People v. Davis

• Decision Date: 17 November 1970
• Docket Number: Nos. 40145,40183,s. 40145
• Citation: 46 Ill.2d 554,264 N.E.2d 140
• Parties: The PEOPLE of the State of Illinois, Appellee, v. John DAVIS, Appellant.
• Court: Illinois Supreme Court

Page 140

264 N.E.2d 140

46 Ill.2d 554

The PEOPLE of the State of Illinois, Appellee, v. John DAVIS, Appellant.

Nos. 40145, 40183.

Supreme Court of Illinois.

Nov. 17, 1970.

Ronald Alwin and Abram Holtzblatt, Chicago, appointed by the court, for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Robert A. Novelle and George Elsener, Asst. State's Attys., of counsel), for the People.

UNDERWOOD, Chief Justice.

John Davis was jointly tried with two co-defendants in the circuit court of Cook County, and convicted of the sale and dispensing of narcotics. Davis and co-defendant Pearlie Hines were tried by a jury; James Smith was tried by the court in the same proceeding. The conviction of Hines was affirmed by this court on appeal. (People v. Hines, 30 Ill.2d 152, 195 N.E.2d 712.) Davis now appeals directly to this court from his conviction, alleging constitutional errors (see our Rule 603, Ill.Rev.Stat.1969, c. 110A, § 603, 43 Ill.2d R. 603); the direct appeal has been consolidated with Davis's appeal from a judgment of the circuit court of Cook County dismissing, without an evidentiary hearing, his petition for relief under the Post-Conviction Hearing Act. (Ill.Rev.Stat.1965, ch. 38, pars. 122--1 et seq.). In both appeals defendant alleges that the prosecutor's argument to the jury was improper, and denied him the right to a fair trial; in addition, defendant argues in the direct appeal from the conviction that he was prejudiced by the admission in evidence of a police informer's conversation with co-defendant Hines, which defendant contends was hearsay as to him and violated his sixth amendment right to confront and cross-examine witnesses.

The evidence at the trial consisted mainly of the testimony of Earl Shelby, a known narcotic addict, who had participated in a 'controlled sale' at the request of police officers Bingham, Kearns and Dura. Shelby stated that he had been searched by the officers, and found to have no narcotics. He was then given ten dollars in marked money, a five-dollar bill and five one-dollar bills, left the officers in their car at the corner of 32nd Street and Indiana Avenue and walked one block east. He there met Pearlie Hines, and informed him that he wanted to purchase narcotics. Hines said he did not then have access to the narcotics but was waiting for 'Twin' (Davis), who had the key to the apartment. James Smith then approached, and said 'Twin' was in the area, and Davis joined the group shortly thereafter. The foursome went to a nearby apartment where Davis handed a key to Hines, who opened the door. Some white powder, later proved to be narcotics, was on a table inside, and Davis told Hines to give Shelby what he wanted. Shelby and Hines then sampled the narcotics to test its quality, after Hines inquired of Davis whether this supply was better than the last supply had been. Shelby gave the marked money to Hines in exchange for two tinfoil packets of the narcotics, and left. Shelby then returned to the police car, where a field test of the white powder revealed that it was a narcotic. The officers returned with Shelby to the apartment, and arrested Davis and Smith as they were leaving. The group then entered the apartment, where Davis put his coat and nine dollars of the marked money on the table. Shelby's testimony was corroborated by officers Bingham and Kearns. None of the defendants testified.

Defendant contends that admission in evidence of co-defendant Hine's conversation with Shelby prior to defendant's arrival at the scene was a violation of his constitutional right to confront the witness against him. This contention is based upon an interpretation of the United States Supreme Court's decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. The Bruton decision, held to be retroactive and applicable to the States in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, reh. den. 393 U.S. 899, 89 S.Ct. 73, 21 L.Ed.2d 191, dealt with the admission in evidence at a joint trial of a co-defendant's post-arrest confession wherein defendant Bruton was incriminated. The court held that the co-defendant's confession was hearsay as to Bruton, and its admission was a violation of Bruton's sixth amendment rights. The impact of this decision was clearly limited to hearsay statements: 'We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence * * *. There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.' Bruton v. United States, 391 U.S. 123, 128, 88 S.Ct. 1620, 1623--1624, fn. 3, 20 L.Ed.2d 476, 480.

The statement to which Davis directs his argument is Hines's reply to Shelby's request for narcotics. As repeated by Shelby, 'He said he didn't have anything right now, he couldn't get to it. He was waiting on the Twin to come because he had the key to the room or the apartment.' 'Twin' was later identified as Davis. If this statement of Hines was incriminating as to Davis, it was so only insofar as it reflected a continuing joint endeavor of Hines and Davis to sell narcotics. The statement was thus made in furtherance of a conspiracy, in an effort to temporarily placate a prospective customer. Such statements are the subject of a 'recognized exception to the hearsay rule.' As explained by the United States Supreme Court in Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 489, 97 L.Ed. 593, 603: 'Declarations of one conspirator may be used against the other conspirator not present on the theory that the declarant is the agent of the other, and the admissions of one are admissible against both under a standard exception to the hearsay rule applicable to the statements of a party. Clune v. United States, 159 U.S. 590, 593, 16 S.Ct. 125, 126, 40 L.Ed. 269. See United States v. Gooding, 12 Wheat. 460, 468--470, 6 L.Ed. 693. But such declaration can be used against the co-conspirator only when made in furtherance of the conspiracy. Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 227, 91 L.Ed. 196; Logan v. United States, 144 U.S. 263, 308--309, 12 S.Ct. 617, 631--632, 36 L.Ed. 429.' (Accord, People v. Parson, 27 Ill.2d 263, 267, 189 N.E.2d 311; People v. Grilec, 2 Ill.2d 538, 119 N.E.2d 232; Spies v. People, 122 Ill. 1, 12 N.E. 865; Samples v. People, 121 Ill. 547, 13 N.E. 536.) In the case of admission of a co-conspirator's statement made in the furtherance of the conspiracy, the hearsay rule is satisfied since defendant does have the opportunity to confront and cross-examine the witness who alleges that the statement was made. (See People v. Carpenter, 28 Ill.2d 116 120--122, 190 N.E.2d 738.) The statement to which Davis takes exception was admissible against him as an exception to the hearsay rule, and was thus neither within the literal prohibition of...