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People v. Bolden





APPEAL from the Circuit Court of Vermilion County; the Hon. RALPH S. PEARMAN, Judge, presiding.


Defendant appeals his conviction by jury verdict of the offense of possession of a controlled substance (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b)), and a sentence of 2 1/2 to seven years imprisonment. No sentences were imposed upon the contemporaneous convictions for reckless driving and driving with a revoked license. Upon appeal, he maintains that (a) the court committed reversible error in preventing him from presenting evidence to show that without his knowledge another individual placed the narcotics in the automobile he was driving when apprehended, (b) the State's closing argument was improper, and (c) his guilt was not proved beyond a reasonable doubt.

Defendant, known to the police to have a suspended license, was observed driving his wife's automobile. A hairraising chase through the city at high speed ensued and ended at the defendant's home. Incident to an arrest, a small packet was observed on the driver's seat and examination disclosed that it contained heroin. From the location of the packet it might be inferred that defendant had been sitting on it.

Defendant denied any knowledge of the presence of the dime-sized packet or its contents. The theory of the defense arises in that prior to the commencement of the police chase, a neighbor, Leon Mason, had asked defendant to drive him to an all night grocery store. The evidence is that Mason went into the store and defendant crossed the parking lot to talk to a friend for about 15 minutes. Mason returned to and was seated in the car when defendant came back to the car. Defendant drove Mason to his home and then went to a couple of taverns before the police observed and pursued him.

The significant issues upon appeal arise from defendant's efforts to introduce evidence from which it could be inferred that Mason, or another individual who approached defendant's car while Mason was seated therein and awaiting defendant's return, placed the narcotic in the car and that the small packet was not observed by defendant.

It is argued that the trial court abused its discretion in denying a motion for continuance made on the morning of the trial. The reason for the motion was that defendant had listed a police officer, McGee, as a witness, but the latter was unavailable to testify.

In support of the motion for continuance of the trial, an offer of proof was made that McGee would testify that shortly after the arrest of the defendant the "potential witness," Mason, told McGee and Tomason that he, Mason, had placed the narcotic in defendant's car. It was argued that such testimony would be admissible as an exception to the hearsay rule, that is, that Mason's alleged statement was a declaration against penal interest.

In People v. Craven (1973), 54 Ill.2d 419, 427, 299 N.E.2d 1, 5, the court cited language from People v. Lettrich (1952), 413 Ill. 172, 108 N.E.2d 488, stating:

"`The general rule, supported by the great weight of authority, is that extra-judicial declarations of a third party, not made under oath, that he committed the crime, are purely hearsay, and even though they are declarations against interest, are inadmissible. * * * But it would be absurd, and shocking to all sense of justice, to indiscriminately apply such a rule to prevent one accused of a crime from showing that another person was the real culprit merely because that other person was deceased, insane or outside the jurisdiction of the court.'"

In People v. Ireland (1976), 38 Ill. App.3d 616, 348 N.E.2d 277, appeal denied, 63 Ill.2d 560, the reviewing court reversed the trial court which excluded testimony against penal interest when the issue was whether or not defendant knowingly possessed narcotics.

• 1 Without recitation of several factors incident to the granting of a continuance for the stated purposes, we find, from this record, that the purported extra-judicial statement does not meet certain criteria found in controlling authorities.

The record shows that upon defendant's release on bail, he asked Mason to come to see him, that they discussed defendant's arrest and the latter apparently asked Mason what he was going to do about the narcotic found in the car. The conversation between Mason and McGee was alleged to have followed.

Mason's statement to McGee, if made, cannot be said to be spontaneous as was found in Chambers v. Mississippi (1973), 410 U.S. 284, 35 L.Ed.2d 297, 93 S.Ct. 1038, for the purported statement was made after some discussion with the defendant. Again, within the context of Chambers, there is no corroboration by other independent evidence. The facts are thus distinguishable from Ireland. The same fact of the discussion of defendant's arrest with Mason prior to his alleged conversation with McGee negates a further criteria found in Craven and Lettrich that there be nothing to suggest that the defendant induced the exculpatory statement made by the third party out of court. Here, it does not clearly appear that the alleged statement of Mason to McGee was either spontaneous or without inducement by defendant. (Craven.) We find no error in the denial of the continuance.

Defendant also contends that the court's rulings with reference to the testimony of Mason, a defense witness, prevented him from showing that another person placed the heroin in the car. Before calling Mason, defense counsel stated that Mason would testify to this. Counsel asked leave to call him as a court's witness stating that he could not tell whether Mason would rely on his privilege against self-incrimination or testify and if he did testify, whether he would tell the truth. Nothing else was presented to show why Mason should be called as a court's witness and the court refused to do so, stating that a sufficient foundation had not been laid. Mason was then called as an ordinary defense witness. In his testimony he stated that when he returned from the store to the car another person came up to the car and talked to him. Defendant had not returned at that time. When Mason was asked if that person did anything else, the State objected upon the basis of hearsay. The court sustained the objection. Out of the presence of the jury, defense counsel stated that if permitted to answer, Mason would state that the other person then put the narcotic packet into the car defendant had been driving. In making an offer of proof ...

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