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People v. Devine

OPINION FILED NOVEMBER 22, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JERRY DEVINE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOSE R. VASQUEZ, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 22, 1977.

Wayne Flowers and Jerry Devine were indicted for murder (Ill. Rev. Stat. 1973, ch. 38, pars. 9-1, 9-1(a)(2)), tried before a jury and found guilty. Each defendant was then sentenced to 60 to 150 years imprisonment. In the recent opinion of People v. Flowers (1st Dist. 1977), 52 Ill. App.3d 430, 367 N.E.2d 389 (petition for leave to appeal pending, No. 50041), this court affirmed the conviction and sentence of the co-defendant, Flowers. Defendant Devine appeals from his conviction, contending that the trial court erred by failing to strike alleged hearsay evidence and by conducting an in camera examination of two prospective defense witnesses in order to determine if they could offer relevant testimony.

As a thorough statement of facts is set forth in the Flowers opinion, we deem it unnecessary to again summarize the evidence. In light of the issues presented in this appeal, however, the following facts are pertinent. At the conclusion of the State's case, the court conducted an in camera examination of two Chicago police officers whom the defense wished to call as witnesses. The prosecution asked for the hearing because it believed that Officers Stanley Kroll and John Riordan could only testify to inadmissible hearsay. Kroll testified at the in camera hearing that his contact with the ongoing murder investigation consisted of an arrest of one Melvin Davie. Officer Kroll had arrested Davie based upon information received from Officer Corcoran who had received the information from a reliable informant, who had in turn received the information from "people talking on the street." Officer Riordan's contact with the murder investigation consisted of the arrest of one Dwight Anders. He and Officer Prendergast had acted upon information from unnamed individuals who repeatedly said someone named "Monster" might have something to do with the murder. When the officers went to question Anders at his home, Anders jumped out of a window and was arrested. He was thereafter printed and released from custody after homicide investigators talked to him. Over defense objections, the trial court excused both officers from testifying.

When the trial resumed before the jury, defendant called Officer Thomas Prendergast as a witness. The officer testified to his investigation and eventual arrest of Dwight Anders. Upon cross-examination the prosecution asked the officer how he obtained the name of "Monster" and if any other names were mentioned at that time. Prendergast replied:

"We responded to a man shot on Washburne, and during the course of the investigation that we were assisting in, or involved in, the name of `Monster' and the name of Devine or Jerry, or `Red', three names — were used that were involved in the shooting of one Mr. Brown."

The court then denied defense motions to strike and for a mistrial, telling defense counsel that, "He is your witness, you brought him here. You created the situation without being certain as to what this witness would testify to, completely."

I.

• 1 Defendant contends that the trial court committed reversible error by failing to strike the accusatory statement made out of his presence, which was employed as evidence against him. Defendant maintains that he was plainly deprived of his right of confrontation because the jury was informed that unnamed persons identified him as the perpetrator of the crime. In support of this contention defendant notes that an accusatory statement made outside the presence and without the knowledge of a defendant cannot be used against him. (People v. Trotter (1st Dist. 1967), 84 Ill. App.2d 388, 392, 228 N.E.2d 467; People v. Yocca (1st Dist. 1967), 84 Ill. App.2d 423, 426, 228 N.E.2d 599.) Defendant chooses to ignore, however, the context in which the statement was brought to the jury's attention.

• 2 Upon direct examination of Prendergast, defense counsel elicited that the officer had received the name of, and had arrested a man other than defendant in connection with the shooting. The defendant was attempting to establish doubt as to defendant's guilt. Having established that another person had been arrested for the crime, defendant claims that the State had no right on cross-examination to ask the officer how he obtained the name in question and if he had obtained other names. We disagree. Defendant opened the door to this line of inquiry, which he had a right to do. Having opened the door, it follows that the State had a right, in a proper manner, to meet such evidence.

• 3 The thrust of defendant's complaint is that the court erred by allowing the State to use inadmissible hearsay against defendant. We do not agree, however, because Prendergast's testimony was not hearsay. "`Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.'" (People v. Carpenter (1963), 28 Ill.2d 116, 121, 190 N.E.2d 738; People v. Clark (1st Dist. 1977), 47 Ill. App.3d 624, 628, 365 N.E.2d 20.) The hearsay rule does not encompass extra-judicial statements which are not offered for the purpose of proving the truth of the matters asserted in the statement. (People v. Campbell (5th Dist. 1975), 28 Ill. App.3d 480, 487, 328 N.E.2d 608; People v. Hines (5th Dist. 1975), 28 Ill. App.3d 976, 982, 329 N.E.2d 903.) In the instant case Prendergast testified to the statement made by the onlookers, but the State did not necessarily offer the testimony to show the truth of the matters asserted by the onlookers. The testimony was obviously offered to establish that the statement was actually made, not that defendant committed the homicide. (See People v. O'Neal (1st Dist. 1976), 44 Ill. App.3d 133, 136-37, 358 N.E.2d 47.) Under these circumstances, the officer's testimony was not hearsay.

• 4 Even if the trial court committed error by permitting the testimony, it was not prejudicial error. Defendant and the co-defendant Flowers were identified at trial by several eyewitnesses as the perpetrators of the crime. Thus, defendant was implicated in the murder by more than Prendergast's testimony concerning the bystanders' statement. In any event we think that defendant opened the door to such testimony, and that the trial court committed no reversible error by failing to strike it.

II.

Defendant also contends that the trial court erred by conducing an in camera hearing and then determining that certain defense witnesses could offer only inadmissible testimony. We note, however, that defendant failed to include this allegation of error in his motion for a new trial. Such failure may result in waiver of the issue on appeal. (Ill. Rev. Stat. 1973, ch. 38, par. 116-1; People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856; People v. Irwin ...


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