Appeal from the Circuit Court of McHenry County. No. 08-CF-783 Honorable Sharon L. Prather, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Hudson concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant, Boguslaw Czapla, was convicted of aggravated battery (720 ILCS 5/12-4(a) (West 2010)) and mob action (720 ILCS 5/25-1(a)(1) (West 2010)). The trial court vacated the mob action conviction and sentenced him to three years' imprisonment for aggravated battery. Defendant appeals, contending that the trial court erred by admitting a tape recording of a 911 call that contained a statement by defendant's brother that defendant committed the offense. We affirm.
¶ 2 On July 19, 2008, Jaroslaw "Jerry" Czapla and his wife, Deanna, held a birthday party for their daughter. Among the guests were Bobby Steele and his then-fiancee April Bieze, defendant, and Mike Trojnar. Defendant is Jerry's brother. The party, held in the garage of the Czaplas' townhouse, started around 1 p.m. There was a keg of beer and everyone was drinking.
¶ 3 At some point, Steele got into an argument with Jerry and another man about Steele's White Sox jersey. As the evening progressed, the only people left at the party were Steele, Bieze, Jerry, Deanna, defendant, his girlfriend Melisa, and Trojnar. At some point, Deanna entered the garage. Defendant asked her if she was pregnant and said something about the baby being his. This upset Steele, but he did not say anything. Suddenly, defendant punched Steele in the face. Steele and Bieze wanted to leave the party but were persuaded to stay.
¶ 4 A short time later, defendant came up to Steele and hit him in the jaw. The latter stumbled and pushed defendant away. Steele tried to walk toward the door that led from the garage to the house, but Jerry and Trojnar were in the way. Steele was pushed and fell onto the steps that led to the door. He balled up in a fetal position while defendant, Jerry, and Trojnar kicked him repeatedly. As Steele attempted to reach for the door handle behind him, he saw a black boot coming at him, which hit him in the eye.
¶ 5 Steele initially told a female officer that Jerry had kicked him. He said this because he "wasn't in [his] right mind." He also told Bieze that Jerry had kicked him in the face. Later, at the hospital, he remembered things differently because it was less chaotic. He remembered that defendant wore pointy black boots with metal on the front, and remembered such a boot coming at him. Steele's eye was eventually removed.
¶ 6 There was evidence that defendant was the only person at the party wearing steel-toed cowboy boots. Police later seized a pair of steel-toed boots from defendant. He initially told the officers that they were the same boots he wore at the party, but Steele testified at trial that they were not. The seized boots were analyzed and found to have no traces of blood on them.
¶ 7 At trial, the prosecutor played, without objection, recordings of 911 calls that Bieze and Deanna made. (By the time of trial, Bieze had married Bobby Steele and was thus known as April Steele.) During Deanna's call, Jerry can be heard saying, "It was Bob [(defendant)], it was Bob." (Before the trial, Jerry pleaded guilty. He did not testify at defendant's trial.) The prosecutor proposed to play both recordings a second time to allow the callers to identify the various voices on the recordings. The defense objected that it would be repetitive, but the trial court overruled the objection. In closing argument, the prosecutors contended that Jerry's accusation was substantive evidence of defendant's guilt.
¶ 8 The jury found defendant guilty of aggravated battery and mob action. The trial court vacated the latter conviction on one-act, one-crime grounds and sentenced defendant to three years' imprisonment for aggravated battery. Defendant timely appeals.
¶ 9 Defendant contends that the admission of the 911 recording in which Jerry accused defendant of the crime violated his right to confront the witnesses against him. He argues that his brother did not testify and thus was not available for cross-examination. Accordingly, the admission of the outof-court statement denied him his right to due process. Defendant acknowledges that he did not object to the evidence on this basis in the trial court but urges us to review the issue for plain error.
¶ 10 We conclude that any arguable error in admitting the statement was not reversible plain error. However, for the sake of clarity, we first decide the nature of the issue. Defendant contends that this case is governed by Bruton v. United States, 391 U.S. 123 (1968). There, the defendant was tried jointly with a co-defendant, Evans. The trial court admitted Evans' confession against him but instructed the jury that it was not to be considered against the defendant. Id. at 128-29. The Court reversed the defendant's conviction, holding that it was unreasonable to expect the jury, despite the limiting instruction, to disregard the impact of the co-defendant's confession. Id. Here, however, defendant and Jerry were not tried jointly. In fact, the latter had already pleaded guilty by the time of defendant's trial. Moreover, the statement was not in any way a confession, but ...