People v. Matthews, 4–15–0911

• Citation: 93 N.E.3d 597,2017 IL App (4th) 150911
• Decision Date: 19 December 2017
• Docket Number: NO. 4–15–0911,4–15–0911
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Brandon MATTHEWS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (4th) 150911
93 N.E.3d 597

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Brandon MATTHEWS, Defendant–Appellant.

NO. 4–15–0911

Appellate Court of Illinois, Fourth District.

FILED December 19, 2017

Michael J. Pelletier, Jacqueline L. Bullard, and Salome Kiwara-Wilson, of State Appellate Defender's Office, of Springfield, for appellant.

John C. Milhiser, State's Attorney, of Springfield (Patrick Delfino, David J. Robinson, and Thomas R. Dodegge, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE DeARMOND delivered the judgment of the court, with opinion.

¶ 1 In August 2015, a jury found defendant Brandon Matthews guilty of one count of unlawful delivery of a controlled substance. The trial court sentenced him to 9 ½ years in prison.

¶ 2 On appeal, defendant argues (1) the trial court erred in admitting hearsay testimony, (2) the court erred in barring defense

93 N.E.3d 601

counsel from asking about the identity of the confidential source, (3) the court erred in requiring the jury to view videos in the courtroom during deliberations, and (4) certain fines improperly imposed by the circuit clerk should be vacated. We affirm in part and vacate in part.

¶ 3 I. BACKGROUND

¶ 4 In September 2014, the grand jury indicted defendant on one count of unlawful delivery of a controlled substance ( 720 ILCS 570/401(c)(2) (West 2014)), alleging he knowingly and unlawfully delivered to a confidential source more than 1 gram but less than 15 grams of a substance containing cocaine. Defendant pleaded not guilty.

¶ 5 Defendant's jury trial commenced in August 2015. Springfield police officer Timothy Zajicek testified he developed a plan for a confidential source to conduct a controlled drug buy on June 10, 2014. Zajicek stated the male individual had "previously provided information about criminal activity." Prior to the controlled buy, Zajicek searched the source and provided him with $500 in prerecorded funds. Zajicek also searched the source's vehicle and installed two covert video-recording devices.

¶ 6 Zajicek stated the source had arranged for the controlled buy to take place at a gas station. The source sat in the driver's seat, and Zajicek sat in the front passenger seat. While waiting for the seller to arrive, the source told Zajicek that the seller called and said he only had $400 worth of cocaine to sell. The seller arrived and sat in the rear passenger seat. The source and the seller engaged in an exchange, with the source receiving a Baggie of crack cocaine. Zajicek was unable to see the seller's face because he was sitting right behind him. After looking at the video from the hidden cameras, Zajicek identified the seller as defendant. The source drove away and then handed the Baggie of crack cocaine to Zajicek.

¶ 7 On cross-examination, Zajicek stated the video did not capture the actual drug transaction between defendant and the source, as the exchange took place "off-frame." Zajicek stated the video showed defendant's left hand, holding what appears to be a plastic Baggie, move forward and then back, with the Baggie no longer visible. Defense counsel asked Zajicek for the name of the source, but the trial court sustained the State's objection. Zajicek stated the source sought consideration on a traffic citation. The $400 in prerecorded funds was not recovered from defendant.

¶ 8 Kristin Stiefvater, a forensic scientist with the Illinois State Police, testified she conducted tests on an off-white chunky substance, which she found to be 4.9 grams of cocaine.

¶ 9 Following closing arguments, the jury retired to deliberate and later sent a note asking to view the video. The State indicated it had two views that could be shown. Defense counsel stated the jurors saw the video during the evidentiary portion of the trial, as well as during the State's closing argument, and they should abide by the instruction to rely on their memories and notes. The trial court had the jury return to the courtroom to watch the videos. After the conclusion of the videos, the court directed the jury to return to the jury room to continue deliberating. The jury found defendant guilty.

¶ 10 In September 2015, defendant filed a posttrial motion, arguing, inter alia , the State failed to prove him guilty beyond a reasonable doubt and the trial court erred in barring the defense from learning the identity of the confidential source at trial. The court denied the motion.

¶ 11 At the October 2015 sentencing hearing, the trial court sentenced defendant

93 N.E.3d 602

to 9 ½ years in prison. The court also ordered defendant to pay a $2000 mandatory drug assessment, a $100 crime lab fee, a $100 Trauma Center Fund fee, a $5 Spinal Cord Injury Fund fee, a $25 Criminal Justice Information Projects Fund fee, a $20 Prescription Pill and Drug Disposal Fund fee, and a $490 street-value fine. The court awarded defendant $575 in presentence credit for 115 days spent in custody. This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 A. Hearsay Testimony

¶ 14 Defendant argues the trial court erred in admitting hearsay testimony from Officer Zajicek over defense counsel's objection and in failing to conduct a hearing pursuant to People v. Cameron , 189 Ill. App. 3d 998, 137 Ill.Dec. 505, 546 N.E.2d 259 (1989), on the scope and need for the hearsay testimony.

¶ 15 Initially, we note defendant acknowledges trial counsel did not raise this issue in a posttrial motion. Thus, the issue is forfeited on appeal. See People v. Hestand , 362 Ill. App. 3d 272, 279, 297 Ill.Dec. 831, 838 N.E.2d 318, 324 (2005) (a defendant must object at trial and raise the issue in a posttrial motion to preserve the issue for review). Defendant, however, asks this court to review the issue as a matter of plain error.

¶ 16 The plain-error doctrine allows a court to disregard a defendant's forfeiture and consider unpreserved error in two instances:

"(1) where a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error and (2) where a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process." People v. Belknap , 2014 IL 117094, ¶ 48, 387 Ill.Dec. 633, 23 N.E.3d 325.

¶ 17 Under both prongs of the plain-error analysis, the burden of persuasion remains with the defendant. People v. Wilmington , 2013 IL 112938, ¶ 43, 368 Ill.Dec. 211, 983 N.E.2d 1015. As the first step in the analysis, we must determine whether any error occurred at all. People v. Eppinger , 2013 IL 114121, ¶ 19, 368 Ill.Dec. 529, 984 N.E.2d 475. "If error did occur, we then consider whether either prong of the plain-error doctrine has been satisfied." People v. Sykes , 2012 IL App (4th) 111110, ¶ 31, 362 Ill.Dec. 239, 972 N.E.2d 1272.

¶ 18 "The hearsay rule generally prohibits the introduction of an out-of-court statement offered to prove the truth of the matter asserted therein." People v. Williams , 238 Ill. 2d 125, 143, 345 Ill.Dec. 425, 939 N.E.2d 268, 278 (2010). "The fundamental reason for excluding hearsay is the lack of an opportunity to cross-examine the declarant." People v. Jura , 352 Ill. App. 3d 1080, 1085, 288 Ill.Dec. 318, 817 N.E.2d 968, 973–74 (2004). Courts are often confronted with hearsay when police officers testify about their investigation of the defendant's alleged crime.

"A police officer may testify as to the steps taken in an investigation of a crime ‘where such testimony is necessary and important to fully explain the State's case to the trier of fact.’ [Citation.] ‘[O]ut-of-court statements that explain a course of conduct should be admitted only to the extent necessary to provide that explanation and should not be admitted if they reveal unnecessary and prejudicial information.’ [Citation.] Testimony about the steps of an investigation may not include the substance of

93 N.E.3d 603

a conversation with a nontestifying witness." (Emphasis in original.) People v. Boling , 2014 IL App (4th) 120634, ¶ 107, 380 Ill.Dec. 134, 8 N.E.3d 65.

¶ 19 In Cameron , 189 Ill. App. 3d at 1004, 137 Ill.Dec. 505, 546 N.E.2d at 263, this court discussed the theory involving the admission of out-of-court statements to explain a course of police conduct and the danger of their misuse.

" ‘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, 137 Ill.Dec. 505, 546 N.E.2d at 263 (quoting Edward W. Cleary, McCormick on Evidence § 249, at 734 (3d ed. 1984) ).

¶ 20 When confronted with this type of situation, we stated "the trial court must carefully assess such testimony to ensure that it does not include more than is necessary to explain police conduct." Cameron , 189 Ill. App. 3d at 1004, 137 Ill.Dec. 505, 546 N.E.2d at 263. The court can do this by conducting "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." (Emphases in original.) Cameron , 189 Ill. App. 3d at 1005, 137 Ill.Dec. 505, 546 N.E.2d at 264 ; see also Boling , 2014 IL App (4th) 120634, ¶ 115, 380 Ill.Dec. 134, 8 N.E.3d 65 (stating the trial court may conduct a Cameron hearing sua sponte ). The court can then prevent the introduction of improper testimony, ...