Appeal from the Circuit Court of the Twenty-first Judicial Circuit Kankakee County, Illinois Honorable Clark Erickson, Judge, Presiding No. 2000 CF 365
The opinion of the court was delivered by: Justice Schmidt
Following a jury trial in the circuit court of Kankakee County, Usavious D. Vaden was convicted of unlawful delivery of a controlled substance within 1,000 feet of a church, a Class 1 felony. Defendant filed a motion for judgment not withstanding the verdict (judgment n.o.v.), which was denied. After the denial of defendant's motion for judgment n.o.v., the defendant was sentenced to 5½ years. Defendant then filed a timely notice of appeal.
The State's witness, Kankakee police officer Scott Monferdini, testified that on May 23, 2000, he and his partner, Officer William Backus, were conducting a drug investigation with a confidential informant (hereinafter CI). During this investigation, Officer Monferdini set up video and audio equipment in a police car that CI drove during the investigation. Monferdini checked to make sure that the equipment was in proper working order. He put the videocassette recorder (VCR) inside a duffle bag, set it on the floorboard of the car and placed a cardboard box on top of it. He put a brand new tape in the VCR and placed the camera lens inside an air vent in CI's vehicle. Monferdini testified that he was familiar with the installation of this video equipment and that he had done it at least 100 times prior to installing it in CI's car. Officer Monferdini also testified that he set up the audio equipment. He put the transmitter in CI's vehicle and the receiver in Officer Backus's vehicle. Monferdini testified that he had set up similar audio equipment approximately 100 times prior to May 23, 2000. He also testified that the audio equipment was working properly. Monferdini turned on the VCR and tape recorder and then went to his car and had CI under constant surveillance from approximately 40 to 50 feet away. During Monferdini's surveillance, he never saw anyone enter CI's car. Furthermore, he stated that he never observed CI bending down or over in the car, or making any gestures toward the video camera.
Officer Backus testified that he also followed CI and had him under surveillance from approximately 50 feet away. Backus stated that he never observed CI reaching under his seat or reaching for the videotape equipment. No one else entered CI's vehicle. During the surveillance, Officer Backus saw the defendant, Usavious D. Vaden, playing basketball at a church near the alley where the CI's car was parked. Officer Backus saw the defendant walk up to CI's car. Officer Backus testified that he saw the defendant converse with CI and then reach down into the window area, bring his hand up front and return to the basketball game. The videotape shows the defendant putting his head in CI's car, having a conversation with CI, pulling something out of his mouth and handing it to CI. CI then drove away from the alley, and Officers Backus and Monferdini followed CI to a predetermined location. At that time, Officer Monferdini stopped the videotape and removed it from the VCR in the duffel bag in CI's car. Monferdini then put the videotape in an evidence bag and sealed it where it remained until trial. CI also handed Officer Monferdini five baggies of suspected crack cocaine.
Officers Backus and Monferdini each testified that the videotape accurately portrayed what they observed on May 23, 2000, the defendant walking up to CI's vehicle and having a conversation with CI and the defendant reaching into CI's vehicle.
Officer Backus had the receiver from the audio tape recorder in his car while he had CI under surveillance. Officer Backus stated that the conversation, which is on the audio tape that was admitted into evidence, was the conversation that he heard on May 23, 2000, as it was taking place between the defendant and CI.
The issue that the defendant raises on appeal is that defendant's conviction should be reversed because he was identified through inadmissible hearsay evidence. The standard of review that applies in this case is abuse of discretion. Evidentiary rulings properly rest within the sound discretion of the trial court and, absent an abuse of discretion resulting in prejudice to the party objecting to those rulings, will not be disturbed on appeal. Smith v. Black & Decker (U.S.), Inc., 272 Ill. App. 3d 451, 455, 650 N.E.2d 1108, 1112 (1995).
Defendant first claims that his conviction should be reversed because he was identified as the drug seller in the present case through evidence of an out-of-court identification completed by CI, who was never present to testify at the trial. Defendant is correct that it is error to permit a police officer to testify that a person not produced as a witness in a case identified a defendant as the perpetrator of the offense. People v. Smith, 256 Ill. App. 3d 610, 616, N.E.2d 1176, 1180 (1994). However, defendant created this error. The State did not elicit testimony regarding CI's out- of-court photo identification of the defendant shortly after May 23, 2000. It was on cross-examination of Officer Backus that the defendant elicited from him that CI identified the defendant's photograph in a photo lineup.
On appeal, defendant may not be heard on issues of error that he injected into his own trial. People v. Cortes, 181 Ill. 2d 249, 283, 692 N.E.2d 1129, 1144 (1998). The rationale for this rule is that it would be manifestly unfair for a person to obtain a second trial on the basis of error that he injected into the proceedings himself. Ervin v. Sears, Roebuck & Co., 65 Ill. 2d 140, 144, 357 N.E.2d 500 (1976). Here, Backus identified the defendant, Vaden, through his own independent observations of the defendant on May 23, 2000. There was no mention of CI's identification of the defendant during a photo lineup until the defendant brought up the issue during cross-examination of Officer Backus. It was the defendant who elicited this information and who caused the error of the admission of this evidence. Therefore, defendant may not be heard on this issue.
Furthermore, in order to properly preserve an issue for appellate review, a party must both object at trial and raise the issue in a posttrial motion. People v. Ward, 154 Ill. 2d 272, 293, 609 N.E.2d 252, 260 (1992). People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129-30 (1988). In the present case, the defendant failed to object to the evidence regarding CI's identification of the defendant through a photo lineup. Defendant also failed to raise this issue in his motion for judgment n.o.v. There is an exception to this rule. Plain error may be invoked in criminal cases to review issues that were not properly preserved for review when the evidence was closely balanced or where the error was of such magnitude that the defendant was denied a fair trial. People v. Ward, 154 Ill. 2d 272, 294, 609 N.E.2d 252, 260. Here, the plain error rule does not apply because the defendant was not denied a fair trial. The State did not focus on the informant's lineup identification. The State focused on the identification of the defendant by Officer Backus and Officer Monferdini, as well as the videotape and audio tape, not the out-of-court identification of the defendant by the informant. The evidence was not closely balanced in this case. The defendant did not present any evidence on his behalf other than cross-examining the State's witnesses.
Since the defendant elicited the out-of-court identification, failed to object to it and failed to raise the issue in his posttrial motion, it has not been properly preserved for review. ...