Court of Appeals of Illinois, First District, Sixth Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 06 CR 20688. Honorable James L. Rhodes, Judge Presiding.
FOR APPELLANT: Michael J. Pelletier, State Appellate Defender, Chicago, IL, Alan D. Goldberg, Deputy Defender, OF Rebecca I. Levy.
FOR APPELLEE: Anita Alvarez, Cook County State's Attorney, Chicago, IL, OF Alan J. Spellberg, Peter Fischer and Whitney Bond.
JUSTICE LAMPKIN delivered the judgment of the court with opinion. Justices Hall and Rochford concurred in the judgment and opinion.
[¶1] After a jury trial, defendant Charles Lawson was found guilty of four counts of home invasion and four counts of aggravated
kidnapping. The trial court sentenced him to natural life in prison.
[¶2] On appeal, defendant contends that (1) the trial court should have granted his motion to quash his arrest and suppress evidence because the police stopped him without reasonable suspicion where he was walking on a public street near the site of the home invasion but 3 1/2 hours after it had occurred; (2) the trial court should have granted his motion to suppress the lineup identifications, which were unduly suggestive based on defendant's attire; (3) the statutory provision regarding the sentencing of habitual criminals is unconstitutional as applied to defendant because one of his prior qualifying convictions--a 1998 armed robbery--occurred when he was 17 years old and, thus, his current natural life sentence constitutes punishment too severe for conduct that he had committed as a juvenile; (4) his natural life sentence based on being adjudicated an habitual criminal should be vacated because it is predicated on a 2003 armed robbery conviction that is void; and (5) his multiple convictions for home invasion violate the one-act, one-crime rule.
[¶3] For the reasons that follow, we vacate three of defendant's four home invasion convictions pursuant to the one-act, one-crime rule but otherwise affirm the judgment of the circuit court.
[¶4] I. BACKGROUND
[¶5] Defendant Charles Lawson and codefendants Jason Thomas and Darnell Hicks were arrested and indicted for various offenses stemming from the August 15, 2006 home invasion and aggravated kidnapping of members of the Sayegh family. Prior to trial, defendant Lawson moved the court to quash his warrantless arrest and suppress the evidence against him, and to suppress the lineup identifications of him.
[¶6] At the hearing on the motion to quash, the evidence established that the police were called to the Sayegh home on 15451 David Lane in Oak Forest around 12:30 a.m. for a home invasion in progress with offenders armed with guns. Police officers Steven Lipinski and Bill Shemanske and Sergeant Scott Durano were among the numerous police officers who responded to the call. The area was entirely residential. Officers Lipinski and Shemanske walked up the driveway and saw codefendant Hicks exit the back door of the house. Officer Shemanske chased Hicks and lost sight of him, but then found him a few minutes later inside a car parked on a nearby corner. Meanwhile, Officer Lipinski saw two black males run out the front door of the house. Officer Lipinski described one male, later identified as codefendant Thomas, as heavyset and wearing a sports jersey. Officer Lipinski described the other male, later identified as defendant Lawson, as thin and dressed all in black. Sergeant Durano was a K-9 handler. Shortly after Officer Shemanske had detained Hicks, Sergeant Durano's dog alerted to Thomas, who was hiding under a car parked a few houses down from the Sayeghs' home. Thomas was wearing a green and white sports jersey. Officer Lipinski spoke to the Sayegh family and received their description of defendant, who was still at large.
[¶7] The police continued to search the area, looking in the backyards, gangways, bushes and cars. Aside from police officers, no one was walking around in that area. At 3 a.m., the police were advised to " loosen up" the area, meaning that the search area would expand and become less concentrated with police officers to induce the missing third offender to come out of hiding so the police could apprehend him. At 3:55 a.m., Sergeant Durano drove past defendant Lawson, who was standing on
the corner of 155th and Central, which was less than one block from the Oak Forest police station. This location was about three blocks from the Sayegh house. Defendant was wearing blue jeans and a dark blue or black shirt with blue and white skull graphics on it. He was the first person that Sergeant Durano and the other police officers had seen on the street since the police had loosened up the search. Sergeant Durano thought defendant might match the description of the missing third offender, so he turned into the police station parking lot and radioed Officer Shemanske for Officer Lipinski's description of the third offender. Officer Shemanske replied that the description was of a short, black male wearing dark clothing. According to the police report eventually written by Officer Lipinski, he had described defendant as a black male, late twenties, wearing black clothing. Sergeant Durano advised Officer Shemanske that defendant might match the description, and Sergeant Durano and Officer Shemanske separately drove toward defendant, who had crossed the street and was walking toward a residential neighborhood.
[¶8] Sergeant Durano and Officer Shemanske caught up to defendant, stopped him and exited their cars. They were both in uniform and confronted defendant in front of Sergeant Durano's squad car. Sergeant Durano was positioned in front of defendant and Officer Shemanske was positioned somewhat behind defendant in case he took off running. Sergeant Durano asked defendant where he was coming from, and defendant replied that he was at a friend's house trying to sell him dope. Sergeant Durano asked the friend's name and where his house was located, but defendant could not remember the location of the house or give his friend's name. Defendant's inability to tell the police the particular location from which he claimed to have come heightened Sergeant Durano's suspicions. Sergeant Durano knew that the suspects had possessed guns during the home invasion and the police had not recovered any weapons yet, so he was concerned that defendant might be armed and was going to pat him down. Before starting to pat defendant down, Sergeant Durano asked him whether he had anything of concern on his person, and defendant replied that he had marijuana in his front right pocket. Both Sergeant Durano and Officer Shemanske noticed that the hems of defendant's pants were wet, which indicated that he had been in a grassy area because it was dry out that night. Sergeant Durano had been searching in grassy areas and his pants hems were wet from the dew. During the pat down, Sergeant Durano noticed a large bulge in defendant's left back pocket, which was found to be a mask and two small baggies of marijuana. The small amount of marijuana found on defendant was more consistent with personal use than selling. The officers took defendant into custody, placed him in the police car, and drove him to the police station.
[¶9] The trial court denied defendant's motion to quash his arrest and suppress evidence. The trial court found that the police did not have probable cause to arrest defendant based on the comparison of his attire to the missing offender's description, defendant's wet pants hems, and his being in the general vicinity of the home invasion 3 1/2 hours after the incident. However, those factors did give the police reasonable suspicion to conduct a Terry stop, and probable cause to arrest defendant arose once the police found drugs on him.
[¶10] At the hearing on the motion to suppress defendant's lineup identifications by the Sayegh family, the defense argued that the lineups were unduly suggestive because defendant stood in the middle position
of the five lineup participants and no one else was dressed like him. Detective Jim Emmett testified that the lineups were conducted on August 16, 2006. At about noon, he and two lieutenants contacted the Markham courthouse to obtain fillers for the lineup. Detective Emmet picked up George Sayegh and his two daughters, Reta and Rima, and drove them to the courthouse. Detective Emmett told them they were going to view a lineup but did not discuss with them who, if anyone, was in custody.
[¶11] George, Reta and Rima each signed a lineup advisory form. Then they separately viewed the lineup and wrote on their forms which position number they chose. Furthermore, they waited in a separate area until each family member finished viewing the lineup. Each of them picked defendant, who was standing in the number three position. The photograph of the lineup shows that the man in the number one position wore a white T-shirt; the man in the number two position wore a gray T-shirt with black writing on it; defendant, who was in the number three position, wore a black or dark navy blue shirt with blue and white skull graphics on it; the man in the number four position wore a white T-shirt, and the man in the number five position wore a white or grayish T-shirt with some black writing or design on it.
[¶12] Lieutenant Mark Jensen was in charge of putting the lineup together. He and another officer reviewed the people present at the courthouse for bond hearings to find possible fillers and chose four people who looked the most like defendant. They told defendant to pick his position in the lineup, and defendant chose the number three spot. Lieutenant Jensen did not make any determinations about what the lineup fillers would wear because the clothing choices were limited by the limited number of people in bond court on any given day.
[¶13] The trial court found that the lineup was not unduly suggestive and denied defendant's motion to suppress the lineup identifications.
[¶14] The State proceeded to trial against defendant on four counts of home invasion and four counts of aggravated kidnapping. Officers Lipinski and Shemanske, Sergeant Durano, Detective Emmett and Lieutenant Jensen all testified consistently with their testimony at the hearings on the pretrial motions. George, Reta and Rima Sayegh also testified at the trial. The State's evidence established that when George drove home shortly after midnight on the date of the offense, he entered his home through the back door and two men with guns, later determined to be defendant and codefendant Thomas, followed him inside and put a gun to his head. Seventeen-year-old Reta had been watching television in a small room by the door with her seven-year-old sister Rachel. Reta saw defendant and Thomas from two feet away, and Rachel screamed and cried. Reta got up, and defendant grabbed her arm, put a gun to her head, and told her to " shut ...