People v. Shorty

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

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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.

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 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

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 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

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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

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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.

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 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.

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