known as "Little Earl," as someone whom he had known from "a previous card game or something." He did not recognize the defendant during the commission of the crime. At trial, Tremon positively identified his wallet, identification card and Bible from the photographs presented by the State of items recovered from the scene after apprehension of the offenders.
¶ 11 On cross-examination, Tremon testified that he did not remember when the card game in which he and the defendant participated had taken place, but that it was not within seven days of the crime. Tremon stated that his younger brother was also present at the card game, which was held at the home of the defendant's aunt, "Kesha," with whom Tremon had been acquainted since childhood. Tremon had socialized with Kesha over the years, which eventually brought him into contact with the defendant. However, Tremon denied that he also socialized with the defendant over the years. Defense counsel then asked whether there had been a dispute at the card game regarding "somebody being cheated out of money." The trial court sustained the State's objection to the question. Tremon acknowledged that he informed the police that one of the offenders said, "Oh Lord, we are going to have to kill him," while Tremon and the two offenders were in Tremon's vehicle. However, Tremon could not recall which offender made the statement. Tremon also could not recall whether he had been convicted of a felony in 2002.
¶ 12 On redirect examination, Tremon confirmed that while he was seated in the car during the crime, he was able to see the defendant's face and a "little smirk" through the bandanna. On re-cross-examination, Tremon testified that although he could see the defendant's face while he was seated in the car during the crime, Tremon did not realize at that point in time that this was someone he had seen on previous occasions.
¶ 13 Dione's testimony was substantially the same as Tremon's testimony regarding the events leading up to the crime and the initial encounter between Tremon and the man with the dark hoody. Dione testified that a man with a white hoody and red bandanna across his face, whom she identified in court as the defendant, approached Dione's car and pointed a shiny silver gun at her head. The defendant then asked Dione whether she had a cellular telephone, picked up her car keys, looked at them and then dropped them. The two offenders then put Tremon into the backseat of Tremon's car and the defendant entered the driver's seat of Tremon's car and drove away. Subsequently, Dione drove to a police station to report the crime, where she was also reunited with Tremon. She observed that Tremon was bleeding and that he later received medical treatment at a hospital. On June 11, 2007, at approximately 9 p.m., Dione and Tremon viewed a police lineup separately. Dione testified that she had positively identified the defendant from the police lineup as one of the offenders. At trial, Dione also identified a photograph of a gun as the one the defendant had pointed at her during the commission of the crime.
¶ 14 On cross-examination, Dione acknowledged that during the "minute or so" when the defendant was pointing a gun at her head, she focused some of her attention on the weapon. However, Dione testified that even though the defendant's face was partially covered by a bandanna, she could see the top half of his face, including his eyes and eyebrows. Dione then stated that she could not recall whether she had positively identified the defendant at the police lineup as one of the offenders and acknowledged that the first time she identified the defendant as her assailant was during her direct testimony at trial. On redirect examination, Dione clarified that she was unable to make an identification in the police lineup in June 2007.
¶ 15 Officer Moran's trial testimony was substantially the same as his testimony at the pretrial suppression hearing. On cross-examination, he testified that as a result of police investigations, two tires from Tremon's car were found in a van that was parked near the alleyway and in front of the site of the defendant's ...