No. 3--08--0994
Filed August 19, 2010 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois Plaintiff-Appellee, ) ) v. ) No. 06--CF--882 ) LLOYD SHORTY, ) ) Honorable James E. Shadid, Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
Via indictment, the State charged defendant, Lloyd Shorty,
with unlawful possession of heroin and possession with intent to
deliver heroin in violation of sections 402(c) and 401(c)(1) of
the Illinois Controlled Substances Act. 720 ILCS 570/401(c)(1),
402(c) (West 2006). A jury found defendant guilty of both
charges and the circuit court of Peoria County sentenced him to 19 years' incarceration. Defendant appeals, claiming he was
denied a fair trial by the introduction of improper hearsay
evidence and the trial court's failure to properly ask the
potential jurors if they understood and accepted fundamental
principles of criminal law as mandated by Supreme Court Rule
431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R.
431(b), eff. May 1, 2007).
FACTS
Defendant's case proceed to trial on July 14, 2008. At the
beginning of voir dire, the court spoke to the venire as a group
and told prospective jurors that the defendant was presumed
innocent. The court further informed the jury pool that the
State had the burden of proving defendant's guilt beyond a
reasonable doubt, that defendant was not required to prove his
innocence or present evidence, that defendant was not required to
testify, and finally that defendant's choice not to testify could
not be used against him.
After announcing those principles, the court stated that
"all jurors must be willing to accept this basic principle."
When individual questions were posed to the prospective jurors,
2 the court asked all but one if they accepted those basic
principles. Each juror asked responded in the affirmative.
The case proceeded to trial, and in opening arguments, the
State informed the jury that Officer Batterham would testify that
a confidential informant told him that "defendant was going to be
going to Chicago later that evening to buy heroin and that he
would be going in a certain vehicle, which was a blue Toyota
Solara, and going with a female who was supposed to be his
girlfriend." The court overruled defendant's objection to this
statement, noting that opening statements only indicate what the
State believed its evidence would show.
During Officer Batterham's testimony, he indicated that he
received information from a confidential informant about
defendant. The State asked Batterham to detail the circumstances
surrounding his receipt of that information and defendant
objected, claiming that any testimony concerning what the
informant told Batterham was impermissible hearsay. The court
allowed Batterham to testify that he "received information from
an individual that defendant was supposed to be making a trip to
Chicago that evening to pick up a large quantity of heroin." The
3 informant told Batterham that defendant was at the Townehouse
hotel and the type of vehicle that would be used.
Batterham testified that based on that information, he set
up surveillance on the Townehouse hotel. He witnessed the
described vehicle arrive at the location, then leave minutes
later with Holly Felton driving; defendant was in the front
passenger seat, and the informant was in the backseat. The
police followed the vehicle to Morton, then called off surveil-
lance.
Batterham continued his testimony by noting that shortly
after midnight on July 13, 2006, he received information
regarding defendant. When Batterham was asked to summarize that
information, defendant objected. The State claimed the
information was essential to explain the officer's further
conduct and the trial court overruled defendant's objection.
Batterham then testified that the information he received
indicated that defendant "did, in fact have the heroin" and that
he would be returning to the Townehouse hotel in the vehicle
previously described.
During this testimony, the trial court instructed the jury
4 that "the information the officer is testifying to that he
received is allowed for the purpose of explaining the actions of
the officer and not for the truth of the matter that might have
been told to the officer, but to explain the officer's actions
then." Batterham concluded his testimony by noting that he,
again, set up surveillance at the Townehouse hotel and witnessed
the described vehicle pull into the parking lot.
Officer John Couve testified that he was driving a van
carrying "an arrest team." He parked the van on the passenger
side of the a blue Toyota in the Townehouse hotel parking lot.
Defendant was opening, or had just opened, the passenger door as
Couve parked.
Officer Erin Baraisch testified that he was part of the
arrest team at the Townehouse hotel on July 13, 2006. When he
arrested defendant, the front passenger door to the Toyota was
open and defendant was turned in the seat talking to the backseat
passenger. Barisch stated that defendant had a purple cloth
Crown Royal bag in his right hand and he dropped the bag onto his
seat when he saw the officers. The cloth bag held a plastic bag
containing a substance believed to be heroin, a bottle of Dormin
5 pills, and a digital scale.
The parties stipulated that $225 was found in defendant's
pocket and that no fingerprints were found on the items in the
purple bag. Denise Hanley, an Illinois State Police forensic
scientist, testified that the substance recovered from inside the
purple bag contained heroin and weighed 7.9 grams.
Officer Batterham was qualified as an expert in narcotics
investigation and then testified that, based on his opinion, the
heroin was to be sold and not for personal use. Batterham came
to this conclusion based on the quantity of the heroin, the
presence of the digital scale, and the presence of Dormin.
Batterham noted Dormin is a sleep aid used to cut heroin.
After putting on its expert testimony, the State rested its
case. Defendant chose not to testify or put on any testimony in
his defense. The jury found defendant guilty of both possession
of a controlled substance and possession with intent to deliver a
controlled substance. Defendant filed a timely posttrial motion,
alleging error in allowing statements of the confidential
information into evidence. The trial court denied defendant's
motion. This timely appeal followed.
6 ANALYSIS
Defendant raises two claims of error on appeal. Initially,
defendant claims the circuit court erroneously allowed the State,
during opening, to reference impermissible hearsay statements
made by a confidential informant. Specifically, defendant
alleges it was reversible error to allow the prosecutor to inform
the jury that the police received information indicating
defendant planned a trip to Chicago to buy heroin. Defendant
claims the court compounded this error by allowing a police
officer to testify that the confidential informant told him
defendant did, in fact, purchase the heroin and was on his way
back to Peoria with it. The State responds that the opening
statements made by the prosecutor were proper, as was the
testimony of the officer. The State notes that parties are given
great latitude when making opening statements and that the
officer's statements were not made to prove the truth of the
matter asserted but, rather, to properly explain investigatory
proceedures. Alternatively, the State proffers that any error
that may have occurred was harmless.
I. Hearsay v. Nonhearsay Purpose
7 Defendant claims People v. Singletary, 273 Ill. App. 3d
1076, 652 N.E.2d 1333 (1995), is on all fours with the case at
bar, supports his position, and belies that of the State. In
Singletary, the police received a tip from an informant that
defendant would be driving to a specific address to pick up a
package of cocaine. Singletary, 273 Ill. App. 3d at 1078. The
police surveilled the address, witnessed the defendant arrive as
a passenger in an autombile, exit the vehicle, go into the
building, and return minutes later to the vehicle. Singletary,
273 Ill. App. 3d at 1079. The police stopped the vehicle after
it left the location and a drug dog alerted to narcotics under
the seat in which defendant was riding. Singletary, 273 Ill.
App. 3d at 1079. A police officer testified that a confidential
informant told him about defendant's intentions. The officer
specifically stated that the informant provided "a description, a
brief description of [defendant], type of auto that he would be
riding in, and that he was going to go to 2971 South Dearborn and
pick up a package of cocaine." Singletary, 273 Ill. App. 3d at
1082. The informant also provided the officer with defendant's
first name. The appellate court held such testimony "went beyond
8 what was necessary to explain investigatory procedures and [was]
used to establish defendant's guilt rather than explain police
conduct." Singletary, 237 Ill. App. 3d at 1085.
Our research reveals that three reported decisions have
discussed this holding from Singletary, and all have done so
favorably. See People v. Jura, 352 Ill. App. 3d 1080, 1086, 817
N.E.2d 968 (2004) ("The prosecution merely needed to demonstrate
that the officer was on duty, received a radio call, and as a
result of that call proceeded to the alley behind 38th Street.
The three police witnesses went beyond explaining the
investigative steps taken by testifying to the substance of the
radio call, including the description of the offender"); People
v. Williams, 289 Ill. App. 3d 24, 34, 681 N.E.2d 115 (1997) (The
court held that the State's "repeated references to" an anonymous
citizen's statements to an officer in which the citizen provided
the defendant's given and street names, gave a physical
description of defendant and described defendant's gun, "in an
effort to convince the jury of defendant's guilt[,] was error";
the Williams court did find it to be harmless error, however);
People v. Rivera, 277 Ill. App. 3d 811, 820, 661 N.E.2d 429
9 (1996) ("Hearsay testimony identifying the defendant as the one
who committed the crime cannot be explained away as 'police
procedure,' even where the trial judge limits the evidence to a
nonhearsay purpose").
In People v. Gacho, 122 Ill. 2d 221, 522 N.E.2d 1146 (1988),
our supreme court acknowledged the investigatory procedure
exception to the hearsay rule. The officer in Gacho testified
that he talked to the victim "at the hospital for three or four
minutes *** and he and his partner then went to Chicago to look
for Robert Gacho, [the defendant]." Gacho, 122 Ill. 2d at 247-
48. The court held such testimony was permissible but stated,
"[h]ad the substance of the conversation that [the officer] had
with [the victim] been testified to, it would have been
objectionable as hearsay. The testimony of [the officer],
however, was not of the conversation with [the victim] but to
what he did and to investigatory procedure." Gacho, 122 Ill. 2d
at 248.
Thereafter, our supreme court elaborated on its language
from Gacho in People v. Jones, 153 Ill. 2d 155, 606 N.E.2d 1145
(1992). The State convicted the Jones defendant of armed robbery
10 and aggravated unlawful restraint. Jones, 153 Ill. 2d at 157.
The Jones victim testified that two armed men, one being the
defendant, forced her into her car at gunpoint, drove her to an
alley, stole her possessions then ordered her out of the car and
drove away with her car. Jones, 153 Ill. 2d at 158. An officer
testified that he received a report of a car stripping in
progress, and when officers arrived on the scene, two men were
stripping the victim's car. Jones, 153 Ill. 2d at 159. The men
ran and one was captured while the other escaped. Officers'
testimony made it clear that they learned defendant's name after
speaking with the man they apprehended, named Colvin, the night
of the car stripping. Jones, 153 Ill. 2d at 159. The Jones
defendant claimed the officers' testimony constituted
impermissible hearsay.
Our supreme court disagreed, and in doing so stated as
follows:
"It is undisputed that an officer may
testify to his investigatory procedures,
including the existence of conversations,
without violating the hearsay rule. This
11 is true even if a logical inference may
be drawn that the officer took subsequent
steps as a result of the substance of that
conversation. [Citation.]
The defendant argues that the testimony
in this case exceeds that allowed by Gacho,
since [the officers] testified to the
substance of Colvin's statements. Gacho
stated that, '[h]ad the substance of the
conversation *** been testified to, it
would have been objectionable as hearsay.'
[Citation.] However, this language is
not applicable to the facts of this case.
In Gacho, the defendant was convicted
of murder, aggravated kidnapping, and armed
robbery, and was sentenced to death. The
defendant challenged the sufficiency of his
trial, inter alia, because of alleged hearsay
in a police officer's testimony and improper
references to this testimony during closing
12 argument. This occurred when the officer,
while detailing his investigation, testified
to a conversation he had with the surviving
victim in which the victim identified the
defendant as the perpetrator of the crime.
This is the dispositive factual
difference between Gacho and the instant case.
In Gacho, the substance of the conversation
would have gone to the very essence of the
dispute: whether the defendant was the man who
committed the crime. Thus, if the substance
of the conversation came into evidence it would
inevitably go to prove the matter asserted.
The substance of the conversations with
Colvin, on the other hand, could in no way go
to prove any matter relevant to the trial.
If offered to prove the matter asserted, the
testimony would show that the defendant was
involved in the car stripping, or at least
present at the scene. This provides nothing
13 to the State to help prove the defendant's
guilt in the armed robbery. Rather, this
simply showed the jury how the officer and
the detective came to suspect the defendant."
Jones, 153 Ill. 2d at 160-61.
In the case at bar, however, the alleged improper statements
go directly to the matter in controversy: whether defendant
possessed the heroin found in the vehicle. Undoubtedly, the
prosecution could have elicited testimony from Officer Batterham
that explained his investigatory procedures without disclosing
the substance of the conversations had between the officer and
the informant and without hearsay as to defendant's guilt. By
way of explanation, the prosecutor could have simply elicited
testimony from the officer that a confidential informant (CI)
provided information that at the time and place in question, a
blue Toyota Solara would appear with three occupants and the
vehicle would contain drugs. This would explain why the officers
were at the Townehouse hotel and why they stopped defendant's
vehicle. There was no need to go beyond that if the only goal
was to explain police conduct.
14 There is another reason we cannot accept the prosecutor's
stated reason for offering the disputed testimony. The testimony
elicited by the prosecutor clearly identified the CI to the
defendant. (Hint: it was the guy in the backseat.) It strains
our credulity to accept that this was anything more than a
prosecutor's successful attempt to put on the not-so-confidential
informant's testimony as to defendant's guilt without subjecting
the witness to cross-examination and impeachment. The CI's
shopping trip to the heroin store with defendant on the day in
question provided fertile ground for cross-examination. We
cannot reconcile telling the defendant who dropped the dime on
him while arguing that the snitch is a CI. The prosecutor was
clearly not worried about protecting the CI's identity. One
would not have to be a cynic to conclude that the State did not
call the witness because it did not want the witness exposed to
cross-examination.
In discussing the issue before us, the Fourth District in
People v. Cameron, 189 Ill. App. 3d 998, 546 N.E.2d 259 (1989),
favorably cited the following language from Professor McCormick's
treatise on evidence:
15 "'In criminal cases, an arresting or
investigating officer should not be put in
the false position of seeming just to have
happened upon the scene; he should be allowed
some explanation of his presence and conduct.
His testimony that he acted "upon information
received," or words to that effect, should be
sufficient. Nevertheless, cases abound in
which the officer is allowed to relate
historical aspects of the case, replete with
hearsay statements in the form of complaints
and reports, on the ground that he was entitled
to give the information upon which he acted.
The need for the evidence is slight, the
likelihood of misuse great.'" Cameron, 189
Ill. App. 3d at 1004, quoting E. Cleary,
McCormick on Evidence §249, at 734 (3d ed.
1984).
The court went on to suggest:
"When an objection was first raised to [the
16 officer's] testifying about what he was told
by the confidential informant, the court should
have conducted a hearing out of the presence of
the jury to determine both the scope of these
third-party out-of-court statements and the need
for the jury to hear them. Had such a hearing
been conducted in this case, the court could
have directed that the improper portions of [the
officer's] testimony be deleted, thereby
permitting the State to provide its legitimate
explanations for police conduct, while protect-
ing the defendant against prejudicial hearsay
statements." (Emphasis in original.) Cameron,
189 Ill. App. 3d at 1005.
Courts cite Cameron with approval. See, e.g., People v.
Singletary, 273 Ill. App. 3d 1076, 652 N.E.2d 1333 (1995); People
v. Warlick, 302 Ill. App. 3d 595, 707 N.E.2d 214 (1998). When
faced with the prospect of hearsay testimony to explain police
conduct, a brief Cameron hearing makes perfect sense. The
hearing, outside the presence of the jury, need only take a few
17 minutes. The court could simply ask the prosecutor, What witness
(CI or otherwise) testimony do you intend to elicit through a
police officer to explain police conduct? The prosecutor answers
and then the court can quickly decide how much of that is
actually necessary to explain why the police did what they did
and exclude unduly prejudicial testimony that the jury might
reasonably misuse to determine the defendant's guilt. This very
brief process will protect both the State's right to explain to a
jury why the police did what they did in any given circumstance
and, at the same time, protect a defendant's right to a fair
trial and his or her right not to be convicted with the use of
incompetent hearsay. An explanation by the prosecutor that he or
she is only offering the testimony to show why police officers
did what they did should not be the end of the discussion.
The testimony elicited by the prosecutor went far beyond
that necessary to explain police conduct. Therefore, it was
hearsay. We hold the trial court erred by overruling defendant's
objections. We further find that the trial court's limiting
instruction to the jury did not cure the error and agree with the
Rivera court's statement that, in this instance, the "[h]earsay
18 testimony identifying the defendant as the one who committed the
crime cannot be explained away as 'police procedure,' even where
the trial judge limits the evidence to a nonhearsay purpose."
Rivera, 277 Ill. App. 3d at 820. The limiting instruction was
only given in response to the testimony that defendant had
acquired the heroin and was on his way back from Chicago. No
limiting instruction was given in response to the testimony that
"defendant was going to be going to Chicago later that evening to
buy heroin."
II. Harmless Error
The State argues that even if we find the trial court erred
by allowing the statements into evidence, the error was harmless.
The admission of hearsay evidence is harmless error where there
is no reasonable probability that the jury would have acquitted
defendant absent the hearsay testimony. People v. Sims, 192 Ill.
2d 592, 736 N.E.2d 1048 (2000); People v. Nevitt, 135 Ill. 2d
423, 553 N.E.2d 368 (1990). The State notes that it is
undisputed that the substance contained within the purple cloth
Crown Royal bag contained heroin and that Officer Baraisch's
testimony indicating he witnessed defendant holding that bag is
19 uncontradicted. Therefore, the State submits, even had the
informant's statements been excluded, there is no reasonable
probability that the jury would have acquitted defendant. We
agree. It is undisputed that the police caught defendant
literally "holding the bag."
Defendant offers no plausible explanation of why this error
is anything but harmless. Defendant simply claims it cannot be
harmless given the fact that the testimony "went straight to the
heart of the guilt or innocence of defendant and therefore should
not be considered harmless." However, defendant cites no
authority for this proposition and fails to comment on the true
standard to be applied when determining whether introduction of
such statements is harmless: is there a reasonable probability
that a jury would have acquitted absent the hearsay testimony.
Our research failed to identify a single case, and defendant
cites none, that holds hearsay testimony that comments directly
on the matter at issue cannot be harmless error.
III. Supreme Court Rule 431
Finally, defendant claims the trial court failed to comply
with Supreme Court Rule 431(b) (Official Reports Advance Sheet
20 No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) and, as
such, he is entitled to a new trial. The State responds that
defendant has forfeited this issue. In the alternative, the
State argues the trial court properly complied with Rule 431(b).
We review issues concerning the compliance with a Supreme Court
Rule de novo. People v. Graham, 393 Ill. App. 3d 268, 913 N.E.2d
99 (2009); People v. Reed, 376 Ill. App. 3d 121, 875 N.E.2d 167
(2007).
Rule 431(b) states as follows:
"The court shall ask each potential
juror, individually or in a group, whether
that juror understands and accepts the
following principles: (1) that the defendant
is presumed innocent of the charge(s) against
him or her; (2) that before a defendant can
be convicted the State must prove the defendant
guilty beyond a reasonable doubt; (3) that the
defendant is not required to offer any evidence
on his or her own behalf; and (4) that the
defendant's failure to testify cannot be held
21 against him or her ***.
The court's method of inquiry shall provide
each juror an opportunity to respond to
specific questions concerning the principles
set out in this section." (Official Reports
Advance Sheet No. 8 (April 11, 2007), R. 431(b),
eff. May 1, 2007).
The record indicates the trial court announced these
principles to the entire jury venire. Then, while announcing the
final principle, the court stated, "He [the defendant] is not
required to testify, and if he does not do so, that cannot be
used against him. All jurors must be willing to accept this
basic principle." Defendant acknowledges that, "in one form or
another," the court asked all but one juror individually if they
accepted the principles of law outlined in Rule 431(b). The
State acknowledges that the court failed to ask juror
Krishnamoorthi whether or not he accepted these four basic
principles of law. The State argues, however, that defendant has
forfeited this alleged error. We agree.
To properly preserve an issue for appellate review, the
22 defendant must object at trial and raise the issue in a posttrial
motion. People v. Allen, 222 Ill. 2d 340, 856 N.E.2d 349 (2006).
"The violation of a Supreme Court Rule does not mandate reversal
in every case." People v. Glasper, 234 Ill. 2d 173, 193, 917
N.E.2d 401 (2009). Defendant failed to object to the manner in
which the trial court conducted voir dire. Thus, the issue has
been forfeited.
Nevertheless, defendant asks that we review the matter as
plain error. "Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the trial court." 134 Ill. 2d R. 615(a). Under
this rule, a reviewing court is permitted to consider a forfeited
issue where: (1) the evidence in a case is so closely balanced
that the jury's guilty verdict may have resulted from the error
and not the evidence; or, (2) the error is so serious that the
defendant was denied a substantial right, and thus a fair trial.
People v. Herron, 215 Ill. 2d 167, 830 N.E.2d 467 (2005). As
noted above, the evidence in this matter was not closely
balanced. Moreover, we find the alleged error was not so serious
that defendant was denied a fair trial.
23 In People v. Amerman, 396 Ill. App. 3d 586, 919 N.E.2d 1068
(2009), this court was called upon to analyze a similar situation
regarding Rule 431(b) admonishments. The trial court in Amerman
did not strictly comply with Rule 431(b) as it failed to ask all
potential jurors if they understood and accepted the principle
that the defendant's failure to testify could not be used against
him. Amerman, 396 Ill. App. 3d at 588. In reviewing the matter,
we stated:
"In this case, the jurors were instructed of
the Rule 431(b)(4) principles prior to their
deliberations, albeit not in the proper manner.
As the supreme court stated in Glasper, '[w]e
reject the idea that the trial court's failure
to conduct Rule 431(b)(4) questioning makes it
inevitable that the jury was biased,' particularly
where the record demonstrates that the jury was
instructed of the principles before its
deliberations. [Citation.] 'To do so would
require us to presume that citizens sworn as
jurors ignore the law and the jury instructions
24 given to them. This notion is contrary to our
precedent which instructs us to make the opposite
presumption.'" Amerman, 396 Ill. App. 3d at 594-
95, quoting Glasper, 234 Ill. 2d at 201.
We further noted in Amerman that the alleged error was not
"so serious that it affected the fairness of the defendant's
trial" and ultimately held "that the trial court in this case did
not commit plain error under either prong of the rule by failing
to strictly comply with Rule 431(b). The failure to follow a
supreme court rule in this case, standing alone, was not per se
plain error. [Citations.]" Amerman, 396 Ill. App. 3d at 595.
Similarly, in the case at bar, the jurors were instructed on
the Rule 431(b) principles prior to their deliberations. Not
only were they instructed en masse during voir dire as to the
four principles, but all but one were individually instructed and
asked if they accepted the principles. The record indicates that
the entire jury venire was in the court room when the trial judge
first stated the Rule 431(b) principles and indicated that each
juror "must be willing to accept" them. Then, the court called
groups of four jurors to the jury box for questioning. There is
25 no notation in the record that the remaining prospective jury
members were asked to leave the courtroom during this
questioning.
While juror Krishnamoorthi was not individually asked if he
accepted the four principles set forth in Rule 431(b), the record
indicates that juror Krishnamoorthi heard the judge instruct at
least seven other jurors individually on these principles and ask
those jurors if they accepted the principles. Moreover, before
deliberations began, the trial court instructed the jury as
follows:
"The fact that the defendant did not testify
must not be considered by you in any way in
arriving at your verdict. ***
The defendant is presumed to be innocent of
the charges against him. This presumption remains
with him throughout every stage of the trial and
during your deliberations on the verdict and is
not overcome unless from all the evidence in this
case you are convinced beyond a reasonable doubt
that he is guilty.
26 The State has the burden of proving the
guilt of the defendant beyond a reasonable doubt,
and this burden remains on the State throughout
the case. The defendant is not required to prove
his innocence."
Not only did the trial court verbally instruct the jurors as
to these principles, but it gave them written instructions on
these principles to take with them into deliberations. As we
found in Amerman, while the trial court failed to strictly comply
with Rule 431(b), we find its failure to do so did not deprive
the defendant of a fair trial. As the evidence in this case is
not closely balanced, we hold that defendant cannot meet his
burden of showing the trial court committed plain error and, as
such, we must honor his procedural default.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Peoria County is affirmed.
Affirmed.
CARTER and LYTTON, JJ., concur.