People v. Herring

• Decision Date: 11 December 2018
• Docket Number: No. 1-15-2067,1-15-2067
• Citation: 2018 IL App (1st) 152067,123 N.E.3d 1,428 Ill.Dec. 537
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy HERRING, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 152067

123 N.E.3d 1

428 Ill.Dec. 537

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

v.Timothy HERRING, Defendant-Appellant.

No. 1-15-2067

Appellate Court of Illinois, First District, Second Division.

Opinion filed December 11, 2018

Rehearing Denied January 11, 2019

James E. Chadd, Patricia Mysza, and Darrel F. Oman, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and Douglas P. Harvath, Assistant State’s Attorneys, of counsel), for the People.

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

¶ 1 Stephen Peters discovered that someone had broken into his mother's garage and damaged his prized Ford Mustang. Stephen called the police. An evidence technician arrived to collect fingerprints and other evidence. While the two men stood in the alley outside the garage, they were shot and killed. A few days later, friends and relatives of Timothy Herring informed police that Herring had committed the murders. A jury convicted Herring of first degree murder of both men.

¶ 2 Herring argues (i) the State did not prove the corpus delicti of the offense due to insufficient evidence (Herring, however, misunderstands the corpus delicti rule); (ii) the trial court erred in making several evidentiary rulings (but these rulings either do not constitute an abuse of discretion or were harmless error); (iii) the State committed prosecutorial misconduct in several ways (we find, however, that none presents reversible error); (iv) his trial counsel was ineffective for failing to object to fingerprint evidence and cell phone location data (but Herring's counsel attacked the fingerprint evidence through cross-examination and, even if the cell phone location data had been excluded, no reasonable probability exists that it would have led to an acquittal); and (v) his mandatory natural life sentence is unconstitutional (but the law sees Herring as an adult, not a juvenile, at the time of the murders).

¶ 3 Background

¶ 4 Herring moved to prevent the State from eliciting hearsay statements that Stephen had made to his mother before his death and her 911 call. The trial court admitted Stephen's statements to Laura Peters to explain his intent to go back to the garage and admitted the 911 call as an excited utterance to establish the chain of events and as evidence of the second set of gunshots. The trial court said it would consider giving a limiting instruction about Stephen's statements.

¶ 5 Laura Peters

¶ 6 Laura's son, Stephen, kept his 2003 Ford Mustang in the garage behind her home. In the early afternoon of November 26, 2010, Stephen came to her house and told her that someone had broken into the Mustang, he had called the police, and he was going outside to await their arrival.

(The trial court overruled Herring's objection to this testimony. Herring did not request a limiting instruction.) About 10 minutes later, Laura heard two gunshots outside. She looked out the back window and saw Stephen lying on the ground.

¶ 7 Laura called 911 and reported that Stephen had been shot. Whiles on the phone, she heard two more shots. The State played a tape of the 911 call for the jury. (The trial court overruled Herring's objection to the tape.) When Laura looked out the window, she saw a man pushing two garbage cans in front of the garage. The cans had her home address spray-painted on them). She described the man as dark complected; 5 feet, 8 inches; wearing dark jeans and a dark hooded jacket with the hood pulled up.

¶ 8 Will Turner

¶ 9 Will Turner's garage sits directly across the alley from Laura's garage. At 1:15 p.m., Turner came home with a friend and pulled into the alley. Turner saw a police car parked in the alley by his garage and asked Stephen what had happened. Stephen told Turner that someone had broken into his mother's garage, and he thought that person would return for the stolen items, which had been stashed in garbage cans next to the garage. (The trial court overruled Herring's objection to this testimony.) Turner went into his house while his friend went into Turner's garage. A few minutes later, the friend knocked on Turner's door and told him that someone was shooting in the alley. Turner looked out and saw Stephen and a police officer lying on the ground. Turner told his friend to call 911. Then, Turner heard two gunshots. Turner did not see who fired and did not see Herring, who he knew because Herring lived nearby.

¶ 10 Rahman Muhammad

¶ 11 The first officer to arrive, Chicago police sergeant Rahman Muhammad, saw Stephen lying on the ground, then noticed Chicago police officer Michael Flisk and radioed that an officer had been shot. Officers swiftly arrived and searched for the two garbage cans that had been moved from the alley. They located the cans in the backyard at 8112 South Burnham, about eight or nine houses from Laura's home. The cans contained wires and car stereo equipment. The backyard was open and accessible to anyone from the alley.

¶ 12 Fingerprint Evidence

¶ 13 Police evidence technicians processed the contents of the garbage cans (which contained several items other than those from Stephen's car). All items were dusted for fingerprints, but only one latent print was found, on a rearview mirror bracket. A fingerprint examiner determined that this fingerprint matched Herring's left index finger. The examiner admitted that in writing his report, he initially gave the wrong inventory number for the mirror bracket, but corrected his error before trial. Herring's counsel cross-examined the fingerprint examiner, and did not object to the mirror bracket's admission. No fingerprint taken from Stephen's car matched Herring.

¶ 14 Tranay Smith

¶ 15 In the late morning of November 26, Tranay Smith, an acquaintance of Herring's, received a call from him. Smith was with her friend and cousin, Diamond Owens. Smith and Owens picked up Herring and went to Smith's home at 83rd Street and Phillips Avenue. The three smoked marijuana and watched television before dropping Herring at 81st and Muskegon. Smith drove around the neighborhood for about a half hour and saw police officers near 80th and Manistee. Smith called Herring to check on him because she knew Herring was on parole. Herring asked Smith to pick him up in an alley at 81st and Muskegon. When she arrived, Herring appeared to be acting paranoid but told Smith nothing was wrong.

¶ 16 They all returned to Smith's house. Herring began panicking and asked Smith if anyone else was home and whether police cars had cameras. Herring said that he had shot two people. Herring began cutting off his braided hair and making phone calls. He took off his jacket, and Smith saw there were colored wires in it. He had a black gun with a laser beam. He put the gun, the jacket, the wires, and braids in a bag, and then the bag into a diaper box in Smith's closet. Herring told Smith not to say anything and that Tim Willis would retrieve the bag. Herring wanted a haircut, so Smith took him to a barbershop at 79th Street and Kingston Avenue. Later that night, Willis came to Smith's home and took the bag.

¶ 17 Smith did not call the police; rather, the police took her to the station and read her the Miranda warnings. At first, Smith lied and said she had only wanted to buy marijuana from Herring; but her conscience bothered her, and she knew that Herring was in jail at that point, so she disclosed what Herring had told her. She was not allowed to return home until after making a taped statement. Smith had an unrelated felony charge pending at the time.

¶ 18 The police never recovered any of the items Herring placed in Smith's closet.

¶ 19 F. Diamond Owens

¶ 20 Owens, Smith's cousin, had been scheduled to testify the week before but had refused, and was now in sheriff's custody. On November 26, Owens was with her cousin, Smith, when Smith received a call from Herring, whom Owens did not know. Smith and Owens picked up Herring and went to Smith's house; later, the two women drove Herring to 81st and Manistee. Driving around afterwards, Owens and Smith saw police in the area, and Smith called Herring. Smith drove to an alley near 81st and Muskegon, and Herring, who looked "very shaken and scared," got in the car. On the way back to Smith's house, their car passed the alley at 81st and Manistee. Owens saw a police car and two people lying on the ground.

¶ 21 At Smith's house, Herring pulled a gun from his jacket and put the jacket and gun in a bag, telling them he had shot two people. The gun was gray with a red laser beam. Owens left the room; when she returned, she saw braids on the floor. Smith put the hair in the bag, and Herring asked the women to drive him to a barber. They left him at a shop at 79th and Kingston. Later that evening, Smith gave the bag containing the gun to someone who came to the house.

¶ 22 Owens's father took her to the police station. Initially, Owens did not tell the police the truth, fearing her father might learn about her involvement. In a second interview, hours later, after police disclosed they had spoken with Smith, Owens told them what she knew.

¶ 23 Raynard Jackson

¶ 24 On November 26, a man came into the barbershop where Raynard Jackson worked. The man had braids and asked for a haircut. Jackson told the man he would need to take the braids out, and the man left. Jackson had not wanted to talk to the police, but he identified Herring from photographs. Jackson did not know Herring and saw him for a few seconds.

¶ 25 Tekeyina Poole

¶ 26 Tekeyina Poole, a longtime friend of Herring's, received a call from him at 2:30 p.m. Shortly afterward, Herring arrived at her home. He had on a red fitted hat that Poole had never seen. Herring stayed for about an hour, receiving several calls. At 3:50 pm, Herring called his cousin, Moesha Menzies, and asked her to come get him. When Menzies arrived, Herring left.

¶ 27 Moesha Menzies

¶ 28 Menzies, another cousin of Herring's,...