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10/29/97 PEOPLE STATE ILLINOIS v. CHARLES TOPPS

October 29, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHARLES TOPPS, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 94-17968. THE HONORABLE FRANK DEBONI, JUDGE PRESIDING.

Released for Publication December 5, 1997.

Presiding Justice Cousins delivered the opinion of the court. Cahill and Leavitt, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Defendant, Charles Topps, was convicted in a jury trial of aggravated arson and two counts of first degree murder on October 20, 1995. Defendant was sentenced to the Illinois Department of Corrections for natural life for the murders and 30 years' imprisonment, to run concurrently, for aggravated arson. On appeal, defendant argues that: (1) plain error occurred when the jury heard hearsay evidence and argument indicating that the nontestifying codefendant and another individual informed police that defendant perpetrated the crimes; (2) defendant was denied his sixth amendment right to effective assistance of counsel; and (3) the trial court erred by ignoring defendant's pro se posttrial motion alleging ineffective assistance of counsel.

BACKGROUND

On June 28, 1994, defendant gave a written statement to police, stating that on April 3, 1992, in Maywood, Illinois, while accompanied by codefendant, Arthur Eppinger, and an acquaintance, Dennis Moore, defendant gave $20 to an unknown person to purchase cocaine for him. The unidentified person never returned with defendant's money or any cocaine. Subsequently, Moore offered to purchase the cocaine for defendant, and the three men proceeded to Moore's apartment. Defendant gave Moore $30 to purchase some cocaine in an upstairs apartment, and Moore left to do so after asking Topps and Eppinger to watch over his apartment. Moore failed to return, and Eppinger's subsequent attempt to locate Moore was unsuccessful. When Eppinger returned to defendant, he and defendant began ransacking Moore's apartment, and Eppinger suggested that defendant burn Moore's apartment. Defendant further recounted in his written statement that he told Eppinger to "go and light it" and that Eppinger subsequently lit a blanket on fire.

At approximately 6:40 p.m., the Maywood fire department received a call to respond to a fire at the apartment building. Two people died as a result of the fire. An expert in determining the causes of fires testified that the fire originated from Moore's unit and that it was started by someone who had ignited a flammable item in the apartment. A medical examiner also testified that the two deceased victims of the fire died from carbon monoxide poisoning and that the manner of death was homicide.

Betty Ringo, a tenant who lived directly across from Moore's apartment, testified that just before the fire she heard two men in the hallway arguing. She looked out of the peephole in her front door and observed two men in front of Moore's apartment. Angela Collins, another witness who had been visiting a friend in a nearby apartment, testified that she heard male voices arguing in the hallway about someone owing them money and stating that they were going to burn the building down if they were not repaid. Collins then opened the door, looked out into the hallway, and observed codefendant Eppinger yelling at the shut door to Moore's apartment. At that time, the building manager, Ernest Barlow, exited from his apartment, approached the two defendants, and told them both to leave the premises. Barlow further testified that he followed the two men to the front door of the building to make sure that they left. On his way back to his apartment, Barlow stated that the fire alarm went off. Tenant Betty Ringo testified that, upon hearing the fire alarm, she looked through the peephole in her door once again and observed flames emanating from Moore's apartment.

Sergeant Jesse Ingram, an investigator for the Maywood police department, was immediately dispatched to the scene of the fire. When he arrived, he spoke with fellow officer Chris Butler about the possible cause of the fire. During their discussion, Butler related an earlier conversation he had shared with Eppinger, who was still at the scene at that time. Ingram, who had known Eppinger for five years, went to speak with Eppinger and subsequently radioed for assistance in his pursuit of Topps, whose direct involvement in the fire was suspected after Ingram's discussion with Eppinger. Barlow and Eppinger led Ingram to Topps' residence, where defendant was arrested.

Eppinger was acquitted after a bench trial that took place simultaneously with Topps' jury trial. On appeal of his convictions for murder and arson, Topps seeks remand for a new trial.

We affirm.

ANALYSIS

I

Defendant first contends that plain error occurred when the jury heard inadmissible hearsay evidence and argument informing it that the nontestifying codefendant and another person had told police that defendant was the wrongdoer. Specifically, defendant claims that, during Sergeant Ingram's testimony, the jury was told that Eppinger had informed Ingram that defendant was responsible for starting the fire. In addition, defendant asserts that, during closing argument, the State reminded the jury that the reason defendant became a suspect was because Eppinger told the police that defendant was the perpetrator. Defense counsel failed to object to Ingram's trial testimony and to the prosecutor's use of allegedly hearsay evidence in closing argument. The defense also failed to preserve this issue in a posttrial motion.

Generally, failure to make a timely objection at trial and to renew it in a posttrial motion constitutes a waiver of the right to raise the issue on appeal. People v. Herrett, 137 Ill. 2d 195, 209, 148 Ill. Dec. 695, 561 N.E.2d 1 (1990); People v. Enoch, 122 Ill. 2d 176, 190, 119 Ill. Dec. 265, 522 N.E.2d 1124 (1988). Nonetheless, a limited exception to this rule exists in Supreme Court Rule 615(a), which provides that plain errors affecting substantial rights may be noticed on appeal, despite not being objected to at trial and raised in a posttrial motion. 134 Ill. 2d R. 615(a). While hearsay violations have been reviewed as plain error ( People v. Singletary, 273 Ill. App. 3d 1076, 1084, 652 N.E.2d 1333, 1338, 210 Ill. Dec. 357 (1995); People v. Furby, 228 Ill. App. 3d 1, 9, 591 N.E.2d 533, 539, 169 Ill. Dec. 360 (1992)), the plain error rule is only invoked where the errors at trial denied the accused a fair and impartial trial or where the evidence is so closely balanced that an innocent person may have been convicted due to prejudice caused by the errors. Herrett, 137 Ill. 2d at 209-10; People v. Carlson, 79 Ill. 2d 564, 576-77, 38 Ill. Dec. 809, 404 N.E.2d 233 (1980).

Hearsay evidence includes testimony in court of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein. See People v. Simms, 143 Ill. 2d 154, 173, 157 Ill. Dec. 483, 572 N.E.2d 947 (1991); Singletary, 273 Ill. App. 3d at 1081, 652 N.E.2d at 1336. A review of the trial record reveals that Ingram's testimony contained no hearsay violations. On the contrary, the testimony at issue was offered to establish the investigatory steps taken by the police in their pursuit of defendant and was not offered for the truth of the matters asserted. First, the portions of Ingram's testimony cited by defendant cannot be characterized as hearsay, since Ingram did not divulge actual statements made by the out-of-court declarant, Eppinger. Second, during Ingram's testimony, the prosecution specifically requested Ingram to refrain from discussing the substance of any conversations he had ...


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