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05/27/88 the People of the State of v. Dwight Burns

May 27, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DWIGHT BURNS, DEFENDANT-APPELLANT

WHALEN'S TESTIMONY WAS FAR MORE THAN A SIMPLE DESCRIPTION OF HIS INVESTIGATING PROCESS. (PEOPLE

v.

JOHNSON (1987), 116 ILL. 2D 13.) WHALEN'S TESTIMONY OF THE CODEFENDANT'S STATEMENT TO HIM DIRECTLY IMPLICATED THE DEFENDANT IN THE CRIMES. WHALEN TESTIFIED:



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

524 N.E.2d 1164, 171 Ill. App. 3d 178, 121 Ill. Dec. 116 1988.IL.848

Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

In an indictment defendant, Dwight Burns, was charged with armed robbery, residential burglary and home invasion. In another indictment codefendant Darryl Fletcher was similarly charged. Fletcher pled guilty. Following a jury trial the defendant, Burns, was found guilty and was sentenced to 27 years' imprisonment on the armed robbery and home invasion findings and to 15 years' imprisonment on the residential burglary finding. The sentences were concurrent. The defendant appeals. The pertinent issues presented for review are (1) whether the police officer's inadmissible hearsay testimony that the nontestifying codefendant, Fletcher, named the defendant as his accomplice in the commission of the alleged offenses violated the defendant's constitutional rights to confrontation and cross-examination; (2) whether the prosecutor injected prejudicial hearsay testimony into the trial by eliciting from the police officers the defendant's aliases of "Buzz" and "Jabbo"; and (3) whether the prosecutor's comments during closing argument were impermissibly prejudicial.

The facts at the defendant's trial established that in the early morning of June 24, 1983, Steven Knox and Joseph Garcia were victims of an armed robbery, home invasion and residential burglary. They were asleep in the living room of their residence. The room air conditioner was on. They awakened and discovered an intruder armed with a knife standing over them. Knox and Garcia at trial identified this intruder as the codefendant, Darryl Fletcher (who was not on trial). Knox and Garcia saw another person in the apartment but they were unable to identify him. Fletcher and this person took various articles, including a stereo receiver, duffel bag, jewelry, money and the keys to Garcia's pickup truck, which was parked in the rear of the premises. When the offenders put the key in the ignition to Garcia's truck, an alarm sounded, which awakened Garcia's father, who lived in the apartment beneath Garcia. The offenders abandoned their stolen loot and fled on foot, pursued by Garcia's father and the police, who had been summoned. Fletcher was apprehended in the area shortly thereafter by the police but his unidentified accomplice escaped.

On November 2, 1983, five months after the offenses were committed, police officer O'Callahan went to Fletcher's house and obtained several photographs, one of which was of the defendant, Dwight Burns. Seven days later, on November 9, 1983, Officer Whalen talked to the co-defendant Fletcher, who was in custody.

Following their conversation, Whalen stated that he submitted a request for a fingerprint comparison to be made of the defendant's fingerprints with the latent fingerprints found on the stereo receiver taken in the offenses and abandoned when the offenders fled. Defense counsel objected and asked for a mistrial, stating that Officer Whalen's testimony created the inference that the co-defendant Fletcher made a statement to Officer Whalen which implicated the defendant in the commission of the offenses. The defense attorney's objection was overruled and his motion for a mistrial was denied. Whalen then testified that as a result of the fingerprint comparison he scheduled an interview with the defendant. Over defense counsel's objections Whalen further testified that during his interview of the defendant, he told the defendant that the co-defendant Fletcher had told Whalen that he, Burns, the defendant, was the second offender in the home invasion offenses. Defense counsel's renewed objections were sustained and the jury was admonished to disregard this testimony of Officer Whalen.

The defendant contends that Officer Whalen's testimony that the nontestifying co-defendant named him as his accomplice in the commission of the offenses was prejudicial, incriminating, inadmissible hearsay and violated his constitutional rights to confront and cross-examine his putative accuser. The State argues that Officer Whalen's testimony was elicited to explain police investigatory procedures and not to prove the truth of the matter asserted. The State further argues, assuming arguendo that Officer Whalen's testimony was inadmissible hearsay, the trial court sustained defense counsel's objection, instructed the jury to disregard the statement, and ordered the testimony stricken from the record, thereby rendering the error harmless beyond a reasonable doubt. We disagree with the State's contention.

At trial, Officer Whalen testified that he had a conversation with the co-defendant Fletcher, who was in custody. Whalen further testified that following this conversation he submitted a request for a fingerprint comparison to be made against the defendant's fingerprints and the latent fingerprints found on the property taken in the robbery. Defense counsel objected and asked for a mistrial, stating that Whalen's testimony inferred that the co-defendant Fletcher made a statement to him which obviously implicated the defendant in the commission of the offenses. The defense attorney's objection was overruled and his motion for a mistrial was denied. Whalen related further that as a result of the fingerprint comparison he scheduled an interview with the defendant.

"Q. And what is the next thing you said to the defendant, if you can remember?

A. I told him that Darryl Fletcher had given his name --

[Defense Attorney]: Objection.

The Court: Overruled.

[Defense Attorney]: I'd ask for a side bar.

The Court: Denied. Proceed.

The Witness: That Darryl Fletcher had given me his name as the second offender in a home invasion robbery.

The Court: Objection sustained.

[Defense Attorney]: Ask for a ...


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