Court of Appeals of Illinois, First District, First Division
Rehearing denied July 25, 2013
Defendant’s conviction for residential burglary was upheld over his contention that his right to cross-examine the arresting officer was violated when the trial court admitted the officer’s preliminary hearing testimony at trial after learning the officer died prior to the trial, since defendant’s counsel had an adequate and effective opportunity to crossexamine the officer at the preliminary hearing.
Appeal from the Circuit Court of Cook County, No. 09-C4-41238 (02); the Hon. Thomas M. Tucker, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, Elizabeth Cook, and Todd T. McHenry, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, William L. Toffenetti, and Stephanie L. Gersch, Assistant State’s Attorneys, of counsel), for the People.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, William L. Toffenetti, and Stephanie L. Gersch, Assistant State's Attorneys, of counsel), for the People.
Justices Quinn and Connors concurred in the judgment and opinion.
HARRIS, PRESIDING JUSTICE
¶ 1 Defendant, Charles Lard, appeals his conviction after a bench trial of residential burglary and his sentence of six years' imprisonment. On appeal, Lard contends the admission of Officer Vincent Wilcox's preliminary hearing testimony violated his constitutional right to cross-examination where Officer Wilcox died prior to trial and Lard did not have an adequate opportunity to cross-examine him at the preliminary hearing. For the following reasons, we affirm.
¶ 2 JURISDICTION
¶ 3 The trial court sentenced Lard on March 22, 2011. He filed a notice of appeal on March 22, 2011. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S.Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶ 4 BACKGROUND
¶ 5 Lard was convicted of one count of residential burglary. Prior to his trial, a preliminary hearing was held on October 7, 2009, in which Officer Wilcox testified. He stated that on September 22, 2009, at approximately 6 p.m., he was investigating a report of two suspicious men in the area of 1023 South 11th Avenue in Maywood, Illinois. There was an apartment building at that location and Officer Wilcox observed two men in the rear going in the back basement door. When asked whether the men were presently in the courtroom, Officer Wilcox answered affirmatively and identified Lard and his codefendant, Charles Denton.
¶ 6 Officer Wilcox testified that the men had "put a carpet loaded with pipes down on the ground just outside the door" before he saw them reenter the building. Officer Wilcox ascertained that Michael Ingram was the owner of the building and Ingram told him that the men did not have permission to enter, or to remove anything from, the building.
¶ 7 On cross-examination, Officer Wilcox stated that "[a]bout three minutes" elapsed from the time he received a call about suspicious persons until he arrived on the scene. Defense counsel then questioned Officer Wilcox as follows:
"Q. And where did you first observe–did you observe both my clients at the same time?
A. I observed Mr. Denton putting the carpet down.
Q. So were–how far–where were you when you first observed them?
A. I was at the street.
Q. You were on the street?
Q. And you saw them in the rear of the building is that what you said?
A. I saw them in the rear next to the driveway, yes.
Q. So where–could you tell me where the door is that you're talking about that you saw them at if you're at the rear and they're in the front? I'm confused where you were versus where the door was?
A. I was on the street. I pulled into the driveway. I pulled into the rear of the building.
Q. Okay. You said you were on street so I was confused. So you were at the ...