The opinion of the court was delivered by: Justice South
Appeal from the Circuit Court of Cook County. Honorable Lawrence Fox, Judge Presiding.
Defendant, Rafael Ramos, was charged by information with possession of a stolen vehicle, possession of a vehicle with a removed vehicle identification number, concealing the identity of a vehicle, possession of a motor vehicle with a falsified vehicle identification number, and possession of a removed manufacturer's identification number plate. Prior to trial, the State nol-prossed the count for possession of a motor vehicle with a falsified vehicle identification number and proceeded to trial on the remaining four counts. Following a jury trial, defendant was found guilty of possession of a stolen vehicle, possession of a stolen vehicle with identifying number removed, concealing the identity of a vehicle and possession of a removed manufacturer's identification number plate. Thereafter, the trial court sentenced defendant to a term of 20 years' imprisonment. Defendant raises four issues on appeal: (1) whether the trial court properly exercised its discretion when it admitted certain statements into evidence; (2) whether defendant was denied a fair trial by the trial court's instruction to the jury regarding what weight should be given to the defendant's statements; (3) whether defendant was deprived of his right to a fair trial by the trial court's rulings to objections during closing arguments and by its responses to the jury's requests during deliberations; and (4) whether the mandatory Class X sentencing provision violates the right of a defendant to due process and trial by jury because it subjects him to increased punishment without notice.
The following evidence was presented at trial. In 1992, Norma Lopez purchased a 1984 Buick Park Avenue, which was slightly damaged on the driver's side. Ms. Lopez kept the car for two years, did not repair the damage, and to her knowledge the car still had the vehicle identification number (VIN) tag when she sold it. Ms. Lopez identified a picture of the gray Buick in question as the car that she previously owned and identified a copy of the title with her signature on it.
In 1995, Andrew Stockhausen, Jr., bought a 1984 blue Buick Electra Park Avenue. On February 4, 1997, he let his son Joseph, an airline pilot, drive the car from their home in New Berlin, Wisconsin, to O'Hare Airport. Joseph parked the car in the Ramada Chicago O'Hare parking lot. When he returned to that parking lot on the morning of February 5, 1997, he discovered that the car was missing and called the Rosemont police.
Around 12 p.m. on February 11, 1997, Chicago police officers John Callaghan and Randall Hiller saw the blue Buick Electra and noticed it did not have a front license plate. Officer Hiller entered the Buick's rear license plate number into the police car's mobile computer and discovered that it was registered to a 1984 Subaru station wagon. Officers Hiller and Callaghan followed the Buick to a gas station in Chicago. Officer Michael Rivera and Officer Matranza also arrived on the scene to provide assistance.
Officer Callaghan approached the driver's side of the Buick and asked the driver, defendant, for his license, insurance and registration. Officers Callaghan and Hiller, who were standing nearby, noticed the interior of the car was blue but that the steering column was brown. When defendant could not produce any of the requested items, Officer Callaghan asked him and his companions to exit the car.
As Officer Callaghan was tending to defendant and the other occupants of the car, Officer Hiller continued his efforts to determine the identity of the blue Buick. He noticed that there was no legally required federal certificate label on the driver's door and that the dashboard's screws were loose. He wrote down the VIN number found on the dashboard and ran it through the mobile police computer. It came back as "no record on file." Officer Hiller then located and ran the VIN number found in the trunk of the blue Buick, which identified it as the car that was reported stolen in Rosemont. Defendant was then handcuffed and placed inside a police vehicle where Officer Callaghan read him his rights.
While inside the police car, defendant agreed to talk to the officers, telling them he did nothing wrong and could take them to the person who had recently sold him the Buick. The two other occupants in defendant's car were transported to the police station. The four officers and defendant drove to Andreas Sotelo's apartment at 3086 North Elston; Officer Matranza drove the blue Buick. Officers Callaghan, Hiller and Rivera went up to Sotelo's apartment, while Officer Matranza remained with defendant.
Because Sotelo could not speak English very well, Officer Rivera spoke to him in Spanish and translated for the other officers. Sotelo told the officers that he sold defendant a gray Buick Park Avenue for $300 about one month earlier and denied selling any stolen cars. When he sold the car, the VIN number was on the dashboard, a picture of Our Lady of Guadalupe was on the passenger side of the car, and he gave defendant the title to the car. Sotelo identified the title he gave to defendant when he sold him the car and noted that Norma Lopez's signature was on it. Officer Callaghan asked Sotelo to accompany the officers outside. Outside, Sotelo told the officers that the blue Buick was not the car he sold to defendant, but he identified defendant as the man to whom he sold the car.
Officer Callaghan returned to the squad car and told defendant that the blue Buick was not the car which Sotelo had sold to him. Defendant then admitted that the blue Buick was not the car he purchased from Sotelo and that the car he did buy from Sotelo was sitting behind his apartment building at 3223 North California. Officer Callaghan then asked Officers Matranza and Rivera to take Sotelo over to 3223 North California.
Officers Callaghan and Hiller continued to interview defendant. Their respective memories at trial of what defendant said next differ slightly. Officer Callaghan testified that defendant told the officers that he removed the VIN number from the gray car, took it to a body shop around Grand and Division and paid $500 to get a stolen car and have the VIN number from the gray car put on the stolen car. Officer Hiller testified that defendant told the officers that he removed the VIN number from the gray car, took it to a body shop and paid $500 to have the steering column repaired and to have the VIN number put in the blue car. However, defense counsel attempted to impeach Officer Hiller by asking whether he remembered his testimony from a preliminary hearing whereby he was asked and answered the following: "Question: He paid 500 dollars for the vehicle? Answer: The blue car and to have the VIN tag put into the blue car, Mr. Stockhausen's vehicle."
Officer Callaghan asked defendant to take them to the garage around Grand and Division, and defendant refused. On cross-examination, both officers admitted that defendant's refusal was not recorded in their police reports.
Officers Matranza and Rivera then accompanied Sotelo to 3223 North California, while Officers Callaghan and Hiller stayed with defendant at 3086 North Elston. At 3223 North California, the officers found a gray car parked in back that Sotelo identified as the car he sold to defendant. The gray car's VIN had been removed from the dashboard and the picture of Our Lady of Guadalupe was positioned on the driver's side of the dashboard, partially obscuring the missing VIN. Sotelo also stated that he previously lived at 3223 North California and that the gray car was in the same spot as it was when he sold it to defendant. When Officers Matranza and Rivera returned, they informed Officers Callaghan and Hiller that Sotelo identified the gray vehicle as the one he sold to defendant and that the VIN was missing from the dashboard.
Evidence technician Peter Newman testified that, after he examined the two Buicks, he determined that the VIN tag glued onto the dashboard of the blue car was actually the VIN tag belonging to the gray car. Newman also stated that the VIN in the trunk of the blue car matched the VIN on the title of the car belonging to Mr. Stockhausen.
Defendant presented the testimony of his neighbor, Mercedes Rivera, who testified that she loaned defendant $800 to buy a car. Ms. Rivera further testified that she subsequently saw defendant driving a large blue car and that defendant repaid her the money.
Defendant then presented the testimony of Jose Ortiz, who testified he knew defendant because he lives across the street from him and Ortiz is a godfather to defendant's son. Ortiz testified that he went with defendant in early February 1997 to purchase a car between Elston and California. He bought a blue, four-door Electra for $2,600 and was "pretty sure he gave [defendant] the title."
The defense then rested. In rebuttal, the State presented by stipulation that investigator Joseph Mackey was assigned to interview defendant's wife, Lucera Agosto, at 3223 North California, and that he went there with felony investigator Paul Munoz. Investigator Mackey asked Ms. Agosto if she had a copy of a title and, at that time, Ms. Agosto showed them the title to the gray Buick.
The jury found defendant guilty of possession of a stolen vehicle, possession of a stolen vehicle with identifying number removed, concealing the identity of a vehicle and possession of a removed manufacturer's identification number plate. Defendant's motion for a new trial was denied. During sentencing, it was established that defendant had 10 prior felony convictions and was qualified for mandatory Class X sentencing. The court sentenced him to 20 years' imprisonment.
Defendant first argues he was denied a fair trial where the jury heard inadmissible hearsay and a prior consistent statement which improperly bolstered the credibility of the State's key witness. Specifically, Officers Rivera, Callaghan and Hiller testified that when they talked to Sotelo on February 11, 1997, he told them that he did not sell a stolen car to defendant. Defendant contends that testimony was hearsay and double hearsay evidence, as well as inadmissible evidence of a prior consistent statement, and improperly bolstered the credibility of Sotelo. The State responds that defendant has waived this issue for review. The State admits that Sotelo's testimony that he told the police that he sold defendant a gray car was improperly admitted, but argues that such error was harmless.
At trial, Sotelo testified through an interpreter. He admitted that he did not have a green card or permanent residency, but maintained he was not living in the United States illegally. Sotelo testified he told the police that, a month earlier, he sold defendant a gray car for $300 and that he had given him title to the car. He also said that when he sold the car to defendant, the VIN tag was on the dashboard and that he had left a picture of Our Lady of Guadeloupe in the car. When defense counsel on cross-examination asked Sotelo: "Did [the police] in fact ask you if you sold a stolen car to Raphael [sic] Ramos?," Sotelo answered, "Yes." Defense counsel continued by asking Sotelo: "And you said you - what did you say?" to which Sotelo responded, "Yes." On redirect examination, Sotelo testified that the gray car he sold to defendant was not stolen and that he did not sell him a blue car.
Over defense counsel's objection, Officer Rivera testified that Sotelo told him that a month earlier he sold a gray Buick Electra to a man for $300 and that the car had not been stolen. Officers Callaghan and Hiller also testified that Sotelo told them, through Officer Rivera's translation, that he recently sold a gray Buick which had not been stolen.
To preserve an issue for review, a defendant must both contemporaneously object at trial and include the specific alleged error in a written post-trial motion. Failure to raise an issue in a written post-trial motion constitutes a waiver of the issue and it cannot be considered on appeal. People v. Enoch, 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124 (1988). While defense counsel objected when Officer Rivera was asked what Sotelo told him and when the State inquired as to the color of the car Sotelo told police he sold to defendant, counsel did not object ...