delivered the judgment of the court, with opinion.
Presiding Justice Carter and Justice Lytton concurred in the judgment and opinion.
OPINION
The State charged defendant, Lloyd Shorty, with unlawful possession of heroin and possession with intent to deliver heroin in violation of sections 402(c) and 401(c)(1) of the Illinois Controlled Substances Act. 720 ILCS 570/401(c)(1), 402(c) (West 2006). A jury found defendant guilty of both charges and the circuit court of Peoria County sentenced him to 19 years’ incarceration. Defendant appealed, claiming he was denied a fair trial by the introduction of improper hearsay evidence and the trial court’s failure to properly ask the potential jurors if they understood and accepted fundamental principles of criminal law as mandated by Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). This court affirmed defendant’s conviction. People v. Shorty,
In a supervisory order dated January 26, 2011, our supreme court directed us to vacate our judgment and reconsider our decision in light of People v. Thompson,
FACTS
Defendant’s case proceeded to trial on July 14, 2008. At the beginning of voir dire, the court spoke to the venire as a group and told prospective jurors that the defendant was presumed innocent. The court further informed the jury pool that the State had the burden of proving defendant’s guilt beyond a reasonable doubt, that defendant was not required to prove his innocence or present evidence, that defendant was not required to testify, and finally that defendant’s choice not to testify could not be used against him.
After announcing those principles, the court stated that “all jurors must be willing to accept this basic principle.” When individual questions were posed to the prospective jurors, the court asked all but one if they accepted those basic principles. Each juror asked responded in the affirmative.
The case proceeded to trial, and in opening arguments, the State informed the jury that Officer Batterham would testify that a confidential informant told him that “defendant was going to be going to Chicago later that evening to buy heroin and that he would be going in a certain vehicle, which was a blue Toyota Solara, and going with a female who was supposed to be his girlfriend.” The court overruled defendant’s objection to this statement, noting that opening statements only indicate what the State believed its evidence would show.
During Officer Batterham’s testimony, he indicated that he received information from a confidential informant about defendant. The State asked Batterham to detail the circumstances surrounding his receipt of that information and defendant objected, claiming that any testimony concerning what the informant told Batterham was impermissible hearsay. The court allowed Batterham to testify that he “received information from an individual that defendant was supposed to be making a trip to Chicago that evening to pick up a large quantity of heroin.” The informant told Batterham that defendant was at the Townehouse hotel and the type of vehicle that would be used.
Batterham testified that based on that information, he set up surveillance on the Townehouse hotel. He witnessed the described vehicle arrive at the location, then leave minutes later with Holly Felton driving; defendant was in the front passenger seat, and the informant was in the backseat. The police followed the vehicle to Morton, then called off surveillance.
Batterham continued his testimony by noting that shortly after midnight on July 13, 2006, he received information regarding defendant. When Batterham was asked to summarize that information, defendant objected. The State claimed the information was essential to explain the officer’s further conduct and the trial court overruled defendant’s objection. Batterham then testified that the information he received indicated that defendant did “in fact have the heroin” and that he would be returning to the Townehouse hotel in the vehicle previously described.
During this testimony, the trial court instructed the jury that “the information the officer is testifying to that he received is allowed for the purpose of explaining the actions of the officer and not for the truth of the matter that might have been told to the officer, but to explain the officer’s actions then.” Batterham concluded his testimony by noting that he, again, set up surveillance at the Townehouse hotel and witnessed the described vehicle pull into the parking lot.
Officer John Couve testified that he was driving a van carrying “an arrest team.” He parked the van on the passenger side of the blue Toyota in the Townehouse hotel parking lot. Defendant was opening, or had just opened, the passenger door as Couve parked.
Officer Erin Barisch testified that he was part of the arrest team at the Townehouse hotel on July 13, 2006. When he arrested defendant, the front passenger door to the Toyota was open and defendant was turned in the seat talking to the backseat passenger. Barisch stated that defendant had a purple cloth Crown Royal bag in his right hand and he dropped the bag onto his seat when he saw the officers. The cloth bag held a plastic bag containing a substance believed to be heroin, a bottle of Dormin pills, and a digital scale.
The parties stipulated that $225 was found in defendant’s pocket and that no fingerprints were found on the items in the purple bag. Denise Hanley, an Illinois State Police forensic scientist, testified that the substance recovered from inside the purple bag contained heroin and weighed 7.9 grams.
Officer Batterham was qualified as an expert in narcotics investigation and then testified that, based on his opinion, the heroin was to be sold and not for personal use. Batterham came to this conclusion based on the quantity of the heroin, the presence of the digital scale, and the presence of Dormin. Batterham noted Dormin is a sleep aid used to cut heroin.
After putting on its expert testimony, the State rested its case. Defendant chose not to testify or put on any testimony in his defense. The jury found defendant guilty of both possession of a controlled substance and possession with intent to deliver a controlled substance. Defendant filed a timely posttrial motion, alleging error in allowing statements of the confidential information into evidence. The trial court denied defendant’s motion.
ANALYSIS
Defendant raises two claims of error on appeal. Initially, defendant claims the circuit court erroneously allowed the State, during opening, to reference impermissible hearsay statements made by a confidential informant. Specifically, defendant alleges it was reversible error to allow the prosecutor to inform the jury that the police received information indicating defendant planned a trip to Chicago to buy heroin. Defendant claims the court compounded this error by allowing a police officer to testify that the confidential informant told him defendant did, in fact, purchase the heroin and was on his way back to Peoria with it. The State responds that the opening statements made by the prosecutor were proper, as was the testimony of the officer. The State notes that parties are given great latitude when making opening statements and that the officer’s statements were not made to prove the truth of the matter asserted but, rather, to properly explain investigatory procedures. Alternatively, the State proffers that any error that may have occurred was harmless.
I. Hearsay v. Nonhearsay Purpose
Defendant claims People v. Singletary,
Our research reveals that three reported decisions have discussed this holding from Singletary, and all have done so favorably. See People v. Jura,
In People v. Gacho,
Thereafter, our supreme court elaborated on its language from Gacho in People v. Jones,
Our supreme court disagreed, and in doing so stated as follows:
“It is undisputed that an officer may testify to his investigatory procedures, including the existence of conversations, without violating the hearsay rule. This is true even if a logical inference may be drawn that the officer took subsequent steps as a result of the substance of that conversation. [Citation.]
The defendant argues that the testimony in this case exceeds that allowed by Gacho, since [the officers] testified to the substance of Colvin’s statements. Gacho stated that, ‘[h]ad the substance of the conversation *** been testified to, it would have been objectionable as hearsay.’ [Citation.] However, this language is not applicable to the facts of this case.
In Gacho, the defendant was convicted of murder, aggravated kidnapping, and armed robbery, and was sentenced to death. The defendant challenged the sufficiency of his trial, inter alia, because of alleged hearsay in a police officer’s testimony and improper references to this testimony during closing argument. This occurred when the officer, while detailing his investigation, testified to a conversation he had with the surviving victim in which the victim identified the defendant as the perpetrator of the crime.
This is the dispositive factual difference between Gacho and the instant case. In Gacho, the substance of the conversation would have gone to the very essence of the dispute: whether the defendant was the man who committed the crime. Thus, if the substance of the conversation came into evidence it would inevitably go to prove the matter asserted.
The substance of the conversations with Colvin, on the other hand, could in no way go to prove any matter relevant to the trial. If offered to prove the matter asserted, the testimony would show that the defendant was involved in the car stripping, or at least present at the scene. This provides nothing to the State to help prove the defendant’s guilt in the armed robbery. Rather, this simply showed the jury how the officer and the detective came to suspect the defendant.” Jones,153 Ill. 2d at 159-61 .
In the case at bar, however, the alleged improper statements go directly to the matter in controversy: whether defendant possessed the heroin found in the vehicle. Undoubtedly, the prosecution could have elicited testimony from Officer Batterham that explained his investigatory procedures without disclosing the substance of the conversations had between the officer and the informant and without hearsay as to defendant’s guilt. By way of explanation, the prosecutor could have simply elicited testimony from the officer that a confidential informant (CI) provided information that at the time and place in question, a blue Toyota Solara would appear with three occupants and the vehicle would contain drugs. This would explain why the officers were at the Townehouse hotel and why they stopped defendant’s vehicle. There was no need to go beyond that if the only goal was to explain police conduct.
There is another reason we cannot accept the prosecutor’s stated reason for offering the disputed testimony. The testimony elicited by the prosecutor clearly identified the Cl to the defendant. (Hint: it was the guy in the backseat.) It strains our credulity to accept that this was anything more than a prosecutor’s successful attempt to put on the not-so-confidential informant’s testimony as to defendant’s guilt without subjecting the witness to cross-examination and impeachment. The Cl’s shopping trip to the heroin store with defendant on the day in question provided fertile ground for cross-examination. We cannot reconcile telling the defendant who dropped the dime on him while arguing that the snitch is a CL The prosecutor was clearly not worried about protecting the Cl’s identity. One would not have to be a cynic to conclude that the State did not call the witness because it did not want the witness exposed to cross-examination.
In discussing the issue before us, the Fourth District in People v. Cameron,
“ ‘In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted “upon information received,” or words to that effect, should be sufficient. Nevertheless, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great.’ ” Cameron,189 Ill. App. 3d at 1004 (quoting Kenneth S. Brown et al., McCormick on Evidence §249, at 734 (Edward W Cleary ed., 3d ed. 1984)).
The court went on to suggest:
“When an objection was first raised to [the officer’s] testifying about what he was told by the confidential informant, the court should have conducted a hearing out of the presence of the jury to determine both the scope of these third-party out-of-court statements and the need for the jury to hear them. Had such a hearing been conducted in this case, the court could have directed that the improper portions of [the officer’s] testimony be deleted, thereby permitting the State to provide its legitimate explanations for police conduct, while protecting the defendant against prejudicial hearsay statements.” (Emphasis in original.) Cameron,189 Ill. App. 3d at 1005 .
Courts cite Cameron with approval. See, e.g., People v. Singletary,
The testimony elicited by the prosecutor went far beyond that necessary to explain police conduct. Therefore, it was hearsay. We hold the trial court erred by overruling defendant’s objections. We further find that the trial court’s limiting instruction to the jury did not cure the error and agree with the Rivera court’s statement that, in this instance, the “[h]earsay testimony identifying the defendant as the one who committed the crime cannot be explained away as ‘police procedure,’ even where the trial judge limits the evidence to a non-hearsay purpose.” Rivera,
II. Harmless Error
The State argues that even if we find the trial court erred by allowing the statements into evidence, the error was harmless. The admission of hearsay evidence is harmless error where there is no reasonable probability that the jury would have acquitted defendant absent the hearsay testimony. People v. Sims,
Defendant offers no plausible explanation of why this error is anything but harmless. Defendant simply claims it cannot be harmless given the fact that the testimony “went straight to the heart of the guilt or innocence of defendant and therefore should not be considered harmless.” However, defendant cites no authority for this proposition and fails to comment on the true standard to be applied when determining whether introduction of such statements is harmless: is there a reasonable probability that a jury would have acquitted absent the hearsay testimony. Our research failed to identify a single case, and defendant cites none, that holds hearsay testimony that comments directly on the matter at issue cannot be harmless error.
III. Supreme Court Rule 431
Finally, defendant claims the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) and, as such, he is entitled to a new trial. The State responds that defendant has forfeited this issue. In the alternative, the State argues the trial court properly complied with Rule 431(b). We review issues concerning the compliance with a Supreme Court Rule de novo. People v. Graham,
Rule 431(b) states as follows:
“The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant’s failure to testify cannot be held against him or her ***.
The court’s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.” Ill. S. Ct. R. 431(b) (eff. May 1, 2007).
The record indicates the trial court announced these principles to the entire jury venire. Then, while announcing the final principle, the court stated, “He [the defendant] is not required to testify, and if he does not do so, that cannot be used against him. All jurors must be willing to accept this basic principle.” Defendant acknowledges that, “in one form or another,” the court asked all but one juror individually if they accepted the principles of law outlined in Rule 431(b). The State acknowledges that the court failed to ask juror Krishnamoorthi whether or not he accepted these four basic principles of law. The State argues, however, that defendant has forfeited this alleged error. We agree.
To properly preserve an issue for appellate review, the defendant must object at trial and raise the issue in a posttrial motion. People v. Mien,
Nevertheless, defendant asks that we review the matter as plain error. “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a). Under this rule, a reviewing court is permitted to consider a forfeited issue where: (1) the evidence in a case is so closely balanced that the jury’s guilty verdict may have resulted from the error and not the evidence; or (2) the error is so serious that the defendant was denied a substantial right, and thus a fair trial. People v. Herron,
In People v. Amerman,
“In this case, the jurors were instructed of the Rule 431(b)(4) principles prior to their deliberations, albeit not in the proper manner. As the supreme court stated in Glasper, ‘[w]e reject the idea that the trial court’s failure to conduct Rule 431(b)(4) questioning makes it inevitable that the jury was biased,’ particularly where the record demonstrates that the jury was instructed of the principles before its deliberations. [Citation.] ‘To do so would require us to presume that citizens sworn as jurors ignore the law and the jury instructions given to them. This notion is contrary to our precedent which instructs us to make the opposite presumption.’ ” Amerman,396 Ill. App. 3d at 594-95 (quoting Glasper,234 Ill. 2d at 201 ).
We further noted in Amerman that the alleged error was not “so serious that it affected the fairness of the defendant’s trial” and ultimately held “that the trial court in this case did not commit plain error under either prong of the rule by failing to strictly comply with Rule 431(b). The failure to follow a supreme court rule in this case, standing alone, was not per se plain error. [Citations.]” Amerman,
Similarly, in the case at bar, the jurors were instructed on the Rule 431(b) principles prior to their deliberations. Not only were they instructed en masse during voir dire as to the four principles, but all but one were individually instructed and asked if they accepted the principles. The record indicates that the entire jury venire was in the courtroom when the trial judge first stated the Rule 431(b) principles and indicated that each juror “must be willing to accept” them. Then, the court called groups of four jurors to the jury box for questioning. There is no notation in the record that the remaining prospective jury members were asked to leave the courtroom during this questioning.
While juror Krishnamoorthi was not individually asked if he accepted the four principles set forth in Rule 431(b), the record indicates that juror Krishnamoorthi heard the judge instruct at least seven other jurors individually on these principles and ask those jurors if they accepted the principles. Moreover, before deliberations began, the trial court instructed the jury as follows:
“The fact that the defendant did not testify must not be considered by you in any way in arriving at your verdict. ***
The defendant is presumed to be innocent of the charges against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict and is not overcome unless from all the evidence in this case you are convinced beyond a reasonable doubt that he is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.”
Not only did the trial court verbally instruct the jurors as to these principles, but it gave them written instructions on these principles to take with them into deliberations. As we found in Amerman, while the trial court failed to strictly comply with Rule 431(b), we find its failure to do so did not deprive the defendant of a fair trial. As the evidence in this case is not closely balanced, we hold that defendant cannot meet his burden of showing the trial court committed plain error and, as such, we must honor his procedural default.
Our findings with regard to defendant’s claims involving Rule 431(b) are supported by Thompson. Thompson,
In the instant case, the trial court failed to properly question one juror, yet the entire venire was properly admonished as to the Rule 431 principles. The evidence was not closely balanced and defendant has failed to show that the trial court’s error resulted in a biased jury.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.
Affirmed.