People v. James

• Decision Date: 21 December 2017
• Docket Number: No. 1–14–3391,1–14–3391
• Citation: 93 N.E.3d 626,2017 IL App (1st) 143391
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Ned JAMES, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 143391
93 N.E.3d 626

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Ned JAMES, Defendant–Appellant.

No. 1–14–3391

Appellate Court of Illinois, First District, FOURTH DIVISION.

December 21, 2017

Michael J. Pelletier, Patricia Mysza, and Christofer R. Bendik, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Peter Maltese, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 Defendant Ned James, along with Cortez Moore, Rashawn Coleman, and Henry Sistrunk, broke into a south-side apartment around 4 o'clock in the morning on January 17, 2011. The men attacked two male occupants and bound them with duct tape; forced a female occupant, A.W., to undress at gunpoint; and herded everyone into the kitchen. While defendant, Sistrunk, and Moore ransacked the apartment in search of money or drugs—neither of which they found—Coleman stood guard over the occupants with a rifle and sexually assaulted A.W.

¶ 2 Defendant and his confederates were charged with home invasion, armed robbery with a firearm, and aggravated criminal sexual assault. Sistrunk died while awaiting trial. The other codefendants were convicted of all charges after simultaneous but severed trials—defendant and Moore by separate juries, and Coleman before the bench. Defendant was sentenced to an aggregate prison term of 90 years.

¶ 3 Defendant raises several issues on appeal. Briefly, he contends that: (1) the evidence was insufficient to prove him accountable for A.W.'s sexual assault; (2) the prosecutors committed misconduct during their opening statements and closing arguments; (3) the trial court erred in omitting the bracketed language in Illinois Pattern Jury Instructions, Criminal, No. 3.06–3.07 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 3.06–3.07) when instructing the jury; (4) the trial court abused its sentencing discretion; (5) the statute authorizing his sentence for home invasion to be served at 85% time upon a judicial finding of great bodily harm is facially unconstitutional under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; (6) the trial court failed to conduct an adequate preliminary Krankel inquiry; and (7) his mittimus contains errors.

¶ 4 Some of these issues are identical to, and others significantly overlap with, issues raised by Moore and Coleman in their own pending appeals. See People v. Moore , 2017 IL App (1st) 1150208; People v. Coleman , 2017 IL App (1st) 1143470–U. Here, we resolve these issues only as they pertain to defendant. For the reasons we explain below, we hold that defendant is eligible for day-for-day credit on his home-

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invasion sentence, and we correct the mittimus as he has requested. We otherwise affirm defendant's convictions and sentences.

¶ 5 FACTS

¶ 6 Believing they were robbing a drug house, defendant, Coleman, Moore, and Sistrunk broke into an apartment on South Wentworth Avenue in Chicago. The apartment was home to two couples and a baby: Maritza Morales, Khalil Cromwell Sr., and their eight-month-old son, Khalil Jr.; as well as A.W. and Isaac Andrews.

¶ 7 Morales, Andrews, and A.W. testified for the State, as did several responding police officers and forensics experts. None of the codefendants testified or presented any witnesses. The State's theory was that the codefendants shared a common design to rob the victims of drugs and money, and that every act or threat of force by any of them—including Coleman's sexual assault of A.W.—was an act in furtherance of that common design. The State thus proceeded on accountability theories of guilt as to all charges. The defense theory was that although defendant was admittedly in the apartment during the offenses—indeed, the police arrested him there—he did not participate in them; rather, he was visiting a known drug house when his codefendants arrived with their own criminal agenda.

¶ 8 I. Victims' Testimony

¶ 9 Morales, Cromwell, and their baby stayed in the rear bedroom of the apartment, off the kitchen. Andrews and A.W. stayed in the front bedroom, off the living room. Morales testified that she awoke to a loud noise around 3:45 a.m. She roused Cromwell, who went to the kitchen to see what was happening. Morales peeked out of the bedroom door and saw Cromwell on the kitchen floor. Two men in masks were beating him with their fists and kicking him in the face and back.

¶ 10 Morales hid in the bedroom closet with the baby. A man wearing a "scary Halloween mask" came into the bedroom and rummaged through the drawers. Defendant's DNA was found on the mask Morales identified. After the baby made a noise, the man opened the closet door, pulled Morales and the baby into the kitchen, and told Morales to sit on the floor and stare at the wall. She glanced at Cromwell: He was lying on his stomach, with his hands, feet, and face duct-taped; and there was blood around him on the floor. The men brought Andrews and A.W. into the kitchen and ordered them to get down on the floor. They duct-taped Andrews's hands, feet, and face. A.W. was naked.

¶ 11 Andrews and A.W. also woke up when they heard noise in the apartment. Andrews got out of bed and cracked open the bedroom door, where he was confronted by a man dressed all in black, brandishing a handgun, and wearing a "Halloween scream" mask. Andrews identified the same mask as Morales. According to Andrews, the man in the mask, and two others, who were also dressed in black, came into the bedroom. A.W. testified that she saw two men: a taller man wearing a mask; and a shorter, heavier man, who was not wearing a mask, and whom she identified as Coleman. One of the men, according to A.W., was pointing a "long wooden gun" (the exhibits depict what appears to be a rifle) at Andrews.

¶ 12 The men—however many there were—ordered Andrews to get on the floor and keep his head down. A.W. tried, unsuccessfully, to hide under the covers. The men ordered her to get out of bed, take off her clothes, and lie down on the floor with Andrews. A.W. testified that both of the men she saw—Coleman and the taller man in the mask—told her to take off her

93 N.E.3d 633

clothes. A.W. removed her bra and pajama shorts. She testified that one of the men was pointing a gun at her. Andrews testified that while A.W. was lying naked on the floor next to him, the men—Andrews could not be more specific, but he used the plural "they"—told A.W. to open her legs and said "fat as[s] pussy" or something like that.

¶ 13 The men asked where the "shit" or "white" was, and they threatened to drop a barbell on Andrews's head if he did not tell them. Andrews looked up, and one of them hit him in the face with a crowbar or tire iron. While Andrews was being attacked, A.W. was being taken to the kitchen. A.W. could not remember which of the men took her to the kitchen, but she testified that it was only one. Soon after that, Andrews was taken separately to the kitchen.

¶ 14 In the kitchen, Andrews and A.W. were told to lie down on the floor with Cromwell and Morales (who was holding Khalil Jr.). Andrews was duct-taped in the same fashion as Cromwell, and A.W. was still naked. The victims saw a total of four men, three of whom were masked: two of the masks were "Halloween" or "scream" masks of different varieties, and the third was a black ski mask. Morales, Andrews, and A.W. all identified the fourth man, whose face they said was visible, as Coleman.

¶ 15 The men repeatedly threatened to "cut" or "stab" the victims if they did not say where the money and the "stuff" or "white" was. Everyone understood the men to be asking for drugs, which the victims denied having. There was no evidence that any drugs, paraphernalia, or large sums of cash were ever found in the apartment. The men took the victims' wallets, phones, and video games instead.

¶ 16 While the others ransacked the apartment, Coleman stood guard over the victims in the kitchen with a rifle. A.W. testified that Coleman, whose voice she recognized, hovered over her while she was lying on her stomach. He smacked or grabbed her buttocks, and put his fingers into her vagina. A.W. testified that no one else touched her, but she acknowledged that, in her handwritten statement, she had previously said that "the biggest man"—who, she said, was not Coleman—had grabbed her buttocks before Coleman walked over and digitally penetrated her several times.

¶ 17 Andrews testified that he saw one of the men bend over A.W. in the kitchen, but he could not see which man it was or what he was doing. He heard the man tell A.W. to spread her legs and say, "[t]hat's a big old fat pussy," or some such "little vulgar words towards her pussy." Andrews acknowledged that he did not mention this in his statement to the police.

¶ 18 Morales, who remained in the kitchen until the police arrived, did not testify that anyone touched A.W. or made vulgar comments about her.

¶ 19 Neighbors had called the police, who responded within 20 or 25 minutes of the intruders' initial entry. A.W. and Morales (along with Khalil Jr.) hid in a utility closet when they heard a police radio. Andrews testified that when the officers entered, Coleman was still in the kitchen; two of the men were in the front of the apartment, near his bedroom; and the fourth man, whom Andrews identified as defendant, ran into the bedroom adjoining the kitchen and pretended that he lived in the apartment.

¶ 20 II. Police Officers' Testimony

¶ 21 The first-responders were Officers Buckhalter and Randall (who testified), and Sergeant Cruz (who did not). Upon entering the apartment, Randall and Cruz went to the kitchen; Buckhalter went toward Andrews's bedroom. Officer Randall

93 N.E.3d 634

testified that when he entered the kitchen, he saw a man in a mask holding a handgun and...