The opinion of the court was delivered by: Justice Gordon
Appeal from the Circuit Court of Cook County. Honorable Edward Fiala, Judge Presiding.
Defendant Willie Sample appeals from his convictions for four counts of first degree murder (720 ILCS 5/9-1(a)(1) and (3) (West 1996)), one count of armed robbery (720 ILCS 5/18-2 (West 1996)), and one count of home invasion (720 ILCS 5/12-11 (West 1996)). Defendant received sentences of thirty-five years for first degree murder and six years each for armed robbery and home invasion, all to be served consecutively.
In this appeal, defendant argues that his convictions must be reversed because he was denied his sixth amendment right to confront and cross-examine witnesses when the State elicited hearsay evidence from police officers that non-testifying co-defendants implicated him in the crimes. Defendant also argues that the circuit court improperly imposed consecutive sentences because defendant did not inflict bodily injury during the commission of the home invasion or armed robbery as required under 730 ILCS 5-8-4(a). Defendant further contends that the consecutive sentences for the home invasion and armed robbery must be vacated because they are lesser-included offenses of felony murder. Finally, defendant challenges the consecutive sentences as unconstitutional under the United States Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). Defendant claims, and the State concedes, that he is entitled to 999 days credit for time served rather than the 899 days stated in the mittimus. For the reasons stated below, we affirm defendant's convictions and consecutive sentences and amend the mittimus to reflect 999 days served.
Willie Sample was convicted by a jury of four counts of first degree murder (including intentional murder and felony-murder), one count of home invasion, and one count of armed robbery. The charges grew out of the robbery and murder of Jeremy Price in his home on September 22, 1996. The verdict returned on the murder count was a general verdict. The judge imposed a 35 year sentence based on the intentional murder count and six years each on the home invasion and armed robbery counts. Defendant's sentences are to run consecutively.
At defendant's trial, Darnell Lewis testified for the State that on September 22, he was in his family's apartment with his step-uncle Jeremy Price. At about 9:45 p.m., Lewis was in his bedroom when he heard Price calling out his name. When Lewis came to his bedroom door he observed Price attempting to push closed the front door of the apartment in an effort to keep someone out. Lewis testified that the front door was about six or seven feet from his bedroom door. A man in a ski mask eventually pushed his way in through the front door and Lewis witnessed his uncle and the man struggling. Shortly thereafter, the men stopped struggling and Lewis saw that the ski mask had come off his uncle's assailant. Lewis recognized the assailant as a neighborhood resident, Antoine Ashford. According to Lewis, another man then entered the apartment and pulled a gun on his uncle. Lewis testified that this second man looked at Lewis as he entered the apartment.
At about this moment, Ashford pulled a gun on Lewis, who remained in the doorway of his bedroom. As the second assailant was approaching Lewis's uncle, Ashford looked away from Lewis briefly. As he did, Lewis ran back into his bedroom, shut the door, and ran out of the apartment through a window. While Lewis was fleeing, he heard a single gunshot. Lewis asked a neighbor to call the police and an ambulance but did not speak to the police about the incident until 2 days later. Lewis went directly to the hospital where his uncle was taken and found out that his uncle had died. Lewis explained that he had hesitated to speak to the police because of an outstanding warrant.
Investigating detective Ray Kaminski testified that on the day of the shooting, after speaking to members of Lewis's family, he was looking for two men: "Tim" and "Tony." The two were later identified as Timothy Wash and Antoine Ashford. Lewis and Kaminski both testified that on September 24, 1996, Lewis himself spoke with the police. Detective Kaminski testified that Lewis did not give him the name or nickname of the second man to enter the apartment and gave him only a general description. On September 25, Lewis identified Timothy Wash as another area resident whom Lewis had heard was in the lobby of the apartment building during the shooting. At this time, Lewis also identified Antoine Ashford in a police line-up.
On September 24, Detective Kaminski questioned Timothy Wash. In opening statement, the prosecutor told the jury that after questioning Wash, the police were looking for defendant under the alias "Little Rib." The prosecutor went on to say that after interviewing both co-defendants, police were again looking for defendant. During direct examination, the State returned to this point and elicited from Detective Kaminski that after questioning Wash, he continued his search for Ashford and began searching for a man known as "Little Rib." Kaminski brought Ashford in for questioning later that day and re-interviewed Wash. On further direct examination, the State elicited that at this point Kaminski discovered that "Little Rib" was the nickname of defendant Willie Sample. The State went on to elicit similar testimony from another officer assigned to the investigation, Charles Daly. Daly reiterated that after speaking to the co-defendants, he and Kaminski were looking for defendant. A full discussion of the contents of the prosecutor's opening statement and the detectives' direct examinations follows in the analysis section of this opinion.
On September 26, defendant was located and brought to the station for questioning. While defendant was at the station, Darnell Lewis identified him out of a line-up as the man who had pointed a gun at Lewis's uncle. Defendant also gave oral statements to both Detective Kaminski and to an assistant State's Attorney. Each testified that defendant told them that he and Ashford had planned to rob Price and that Wash was to stand as lookout. When they arrived at Price's apartment, Ashford pretended to be interested in buying marijuana from Price and at some point during the transaction pushed his way into the apartment. Defendant asserted that he then entered the apartment, gun in hand, and went to take the drugs on the couch. Price grabbed defendant's arm and the gun went off, hitting Price in the abdomen. Defendant and Ashford took the drugs and left the apartment. During opening statement, the prosecutor characterized this interview with defendant as one in which the police, having already spoken with his co-defendants, were giving defendant a chance to tell "his side of the story."
The State's forensic pathologist testified that Price died from a single gunshot wound to the abdomen and that there was no evidence of close-range firing. The jury convicted defendant of first degree murder, home invasion, and armed robbery. This appeal followed.
Defendant argues that comments made by the State during opening statement, and testimony the State elicited from Kaminski and Daly, improperly revealed that co-defendants Wash and Ashford had implicated defendant in their statements. Defendant asserts that these incidents reflected a continuous and highly prejudicial attempt by the State to put inherently unreliable and damaging hearsay evidence before the jury in violation of defendant's sixth amendment right to a fair trial and right to confront witnesses.
In response to defendant's argument, the State first asserts that defense counsel's failure to object either during opening statement or during the testimony of the two police detectives constitutes waiver. Generally, to preserve errors for appeal, they must be objected to during trial and specified in a post-trial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). This waiver rule, however, endures two limitations. First, the rule limits only the parties, not the courts, and a reviewing court may ignore the waiver rule in order to achieve a just result. People v. Lopez, 152 Ill. App. 3d 667, 676, 504 N.E.2d 862 (1987). Second, the plain error doctrine provides that errors involving alleged violations of constitutional rights may be reviewed when the error affects defendant's "substantial rights." 134 Ill.2d R. 615(a). Because we have discretion to review waived claims, and because defendant's assertions touch questions involving substantial rights, we will proceed to the merits.
Defendant alleges that the State's opening statement and testimony by investigating officers violated his Sixth Amendment rights as outlined in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, petitioner and a co-defendant were tried jointly for armed robbery. The co-defendant did not take the stand. The Supreme Court found that the admission of testimony by a postal inspector that the co-defendant had confessed and implicated the petitioner violated the petitioner's right to confront and cross-examine witnesses against him. Bruton, 391 U.S. at 137, 88 S.Ct. at 1628. The Court stated that the incriminations of a co-defendant are not only "devastating to the defendant but their credibility is inevitably suspect * * * [and] [t]he unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination." Bruton, 391 U.S. at 136, 88 S.Ct. at 1628. The Court found that the instruction to the jury to disregard the confession in determining the petitioner's guilt was simply impossible for a reasonable juror to follow. Bruton, 391 U.S. at 127, 88 S.Ct. at 1623. Thus the Bruton Court teased out the constitutional implications of the hearsay rule in situations where the out-of-court statement includes the inculpatory claim of a co-defendant.
Illinois courts responded to Bruton by finding that testimony by witnesses recounting the inculpatory substance of conversations with non-testifying persons (often, but not always, co-defendants) could be reversible error. People v. Gacho, 122 Ill.2d 221, 522 N.E.2d 1146 (1988); People v. Reeves, 271 Ill. App. 3d 213, 648 N.E.2d 278 (1995); People v. Williams, 159 Ill. App. 3d 612, 513 N.E.2d 415 (1987). Our supreme court held that when the substance of the conversation with the declarant goes to the essence of the dispute at trial "it would inevitably go to prove the matter asserted" were a witness permitted to recount it. People v. Jones, 153 Ill.2d 155, 160, 606 N.E.2d 1145, 1147.
An exception to this doctrine developed, however, for police officers testifying to the procedures undertaken during their investigations. As one court recognized:
"In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct." People v. Cameron 189 Ill. App. 3d 998, 1004, 546 N.E.2d 259 (1989) (quoting McCormick, Evidence § 249 at 734 (3d ed. 1984)).
Courts found that statements used to explain the progress of the police investigation are not offered to prove the truth of the matter asserted and are therefore not hearsay. People v. McCoy, 238 Ill. App. 3d 240, 248-49, 606 N.E.2d 245, 251 (1992). Likewise, "[a] police officer may testify that a conversation with an individual took place and he acted thereon because such testimony is within the officer's personal knowledge" and is not hearsay. People v. Pryor, 181 Ill. App. 3d 865, 870, 537 N.E.2d 1141 (1989).
For example, in People v. Gacho, an investigating officer testified that he spoke to the victim in the hospital and then he went to look for Robert Gacho, the defendant. People v. Gacho, 122 Ill.2d 221, 522 N.E.2d 1146 (1988). Our supreme court held that the testifying officer did not reveal the substance of the conversation but merely explained his actions during the investigation. The Gacho court, among others, has cautioned that testimony that recounts the substance of a conversation is not within the officer's knowledge and is inadmissible hearsay (emphasis added)." Gacho, 122 Ill.2d at 248, 522 N.E.2d at 1160; People v. Pryor, 181 Ill. App. 3d at 870, 537 N.E.2d 1141. In the leading case involving statements of co-defendants, People v. Johnson, 116 Ill.2d 12, 24, 506 N.E.2d 563, 568 (1987), the trial judge permitted the State to ask the investigating officer to name the person that two co-defendants had implicated as the shooter. The officer named the defendant. Our supreme court held that this testimony directly affirmed that co-defendants had identified the defendant as the gunman and was therefore impermissible. Johnson, 116 Ill.2d at 24, 506 N.E.2d at 568. The court noted that such a revelation went well beyond the investigative process hearsay exception.
Courts have also warned that the potential "misuse" of this exception is great and that an officer's testimony "that he acted 'upon information received,' or words to that effect, should be sufficient." Cameron 189 Ill. App. at 1004, 546 N.E.2d 259 (quoting McCormick, Evidence § 249 at 734 (3d ed. 1984)). Balancing the need for police to explain their investigative process against defendants' right not to have the highly prejudicial statements of a co-defendant introduced as hearsay is our ultimate goal. This can be accomplished only when the officer does not reveal the substance of a conversation with a co-defendant and merely outlines the steps taken in a police investigation. As was the case in Gacho, the testimony should be limited to the fact that there was a conversation, without disclosing its content, and to what the police did after the conversation concluded. It is this distinction between a description of the investigative process and the disclosure of the substance of an investigative conversation that we have to mind. The boundary between the two is at best tenuous, even under the most guarded conditions, and can easily be breached by excessive emphasis as well as excessive disclosure.
Defendant directs our attention to the following colloquy between the State and investigating detective Ray Kaminski:
"Q: Were you looking for anybody or any people when you went
out with Timothy Wash after you had interviewed him?
Q: How many people were you looking for?
Q: Did you have names or identities of the people you were looking for at that time?
A: We had names and a photo of one. We had a nickname of another.
Q: Who was the name of the person you were looking for who you had a full name for?
Q: What was the nickname of person for whom you ...