People v. Robinson, 3-91-0726

• Decision Date: 07 August 1992
• Docket Number: No. 3-91-0726,3-91-0726
• Citation: 233 Ill.App.3d 278,598 N.E.2d 1348
• Parties: , 174 Ill.Dec. 411 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Walter ROBINSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1348

598 N.E.2d 1348

233 Ill.App.3d 278, 174 Ill.Dec. 411

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Walter ROBINSON, Defendant-Appellant.

No. 3-91-0726.

Appellate Court of Illinois,

Third District.

Aug. 7, 1992.

Rehearing Denied Sept. 25, 1992.

Ira B. Goldstein (argued), Ira B. Goldstein, Ltd., Joliet, for Walter Robinson.

Judith Z. Kelly (argued), States' Attys. Appellate Prosecutor, Ottawa, Edward Burmila, Jr., Will County State's Atty., Joliet, John X. Breslin, Deputy Director, State's Attys. Appellate Prosecutor, Ottawa, for People.

Justice SLATER delivered the opinion of the court:

Following a jury trial, defendant Walter Robinson was convicted of unlawful possession of a controlled substance with intent to deliver (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2)). Defendant was sentenced to a six year term of imprisonment. On appeal, defendant contends: (1) that the trial court erred in finding certain evidence inadmissible; (2) that defendant's trial counsel was ineffective; and (3) that defendant was not proved guilty beyond a reasonable doubt. We affirm.

On June 30, 1988, police officers were conducting a surveillance operation on Grover Street in Joliet, Illinois. Officer Timothy Simenson testified that he saw a person, later identified as the defendant, carrying two grocery bags and a shoulder bag. Defendant placed the grocery bags in the trunk of a silver Nissan, conversed with a man later identified as Wayne Washington, and crossed the street while still carrying the shoulder bag. Defendant and Washington walked toward a gold Oldsmobile in which they apparently drove away a short time later. Approximately 30 minutes later the car returned and parked behind the Nissan. Defendant was in the driver's seat. Washington got out of the car and opened the trunk of the Nissan, at which time the police converged on the scene.

Officer Simenson further testified that he told the defendant to get out of the car and then asked him if he owned the shoulder bag. The bag was lying in the middle of the front seat of the car. According to Simenson, defendant stated that he did not own the bag, nor did he know who owned it. Defendant also said that he did not know who owned the Oldsmobile. Simenson opened the shoulder bag and found a bag containing 28.2 grams of cocaine, a gram scale and personal papers. The papers, including credit cards, a checkbook and driver's license, belonged to Washington, although this was not brought out during Simenson's testimony. Simenson also stated that he found a wallet lying next to the shoulder bag. The wallet contained $300 and various papers, including identification bearing defendant's name. Among the items in the wallet was a piece of paper containing names and dollar amounts which Simenson stated appeared to be narcotics records. The two grocery bags in the trunk of the Nissan contained a handgun holster, a telephone pager, two or three boxes that handguns would be packaged in, and a large amount of ammunition.

Sergeant Frank Christian testified that he searched the defendant after placing him under arrest. Christian found a telephone beeper attached to the waistband of defendant's shorts and also found $788 in defendant's front pocket.

Officer Patrick Kerr testified that he also observed the defendant place two grocery bags in the trunk of the Nissan. Defendant was wearing the shoulder bag at the time. Kerr also testified concerning his training and experience in drug investigations, including executing more than 500 narcotics related search warrants. Kerr stated that certain items are commonly found when narcotic distributors are arrested, including scales, records of transactions, guns, large quantities of money and telephone pagers. Kerr examined the paper allegedly found in defendant's wallet and said that it appeared to be drug records. Kerr further testified that he searched Washington and found that he was carrying three handguns.

On cross-examination, Kerr testified that he saw the shoulder bag lying on the front seat of the Oldsmobile, but he did not ask who owned the bag. Following an objection by the State and a side-bar conference, the trial court ruled that a statement made by Washington that he owned the bag was inadmissible hearsay. This statement, according to defense counsel, was contained in Kerr's police report.

The defendant testified that he was a student at the University of Nevada at Las Vegas. Defendant was working at his grandmother's grocery store and the $788 was given to him to buy stock for the store at a wholesaler. Defendant stated that he went to Grover Street to pick up a friend to play basketball. Defendant honked the car's horn but his friend was not home and Washington, carrying the shoulder bag, asked defendant for a ride. Defendant denied ever getting out of the car. Defendant gave Washington a ride to a location on Mississippi Street and they returned to Grover about 15 minutes later. Washington got out of the car and walked towards the Nissan. Defendant called out to Washington that he had forgotten his shoulder bag. Washington opened the trunk of the Nissan and the police suddenly appeared. Defendant testified that a police officer asked him who owned the car and he said he had borrowed it from Edward Dorris. Defendant was then asked who the shoulder bag belonged to and he pointed at Washington and said it was his bag. Defendant denied knowing what was in the bag. Defendant also stated that his wallet was on his person and not on the seat of the car. Defendant further testified that the paper which the police officers had characterized as drug records was not his and had not come from his wallet. Defendant denied putting the grocery bags in the trunk of the Nissan and denied carrying the shoulder bag. He stated that when he first pulled up in his car he saw Washington putting the grocery bags in the Nissan and carrying the shoulder bag. Defendant also denied owning the telephone pager and said it was on the visor of the car he had borrowed.

Defendant first contends that the trial court erred in not allowing testimony regarding Washington's statement that he was the owner of the shoulder bag. Defendant argues that such a statement was admissible as an exception to the hearsay rule as an admission against penal interest or as an "excited utterance" or "spontaneous declaration." The State maintains that defendant has waived this issue because he failed to present these arguments to the trial court. We agree.

In general, a party is not permitted to tender one theory of admissibility at trial and then argue an entirely different theory on appeal. (People v. Miller (1977), 55 Ill.App.3d 136, 12 Ill.Dec. 835, 370 N.E.2d 639; see People v. Merideth (1987), 152 Ill.App.3d 304, 105 Ill.Dec. 126, 503 N.E.2d 1132 (defendant's argument concerning spontaneous declaration was waived); People v. Powell (1985), 139 Ill.App.3d 701, 93 Ill.Dec. 894, 487 N.E.2d 719 (defendant waived contention that evidence was admissible as a declaration against penal interest).) The trial judge in this case specifically invited defense counsel to offer some legal basis for admissibility of the hearsay statement. Defendant contends that he proffered the theories of admissibility he now argues on appeal when defense counsel stated to the trial judge at one point that "there is [an] exception that it comes in under" and by later using the word "admission." Our review of the record clearly indicates, however, that defense counsel never offered or argued the theories of admissibility at trial which defendant now makes on appeal. This issue has been waived.

Even if we were to consider this issue on the merits, however, we would find defendant's arguments unavailing. Defendant contends that Washington's statement was admissible under Chambers v. Mississippi (1973), 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, as a declaration against penal interest. Chambers was discussed by our supreme court in People v. Bowel (1986), 111 Ill.2d 58, 66-67, 94 Ill.Dec. 748, 752, 488 N.E.2d 995, 999:

"Generally an extrajudicial declaration not under oath, by the declarant, that he, and not the defendant on trial, committed the crime is inadmissible as hearsay though the declaration is against the declarant's penal interest. [Citations.] Such declarations may, however, be admitted where justice requires. [Citation.] The Supreme Court of the United States, and this court as well, have held that where there are sufficient indicia of trustworthiness of such extrajudicial statements, a declaration may be admissible under the statement-against-penal-interest exception to the hearsay rule. [Citations.] In Chambers, the court, in holding a declaration admissible, stated that there were sufficient indicia of trustworthiness in that (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and against the declarant's interest; and (4) there was adequate opportunity for cross-examination of the declarant."

The four factors listed in Chambers are simply indicia of trustworthiness, however, rather than requirements of admissibility. ( Bowel, 111 Ill.2d 58, 94 Ill.Dec. 748, 488 N.E.2d 995.) The relevant question in determining admissibility is whether the declaration was made under circumstances that provide considerable assurance of reliability by objective indicia of trustworthiness. Bowel, 111 Ill.2d 58, 94 Ill.Dec. 748, 488 N.E.2d 995.

In this case the statement by Washington that he owned the shoulder bag was supported by the personal papers in the bag bearing Washington's name. Washington's statement was not, however, made spontaneously to a close acquaintance shortly after the crime occurred. It was, instead, made to a police officer in response to questioning after Washington's arrest. In addition, Washington was...