People v. Ochoa, 2017 IL App (1st) 140204 (February). Episode 315 (Duration 29:55)

Defendant’s murder conviction is reversed a second time for the same reason it was reversed the first time (Cameron Hearing Problem).

Facts

Defendant was accused of being the shooter in gang killing that killed a 15 year old girl.

The intended victim was her boyfriend who was standing right next to her. Two codefendants were arrested near the scene. They were interrogated and they gave up the defendant.

The investigation then shifted to identifying and finding the defendant.

Eventually, defendant was also arrested and he too confessed to being the shooter.

Hearsay Evidence

First of all, hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

Testimony by a third party as to statements made by another non testifying party identifying an accused as the perpetrator of a crime constitutes hearsay testimony and is inadmissible.

 

Codefendant Statements

Therefore, a codefendant’s statement incriminating a defendant is inherently unreliable, particularly when the co-defendant does not testify at trial and cannot be cross-examined.

The introduction of a co-offender’s hearsay statement implicating the defendant violates the defendant’s sixth amendment right to confrontation. U.S. Const., amend. VI.

Steps In The Investigation

When it comes to testimony outlining the steps in an investigation the case law goes both ways.

Pro

Our supreme court has held that law enforcement officers “may recount the steps taken in the investigation of a crime, and may describe the events leading up to the defendant’s arrest, where such testimony is necessary and important to fully explain the State’s case to the trier of fact.” People v. Simms, 143 Ill. 2d 154, 174 (1991).

In addition, a law enforcement officer “may testify about his conversations with others, such as victims or witnesses, when such testimony is not offered to prove the truth of the matter asserted by the other, but is used to show the investigative steps taken by the officer.” Simms, 143 Ill. 2d at 174.

“Testimony describing the progress of the investigation is admissible even if it suggests that a non testifying witness implicated the defendant.” Simms, 143 Ill. 2d at 174. The gist of this argument is that the steps in an investigation is not hearsay. Because the testimony is not being used to prove the matter asserted, but instead is being used to explain the step in an investigation.

Against

Then there is People v. Boling, 2014 IL App (4th) 120634 which counsels that out-of-court statements that explain a course of conduct should be admitted only to the extent necessary to provide that explanation and should not be admitted if they reveal unnecessary and prejudicial information.

An officer may not testify to information beyond what is necessary to explain his or her actions.

The trick here is to make sure that the State not use the limited investigatory procedure exception to place into evidence the substance of any out-of-court statement that the officer hears during his investigation, and only elicits such evidence to establish the police investigative process.

This is a very fine line to walk.

Fine Line

Case law clearly says there is a distinction between an officer testifying to the fact that he spoke to a witness without disclosing the contents of that conversation and an officer testifying to the contents of the conversation.

Under the investigatory procedure exception, the officer’s testimony must be limited to show how the investigation was conducted, not to place into evidence the substance of any out-of-court statement or conversations for the purpose of establishing the truth of their contents. The police officer should not testify to the contents of the conversation, since such testimony is inadmissible hearsay.

This Case

On appeal, defendant first contends that he was denied a fair trial where the trial court allowed two police officers to testify to the substance of the co-defendants’ statements implicating defendant as the shooter.

According to defendant, the State’s actions on retrial mirrored its actions at defendant’s first trial for which this court reversed and remanded the cause for a new trial.

The Exact Testimony

The State responds that there was, in fact, no error; that the detectives’ testimony was properly admitted for the limited purpose of showing the course of their investigation; and that any error that did occur was cured by the trial court’s limiting of the testimony.

The specific testimony with which defendant takes issue is the following testimony by Detective Garcia:

ASA [Q]: After these line-ups, Simon and Bentazos were still in custody at Area 4, correct?

DETECTIVE GARCIA [A]: Yes.

Q: After dealing with Bentazos and Simon, what did you do next in this investigation?

A: We obtained information of two additional offenders.

[ASSISTANT PUBLIC DEFENDER]: Objection.

THE COURT: Sustained. Disregard that answer, ladies and gentlemen. Ladies and gentlemen, you are to disregard the last question and answer.

The court also admonished Detective Garcia not to mention the fact that he had any conversations with Simon and Bentazos.

The following testimony then transpired:

Q: After these line-ups, Detective, what is the next thing you did in your investigation?

A: We—we had information on two additional persons.

[ASSISTANT PUBLIC DEFENDER]: Objection.

THE COURT: Disregard that question and that answer. Ask your next question.

Q: What is the next thing you did in this investigation?

A: We were looking for two other subjects.

Q: What information did you initially have about these two subjects?

A: We had nicknames.

Q: What were the nicknames?

A. One by the name of Chilango (phonetic) and the other by the name of Spook.

Defendant also takes issue with the following testimony by Detective Lopez:

Q: When that investigation was turned over to you was anybody in custody for that murder at area four?

A: Yes, sir.

Q: Who was that?

A: Mr. Bentazos and Mr. Simon.

Q: And when the investigation was turned over to you, did you look for any additional offenders besides the two in custody?

A: Yes.

Q: Who were you looking for?

A: Torres and a subject by the name of Chilango.

Q: And did Eduardo Torres also have the nickname of Spook?

A: He did, yes.

Q: Did you and Detective Schleder take steps that evening and the night of December 18th to try and locate Eduardo, Spook, Torres?

A: Yes, sir.

Q: Were you successful that evening?

A: No, not at that time.

Q: Did you share any information with uniformed officers in the district that comprised area four?

A: Yes, with the tenth district, correct.

Q: And specifically what did you share with them?

A: Eduardo Torres’s IR number, his internal record number, his description, and that was passed along to the beat officers.

Q: And did you and Detective Schleder attempt to develop information on Chilango?

A: Yes.

Q: Were you still working just after midnight and into the morning on December 19th 2002?

A: Yes, I was.

Q: Did you learn that Torres was arrested at 12:10 a.m. on December 19th on the street at 2501 South Drake by uniformed officers?

A: Yes.

Q: And was Eduardo Torres subsequently brought to area four [police station]? [DETECTIVE LOPEZ:]

A: He was.

Q: Did you continue your investigation into Marilou’s murder at that time?

A: Yes.

Q: Did you have an opportunity to leave area four at [3:45 that morning?]

A: Yes.

Q: When you left area four were you going to a specific location?

A: Yes.

Q: Where were you going?

A: The tenth district 2448—the 2400 block of south Spaulding I believe it was.

Q: Okay, did you subsequently relocate to 2442 South Saint Louis, first floor?

A: Saint Louis, yes, sir.

Q: Okay. And were you looking for a specific person at that address?

A: Yes, sir.

Q: Who were you looking for?

A: Male, Hispanic by the—with the nickname of [Chilango] or [Beto].

Q: And did you have any other identifiers of that individual?

A: Medium height 5’6” with a tattoo on his arm.

[ASSISTANT PUBLIC DEFENDER]: Objection.

THE COURT: Basis.

[ASSISTANT PUBLIC DEFENDER CHRISTL]: Hearsay.

THE COURT: Overruled.

Q. You may continue.

A: Yes, sir. That was the approximate description.

The First Trial

Defendant argues that the testimony at the second trial was nearly identical to that at the first trial and, therefore, the same reversible error occurred.

This is the reversible error from the first trial:

In defendant’s first trial, the State asked Detective Garcia if codefendants Simon and Bentazos were at the police station, prompting the following exchange:

A: Yes, they were, ma’am.

Q: Were interviews conducted in the late night hours of December 17th and the early morning hours of December 18, 2002?

A: Yes, they were.

Q: After interviews were conducted, did your investigation continue?

A: Yes, it did, ma’am.

Q: Were you looking for any other offenders in this shooting?

A: Yes, due to our interviews with Mr. Simon and Mr. Bentazo, we were able to obtain two nicknames also involved in the shooting which they gave us so—

DEFENSE COUNSEL: Judge, objection.

THE COURT: Sustained.

Rephrase your question. The question asked of the Detective and the answer will be stricken.

Q: After interviews were conducted were you looking for any other offenders or possible offenders?

A: Yes, we were looking for two subjects. One by the street name of Chilango. Chilango was later determined to be defendant.

Additionally, in the first trial, Detective Lopez said these things:

Q: Did you see Eduardo Torres when he was brought to Area 4 in the early morning hours of December 19, 2002?

A: I did.

Q: Did your investigation continue into the homicide of 15 year old Marila Soscha at this point?

A: Yes.

Q: Were interviews conducted?

A: Yes.

Q: After interviews were conducted at approximately 3:30 to 3:45 A.M. still on December 19, 2002, did you have occasion to leave Area 4?

A: Yes.

Q: When you left Area 4, were you going to a specific location?

A: Yes. We were directed to 2442 South St. Louis on the first floor.

Q: When you say you were directed to 2442 South St. Louis on the first floor, were you specifically looking for someone at that address?

A: Yes. I was looking for a male Hispanic named Chilango who also went by— who also had a first name of Alberto who was a male Hispanic approximately five-six, medium build, with a tattoo on his arm that said Beto.

The First Reversal

In the first appeal the reviewing court held that the State repeatedly elicited testimony that contained a strong inference that the co-defendants implicated defendant in their statements.

This exchange went beyond mere questioning concerning the investigatory process, and included serial questions to build the inference that defendant was named by his criminal cohorts.

Furthermore, rather than limiting testimony to the actions within the investigatory process, the jury was told that, after interviewing co-defendants at the police station, police knew the defendant’s home address, his first name, his nickname, his ethnicity, height and build, and that he had a very specific tattoo.

This testimony was inadmissible hearsay, as it went beyond the mere steps that the police took in their investigation, and instead placed into evidence the substance of the co-defendants’ out-of-court statements for the purpose of establishing their truth.

Moreover, the State reinforced this evidence by reminding the jury multiple times during closing arguments that, after police interviewed the codefendants, they knew they were looking for a person with the precise characteristics of defendant.

The reasonable inference to be drawn by the jury was that this information came from the co-defendants.

Analysis In This Case
(The Second Trial)

In this later trial, the reviewing court said the same thing happened.

The series of questions and answers established that “after dealing with” the co-defendants, Detective Garcia then had specific identifying information about defendant. From this testimony, then, the jury learned that, after talking with the co-defendants, the police were then looking for a suspect nicknamed “Chilango.”

It was never disputed at trial that defendant’s nickname was Chilango.

When the additional suspect was brought in to the police station and, very soon thereafter, Detective Lopez knew to search for a specific individual with defendant’s specific identifiers of nickname, height, build, ethnicity, gender, and tattoo.

The jury could easily infer from this series of questions that co-defendant Torres implicated defendant in the crime.

Same Error

Again, the reviewing court found the detectives’ testimony was inadmissible hearsay.

The State repeatedly elicited testimony with the strong inference that defendant’s co-defendants implicated him to the police.

The jury witnessed this exchange, which went beyond mere questioning concerning the investigatory process and, like in the first trial, included serial questions to build the inference that defendant was named by his criminal cohorts.

Testimony regarding the steps of an investigation may not include the substance of a conversation with nontestifying witnesses.

Again, as in the first trial, this testimony was in no way limited to the actions police took as part of their investigatory process, but instead the jury was informed that, with co-defendants Simon, Bentazos, and Torres at the police station, the detectives discovered:

the defendant’s home address

• nickname
• gender
• ethnicity
• height and build
• and information about his tattoo.

There was no material difference between the substantive contents of the detectives’ testimony between defendant’s first and second trials.

The Steps In The Investigation

The steps in the investigation were that that Simon and Bentazos were arrested, that Torres was arrested the following day, and that defendant was arrested later that day.

Instead, the reasonable inference to be drawn by the jury from the information provided at trial was that defendant’s co-defendants implicated him in the crime. Again like the first trial, the State reinforced this evidence by reminding the jury during closing arguments that defendant’s co-defendants had implicated him in the crime.

In discussing defendant’s inculpatory statement to the police, the prosecutor told the jury:

“And you know why he gave it up as soon as he sat down with Sergeant Lopez? He gave it up because he knew the game was over. He knew the three co-defendants were in custody at that station. He knew the police— [DEFENSE COUNSEL Objection was overruled.]: Had solved this crime. And you know what? He knew at that point there was no reason to deny it. You heard from Sergeant Lopez, he didn’t deny it. He started talking immediately.”

Holding

The reviewing court concluded that this statement to the jury linked the reason defendant allegedly provided an inculpatory statement to the fact that his co-defendants had already been arrested and were in custody upon his arrival to the station, and it provided further reason for the jury to infer that the information obtained by police—including defendant’s gender, ethnicity, nickname, build, and home address—was provided to them by the co-defendants.

The central warning of People v. Boling is particularly pressing here.

Investigatory steps taken by a police officer are rarely more than marginally relevant at best, while the risk of jury misuse of the information at great expense to the accused is substantial.

This evidence linking defendant to the crime was so crucial to the State’s case that its admission prejudiced defendant.

Reversed and remanded.

On Remand

On remand, the State was instructed to use more caution in its examination of the detectives such that the detectives’ testimony does not bolster the State’s case against defendant.

The State should understand more fully the strictures of the investigatory procedure exception and should steer clear of any testimony that goes beyond an officer “reconstructing the steps taken in a crime’s investigation” and “describing the events leading up to the defendant’s arrest where such testimony is necessary and important to fully explain the State’s case to the jury,” being mindful that “there is a distinction between an officer testifying to the fact that he spoke to a witness without disclosing the contents of that conversation and an officer testifying to the contents of the conversation.”

But the trial court also said that what happened in the previous trial is not what happened here. The court and the state both believed that if they stayed away from the direct conversations with the co defendants they were fine.

They didn’t understand that it was the implications from those conversations is where the damage was being done.

See Also Episode 057 – Prosecutorial Misconduct Example | They All Do This