People v. Center

• Decision Date: 17 May 1990
• Docket Number: No. 1-87-1591,1-87-1591
• Citation: 145 Ill.Dec. 106,556 N.E.2d 724,198 Ill.App.3d 1025
• Parties: , 145 Ill.Dec. 106 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rory CENTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 724

556 N.E.2d 724

198 Ill.App.3d 1025, 145 Ill.Dec. 106

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rory CENTER, Defendant-Appellant.

No. 1-87-1591.

Appellate Court of Illinois,

First District, Fourth Division.

May 17, 1990.

Randolph N. Stone, Public Defender of Cook County, Alison Edwards, Asst. Public Defender, Chicago, for defendant-appellant.

Cecil A. Partee, State's Atty., Inge Fryklund, Wm. D. Carroll and Francis N. Scescke, Kenneth W. Goff, Asst. State's Attys., Chicago, for plaintiff-appellee.

Presiding Justice McMORROW delivered the opinion of the court:

Following a jury trial, defendant was convicted of burglary and sentenced to a term of 15 years' imprisonment. On appeal, he contends (1) that he was denied a fair trial by (a) the admission of hearsay testimony which insinuated previous criminal activity by him and (b) the prosecutor's repeated references to a co-offender as a "juvenile"; and (2) that his sentence was excessive.

At trial, Officer Klodnicki testified that on November 8, 1986, he and his partner, Officer Gajewski, responded to a call of a burglary in progress at a laundromat on 156- 1/2 North Cicero Avenue in Chicago. When they arrived in their squadrol, they looked through the front window into the laundromat, which was fully lit, and saw the arm of an individual hanging down from a false ceiling. The individual had a screwdriver in his hand and was attempting to pry open a coin box on one of the machines. Gajewski remained at the window while he (Klodnicki) walked around to the north end of the building. As he turned the corner of the building, he saw two males lowering themselves from the roof. He radioed this information to other police units in the area, identified himself as a police officer and ordered the men to stop. Both men turned, looked at him and then ran off across the vacant lot next to the building. They were approximately 75 feet in front of him as he chased them. A squad car arrived and drove across the lot and stopped just behind the two men. The officers exited their vehicle and began chasing the two men as they ran into an alley, which was illuminated by street lights. Klodnicki terminated his pursuit of the men and returned to the laundromat. Upon entering, he saw that a portion of the ceiling had been knocked out. Gajewski climbed atop a machine and shone his flashlight into the hole in the ceiling, where they found a young man hiding. When they brought him down and searched him, they recovered a screwdriver with a bent blade and tar on it. He was later identified as Terrence Hopkins, a juvenile. As they exited the building with Hopkins, they saw the other two officers escorting defendant to the squadrol. Defendant, like Hopkins, had tar on his hands and jacket.

Officer Schulz testified that he and his partner, Officer Dennis Walsh, were in their marked squad car a few blocks from the laundromat when they received a call of a burglary in progress there. As they arrived on the scene, they saw two men come down from the roof and run away, with Officer Klodnicki in pursuit. They Constantine Lee, the owner of the laundromat, testified, through a Korean interpreter, that he allowed a friend, Vernon Walker, to sleep in a back room of the laundromat on the night of the burglary. Before leaving the laundromat, at approximately 10:30 p.m., he locked all the doors. In response to a call from Walker, he returned to the laundromat at approximately 1:10 a.m. where he was met by police officers. He identified photographs of the scene and of the damage caused to the ceiling and the exhaust pipe on the roof.

[145 Ill.Dec. 108] drove around the side of the building and across the adjoining vacant lot. When they came within approximately 10 feet of the men, they exited their vehicle and began chasing the men. Although the lighting conditions were very good, they momentarily lost sight of the men when they crossed the street and ran into a gangway. They split up and proceeded to search the area gangways and porches. Officer Schulz found defendant crouched on his side on the floor of a porch which was surrounded by a short brick wall. When he brought defendant to his feet, he noticed that defendant's heartbeat was rapid, he was breathing heavily and he had tar on his hands. As he escorted defendant back to the scene, he saw the other officers placing another individual into the squadrol. The second man seen running from the building was never apprehended.

Vernon Walker testified that he was awakened by noise which sounded like someone banging on pipes. He then heard a voice saying, "This is how we came in here before" and, when he looked inside the laundromat, he saw a person hanging down from a hole in the ceiling trying to pry open a coin box on one of the machines. After calling the police, he looked out the back window and saw two men running from the building but he could not identify either man. When the police arrived, he indicated to them that a person (Hopkins) was hiding in the ceiling. He described Hopkins as appearing to be 16 or 17 years old.

Detective Richard Zeluga testified that he interviewed Hopkins and defendant together at the police station. After being informed of the charges against him and advised of his rights, defendant agreed to give a statement. Defendant said that he was with Hopkins when they met a man known as "Little Pete" who told them he knew of a place where they could break in easily and get some quick cash. The three of them climbed onto the roof of the laundromat and pried the vent cap open. In doing so, they had to remove some tar around the base of the pipe. While they were lowering Hopkins in through the ceiling, they saw a police car. Defendant and Little Pete then jumped off the roof and ran away. He was apprehended when one of the officers found him hiding on a porch.

The State then rested its case, whereupon defendant moved for a directed verdict. The trial court denied the motion as to the burglary charge but granted the motion on the charge of criminal damage to property for lack of sufficient evidence relating to the value of the damage to the roof. No evidence was presented on defense. The jury found defendant guilty of burglary, and defendant's post-trial motion for a new trial was denied. Following a hearing, the trial court found defendant eligible for Class X offender sentencing and imposed a sentence of 15 years' imprisonment. This appeal followed.

OPINION

Defendant first contends that he was denied a fair trial by the admission of Vernon Walker's testimony that he heard a voice saying "This is how we came in here before." Defendant argues that the statement was hearsay and that it prejudiced him by insinuating that he had also participated in a prior burglary of the laundromat.

The record reveals that defendant did not object to the testimony at trial nor was this issue raised in his post-trial motion. Issues not raised at the trial court level are deemed waived for purposes of review. People v. Wade (1989), 131 Ill.2d 370, 137 Ill.Dec. 608, 546 N.E.2d 553.

Moreover, in our view the testimony at issue was not inadmissible hearsay. As defendant correctly observes, "hearsay is an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value upon the credibility of the out-of-court asserter." (People v. Rogers (1980), 81 Ill.2d 571, 577, 44 Ill.Dec. 254, 411 N.E.2d 223.) A reading of the entire trial transcript indicates that the statement was not offered to prove that defendant had participated in a prior burglary of the laundromat or even that a prior burglary had occurred. Rather, it was offered as part of the sequence of events related by Walker in describing what made him aware that a burglary was taking place, that there was more than one participant and their means of entry. Nothing in Walker's testimony identified defendant as the speaker so as to imply that he had previously burglarized the building. In fact, the jury reasonably could have believed that the statement was made by one of the other offenders to defendant, which would lead to the conclusion that he had not been involved in any prior burglary of the building. (See People v. Billingsley (1989), 184 Ill.App.3d 142, 132 Ill.Dec. 496, 539 N.E.2d 1302.) Before invoking the plain error exception, as defendant urges us to do, it should be determined whether error occurred at all. (People v. Wade (1989), 131 Ill.2d 370, 137 Ill.Dec. 608, 546 N.E.2d 553.) Since we do not agree that the testimony was inadmissible hearsay, the plain error rule is inapplicable here.

Further, it is well-settled that the purposes of the plain error rule are to correct serious injustices and to preserve the integrity of the judicial process (People v. Young (1989), 128 Ill.2d 1, 131 Ill.Dec. 78, 538 N.E.2d 453). The criterion for application of the plain error rule in criminal cases is whether the evidence is so closely balanced or the error was of such magnitude as to have affected substantial rights and denied the defendant a fair trial (People v. Young (1989), 128 Ill.2d 1, 131 Ill.Dec. 78, 538 N.E.2d 453). Thus, even if we were to agree with defendant's assertion that the statement was hearsay which should have been excluded, in light of the evidence against defendant, the sufficiency of which he does not challenge on appeal, any error in its admission was harmless beyond a reasonable doubt. See People v. Gaines (1982), 88 Ill.2d 342, 58 Ill.Dec. 795, 430 N.E.2d 1046.

Defendant next contends that repeated references to Terrence Hopkins as a "juvenile" during the trial were so prejudicial as to deny him a fair trial. He argues that Hopkins' age was irrelevant and that the numerous references to his youth were used to inflame the jury by intimating that defendant "was a bad character with a propensity to commit crimes" and that he "exploited and corrupted youngsters in his criminal...