People v. Felton

• Decision Date: 04 January 2019
• Docket Number: Appeal No. 3-15-0595
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard FELTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (3d) 150595

123 N.E.3d 1118

429 Ill.Dec. 59

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Richard FELTON, Defendant-Appellant.

Appeal No. 3-15-0595

Appellate Court of Illinois, Third District.

Opinion filed January 4, 2019

JUSTICE WRIGHT delivered the judgment of the court, with opinion.

¶ 1 Defendant, Richard Felton, appeals following his convictions for home invasion and attempted first degree murder in separate trials. He argues that (1) an excessive amount of evidence of home invasion was introduced at his attempted first degree murder trial, (2) the mandatory 25-years-to-life firearm enhancement is unconstitutionally vague, (3) the sentences imposed by the circuit court were excessive, and (4) the mittimus should be amended to reflect the merging of charges at sentencing. We affirm and remand.

¶ 2 FACTS

¶ 3 The State charged defendant with attempted first degree murder ( 720 ILCS 5/8-4(a), 9-1(a)(1) (West 2012) ) and aggravated battery (id. § 12-3.05(e)(1) ), alleging defendant shot Jeremy Wade in the face, causing great bodily harm. The State also charged defendant with home invasion (id. § 19-6(a)(2) ) and residential burglary (id. § 19-3(a) ). The circuit court granted defendant's motion to sever the charges.

¶ 4 I. Home Invasion Trial

¶ 5 A jury trial on the home invasion charge commenced on March 3, 2015. Virginia Sommerville testified that she lived alone at 1601 West Jackson Street, in Ottawa, on August 9, 2013. At the time of the incident, she was 93 years old. Virginia testified that at some point in the middle of the night, someone tied her up and "went through" her belongings. She was later able to untie herself and call 911. A diamond ring was all Virginia recalled being removed from the house. Photographs of Virginia taken that night show bruising on her hands and arms, as well as duct tape hanging from her head.

¶ 6 Patrick Hardy of the Ottawa Police Department was the first officer to arrive at the scene. Hardy observed that Virginia was in a nightgown and had duct tape in her hair. She was holding a black zip tie. Hardy testified that the house was in disarray. He noticed ropes tied to Virginia's bedposts, as well as an open window with closed blinds. The open window was on the west side of the home, facing Thornton Park. Hardy noticed footprints outside the window.

¶ 7 Wade testified that he was friends with Justin Sommerville, Virginia's grandson. Wade noticed that Justin frequently had large amounts of cash and later learned he was receiving it from Virginia. Wade testified that "Merch" had also noticed this. "Merch" was one of defendant's sobriquets. Approximately a week prior to the incident, Wade told defendant that Justin was receiving the money from Virginia.

¶ 8 The night before the incident, defendant asked Wade about the money. Defendant asked if there was any more money in Virginia's house. He also asked if Virginia lived alone. Wade testified that he, defendant, and Jimmy Members were present for that conversation. The next day, Wade, defendant, and Members drove to Joliet. In Joliet, defendant bought a number of wigs from a wig store. Later, the three men went to Walmart and purchased dark clothing, a pry bar, a book bag, rope, duct tape, rubbing alcohol, zip ties, and lighter fluid. Wade testified that defendant led the other men through the store. Defendant provided the money for the purchases. Surveillance footage from Walmart was played in court, and Wade identified himself, defendant, and Members in the video.

¶ 9 The group then went to the apartment of April Capsel, in Wedron. There they waited for Britney Dorsam to arrive. Wade testified of Dorsam: "She drove [defendant] around a lot, and she stayed with [defendant]." Defendant instructed Dorsam to download a police scanner or radar application onto her cell phone. Wade installed the application, which would notify Dorsam when there were police in her vicinity. Defendant and Members later went to an area near Virginia's house, for what Wade assumed was surveillance purposes. The entire group reconvened at Capsel's apartment afterward.

¶ 10 Later that night, defendant instructed Wade to put on his dark clothing. Wade, defendant, and Members gathered the items they had purchased from Walmart. Dorsam drove them to Thornton Park, which was adjacent to Virginia's house. Wade testified that he, defendant, and Members exited the car, ran through the park, and approached Virginia's house.

¶ 11 Wade helped defendant enter the house through an unlocked window. Defendant ran to the front door and let Members in the house. Wade testified that he heard Virginia "in there like yelping for a minute or so." He saw Members ransacking the house. Wade testified that he did not enter the house because he believed Virginia would recognize him. Members threw some bags out of the open window, and Wade collected them. Defendant and Members then exited the house through the front door. The three men ran back through the park where Dorsam picked them up. Dorsam drove them back to Capsel's apartment. Wade estimated that defendant and Members were inside Virginia's house for approximately 45 minutes to an hour.

¶ 12 At the apartment, Wade asked defendant if Wade "was going to get something out of it." Defendant gave Wade a ring. After defendant and Members left the apartment, Wade gave the ring to Capsel in exchange for drugs and as rent payment.

¶ 13 Dorsam testified that she was living with defendant during the events in question. Her testimony generally corroborated the testimony provided by Wade regarding the events taking place before and after the incident. She also testified that she and defendant left Capsel's apartment together after the incident. On the way home, she pulled over and defendant used lighter fluid to burn the dark clothing worn during the incident.

¶ 14 Ottawa police corporal Kyle Booras testified that on August 15, 2013, Capsel came to the Ottawa Police Department for reasons unrelated to the incident in question. While speaking to Capsel, Corporal Booras noticed she was wearing a ring similar to one that had been reported stolen from Virginia's house. After asking Capsel about the ring, Booras retrieved the ring and stored it in evidence. Virginia later identified the ring as the one that had been stolen from her house.

¶ 15 Forensic scientist Jaime Bartolotta performed DNA testing on the black zip tie recovered from Virginia's house. The DNA from the zip tie was a mixture of profiles from two different individuals. She concluded defendant could not be excluded from that DNA mixture. Approximately one in five billion black individuals could not be excluded.

¶ 16 On March 6, 2015, the jury found defendant guilty of home invasion and residential burglary. It also found he had committed the home invasion against a person 60 years of age or older.

¶ 17 II. Attempted First Degree Murder Trial

¶ 18 On April 23, 2015, defendant indicated he wished to proceed via bench trial on the attempted first degree murder charge and filed a jury waiver. Judge Cynthia Raccuglia, who had presided over defendant's jury trial, indicated that by waiving his right to a jury trial defendant was agreeing to a bench trial in front of her. Defendant agreed, and the court accepted his waiver.

¶ 19 The same day, the circuit court addressed a motion to include evidence of other crimes filed by the State. The State requested it be allowed to introduce evidence of the home invasion in trying defendant for the subsequent attempted murder of Wade. The court responded:

"THE COURT: The issue we have here is I'm obviously well aware of everything.

[THE STATE]: Right.

THE COURT: And I'm going to be the finder of fact.

[THE STATE]: Right.

THE COURT: And the question is what I'm to consider in making my decision. I'm clearly able to—there's no question after all these years I'm clearly able not to consider relevant what I shouldn't consider relevant * * *."

Defense counsel argued that while the home invasion evidence would go to motive, motive was not an element the State was obligated to prove. He argued the evidence was highly prejudicial. The court ultimately granted the State's motion, commenting: "Now, with a jury, sure. They don't understand the law, and motive to them may mean he did it, but this Court knows the law and * * * we all have motive to want to do harm to people that do wrong to us. That doesn't mean that we're there and we kill them * * *."

¶ 20 Defendant's bench trial commenced on May 5, 2015. The first 30 pages of Wade's trial testimony consisted of his detailing the planning and execution of the home invasion. This testimony was largely identical to his testimony at defendant's home invasion trial. The State once again played the surveillance footage from the Joliet Walmart. Two Ottawa police officers also testified solely regarding the details of the home invasion.

¶ 21 Wade testified that he was taken into custody following a drug raid at Capsel's apartment on August 15, 2013. He was questioned about the home invasion but did not cooperate and was eventually released. Immediately after Wade's release, defendant contacted him wanting to know what Wade disclosed to the police. The two men arranged to meet at Jane's Pub, but when Wade arrived at that location, only Dorsam was present. Dorsam checked Wade for a wire, then arranged for Wade and defendant to speak on the phone. Wade told defendant the police did not know anything about the home invasion.

¶ 22 On the evening of August 18, 2013, Wade was with his friend, Bobby Harden. At approximately 8 p.m., Harden received a phone call and told Wade defendant wanted to speak with him. Wade spoke with defendant, who again asked Wade about his interaction with the police three days earlier. Wade told him for the first time that the police had shown him a photograph of Members. Wade testified that defendant "kind of freaked out and called an F'ing idiot." Harden took the phone back from Wade. After...