APPEAL from the Circuit Court of Macon County; the Hon.
DONALD W. MORTHLAND, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On March 2, 1977, after a trial by jury in the Circuit Court of Macon County, defendant Dwight P. Marquis was found guilty of the offenses of reckless driving, fleeing or attempting to elude a police officer and speeding. The trial judge vacated the reckless driving conviction but entered judgment upon the fleeing or attempting to elude a police officer and speeding verdicts and sentenced defendant to 90 days' imprisonment. On appeal, defendant contends that the trial court erred (1) in admitting hearsay evidence over his objection, (2) in permitting the prosecutor to make reference in argument to defendant's failure to call a witness, (3) in failing to properly instruct the jury as to the mental state requisite to the offense of fleeing or attempting to elude a police officer and (4) in imposing sentence while under a misapprehension as to the maximum sentence of imprisonment that could be imposed for fleeing or attempting to elude a police officer.
The essence of the State's case is the testimony of Decatur police officer Clifford E. Kretsinger. On May 8, 1976, at about 6 a.m., he had set up a radar unit upon a Decatur street. The posted speed limit there was 30 miles per hour. After he had tested the unit and found it to be in proper working condition, the unit was passed by a car which the witness described at trial as a blue Mustang fastback with a light-colored stripe at the bottom of the door. The radar indicated that the car was traveling 85 miles per hour. He described the driver as a white male with light brown hair and wearing a bright red jacket. Kretsinger also stated that a white male passenger with darker hair and wearing a dark blue jacket was riding in the car as a passenger. Kretsinger followed the car for several blocks attempting to stop it by flashing the red lights on his car and sounding his siren but the car did not stop. He soon lost sight of the car. He estimated the car's speed during the chase to be 80 miles per hour. Later, Kretsinger viewed an automobile stopped by some deputy sheriffs at a point some 14 blocks from where the chase started and identified that car as the one chased.
Decatur police officer Thomas Bly testified that he heard Kretsinger's radio report of making chase and soon after saw a car fitting the description of that described by Kretsinger pass him at a high speed at the intersection of Pershing Road and MacArthur Street in Decatur. He was not able to follow that car.
Macon County deputy sheriff Wiley G. Yokely testified that he and Deputy Pellegrini were riding in a squad car when they heard of the chase on the radio. Shortly after that, they saw a blue Mustang which they stopped. This was the car later identified by Kretsinger. Yokely identified the driver as the defendant and said that he had on a red jacket and that a passenger wearing a blue jacket was with him.
Defendant testified that he had been driving along Pershing Road at the time of the incident but had not been in the area of the chase, had not driven at a high speed and had not attempted to flee from any police officers. He testified that Steve Morris, who was sitting beside him in court, was with him at the time in question and was riding as a passenger when they were stopped. He admitted that he was wearing a red Firestone jacket at the time, that Morris had on a blue denim jacket and that he was driving a Fastback that had a silver stripe on the side of the door. Morris was not called as a witness.
The claim that the court erred in admitting hearsay concerns the testimony of Officer Bly and Deputy Yokely. Bly testified that he heard Kretsinger's broadcast. He was then asked:
"Q. Okay. And when Officer Kretsinger came over the air did you receive any kind of description of a vehicle?
Q. What description was that?
Mr. Darflinger: Objection, Your Honor.