Appeal from the Circuit Court of Lake County No. 10-CF-638 Honorable Fred Foreman, Judge, Presiding.
Justices Hudson and Birkett concurred in the judgment and opinion.
¶ 1 Defendant, Tyrone D. Watt, and three codefendants were charged in an 18-count indictment with offenses arising out of events on February 24, 2010, in Waukegan, Illinois. Defendant, alone, stood trial on counts I through V of the indictment. The record indicates that the three codefendants' cases were disposed of separately. Defendant appeals from the February 3, 2012, judgment order showing that he was convicted of armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)), aggravated kidnapping (720 ILCS 5/10-1(a)(1) (West 2010)), and home invasion (720 ILCS 5/12-11(a)(2) (West 2010)). For the reasons that follow, we affirm as modified.
¶ 2 BACKGROUND
¶ 3 A. The Indictment
¶ 4 Defendant and codefendants George C. Bates, Roger D. Golden, and Kevin J. Martin were charged in relevant part as follows:
• Count I—"[D]efendants *** committed the offense of [home invasion], in that the said defendants, who were not peace officers acting in the line of duty, knowingly, and without authority, entered the dwelling place of Domonique Kyle *** having reason to know that Domonique Kyle was present in that dwelling place and while armed with a firearm, used force against Domonique Kyle *** ."
• Count II—"[Defendants] *** committed the offense of [aggravated kidnapping], in that the said defendants while armed with a firearm, committed the offense of kidnapping *** in that they knowingly and secretly confined Domonique Kyle against her will *** ."
• Count III—"[Defendants] *** committed the offense of [armed robbery], in that said defendants, while armed with a firearm, knowingly took property, being United States [c]urrency, from the presence of Domonique Kyle, by the use of force *** ."
• Count IV—"[Defendants] *** committed the offense of [aggravated kidnapping], in that the said defendants, in committing the offense of kidnapping *** knowingly and secretly confined Domonque Kyle against her will while wearing masks *** ."
• Count V—"[Defendants] *** committed the offense of [home invasion], in that the said defendants, who were not peace officers acting in the line of duty, knowingly, and without authority, entered the dwelling place of Domonique Kyle having reason to know that Domonique Kyle *** was present in that dwelling place, intentionally caused an injury to Domonique Kyle, in that the said defendants struck Domonique Kyle about the head *** ."
¶ 5 B. The State's Fourth Motion in Limine
¶ 6 The State filed a motion in limine seeking to introduce at trial a recording and a transcript of the 911 call the victim made to the Waukegan police at approximately 12:30 a.m. on February 24, 2010. According to the State, the call was admissible under the excited utterance exception to the hearsay rule. At the hearing on the motion, defendant objected only on the bases that not all of the victim's statements in the 911 call were excited utterances, that none of the dispatcher's statements qualified as excited utterances, and that the 911 call was cumulative. Over these objections, the trial court granted the motion.
¶ 7 C. The Evidence at Trial
¶ 8 On February 24, 2010, the victim, who was 26 years old at the time of trial, lived in an apartment at 1030 Lakehurst Drive in Waukegan with her boyfriend, Gino Adams, and Gino's two-year-old daughter, Heaven. Gino left the apartment on February 23, 2010, at about 10 p.m. and then returned close to midnight, picked up Heaven, and left again. At that time, the victim was in bed in the bedroom. She had awakened when Gino came in, but she fell back asleep after Gino and Heaven left.
¶ 9 The victim was awakened again when she heard voices outside the door to her bedroom. Then the hallway lights came on. The victim saw three men, one in the hallway and two approaching her. One of the men who approached her had a dark-colored revolver. He was wearing plaid. The other two men wore dark clothing. All three wore masks and gloves. They asked the victim where the money and the "work" were. According to the victim, "work" meant drugs. The man with the gun went through dresser drawers and asked the victim for her jewelry. The other men were going through an armoire. One of the unarmed men ordered the victim off the bed and flipped the mattress. He said, "So you going to lie to me, bitch, " and punched the victim in the left eye.
¶ 10 The victim had put on the dresser between $4, 000 and $5, 000 in cash, which the men took. The three men in the bedroom then led the victim into the kitchen. A fourth masked man, in dark clothing and gloves, was standing by the door to the kitchen. They all asked the victim "where is the money, " "where is the work, " as they ransacked the refrigerator and the cabinets. Then one of the men took the victim into the bathroom, where he taped her ankles and wrists with duct tape. When the man ordered the victim to lie on the floor, she told him she was pregnant and pleaded with him not to hurt her. The man turned off the light and closed the bathroom door. The victim heard the men leave her apartment and then she freed herself and called 911. The victim testified that she was "terrified" at the moment she called 911.
¶ 11 The State moved to admit and publish the 911 recording and the transcript. Defendant objected to publishing the 911 recording without stating a basis and also objected to the use of the transcript. The court admitted both the recording and the transcript but cautioned the jury that the transcript was admitted only to assist it in understanding the recording. The recording was then played for the jury. In the call, the victim related that four masked black men broke into her apartment, went through her "stuff, " hit her, and locked her in the bathroom. The victim told the 911 dispatcher that one of the men was wearing a plaid shirt.
¶ 12 At approximately 12:30 a.m. on February 24, 2010, Waukegan police officer Byrd was dispatched to an address on Lakehurst Road and he asked for assistance making a traffic stop. Officers Spiewak and Tran were in the area and responded. They saw Byrd following a white vehicle at Lakehurst Road and Route 43, which is Waukegan Road. Byrd activated his overhead lights and the white vehicle slowed and pulled over. The stop occurred approximately a block or a block and a half from the victim's apartment. Byrd, Spiewak, and Tran all exited their cars and approached the white vehicle. The driver's door of the white vehicle opened and a male, identified as defendant, fell out of the white vehicle onto the road. The vehicle took off and Byrd chased it.
¶ 13 Spiewak and Tran pointed their guns at defendant, who walked away from them. Officer Spiewak testified that there was money "falling all over." He said, "I don't know from [defendant's] pockets, maybe from—it was just falling everywhere, blowing around in the wind, just blowing away." Spiewak ordered defendant to get down on the ground. Defendant complied. When Spiewak searched defendant for weapons, he felt what turned out to be "clumps" and "wads" of money "in every pocket [defendant] had on his clothing." Defendant also had a black hat stuffed with money. Defendant was dressed in black clothing. The officers then transported defendant to the police station. At the police station, Spiewak counted the money he recovered from defendant at the scene. It totaled $5, 633.
¶ 14 At trial, evidence of defendant's participation in the crimes was introduced through codefendant Bates. Bates had pleaded guilty to home invasion and armed robbery, in exchange for dismissal of the other charges and a sentencing range of 21 to 30 years in prison. Bates would not be sentenced until he completed his testimony against defendant. While Bates was in the county jail, he incurred a charge for fighting, for which he received no consideration from the State in exchange for his testimony. Bates testified that he had prior convictions of aggravated driving under the influence, kidnapping, and aggravated battery, and he had "a drug case."
¶ 15 Bates testified that he knew defendant, because defendant had a child with Bates's cousin. At approximately 3 or 4 p.m. on February 23, 2010, Bates spoke with defendant about "going to do a robbery." The idea of a robbery had originated with codefendant Martin the day before, and it was Bates's job to find a "ride, " so he contacted defendant. According to Bates, defendant agreed to participate because defendant needed rent money. At about 8 p.m. on February 23, 2010, defendant picked up Bates. Defendant was driving a white car. They then picked up Martin and drove to the Lakehurst Apartments. Their target was Adams, whom they believed had narcotics and money. When they got to the Lakehurst Apartments, they discovered that the front door to the building was locked, so they needed someone to help them break into the building. Defendant called codefendant Golden. Defendant then drove the white car to Zion, Illinois, where they picked up Golden. Defendant, Golden, Martin, and Bates made a couple more stops, during which defendant procured "burglary tools"—hammers and screwdrivers. According to Bates, defendant also had a "chrome" revolver.
¶ 16 The four men returned to the Lakehurst Apartments, where defendant and Golden pried the front door open. When a car came by, the four men hid in some bushes and then watched Adams go inside the apartment building. A few minutes later, they saw Adams come out of the building, carrying a child. Adams and the child got into a car and left. According to Bates, he voiced a reservation about proceeding with the robbery, but defendant wanted to do it.
¶ 17 Bates testified that they entered the building wearing masks—hats with holes in them so they could see—and gloves. They went to the second floor, where Bates placed duct tape over the apartment doors' peepholes. According to Bates, defendant used his shoulder to break in the door to the victim's apartment and the men entered. Bates, defendant, and Golden went into the bedroom. The victim was in bed. Bates testified that he told her, "[I]t's not about you, ain't got nothing to do with you." Bates testified that he stood by the victim while defendant and Golden "ransacked" the closet. According to Bates, defendant asked the victim where the money was, and, when she told him, he grabbed something from where she was pointing. Defendant told the victim to get off the bed, then defendant flipped the mattress and hit the victim in her eye.
¶ 18 Bates testified that they took the victim into the kitchen, where Martin was looking through the cabinets. Then defendant took the victim into the bathroom. When defendant came out of the bathroom, the four men left the apartment. Bates testified that he took a number of the victim's items.
¶ 19 According to Bates, defendant drove them away from the scene. While they were on Lakehurst Road heading toward Waukegan Road, a police car began following them. Defendant pulled over to the right-hand side of the road. At that moment, Martin, who was in the front passenger seat, grabbed the steering wheel, got his foot on the gas, and fought defendant for the gear shift. Defendant got out of his seat belt and opened the driver's door. Martin then "knocked" ...