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People v. Virgin

December 21, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CARL VIRGIN, JR., DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice O'mara Frossard:

Appeal from the Circuit Court of Cook County Honorable Dennis Dernbach, Judge Presiding.

Defendant Carl Virgin, Jr., was convicted by a jury of possession of a controlled substance with intent to deliver and sentenced to 10 years in prison. On appeal, we address the following issues: (1) whether the admission of hearsay evidence denied defendant his right of confrontation; (2) whether comments made by the trial Judge denied defendant his right to a fair and impartial jury; and (3) whether the trial court correctly imposed consecutive sentences because defendant committed a subsequent offense.

We reverse and remand this cause and find that the cumulative effect of the improperly admitted hearsay evidence denied defendant a fair trial.

FACTS

On March 24, 1995, Chicago police executed a search warrant for the premises at 7215 S. Claremont. Under the warrant, police were searching for cocaine, United States currency, drug paraphernalia and proof of residency. In addition, the warrant contained a description of a person to search for: a male black, 18 to 20 years old, approximately 5 feet 6 inches tall, weighing about 135 pounds, and having a light complexion. At trial, the State and the defense presented two very different versions of the events leading up to defendant's arrest.

The State's witnesses related the following version of events: On March 24, 1995, several officers arrived on the scene, including Officers Thoren and Washington, who testified at trial. They proceeded up the rear stairs to the second floor, where the apartment to be searched was located. Another two to four officers were stationed outside the residence and in the backyard. While standing outside the rear entrance to the apartment, the officers stated they heard a commotion inside the apartment. When the occupants of the apartment did not respond to the officers banging on the door, the police elected to make a forced entry. Officers Thoren and Washington were the first to enter the apartment.

After the officers entered the apartment, they observed defendant, with long braids and wearing a light-colored, long-sleeved shirt, blue jeans and gym shoes, coming out of the bedroom. Officer Thoren announced she was a police officer and had a warrant, and she and Officer Washington chased the person down a stairwell into the first- floor apartment.

Defendant then ran through the first-floor apartment, jumped out a window and into an alley which ran along the side of the building. The officers testified that they were able to see a profile of defendant's face throughout the chase and that he made eye contact with them prior to jumping out the first-floor window.

Officers Thoren and Washington then returned to the second-floor apartment and went through the door out of which defendant had run. The room appeared to be a bedroom, and officers observed numerous pieces of a rock-like white substance on a table in the room. They also discovered a bag containing a leafy green substance, a police scanner, a cellular phone, multiple plastic baggies, a crack pipe, a small electronic scale and $130 in cash. In addition, the officers found two documents bearing the name of Carl Virgin from the City of Chicago's bureau of parking. The room also contained piles of men's clothing in bags and on the floor, and officers discovered a puppy which appeared to be ill or malnourished. Finally, officers found a woman hiding under some clothing and placed her under arrest. She was later identified as Marilyn Williams.

The officers brought Carl Virgin, Sr., an occupant of the second- floor apartment, to the police station for questioning. As the officers were leaving the apartment, defendant appeared on the second-floor porch and asked the officers why they were taking his dog. He came down the stairs and approached the officers, who recognized him as the man who had fled from the apartment earlier, except he no longer had braids and he had changed his clothing. When the officers inquired as to defendant's name and address, he replied that his name was Carl Virgin and he lived on the second floor of 7215 S. Claremont. As the officers told defendant he was going to be arrested, defendant backed away and into a garage window, cutting his hand. He was then transported to the police station.

The stipulations were as follows: (1) the chain of custody for the white, rock-like substance was at all times proper; (2) if called, an expert would testify the white substance recovered from the second-floor apartment was cocaine and weighed 27.10 grams; (3) the chain of custody for the crushed green leafy substance was at all times proper; and (4) if called, an expert would testify the green substance recovered from the second-floor apartment was marijuana and weighed 4.78 grams.

The defense witnesses, Carl Virgin, Sr., and defendant's cousin, Jantae Virgin, testified as to the following version of events: On March 24, 1995, police came to 7215 Claremont and broke down the door. The officers searched the bedroom which Carl Virgin, Sr., testified Marilyn Williams rented from him. Carl Virgin, Sr., testified that defendant Carl Virgin, Jr., was not in the second-floor apartment at the time of the search, nor did he live in that apartment. Both defense witnesses testified that the windows of the first-floor apartment were painted shut and did not open all the way.

At the time the police conducted the search, the apartment contained three healthy, full-blooded pit bull puppies. On that day, there were 8 to 10 people in the first and second floors of the building. Carl Sr. told police his name and that he owned the residence, and he was arrested and transported to the station. Jantae and her mother were told to leave the apartment by the officers. As they walked away they saw defendant and told him that the police had taken the dogs.

Defendant and Jantae then walked through the apartment and into a back alley, where they saw police officers playing with the three dogs. When defendant asked police what they were going to do with the dogs, the police responded that they would make good police dogs. When an argument ensued, police slammed defendant into the garage and a police car, injuring his hand. The police then transported the defendant to the police station.

When Carl Sr. saw defendant at the police station, he noticed his son appeared to have been beaten. After the day of the search, neither Carl Sr. nor Jantae ever saw any of the dogs again. Carl Sr. also testified the parking tickets found by police in the second bedroom belonged to him and that defendant lived with his mother at 18 W. Grace.

ANALYSIS

I.

Defendant contends that improperly admitted hearsay evidence denied his right of confrontation and denied him a fair trial. Specifically, defendant alleges the trial court improperly admitted hearsay testimony regarding: (1) the contents of the search warrant; (2) the animal control receipt obtained by police; and (3) the substance of a conversation Officer Thoren had with Marilyn Williams.

The State responds that defendant waived these issues by failing to raise them in his posttrial motion, denying the trial court the opportunity to address any alleged errors. We note that defense counsel, during trial, objected to the hearsay testimony regarding the search warrant, the animal control receipt and the conversation Officer Thoren had with Marilyn Williams. However, in his motion for a new trial, defense counsel made no reference to the warrant, receipt or conversation. In order to preserve an error for review, a defendant must both object at trial and raise the issue in a written, posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). However, Supreme Court Rule 615(a) provides that "plain errors" affecting substantial rights may be addressed on appeal even if defendant fails to object at trial or raise the issue in a posttrial motion. 134 Ill. 2d R. 615(a). In People v. Thomas, 178 Ill. 2d 215, 687 N.E.2d 892 (1997), the supreme court outlined the plain error doctrine as follows:

"The plain error doctrine is a limited exception to the waiver rule. [Citation.] 'The doctrine of plain error is applied to remedy errors so plain and prejudicial that failure to object to them is not a waiver for purposes of appeal.' [Citation.] A reviewing court will examine an issue not properly preserved under the plain error doctrine where the evidence is closely balanced or the alleged error is ...


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