People v. Davison, 2019 IL App (1st) 161094 (February). Episode 589 (Duration 15:22)

Another example of evidence that was admitted to demonstrate the course of the police investigation.

Issue

People v. Davison, 2019 IL App (1st) 161094 (February). Episode 589 (Duration 15:22)

Another example of evidence that was admitted to demonstrate the course of the police investigation.

Issue

Defendant contends the detective should not have been allowed to testify to the names the witness provided because it went beyond what was necessary to explain the detective’s subsequent conduct.

Defendant further contends the admission of names violated his right under the sixth amendment because he did not have an opportunity to cross-examine the witness.

Facts

This was an execution of sorts.

Guy gets a flat. We’ll call him the witness. The victim walks up and offers to help fix the flat. Witness agrees. Eventually, defendant and some other men walk up to scene. They have a beef with the victim. They eventually shoot and kill him. At one point the men are standing around the victim in a semi circle unloading their gun into him.

The main shooter looks at the witness before the men flee.

Course of Conduct Evidence

After leaving the scene, investigations went to the police station, where he spoke with the witness again and obtained a description of the shooters. After speaking with the witness and his partners, the investigator had three names:

“Dee, Little Fred, and Terell Davis.”

Defendant Arrested

The witness remembered that the victim called the shooter Terell.

6 months later defendant was arrested. The victim identified the defendant from the line-up and some photo arrays. The victim did not identify anyone else.

Was It Hearsay?

The detective testified that as a result of a conversation he had with Magana and a conversation his partner had with non-testifying witness Howard Taylor, he began looking for three individuals: Dee, Little Fred, and Terell Davis.

Hearsay & Course of Conduct Evidence

“Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted, and it is generally inadmissible due to its lack of reliability unless it falls within an exception to the hearsay rule.” People v. Olinger, 176 Ill. 2d 326, 357 (1997). While hearsay is prohibited, Illinois courts have repeatedly recognized that a police officer may testify to the steps he took during the course of a criminal investigation, and such testimony is not considered hearsay. People v. Johnson, 116 Ill. 2d 13, 24 (1987); People v. Gacho, 122 Ill. 2d 221, 248 (1988).

It is not considered hearsay because the testimony is within the personal knowledge of the officer and not used to prove the truth of the matter asserted. People v. Sample, 326 Ill. App. 3d 914, 920 (2001). However, an officer’s testimony becomes inadmissible hearsay if the testimony recounts “the substance of a conversation.” Gacho, 122 Ill. 2d at 248.

The Relevant Testimony

The relevant portion of Detective’s testimony states:

“[STATE’S ATTORNEY]: Did you learn that there was someone else on the scene by the name of Howard Taylor.

[WITNESS]: I did.[STATE’S ATTORNEY]:

Did you speak with that individual?

[WITNESS]: No, I did not.

[STATE’S ATTORNEY]: Who did?

[WITNESS]: Detectives Otto and Hall.

[STATE’S ATTORNEY]: Did you ultimately after being at the scene relocate back to Area South?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: When you went back to Area South, did you have contact with your partners?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: Did you also have contact once again with Magana?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: At this point who are you looking for?

[DEFENSE ATTORNEY]: Objection. THE COURT: Overruled.

[WITNESS]: I had three names, a nickname of Dee, Little Fred, and Terell Davis.

[STATE’S ATTORNEY]: And did you then make efforts to identify someone by the nickname of Dee, Terell Davis, or Little Fred

[WITNESS]: I did.

[STATE’S ATTORNEY]: Did you—what efforts did you make?

[WITNESS]: I utilized the computer that was available to me. I attempted to locate through demographics and people fitting that description that had connections back to that area.

[STATE’S ATTORNEY]: Were you able to locate anyone?

[WITNESS]: I was.

[STATE’S ATTORNEY]: And when you located that person, were you able to get that photo of them?

[WITNESS]: I did.

[STATE’S ATTORNEY]: Do you see that person in court today?

[DEFENSE ATTORNEY]: Objection.

THE COURT: Basis?

[DEFENSE ATTORNEY]: That it’s hearsay.

THE COURT: Okay, overruled. The person he got the photograph of?

[DEFENSE ATTORNEY]: How he got the photograph.

THE COURT: That’s not what the question was.

[STATE’S ATTORNEY]: Do you see the person you got the photograph of during your procedure in court today?

[WITNESS]: I do.

[STATE’S ATTORNEY]: Can you point to him and describe an item of clothing that he’s wearing?

[WITNESS]: He’s the male black to my left wearing the white shirt.

[STATE’S ATTORNEY]: Your Honor, may the record reflect an in-court identification of the defendant. THE COURT: It may.”

Analysis

The relevant portion of the testimony above demonstrates that at no point did the detective testify to the substance of statements made by either Taylor or any other officer who may have talked with Taylor. While the implication of his testimony is that Taylor provided the names of defendant and two others as individuals connected to the murder, this implication does not render the testimony hearsay or inadmissible. Johnson, 116 Ill. 2d at 24.

Detective’s testimony was correctly limited to the conduct of his own investigation and did not contain the substance of any non-testifying witnesses’ statements.

In Johnson, the supreme court found the detective’s testimony crossed the line into hearsay because “the detective went on to explain that codefendant, after his arrest, implicated the defendant in the scheme and said that the defendant was the gunman.” Similarly, in People v. Singletary, 273 Ill. App. 3d 1076, 1084 (1995), this court found an officer’s testimony crossed into hearsay when he testified “regarding his conversation with the confidential informant that ‘he was going to go to 2971 South Dearborn and pick up a package of cocaine’ ” from the defendant.

Unlike the officers’ testimony in Johnson and Singletary, this detective did not testify as to any statements made by Taylor to his partner or from his partner to himself. While defendant is adamant that the testimony at issue is hearsay, the fault in his argument is exposed by the fact that he never identifies any substantive statements made by Taylor or another nontestifying individual contained within the detective’s testimony.

Detective’s testimony was correctly limited to the investigatory steps he took leading up to the identification of defendant and demonstrated defendant’s arrest was not purely coincidental.

Holding

After reviewing the testimony of the detective, we conclude the trial court did not err in admitting the testimony at issue, because he never disclosed the substance of what Taylor told his partner or what his partner told him.

Detective’s testimony regarding the three individuals he began looking for did not constitute hearsay, and the trial court did not err in admitting it. Given that the testimony at issue did not constitute hearsay, it follows that defendant’s right under the confrontation clause of the sixth amendment was not violated.

For the foregoing reasons, we affirm the defendant’s conviction for first degree murder.

See Also

Episode 057 – People v. Boling, 2014 IL App (4th) 120634 (March)(prosecutorial favorite “other purpose” is to explain steps in a police investigation.)

Episode 315 – People v. Ochoa, 2017 IL App (1st) 140204 (February) (murder conviction reversed twice because of the exact same “steps in the police investigation” error)

Episode 448 – People v. Horine, 2017 IL App (4th) 170128 (December)(hearsay evidence during this SSS hearing not admitted to demonstrate the police course of conduct in the investigation)

Episode 339 – People v. French, 2017 IL App (1st) 141815 (March) (Hearsay Involves Implied Information And Watch Out For “Course of Conduct” Exceptions)

Episode 588 – People v. Day, 2019 IL App (4th) 160217 (January) (police allowed to explain why they brought defendant to the scene)

People v. Gacho, 522 N.E.2d 1146, 122 Ill.2d 221, 119 Ill.Dec. 287 (Ill., 1988) (testimony is not hearsay when based on the officers’ own personal knowledge, and is admissible although the inference logically to be drawn therefrom is that the information received motivated the officers’ subsequent conduct)

.

Defendant further contends the admission of names violated his right under the sixth amendment because he did not have an opportunity to cross-examine the witness.

Facts

This was an execution of sorts.

Guy gets a flat. We’ll call him the witness. The victim walks up and offers to help fix the flat. Witness agrees. Eventually, defendant and some other men walk up to scene. They have a beef with the victim. They eventually shoot and kill him. At one point the men are standing around the victim in a semi circle unloading their gun into him.

The main shooter looks at the witness before the men flee.

Course of Conduct Evidence

After leaving the scene, investigations went to the police station, where he spoke with the witness again and obtained a description of the shooters. After speaking with the witness and his partners, the investigator had three names:

“Dee, Little Fred, and Terell Davis.”

Defendant Arrested

The witness remembered that the victim called the shooter Terell.

6 months later defendant was arrested. The victim identified the defendant from the line-up and some photo arrays. The victim did not identify anyone else.

Was It Hearsay?

The detective testified that as a result of a conversation he had with Magana and a conversation his partner had with non-testifying witness Howard Taylor, he began looking for three individuals: Dee, Little Fred, and Terell Davis.

Hearsay & Course of Conduct Evidence

“Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted, and it is generally inadmissible due to its lack of reliability unless it falls within an exception to the hearsay rule.” People v. Olinger, 176 Ill. 2d 326, 357 (1997). While hearsay is prohibited, Illinois courts have repeatedly recognized that a police officer may testify to the steps he took during the course of a criminal investigation, and such testimony is not considered hearsay. People v. Johnson, 116 Ill. 2d 13, 24 (1987); People v. Gacho, 122 Ill. 2d 221, 248 (1988).

It is not considered hearsay because the testimony is within the personal knowledge of the officer and not used to prove the truth of the matter asserted. People v. Sample, 326 Ill. App. 3d 914, 920 (2001). However, an officer’s testimony becomes inadmissible hearsay if the testimony recounts “the substance of a conversation.” Gacho, 122 Ill. 2d at 248.

The Relevant Testimony

The relevant portion of Detective’s testimony states:

“[STATE’S ATTORNEY]: Did you learn that there was someone else on the scene by the name of Howard Taylor.

[WITNESS]: I did.[STATE’S ATTORNEY]:

Did you speak with that individual?

[WITNESS]: No, I did not.

[STATE’S ATTORNEY]: Who did?

[WITNESS]: Detectives Otto and Hall.

[STATE’S ATTORNEY]: Did you ultimately after being at the scene relocate back to Area South?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: When you went back to Area South, did you have contact with your partners?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: Did you also have contact once again with Magana?

[WITNESS]: Yes.

[STATE’S ATTORNEY]: At this point who are you looking for?

[DEFENSE ATTORNEY]: Objection. THE COURT: Overruled.

[WITNESS]: I had three names, a nickname of Dee, Little Fred, and Terell Davis.

[STATE’S ATTORNEY]: And did you then make efforts to identify someone by the nickname of Dee, Terell Davis, or Little Fred

[WITNESS]: I did.

[STATE’S ATTORNEY]: Did you—what efforts did you make?

[WITNESS]: I utilized the computer that was available to me. I attempted to locate through demographics and people fitting that description that had connections back to that area.

[STATE’S ATTORNEY]: Were you able to locate anyone?

[WITNESS]: I was.

[STATE’S ATTORNEY]: And when you located that person, were you able to get that photo of them?

[WITNESS]: I did.

[STATE’S ATTORNEY]: Do you see that person in court today?

[DEFENSE ATTORNEY]: Objection.

THE COURT: Basis?

[DEFENSE ATTORNEY]: That it’s hearsay.

THE COURT: Okay, overruled. The person he got the photograph of?

[DEFENSE ATTORNEY]: How he got the photograph.

THE COURT: That’s not what the question was.

[STATE’S ATTORNEY]: Do you see the person you got the photograph of during your procedure in court today?

[WITNESS]: I do.

[STATE’S ATTORNEY]: Can you point to him and describe an item of clothing that he’s wearing?

[WITNESS]: He’s the male black to my left wearing the white shirt.

[STATE’S ATTORNEY]: Your Honor, may the record reflect an in-court identification of the defendant. THE COURT: It may.”

Analysis

The relevant portion of the testimony above demonstrates that at no point did the detective testify to the substance of statements made by either Taylor or any other officer who may have talked with Taylor. While the implication of his testimony is that Taylor provided the names of defendant and two others as individuals connected to the murder, this implication does not render the testimony hearsay or inadmissible. Johnson, 116 Ill. 2d at 24.

Detective’s testimony was correctly limited to the conduct of his own investigation and did not contain the substance of any non-testifying witnesses’ statements.

In Johnson, the supreme court found the detective’s testimony crossed the line into hearsay because “the detective went on to explain that codefendant, after his arrest, implicated the defendant in the scheme and said that the defendant was the gunman.” Similarly, in People v. Singletary, 273 Ill. App. 3d 1076, 1084 (1995), this court found an officer’s testimony crossed into hearsay when he testified “regarding his conversation with the confidential informant that ‘he was going to go to 2971 South Dearborn and pick up a package of cocaine’ ” from the defendant.

Unlike the officers’ testimony in Johnson and Singletary, this detective did not testify as to any statements made by Taylor to his partner or from his partner to himself. While defendant is adamant that the testimony at issue is hearsay, the fault in his argument is exposed by the fact that he never identifies any substantive statements made by Taylor or another nontestifying individual contained within the detective’s testimony.

Detective’s testimony was correctly limited to the investigatory steps he took leading up to the identification of defendant and demonstrated defendant’s arrest was not purely coincidental.

Holding

After reviewing the testimony of the detective, we conclude the trial court did not err in admitting the testimony at issue, because he never disclosed the substance of what Taylor told his partner or what his partner told him.

Detective’s testimony regarding the three individuals he began looking for did not constitute hearsay, and the trial court did not err in admitting it. Given that the testimony at issue did not constitute hearsay, it follows that defendant’s right under the confrontation clause of the sixth amendment was not violated.

For the foregoing reasons, we affirm the defendant’s conviction for first degree murder.

See Also

Episode 057 – People v. Boling, 2014 IL App (4th) 120634 (March)(prosecutorial favorite “other purpose” is to explain steps in a police investigation.)

Episode 315 – People v. Ochoa, 2017 IL App (1st) 140204 (February) (murder conviction reversed twice because of the exact same “steps in the police investigation” error)

Episode 448 – People v. Horine, 2017 IL App (4th) 170128 (December)(hearsay evidence during this SSS hearing not admitted to demonstrate the police course of conduct in the investigation)

Episode 339 – People v. French, 2017 IL App (1st) 141815 (March) (Hearsay Involves Implied Information And Watch Out For “Course of Conduct” Exceptions)

Episode 588 – People v. Day, 2019 IL App (4th) 160217 (January) (police allowed to explain why they brought defendant to the scene)

People v. Gacho, 522 N.E.2d 1146, 122 Ill.2d 221, 119 Ill.Dec. 287 (Ill., 1988) (testimony is not hearsay when based on the officers’ own personal knowledge, and is admissible although the inference logically to be drawn therefrom is that the information received motivated the officers’ subsequent conduct)