People v. Jura
| Decision Date | 24 September 2004 |
| Docket Number | No. 1-03-0329.,1-03-0329. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy JURA, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Office of the State Appellate Defender, Chicago (Sean Collins-Stapleton, of counsel), for Appellant.
Richard A. Devine, Cook County State's Attorney, Chicago (Renee Goldfarb, Margaret J. Campos and Elizabeth Novy, of counsel), for Appellee.
Defendant was convicted of unlawful use of a weapon by a felon after a jury trial and sentenced to eight years in prison. On appeal defendant contends that because the jury heard hearsay testimony from three police officers, which was relied upon by the State in opening statement and closing argument, he was denied a fair trial. He also argues he was denied a fair trial because the trial court failed to properly instruct the jury, allowing the jury unlimited use of evidence of his prior conviction. Finally, defendant argues his trial counsel was ineffective for failing to object to the hearsay testimony and failing to request the trial court to properly instruct the jury regarding his prior conviction.
At approximately 7:20 a.m. on June 30, 2001, two squad cars responded to a radio call of a man with a gun. As a result of the call, Officers John Fitzgerald and Tim Harts proceeded to the alley behind 2845 West 38th Street. Officers Paul Matthews and Steve Barsch arrived directly behind Fitzgerald and Harts. Four men were standing near the trunk of a car and defendant was near the hood of the car. According to the testimony provided by a police officer, defendant looked at the officers, moved toward a garbage can, and threw a gun into the garbage can. Defendant then ran down the gangway toward 38th Street, followed by Officers Barsch and Matthews. Barsch caught defendant, who was returned to the alley and placed in a squad car. The gun containing six live rounds was recovered from the garbage can. Defendant testified, contrary to the testimony of the police officers, that he never was in possession of the gun.
During trial three police officers, Fitzgerald, Matthews, and Barsch, testified for the State. We will discuss their testimony, challenged on appeal by the defendant as inadmissible hearsay, taking each witness in turn. Officer John Fitzgerald testified that on the morning of June 30, 2001, he received a radio call of a "person with a gun." No objection was made by defense counsel. When the prosecutor asked if the radio call gave any other information, Fitzgerald answered, "The description that was broadcast was a male White with a tattoo with a teardrop on his face." No objection was made by defense counsel.
The following testimony was further elicited by the State from Officer Fitzgerald regarding the radio call:
Later, during the direct-examination, Officer Fitzgerald testified that defendant matched the description provided by the radio call:
Further, during the direct examination of Officer Fitzgerald, the State asked the following:
Officer Paul Matthews testified that he also received a radio call regarding a "person with a gun." That hearsay statement was elicited twice within the space of three questions asked by the State:
No objection by defense counsel was made.
The prosecutor, directly following the above questions, elicited additional hearsay regarding the substance of the radio call by asking whether it contained any other information. Matthews testified that the call "[g]ave the location of 2845 West 38th Street in the alley, and it gave a description of the person as well." The prosecution elicited further hearsay by asking what description was given and Matthews responded, "It was a male White, approximately six feet tall." No objection by defense counsel was made to any of the hearsay elicited by the State.
Officer Steve Barsch testified he was on routine patrol with his partner, Matthews, when he received a radio call regarding "a person with a gun at the location of 2845 West 38th Street in the alley." No objection was made by defense counsel. The prosecutor elicited additional substantive hearsay by asking if the radio call provided a description of the suspect. Officer Barsch answered, No objection by defense counsel was made to the detailed hearsay description elicited by the State.
Later, during the direct examination, the State questioned Officer Barsch as follows:
Both Fitzgerald and Barsch testified none of the other four men in the alley with defendant had teardrop tattoos on their faces. Officer Barsch again mentioned the radio call during direct examination by testifying as follows: No objection was made by defense counsel.
When the officers arrived, they observed five men standing by a car in the alley. Each of the three officers testified that when defendant saw them, he removed a handgun from his waistband, ran across the alley, threw the gun in a garbage can and ran through a gangway. Officers Matthews and Barsch chased defendant, arrested him, returned him to the alley, placed him in a squad car, and eventually took him to the police station.
A defendant is guaranteed the right to confront the witnesses against him by the confrontation clauses of both the United States and Illinois Constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. People v. Smith, 141 Ill.2d 40, 76-77, 152 Ill.Dec. 218, 565 N.E.2d 900 (1990); M. Graham, Cleary & Graham's Handbook of Illinois Evidence §§ 801, 807 (7th ed.1999). The fundamental reason for excluding hearsay is the lack of an opportunity to cross-examine the declarant. People v. Shum, 117 Ill.2d 317, 342, 111 Ill.Dec. 546, 512 N.E.2d 1183 (1987). Statements are not inadmissible hearsay when offered for the limited purpose of showing the course of a police investigation where such testimony is necessary to fully explain the State's case to the trier of fact. People v. Williams, 181 Ill.2d 297, 229 Ill.Dec. 898, 692 N.E.2d 1109 (1998) (). In the instant case, we address whether the statements elicited during testimony of three police witnesses were properly admitted to explain the police investigation. Admissibility of evidence is within the discretion of the trial court, and its ruling will not be reversed unless there has been an abuse of discretion. People v. Ward, 101 Ill.2d 443, 79 Ill.Dec. 142, 463 N.E.2d 696 (1984).
A police officer may "testify about statements made by others, such as victims or witnesses, when such testimony is not offered to prove the truth of the matter asserted, but is instead used to show the investigative steps taken by the officer leading to the defendant's arrest." People v. Pulliam, 176 Ill.2d 261, 274, 223 Ill.Dec. 610, 680 N.E.2d 343 (1997). Regarding this principle, we find People v. Trotter, 254 Ill.App.3d 514, 527, 193 Ill.Dec. 553, 626 N.E.2d 1104 (1993), instructive:
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