Appeal from the Circuit Court of Cook County. The Honorable Dennis A. Dernbach, Judge Presiding.
Rehearing Denied June 26, 1997. Released for Publication July 21, 1997.
Presiding Justice DiVITO delivered the opinion of the court. Tully, J., concurs. Justice McNULTY dissenting.
The opinion of the court was delivered by: Divito
PRESIDING JUSTICE DiVITO delivered the opinion of the court:
A jury found defendant Robert Williams guilty of armed violence and possession of a controlled substance. The circuit court sentenced him to 18 years in the custody of the Illinois Department of Corrections for the armed violence conviction and a concurrent three-year sentence for the controlled substance offense.
On appeal, defendant contends that he was denied a fair trial (1) by the admission of evidence, for impeachment purposes, of his prior conviction for voluntary manslaughter; (2) by the admission and use of testimony concerning the substance of a conversation police had with a nontestifying citizen; and (3) by the State's argument that the testimony of two witnesses was more credible than defendant's because they were police officers.
Before trial, defendant filed a motion to suppress a gun and drugs police said they had recovered from him at the time of his arrest. After a hearing, the circuit court denied this motion.
Defendant then filed a motion in limine to prohibit the State from introducing evidence of his prior convictions for voluntary manslaughter and violation of bail bond. The court denied this motion based on the supreme court decision in People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971).
Defendant also asked the court to prevent the State from introducing evidence of a conversation between police and a citizen who did not testify at trial. That conversation was the basis for the police placing defendant's car under surveillance and ultimately stopping him. The court denied this motion in limine. It decided that evidence of the conversation did not violate the hearsay rule because it explained the actions of the police officers.
At trial, Officer Al Elizondo testified that he and his partner, Officer Dan Kenezovich, were working as members of the Chicago police department tactical unit on December 9, 1992. They were not wearing uniforms and were riding in an unmarked car. At approximately 10 p.m., a citizen motioned to them to stop near 3200 East 92nd Street.
Defendant objected to Elizondo's testimony concerning his conversation with the citizen, but the circuit court overruled the objection. The court, however, gave the jury a limiting instruction:
"Ladies and gentlemen of the jury, I am allowing this conversation between the defendant [sic] and the citizen in for a limited purpose to show the conduct of the police officers. It should not be considered by you as evidence against the defendant in terms of his guilt or innocence to the charges before the Court."
The court granted defense counsel's request for a standing objection to the conversation.
Elizondo testified that the citizen said that a man had approached him, had pointed a nickel-plated gun at him, and had told him to pay his debt "or else." The citizen stated that he knew this man as "Bayman" but that his real name was Robert Williams. He described the man as a black male in his late forties or early fifties, who weighed approximately 200 pounds, and who was approximately 5 feet 9 inches tall. The citizen stated that he did not know where this man was, but he knew where the man's car was.
The citizen drove with Elizondo and his partner to a location on the 3200 block of East 92nd Street. He told the officers that the blue 1980 General Motors car that was parked on that block belonged to the man who had threatened him. There was no one in the car at that time. The citizen refused to sign a complaint against the man who threatened him, and Elizondo did not remember the citizen's name because he did not write it down. After their conversation ended, the officers complied with the citizen's request that they let him out of their car on the 3200 block of 91st Street.
After leaving the citizen, Elizondo and his partner returned to the 3200 block of East 92nd Street and parked three-quarters of a block behind the car the citizen had shown them. At this time, the car engine was running, and there was someone sitting in the front passenger seat. Elizondo called for assistance, and Officers Stevenson and McDonald drove in another car to a surveillance position one-half a block in front of the subject car.
After about 15 minutes, an individual matching the citizen's description exited a building, crossed the street, and entered the driver's side of the subject car. Elizondo identified this individual as defendant.
As defendant began to drive away, the assisting officers moved their car to block his forward progress, and Elizondo parked his car behind defendant's. Elizondo approached defendant's car from the driver's side and asked defendant to exit his car.
When Elizondo performed a "protective patdown search" of defendant, he felt what seemed to be a gun in defendant's right coat pocket. He reached into the pocket and retrieved a .38-caliber Rossi revolver. The gun contained five live bullets. Elizondo announced that he had found a gun and handed it to one of the assisting officers. He then arrested defendant and placed him in handcuffs.
He continued to search defendant and, in one of defendant's pockets, he found 15 plastic bags containing a substance that appeared to be cocaine. Elizondo could not remember in which pocket he found the bags. He also found $450 in one of defendant's pants pockets. Elizondo also searched defendant's car, including the area under the hood, before impounding it.
The assisting officers then transported defendant to the police station. After a female officer searched the female passenger who had been sitting in defendant's car, the officers released her.
Officer Tyrone Stevenson testified that he responded to Elizondo's call for assistance. He explained that Elizondo had called for "a meet in regard to the man that supposedly had a gun and [was] threatening another individual."
Like Elizondo, he testified that he and his partner placed their car in a surveillance position on the 3300 or 3400 block of 92nd Street and, after about 15 to 20 minutes, they saw defendant, who matched the citizen's description, cross the street and enter the subject car. Stevenson moved his car to block defendant's exit and, after doing so, he and Elizondo approached defendant's car from the driver's side.
Stevenson testified that Elizondo asked defendant if he was Bayman or Babyman, and defendant did not respond. Defendant responded affirmatively, however, when Elizondo asked if he was Robert Williams. When defendant exited the car, Elizondo performed a "protective patdown" of defendant and found a gun with a silver handle in one of defendant's right coat pockets.
Elizondo handed the gun to McDonald or Kenezovich, placed defendant under arrest, and put him in handcuffs. After placing defendant under arrest, Elizondo continued to search defendant, but Stevenson did not observe this portion of the search because he began to search defendant's car. Elizondo also searched the car after Stevenson left to drive defendant to the police station.
After this testimony, there was a stipulation that, if called to testify, Chicago police department chemist Jimmie Julian would testify that the plastic bags recovered from defendant contained 1.52 grams of a substance containing cocaine. The State then rested its case in chief.
The defense case consisted of defendant's testimony. He testified that, at approximately 10 p.m. on December 9, 1992, he was visiting friends in a building at 3200 East 92nd Street. He drove there with his friend Kathy Minifield. She stayed in the car while he went into the building for 15 minutes and drank with his friends. He then left the building, walked across the street to his car, and attempted to drive away, but an unmarked car blocked his way. There was also another unmarked car and four or five marked cars. There were 8 to 10 officers.
A police officer in plain clothes ordered him out of the car. Defendant testified that this officer was not Elizondo. The officer called him Bayman, but defendant told the officer "no," his name was Robert Williams. He did admit at trial, however, that his nickname was Bayman.
An officer other than Elizondo searched him and said "look what I found" when he reached into his inside coat pocket. Defendant did not see what the officer took out of his pocket. He testified that he had bought the coat he was wearing earlier that night from a friend who needed money. According to ...