People v. Larue

• Decision Date: 24 June 2014
• Docket Number: No. 4–12–0595.,4–12–0595.
• Citation: 10 N.E.3d 959,2014 IL App (4th) 120595,381 Ill.Dec. 550
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Terrell T. LARUE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (4th) 120595

10 N.E.3d 959

381 Ill.Dec. 550

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

v.Terrell T. LARUE, Defendant–Appellant.

No. 4–12–0595.

Appellate Court of Illinois,

Fourth District.

May 14, 2014.

Modified upon denial of rehearing June 24, 2014.

Michael J. Pelletier, Jacqueline L. Bullard, and Martin J. Ryan, all of State Appellate Defender's Office, of Springfield, for appellant.

Julia Reitz, State's Attorney, of Urbana (Patrick Delfino, David J. Robinson, and Anastacia R. Brooks, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice HOLDER WHITE delivered the judgment of the court, with opinion.

¶ 1 On December 13, 2011, the State charged defendant, Terrell T. Larue, with (1) attempt (armed robbery) (720 ILCS 5/8–4(a), 18–2(a) (West 2010)) (count I); (2) residential burglary (720 ILCS 5/19–3 (West 2010)) (count II); and (3) aggravated unlawful use of a weapon (AUUW) ( 720 ILCS 5/24–1.6(a)(1), (a)(3)(A) (West 2010)) (count III). Police arrested defendant on December 12, 2011, and he remained in custody thereafter. On April 27, 2012, over 120 days after defendant's arrest date, the State also charged defendant with unlawful possession of a weapon by a felon (UPWF) (720 ILCS 5/24–1.1(a) (West 2010)).

¶ 2 Defendant's jury trial began on April 30, 2012, and continued on May 2, 2012. The State elected to proceed only on the residential burglary and UPWF counts. Following the trial, the jury found defendant guilty of both charges. In June 2012, the trial court sentenced defendant to consecutive sentences of 10 years in prison for UPWF and 15 years in prison for residential burglary, ordering defendant to pay the “costs of prosecution herein.” Following sentencing, the circuit clerk imposed various fines and fees.

¶ 3 Defendant appeals, arguing (1) his conviction for UPWF must be vacated because the State filed the charge after the 120–day speedy-trial term had run on the original charges; (2) his 10–year sentence for UPWF must be vacated because the sentence violates the proportionate-penalties clause of the Illinois Constitution; (3) his 10–year sentence for UPWF must be vacated because it violates the due process clause of the Illinois Constitution and the equal protection clauses of both the Illinois and United States Constitutions; and (4) the circuit court clerk imposed six void fines and seven duplicate fees that must be vacated.

¶ 4 We affirm in part, vacate in part, and remand with directions.

¶ 5 I. BACKGROUND

¶ 6 On December 13, 2011, the State charged defendant with (1) attempt (armed robbery) (720 ILCS 5/8–4(a), 18–2(a) (West 2010)) (count I); (2) residential burglary (720 ILCS 5/19–3 (West 2010)) (count II); and (3) AUUW (720 ILCS 5/24–1.6(a)(1), (a)(3)(A), (d) (West 2010)) (count III), a Class 2 felony carrying a maximum prison sentence of seven years. Defendant was arrested on December 12, 2011, and remained in custody until his trial. On February 7, 2012, the State filed a motion for continuance pursuant to section 103–5(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103–5(c) (West 2010)), requesting additional time to obtain defendant's deoxyribonucleic acid (DNA) sample. The trial court granted the State's motion over defendant's objection. At the next court date, March 20, 2012, the court set defendant's trial for April 9, 2012. On April 3, 2012, the court allowed an agreed motion to vacate the trial setting because defendant's attorney was “under a doctor's care.” Thereafter, the court set defendant's trial for April 30, 2012. On April 27, 2012, three days before trial, the State charged defendant with UPWF, a Class 3 felony carrying a possible 2– to 10–year prison sentence (720 ILCS 5/24–1.1(a), (e) (West 2010)) (count IV).

¶ 7 A. Defendant's Trial

¶ 8 On April 30, 2012, the parties appeared for defendant's jury trial. Prior to the trial's commencement, the State dismissed counts I and III. Thereafter, the trial commenced. A summary of the evidence presented is as follows.

¶ 9 Timothy McNaught, an Urbana police officer, testified that on December 12, 2011, he was dispatched to apartment 217 of 904 Broadway. When he arrived to apartment 217, McNaught saw the door was ajar and showed obvious signs of having been forced open. The apartment was empty. McNaught then started knocking on other apartment doors, and noticed the door to apartment 218 opened and shut quickly. Police ordered the occupants of 218 to come out, and Erik Kirk, Sherrick Cooper, Herbert Shah, Darrell Hubbard, and defendant complied. After the men were handcuffed, patted down, and ushered downstairs, McNaught entered apartment 218, which belonged to Jamie Calhoun, the mother of defendant's child. During a protective sweep, McNaught discovered a gun in a utilities closet next to the furnace. McNaught left the apartment to obtain a search warrant.

¶ 10 Matt Quinley, a detective with the Urbana police department, testified he took part in executing the search warrant at apartment 218. During the search, officers recovered a 32–inch flat screen television (TV). Denee Thomas, who lived in apartment 217, later verified the TV as hers, using a remote control that was still in her apartment to turn it on. The officers also found an Xbox and “a brand new pair of Nike Air Jordans” underneath the kitchen sink. Mathew Vien, an Illinois State Police crime scene investigator, testified he took photographs inside apartment 218 of (1) a pair of size 10 Nike shoes, and (2) two 9–millimeter caliber handguns found on top of the furnace under a T-shirt. One of the guns was a Browning 9–millimeter semiautomatic handgun with the hammer cocked. When Vien unloaded the gun, it contained one round in the chamber and a magazine containing several rounds. The other gun that the officers recovered from the top of the furnace area was a Hi–Point 9–millimeter semiautomatic pistol. That gun also contained one round in the chamber and a magazine containing several rounds.

¶ 11 Brian Willfong, a police officer with the City of Urbana, testified he transported defendant from the 904 Broadway apartments to the Urbana police department. At the station, Willfong searched defendant and found $1,300 in defendant's left pants pocket. Earlier that day, officers had conducted a traffic stop outside the 904 Broadway apartments, during which they found $1,300 on Kaurente Pettigrew, which they later returned. Hubbard, Kirk, Cooper, Shah, and defendant all watched the officers stop Pettigrew. Pettigrew then went to Thomas's apartment. According to Hubbard's testimony, the men then decided to break into Thomas's apartment to “get some money.” Hubbard said he and the four other men then returned to Thomas's apartment, with Hubbard and Shah breaking the apartment door by kicking it in.

¶ 12 David Smysor, an investigator with the Urbana police department, testified he obtained a recorded statement from defendant. The trial court allowed the State to play the recorded statement and to provide the jury with copies of a transcript of the statement. In his statement, defendant denied participating in the robbery and denied that either of the recovered guns belonged to him. He said he remained in Calhoun's apartment the entire time of the robbery and only knew the details of the robbery based on what the other men told him. Defendant saw Hubbard return from Thomas's apartment with a TV and a game system. Defendant said the longer gun that police recovered belonged to Kirk and the shorter one belonged to Cooper. He acknowledged holding Kirk's gun earlier in the day but denied ever handling Cooper's gun. Defendant said he received the $1,300 police found on him from his mom and other family members.

¶ 13 Hubbard first testified he saw only one gun on the night of the robbery, the gun he pled guilty to possessing but did not own. However, he then also said he saw two 9–millimeter guns in Calhoun's apartment, a brown and black one and a black one. Hubbard identified the brown and black gun in court as the one Cooper had. He denied recognizing the gun depicted in People's exhibit No. 32, the Hi–Point 9–millimeter semiautomatic pistol. He said the black gun he remembered seeing was “just on the ground” and had been “ passed around.” Specifically, he said Kirk touched it, Cooper “probably” touched it, and he did not know whether defendant or Shah touched it. Hubbard testified that when the men went to Thomas's apartment, one of them “probably could have had” a gun but Hubbard did not recall seeing any. Hubbard later denied the men passed around the guns in Calhoun's apartment. On cross-examination, Hubbard said the gun he had was a BB gun. Hubbard denied touching either of the guns depicted in the State's exhibits, and he said none of the men touched his BB gun.

¶ 14 Before pleading guilty, Hubbard had given a taped statement to Quinley, but he testified he did not remember telling Quinley defendant had the gun with the wooden handle. In his recorded statement, which was played for the jury, Hubbard told Quinley that Kirk, Cooper, and defendant each had a gun. He admitted touching one of the guns on an earlier date. He also said that, earlier in the evening, defendant said they needed money and needed “a lick.”

¶ 15 Correctional officers Shane McPheron and James Spence each took defendant's fingerprints. John Carnes, an expert in fingerprint examination, testified he could not find any fingerprints suitable for comparison on the guns, shoes, shoebox, or Xbox that officers had recovered from apartment 218. Carnes did, however, find eight fingerprints suitable for comparison on the TV. Carnes opined that six of the prints belonged to defendant.

¶ 16 Following the witnesses' testimony, the trial court took judicial notice of defendant's prior felony conviction of unlawful possession of a controlled substance. Thereafter, the jury found defendant guilty of UPWF and residential burglary.

¶ 17...