People v. Shorty

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 3rd District Appellate » 2010 » People v. Shorty

People v. Shorty

State: Illinois

Court: 3rd District Appellate

Docket No: 3-08-0994 Rel

Case Date: 08/19/2010

Preview: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 ILLINOIS, Plaintiff-Appellee, v. LLOYD SHORTY, Defendant-Appellant.

) ) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois

No.

06--CF--882

Honorable James E. Shadid, 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. 402(c) (West 2006). 720 ILCS 570/401(c)(1),

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." 3 The

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 surveillance. 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 The State claimed the

information, defendant objected.

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 The jury found defendant guilty of both possession

his defense.

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. motion. The trial court denied defendant's

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. 273 Ill. App. 3d at 1079. Singletary,

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. App. 3d at 1079. Singletary, 273 Ill.

A police officer testified that a confidential The officer

informant told him about defendant's intentions.

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." 1082. Singletary, 273 Ill. App. 3d at

The informant also provided the officer with defendant's The appellate court held such testimony "went beyond 8

first name.

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]." 48. Gacho, 122 Ill. 2d at 247-

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." 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 Gacho, 122 Ill. 2d

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. 11 This

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 One

clearly not worried about protecting the CI's identity.

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

Download People v. Shorty.pdf