*1 added.) above, (Jones, 3d at As stated (Emphasis 8—7(b) provides of the Code that an offender shall be section 5— custody given spent credit "for time as a result of the offense for imposed.” provide which the sentence was It does not that sentence given solely on one offense where a defendant has credit will be charge. served time on an unrelated
Accordingly, supreme opinion we adhere to the court of Arnhold serving and those cases cited above which hold that a defendant offense, prior post awaiting sentence for a who fails to bond while sentencing charge, in-custody trial on another is entitled to credit Therefore, simultaneously custody charges. because he on two remand the sentencing we cause with directions to amend the order 1,282 addition, days to reflect of sentence credit. In we vacate the imposition of consecutive sentences as to both defendants and order them to their concealment of a homicidal serve death sentences concurrently with their murder sentences. part; part
Affirmed in and remanded with directions. reversed McNAMARA, EGAN, J., P.J., and concur. ILLINOIS, Plaintiff-Appellee,
THE PEOPLE OF THE OF STATE v. MAR- SINGLETARY, Defendant-Appellant. VELL (6th Division) First District No. 1 — 93—3018 Opinion filed June *2 EGAN, J., specially concurring. (Jack Strawn, Crowe, counsel), Chicago appellant. & of J. of for
Winston (Renee Goldfarb, O’Malley, Attorney, Chicago Jack State’s of William D. Carroll, Bonin, counsel), Attorneys, and Andrea Assistant State’s of for the People.
JUSTICE opinion RAKOWSKI delivered the of the court: Following jury trial, defendant, Singletary, Marvell was found guilty possession grams of with intent to deliver more than 15 of a (720 (West 1992)) controlled substance ILCS and sentenced 570/401 eight years prison. consecutively This to run sentence was one-year an pled guilty earlier sentence where defendant to an unre- (1) charge possession appeal lated of of cocaine. issues on are: deprived right whether defendant was of his sixth amendment against him confront witnesses where of a him; against confidential informant were as evidence admitted (2) guilty jury properly possession whether the found defendant beyond a controlled substance with the intent to deliver a reasonable doubt. presented by through
The evidence the State was Bunch, Wayne Wayne officer Gulliford and fo- *3 rensic chemist Arthur Kruski. On June Officer Bunch was assigned organized crime division of to the narcotics section years. police department, where he had worked for four While station, telephone Bunch received a call from a confidential 9 a.m. and 10:30 a.m. The informant informant sometime between past provided had Bunch with reliable information During resulted in arrests and the seizure of contraband. the June telephone person told Bunch that a named Mar- call the informant vell, described, briefly in a small blue whom the informant would be Homes, a Dodge Plymouth driving or hatchback car to Dearborn Dearborn, up package housing project pick at 2971 South cocaine. information, partner, Of- receiving
After Bunch contacted his Gulliford, Sergeant Joseph ficer as well as Officer Rokas William Bosco, canine, officers, along went Owens. The four with Gulliford’s Bosco at the vicinity of 2971 Dearborn. Gulliford to the trained a narcotics training eight center for weeks in order to become canine handler, April working with Bosco since dog and he had been arrived at the Dearborn approximately At 10:35 a.m. the officers block from the parked Homes and their unmarked car one building park- building they had an unobstructed view of the where Gulliford, in the car while Rokas ing lot. Bunch and Bosco remained positioned three-quarters of block and Owens themselves about building. east arrived, Bunch and Gulli-
Around 15 minutes after the officers pull parking lot at 2911 ford saw blue hatchback vehicle into the in the front seat of the vehicle South Dearborn. There were two men (defendant) in saw defendant exit and one the back seat. The officers vehicle, go building, approximately two into the and return During away from the ve- minutes later. the time that defendant was hicle, trunk, area, anyone go the officers did not see into the hatch the back seat of the vehicle. vehicle, away
After defendant reentered the it drove from 2971 entering expressway. South Dearborn and headed toward the Before expressway, stopped signal the vehicle at a traffic at 31st Street La Salle. At this time Bunch and Gulliford activated their emer- gency equipment. stopped Gulliford his vehicle two to three feet approached right behind the blue vehicle. Bunch rear of the vehi- cle where right he saw defendant turn and look his over shoulder Bunch, According Bunch’s direction. placed then his jacket hand pocket, inside his left then removed hand and reached meantime, over the left side of him under the seat cushion. approached Gulliford the vehicle on the driver’s side. occupants
The three were asked to exit the vehicle and were "patted time, weapons. down” for None were recovered. At this based prior on information from the confidential Gulliford brought gave out Bosco and him a dope. command to fetch
Bosco came over to the driver’s side of the vehicle and started scratching vehicle, at the door. Bosco was then allowed to enter the began scratching where he went to the back cushion and at it. He stuck his muzzle underneath the cushion and retrieved a three-inch plastic three-inch sandwich-type bag containing clear smaller two plastic bags containing piece clear each one of off-white hard substance which was later crack found be cocaine. bag gave
Officer Gulliford recovered the from Bosco and it to Bunch, Chicago who later inventoried it and sent it to the crime lab analysis. placed for Defendant was then under arrest and advised of rights. his Miranda Bunch both stated that defendant and Gulliford acknowledged bags that the were his and that the other two men *4 nothing the car knew about them. The other men in the vehicle were then released. cocaine Gulliford testified that the street value of the $5,684. recovered was cross-examination, exchange
On Bunch testified that for provided by paid money the informant he information sum given any against proceedings but not assistance with court him. fingerprints Bunch and Gulliford testified no were recovered plastic bags. acknowledged from the Gulliford also on cross- examination that Bosco did not react when he walked past defendant vehicle, redirect, occupants and the other explained but on he always that Bosco did pack- not react when someone was seated on cocaine, aged instance, enough and that in this Bosco was not close occupants of the vehicle. qualified by expert Arthur Kruski was the court as an in forensic 12, 1992, chemistry. July working Kruski testified that on he was Chicago police department laboratory. crime On that date he was assigned analyze plastic bag containing plastic one clear two clear bags substance, containing rocky presence each a white for the aof weight bags controlled substance. The total of the two was 38.65 conducted, grams. Based on the tests he Mr. Kruski concluded that bags both contained crack cocaine. approximately
Defendant testified that at 9 a.m. on June Street, parking he was back lot of 5326 South State where he girlfriend lives with his and son. He asked brother-in-law friend, June, give friend of the brother-in-law to him a ride to his friend’s home at the Dearborn Homes. names gave of the two men who defendant a ride are Charles Lawshea and Homes, Turnery (Tyrone) way Moore. On the Moore Dearborn stopped pay telephone They at a to make a call. then to 2971 drove Dearborn, building, South where defendant went into the determined to the his friend was not at home and returned car. vehicle, police stopped Defendant further testified that the their get had all three men out of the car and searched them and nothing. police dog found Defendant then stated that a searched the supposed according to be in the car” vehicle found "what was questioned apart from defendant defendant. officers driver posses- under and then returned and told defendant he was arrest for sion of cocaine. The other two men were then released. Defendant rights make testified that he was not advised of his and did not police. acknowledge being arrested statements to the Defendant did receiving he possession probation, of cocaine in 1991 and for completed satisfactorily. cross-examination, friends
On defendant stated that he had been name. months but did not know her last with June for three four hung with the two men who Defendant stated that he never around testimony, According to his him to Dearborn Homes. drove a.m., 9:30 got in Lawshea and Moore at around the car with *5 minutes, and 5 or 10 telephone they stopped call to make took about later. about 10 to 15 minutes arrived at the Dearborn Homes a.m., and 10:15 defendant was asked what he did between 9:30 When get a trying June parking he stated that he was in the lot with got the car. Defen- exactly know what time he into ride and did not him acknowledged nothing placed handed to dant was in back seat while he was the vehicle. rebuttal, the certified convictions of defen- the State offered possession proba- in and 1991. He received
dant for of cocaine tion for both convictions. granted a new trial because
Defendant contends
he should be
hearsay
his conviction
based on the use of inadmissible
state-
ments from an undisclosed confidential informant. Defendant further
hearsay
prejudicial
contends that
effect of the
statements was
compounded by
prosecutor’s
opening
use of the statements in her
closing argument,
by
emphasis
statement and
her
on the reli-
ability of the confidential
informant.
"
evidence,
Hearsay
'testimony
evidence is
in court or written
court,
being
a statement made out of
such
as an as
statement
offered
therein,
sertion to show the truth of mátters asserted
and thus rest
ing
upon
credibility
for its value
of the out-of-court asserter.’
purpose
[Citation.] The fundamental
rule was and is
by
to test the real
exposing
value of
the source of the as
against
sertion to
party
cross-examination
whom it is offered.”
v. Carpenter
28 Ill. 2d
"Q. 9, 1992, morning you phone On the of June did receive a you working? call at the station where were Yes, A. I did.
Q. you get phone if And what information did this call? hearsay. Objection, DEFENSE COUNSEL: Judge, PROSECUTOR: its—. hearsay, Attorney?
THE COURT: Basis is Miss State’s PROSECUTOR: show the reason for what the of- It’s offered to ficer did. *** letting THE I I COURT: On that basis will allow it. am not matter, only letting I am this for the truth of the response why place a of the officer in to show he went to certain *** Okay, go took a certain action. ahead.
Q. you What information did receive? Marvel[l], person a and I
A. The information was that named Marvel[l], description, description type a received brief in, riding going go auto that he would be and that he was pick up package 2971 South Dearborn and of cocaine. * * * Q. from, person you you received the information have ever spoken person prior with that to that? Yes,
A. Q. I have. capacity?
And in what
A. As confidential informant. Q. you prior When had worked with the confidential informant prior to June what were the outcomes acts? provided A. He has me with reliable information several times prior being to this date which resulted contraband seized and subjects arrested for narcotics violations.
Q. you Based on the information that received from this you confidential what did do? *6 Sergeant
A. I contacted Officer and and Gulliford Owens Joe Ro- kas, along and the four of us with OfficerGulliford’s canine went vicinity to the of 2911 Dearborn.” Cameron, (Kempf)
In the trial an People v. court allowed officer to testify concerning his initial contact with an a later call cocaine, purchased from the informant that defendant had some allegedly police that defendant was concerned that the were watch- him, ing dispose drugs. permit- so he would have to of the The court testimony jury ted the with the limitation that the consider the evi- only showing purpose dence for the how the officer received notice taking place. that a transaction was appellate held: court testify appropriate permit Kempf
"It to that he had a to Kempf with informant who told conversation his confidential Quincy something gone pick up. defendant had to a tavern in to It testify appropriate permit Kempf package was not to to that the omitted.) picked (Emphasis up (People to be was cocaine.” v. Cam App. eron 189 Ill. 3d 546 N.E.2d The court further stated: way 'dope’
"The to 'cocaine’ and were in no above references conduct, and, necessary explain police despite limiting to references, gave concerning we instructions which the court these likely by are that these references would be understood concerned jury pertaining necessary the crime for which as elements of 1004-05.) (Cameron, being App. 3d at defendant was tried.” 189 Ill. theory regarding The Cameron court also discussed the the admission explain police conduct and of out-of-court statements to course McCormick, Quoting danger of misuse of such statements. court stated that: " cases, arresting investigating 'In criminal an officer should seeming just happened put position
not be false have scene; explanation upon he should be allowed some of his presence testimony "upon that he informa and conduct. His acted received,” effect, be sufficient. Never tion theless, or words to that should officer is allowed to relate
cases abound which the case, aspects replete historical complaints reports, ground that he was the form of on give upon he acted. The need for entitled to information ” (Cameron, great.’ slight, is of misuse evidence the likelihood 1004, Cleary, App. quoting 3d at E. McCormick on Evi (3d 1984).) 249, dence at 734 ed. § testimony Kempfs The court concluded that the admission of contain Cameron, ing dope the references to 189 Ill. cocaine and was error. App. at 3d 1005. 1141, Pryor
In App. 181 Ill. 3d the court stated: may
"A testify that a an individ conversation with place ual took and he acted thereon such is because personal knowledge competent within the officer’s and is estab investigatory However, testimony procedure. lish [Citation.] recounts the substance of a the officer’s conversation not within knowledge hearsay.” Pryor, App. and is inadmissible 181 Ill. 3d at 870. Pryor, passing flagged officer testified that a him citizen attempted marijuana.
down and stated that a black male
him
to sell
description
given
officer also testified
man
him
as to the
that,
the citizen. The court held
because the officer’s
set
citizen,
passing
forth the substance of his conversation with the
it
hearsay. Pryor,
App.
was inadmissible
See also
181 Ill.
(officer’s
People v.
White
The State first that defendant has waived his to peal they these issues because were not set forth in his motion for a Furthermore, new trial. object did not to Bunch’s testimony regarding reliability of the informant or to the prosecutor’s opening argument. closing statement and trial,
In his motion for a new defendant made no reference to testimony regarding Bunch’s his informant or conversation with the his regarding reliability. the informant’s As to the statements, them in only mention of prosecutor’s improper "[t]he the statement that assistant post-trial motion was inflammatory and erroneous state Attorney prejudicial, State’s made designed prejudices pas closing argument ments in to arouse court, thereby prejudices right the defendant’s to a [sic] sions of the comments, raising objection prosecutor’s a a defen fair trial.” In to inflammatory or merely allege prosecutor dant cannot that a made specific improper remarks prejudicial remarks but must state what 21, 27, App. v. Smith 486 N.E.2d (People were made. 1347.) review, preserve In an error for a defendant must order object post-trial trial and raise the issue in a written motion. both at 1124.) 122 Ill. 2d (People v. Enoch 615(a) (134 615(a)) However, provides Supreme Court Rule Ill. 2d R. affecting rights may ap noticed on plain errors substantial be objected post-trial in a motion. peal though even not to at trial or reviewing a trial plain permits "The error rule a court to consider properly preserved for review two circumstances. error not balanced, First, closely where the evidence in a criminal case is properly reviewing may a claimed error not court consider preclude argument possibility that an in- preserved so as to A may wrongly court [Citation.] nocent man have been convicted. only 'closely bal- the record to see if the evidence is will examine anced.’ properly preserved not, If an error which was not there is no need to consider [Citation.]
for review. may plain rule also be invoked where the error is so error magnitude that the accused was denied fundamental and of such 209-10, (People a fair trial.” v. Herrett 137 Ill. 2d N.E.2d case, applicable plain
In the we conclude that the error rule is instant closely balanced and the error affected defendant’s as evidence rights. substantial argues that the confidential informant’s state-
The State next of- ments Bunch admissible because were not were statements, why prove truth of the but rather to show fered to and, addition, judge steps they the trial the officers took the did testimony. gave limiting jury on the use of the instruction to testimony regarding judice, the case sub Bunch’s going "he with the confidential informant conversation cocaine,” like go pick up package Dearborn and to 2971 South (189 1004), beyond went Cameron presented the necessary explain the officer’sconduct and what was Therefore, of his conversation with the informant. substance error. testimony as to these statements was admission of Bunch’s
1085 argues prejudicial hearsay Defendant further that the emphasized prosecutor’s closing argu- statement and opening the beyond necessary explain ment also went well what was to Bunch’s statement, leading up opening to arrest. In the actions defendant’s prosecutor stated: 9, 1992, Chicagopolice
"On Officer and June Bunch Officer Gul- phone police liford received information the at their station over quantity going picked up by that a of be a [sic] narcotics were to Marvel[l], light by skinned black man the name of and he would *** development, arriving housing be the Homes Dearborn light small blue older car.”
In closing argument, prosecutor the stated:
"The confidential informant
that it
told
Bunch
would be
person
gave physical description.
named
He
Marvel[l].
He said
arriving
that
sometime
specific
Marvel[l] would be
at a
address
MarvelQ]
morning.
that same
He
the car in
described
would
in,
arriving
be
an older small blue car.”
55,
People
61,
421,
In
v. White
192
3d
App.
Ill.
548 N.E.2d
the
although
court held that
the
use of
State’s
the officer’s
regarding
accomplice
explain
his conversation with
investiga
an
to
tory procedure
admitted,
properly
was
"the State’s remarks here are
example
an
recently
practice
recognized
prosecutors taking
of
improper advantage
admissibility
of
testimony by
the
a police of
to explain
investigatory
procedure, only
ficer
to use that
testimony,
admitted,
impermissibly
once it
closing
use it in
argument.”
People
See
Campbell
App.
also
Ill.
115
In the case prosecutor’s opening instant the remarks state- closing argument, ment and like Bunch’s as to his conversation beyond with the also went what was neces- sary explain investigatory procedures and were used to establish guilt rather than explain conduct. support argument, of its State cites v. McNeal 160 App. Ill. 897. In that case the of ficer during investigation testified that of his spoke course he (Berrian) awith witness to a murder who informed him that she saw drag an alley by one victims into neck with the help of person shortly another and that thereafter she heard shots. Murphy that, information, testified based on this he located defen dant and Murphy arrested him. Berrian further stated that subse quently lineup. identified defendant in a court held that McNeal testimony Murphy was not inadmissible because it was not prove offered to that the substance of their statements was
true, investigation of an but course was offered describe (McNeal, arrest indictment. in the defendant’s and culminated 800-01.) disagree of better 3d at with McNeal because We on which it relies do not authority because cases reasoned support holding. its testimony as argues error in Bunch’s well State closing argument prosecutor’s opening
as the statement and limiting jury as to the cured the trial court’s instruction closing argument. However, opening purpose statement *9 limiting as a we first note that what the State has characterized judge’s jury during testimony was trial instruction to the Bunch’s the prosecutor as follows: comment to the the what the "[PROSECUTOR]: It’s offered to show reason for officerdid. basis, letting : I allow it. I am not
[THE COURT] On that
will
letting
only
I
the
this
in for the truth of the matter. am
place
why
response
the
in to show
he went to a certain
of
Okay, go
a
action.
ahead.”
and to
took certain
[sic]
as
Furthermore,
if
can
considered
a
even
the above comment
be
instruction,
that
limiting
Supreme Court in Bruton held
the
the
by limiting
prejudicial statements was not cured
admission of the
jury, despite
that
instruction
of
substantial
risk
the
"because
the
extrajudicial
contrary,
incriminating
instructions to the
looked
the
guilt.”
v.
determining
petitioner’s
the
Bruton United
476,
123, 126,
479,
1620,
(1968),
20 L.
2d
88 S. Ct.
States
391 U.S.
Ed.
argument
that
error in
admission of
final
is
the
State’s
argu
improper
as
prosecutor’s
as well
the
the out-of-court statements
"
***
'Evidentiary
harm
errors
can be labeled
ment was harmless.
overwhelming
only
so
that no
properly
less
if
admitted evidence is
reasonably
acquit
the defen
jury could
have voted
fair-minded
”
502, 541,
1369,
(1983),
Ill.
dant.’
v. Yates
98
2d
449,
(1982),
440,
Ill.
1087 placed that he possession ment and denied of the contraband or also that, although it under the We note the officers testified seat. also seat that saw no one other defendant enter the back than vehicle, placed have been there before the offic- contraband could began physical also no evidence ers their surveillance. There was possession. obtained that the contraband was ever in defendant’s For that, reasons, sufficient to these we conclude while the evidence was convict, say it that no fair- overwhelming we cannot was so jury acquit minded could have voted to defendant.
Defendant next insufficient contends evidence was beyond guilty only find him a reasonable doubt because the connec sitting he happened tion between him and the cocaine was that to be in the back an ap seat vehicle where it was discovered. When " evidence, peals sufficiency ques court reviews the 'the relevant whether, viewing light tion is after evidence most favor prosecution, any able to the rational trier fact could have found ” beyond the essential elements of the crime a reasonable doubt.’ omitted.) (Emphasis (People v. Young 461, 318-19, 307, quoting Virginia
N.E.2d
Jackson v.
443 U.S.
"
2788-89.)
560, 573-74,
2781,
Then,
61 L. Ed. 2d
99 S. Ct.
'[office de
fendant
guilty
charged,
has been found
of the crime
the factfinder’s
weigher
role as the
preserved through
legal
of the evidence
upon judicial
conclusion that
review all
is to
evidence
be
”
light
considered
most
prosecution.’
favorable
to the
(Emphasis
original.)
(People Collins
106 Ill. 2d
*10
267,
Jackson,
319,
573,
478
quoting
N.E.2d
443 U.S.
In judice, the case contrary sub linking there was more evidence him to the cocaine than his location in the back of receiving seat the vehicle. After information from Bunch, Gulliford, confidential Sergeant and Officers Rokas Owens, canine, Bosco, along vicinity with Gulliford’s went to the of 2971 South parked Dearborn. Bunch and car a Gulliford their block building the park from where had an unobstructed view ing lot while positioned nearby. the other two officers themselves thereafter, Shortly parking blue the hatchback vehicle arrived in vehicle, lot. building Defendant the the and exited entered returned to the back seat of the vehicle a short time later. The two other oc cupants being left the it during never vehicle the time that was by observed officers. stopped the Bunch and Gulliford then the vehi- 1088 ap- officers shortly left Dearborn Homes. As the two after it the
cle turn, vehicle, right his look over the Bunch saw defendant proached direction, his right in hand to left Officer Bunch’s move shoulder left the jacket pocket and then bend over to his side under seat inside vehicle, Bosco, response and in occupants exited the cushion. containing dope, plastic bag the the a command to fetch retrieved underneath the rear seat cushion. Defendant was contraband from plastic bag placed arrest told officers that the then under belonged to him. that, of the chal- thus even without the admission
We conclude above, sufficient to find defen- lenged statements the evidence was guilty beyond a doubt. dant reasonable is Accordingly, judgment of the circuit court reversed and the free prejudicial for a trial error. case remanded new Reversed and remanded.
ZWICK, J., concurs. EGAN, specially concurring: JUSTICE majority opinion cogently points out that McCormick’s trea recognized reported cases tise on evidence has with criticism offering "abound” instances of the State out-of-court statements majority explain police procedure. The case cited Cameron, McCormick, But People decided in 1989. quoted v. Appellate use of the substance of Illinois Court has condemned the years 10 at least conversations between officers and witnesses (See 836, (1979), 3d App. 68 People before Cameron. v. Johnson Ill. v. Coleman People N.E.2d The Johnson court referred 386 364, 421, ap in App. 17 3d which the court Ill. of a officer that he had a conversation proved proceeded hospital to a the defendant with witness and then where pointed out was found and arrested. The court Coleman merely testify but officer did not to the substance of the conversation place. decided 21 to the fact that a conversation took Coleman was ago. years question People v. previously expressed my
I have views on (new 564 843 trial ordered App. Johnson N.E.2d officer), hearsay testimony because use cases it N.E.2d 18. both Rodriguez *11 Illinois, supreme the pointed authority the was out that ultimate , court, testify that after proper said was for officer that it But the defendant. the spoke he to the victim he went look for expressly court that supreme permit held it would have been error to testify the officer to the contents of the conversation he had 221, 254-55, People v. the victim. Gacho 122 Ill. 2d People In the more recent case of v. Jones 153 Ill. the court to Gacho that supreme N.E.2d adhered and held the of a a third substance conversation between party the "any was inadmissible if conversation mat would involve (153 us, ter the trial.” Ill. 2d at In the case before relevant question no there is that the substance of conversation the involved matter material to the trial. regardless
In Johnson we said that court appellate of what some said, supreme had opinions court had Gacho resolved question on Rodriguez "express[ed] the matter. that hope we our in the future the State would follow supreme the directions of the court in and would persist skirting, Gacho not and often admissibility violating, governing hearsay.” rules of 3d at 410.
Alas, words, Cameron, Johnson, our the words of especially Jones, Gacho and fallen on prosecution have deaf ears. I to a confess feeling personal today frustration when we an must reverse proper introducing otherwise conviction because the State insists on improper my feeling this evidence. What makes even frustration stronger is that the improper unnecessary. evidence are was Jurors not fools. The State have jurors could established in minds of the that given inference the informant had some information involv- ing following narcotics at simply by procedure 2971 Dearborn followed in Unfortunately, problem Gacho. created persists; nagging introduction of this evidence and I have suspicion persists that it prosecutors because some are ever confident will write we off the error as harmless.