Defendant’s convictions for first-degree murder, armed robbery and home invasion were upheld over his contention that the trial court improperly admitted the testimony of three witnesses, since defendant’s objections, including his claims that some of the testimony was not admissible under the coconspirator exception to the hearsay rule, were either forfeited or the testimony was harmless and did not amount to reversible error.
Appeal from the Circuit Court of Kane County, No. 05-CF-1324; the Hon. Timothy Q. Sheldon, Judge, presiding.
Thomas A. Lilien and Christopher McCoy, both of State Appellate Defender’s Office, of Elgin, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M. Bauer and Scott Jacobson, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.
¶ 1 After a jury trial, defendant, Darren Denson, was convicted of one count of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2002)), one count of armed robbery (720 ILCS 5/18-2(a)(1) (West 2002)), and one count of home invasion (720 ILCS 5/12-11(a)(1) (West 2002)). The trial court sentenced defendant to a term of life imprisonment on the murder charge, to be served consecutively to 30-year sentences on the other charges. Defendant now seeks a new trial. We affirm.
¶ 2 I. BACKGROUND
¶ 3 Defendant was charged in the February 2003 murder and robbery of Kyle Juggins. Three codefendants–Taurean Giles, Getino Robinson, and Kineta Bell–were also charged with murder and other offenses. The trial court granted the State's motion in limine to admit testimony regarding various statements of these codefendants, pursuant to the coconspirator exception to the hearsay rule. See Ill. R. Evid. 801(d)(2)(E) (eff. Jan. 1, 2011); People v. Thomas, 178 Ill.2d 215, 237-38 (1997). Defendant was initially tried before a jury in November 2010. The trial court declared a mistrial because the jury was "hopelessly deadlocked." Defendant was again tried before a jury in April 2011, resulting in the convictions above. The trial court denied defendant's motion for a new trial and imposed defendant's terms of imprisonment. This timely appeal followed.
¶ 4 II. ANALYSIS
¶ 5 Defendant first contends that the trial court erred in granting the State's motion to allow testimony under the coconspirator exception to the hearsay rule. Defendant cites to case law that contains holdings that define coconspirator statements as an exception to the traditional definition of hearsay, which has been radically modified by the Illinois Rules of Evidence (Rules). Rather than continue to refer to such statements as an exception to the hearsay rule, and thus substantively admissible, the Rules have defined such statements as not hearsay. A statement is not hearsay if it is offered against a party and was made by the party's coconspirator during the course and in furtherance of the conspiracy. Ill. R. Evid. 801(d)(2)(E) (eff. Jan. 1, 2011). In analyzing the sundry cases regarding the admissibility of the statements here, we will continue to reference the terminology used in the cases. However, consistent with the Rules, we ultimately conclude that some of the statements were admissible because they were not hearsay under the Rules.
¶ 6 Defendant argues that the trial court erred in admitting two segments of testimony: (1) that of Melanie Banner (Bell's sister) regarding statements that Bell made to her on the night of the murder; and (2) Bell's testimony regarding statements made to her by Giles and Robinson as she drove them to Banner's apartment after the murder.
¶ 7 The State argues that defendant has forfeited this issue on appeal because he failed to object to this testimony at trial. While admitting that he did not object at trial, defendant counters that he properly preserved the issue because he filed a response in opposition to the State's motion, argued against the motion, and contended in his posttrial motion that the trial court erred in granting the motion. Defendant cites to People v. Hudson, 157 Ill.2d 401, 434-35 (1993), and People v. Mason, 274 Ill.App.3d 715, 721-22 (1995), to support his argument that a trial objection is unnecessary to preserve an issue when it has been raised in a response to a motion in limine. However, in both Hudson and Mason, the defendants did not respond in opposition to a motion in limine filed by the State; the defendants were the parties who filed the motions in limine. See Hudson, 157 Ill.2d at 434 ("we find that defendant preserved this issue for review by raising it in a motion in limine and in his post-trial motions" (emphasis added)); Mason, 274 Ill.App.3d at 721 ("defendant preserved this issue when he raised it both in his motion in limine and in his post-trial motion" (emphases added)).
¶ 8 Defendant seeks support in People v. Maldonado, 398 Ill.App.3d 401 (2010), in which the First District, Fourth Division, citing to Hudson and Mason, held that the defendant preserved an issue for appeal "when he raised it in both his reply to the State's motion in limine and in his posttrial motion." (Emphasis added.) Id. at 415. However, neither Hudson nor Mason involved or addressed the preservation of an issue for appeal by raising an objection to a motion in limine. In a single paragraph, Maldonado morphs the law from "the supreme court holding that raising an issue in a motion in limine is sufficient to preserve an issue so long as it is also raised in the posttrial motion" to "because defendant did object to the introduction of this evidence both in his reply to the State's motion in limine and in his posttrial motion, we conclude that this issue was sufficiently preserved." Id. at 416. This non sequitur is a patent distortion of a supreme court holding, made with no analysis or purported justification for the expansion of the supreme court's holding. We are unaware of any case prior to Maldonado that holds that raising an issue in a reply to the State's motion in limine, rather than in the defendant's motion, is sufficient for preservation of the issue. To the extent that Maldonado so holds, we disavow that holding.
¶ 9 We further note that the denial of a motion in limine does not in itself preserve an objection to disputed evidence that is later introduced at trial; a contemporaneous objection to the evidence at the time that it is offered is required to preserve the issue for review. Simmons v. Garces, 198 Ill.2d 541, 569 (2002). A trial court's ruling on a motion in limine is an interlocutory order that is subject to review by the trial court any time prior to or during trial. People v. Hansen, 327 Ill.App.3d 1012, 1027 (2002). When a trial court addresses a pretrial motion in limine on the merits, its ruling is always subject to reconsideration during trial. People v. Drum, 321 Ill.App.3d 1005, 1008 (2001). Events at trial may still affect the trial court's understanding of the probative value of the evidence, the risk of unfair prejudice to the party opposing the evidence, or the trustworthiness of the evidence. Id. at 1008-09. A defendant cannot rely on the trial court's denial of his own motion in limine to preserve an issue for appeal. Even less so can a defendant rely only on his pretrial opposition to the State's motion in limine to admit evidence as a means to preserve the issue for appeal.
¶ 10 In his reply brief, defendant does not argue that, if this issue was not properly preserved, this court should review it for plain error or ineffective assistance of counsel; instead, defendant insists that the issue of the coconspirator statements "was preserved and, as such, is reviewable under the harmless-error framework" set out in People v. Thurow, 203 Ill.2d 352, 363 (2003). However, we have found that the issue was not properly preserved and is forfeited. The harmless-error analysis applies only where the defendant has properly preserved the issue by timely objection. Id. Where an issue is forfeited, we may review it only for plain error or ineffective assistance. See People v. Sanders, 2012 IL App (1st) 102040, ¶ 24. As defendant does not seek the only review that we can grant in light of his forfeiture, we can grant no review or relief on this issue.
¶ 11 Even if defendant had not forfeited the issue, we would find no reversible error here. The coconspirator exception to the hearsay rule provides that any declaration by one coconspirator is admissible against all coconspirators where the declaration was made during the pendency of and in furtherance of the conspiracy. People v. Kliner, 185 Ill.2d 81, 141 (1998).
¶ 12 We will first address defendant's claim regarding Bell's testimony. Bell testified that she was at Banner's house on the night of February 10, 2003, when she received a phone call from Giles, her boyfriend, in which he asked her to call a man named Tawyka Bonds (Bell's former boyfriend) because Giles "wanted to rob him." Bell called Bonds twice but got no answer. Giles, Robinson, and defendant then drove in defendant's car to Banner's house at approximately 11:30 p.m. Bell, but not Banner, met with the three men in Banner's bedroom. She saw that defendant had a knife and Robinson had a gun. The men stated that they wanted to rob Bonds or Juggins (who was nicknamed Cal), and they wanted Bell to show them where both men lived. She called Bonds again but got no response. Bell then drove her car, followed by defendant, Robinson, and Giles in defendant's car, to the home of the mother of Bonds' child; Giles called Bell and told her that, since it looked like no one was home, she should lead them to Juggins' house. She led defendant's car to Juggins' apartment complex and told Giles by cell phone which apartment was Juggins'. She then returned to Banner's house.
¶ 13 Bell then received a call from Giles asking her to pick up Robinson and him from an apartment complex in Elgin because defendant "had to get on the highway." At the complex, Giles and Robinson got into Bell's car, and they drove toward Bell's apartment; they saw police cars turning into her complex, so Bell was told to drive to Banner's house. Giles then told Bell that Juggins was dead. At trial, Bell described what happened next:
"Q. [Assistant State's Attorney:] Did Taurean Giles also describe what had happened once you left [Juggins'] address?
A. [Bell:] He did.
Q. What did he tell you had happened?
A. He told me that they had broke in, um, the laundry room window and then had kicked Kyle's door in. Um, they were looking for a safe. In the process Kyle had shot at him. Getino shot Kyle, and then the Jamaican [identified as defendant] got on top of Kyle and stabbed him.
Q. Does Getino Robinson tell you anything about what happened in that apartment?
A. Um, yes. He said that he shot Kyle after he shot at Taurean.
Q. Did he also tell you what the Defendant did in that apartment?
A. He did.
Q. What did Getino Robinson say the Defendant did in ...