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SIXTH DIVISION
September 24, 2004

No. 1-03-0329

 

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Defendant was convicted of unlawful use of a weapon by a felon after a jury trial andsentenced to eight years in prison. On appeal defendant contends that because the jury heardhearsay testimony from three police officers, which was relied upon by the State in openingstatement and closing argument, he was denied a fair trial. He also argues he was denied a fair trial because the trial court failed to properly instruct the jury, allowing the jury unlimited use ofevidence of his prior conviction. Finally, defendant argues his trial counsel was ineffective forfailing to object to the hearsay testimony and failing to request the trial court to properly instructthe jury regarding his prior conviction.

BACKGROUND

At approximately 7:20 a.m. on June 30, 2001, two squad cars responded to a radio call ofa man with a gun. As a result of the call, Officers John Fitzgerald and Tim Harts proceeded to thealley behind 2845 West 38th Street. Officers Paul Matthews and Steve Barsch arrived directlybehind Fitzgerald and Harts. Four men were standing near the trunk of a car and defendant wasnear the hood of the car. According to the testimony provided by a police officer, defendantlooked at the officers, moved toward a garbage can, and threw a gun into the garbage can. Defendant then ran down the gangway toward 38th Street, followed by Officers Barsch andMatthews. Barsch caught defendant, who was returned to the alley and placed in a squad car. The gun containing six live rounds was recovered from the garbage can. Defendant testified,contrary to the testimony of the police officers, that he never was in possession of the gun.

During trial three police officers, Fitzgerald, Matthews, and Barsch, testified for the State. We will discuss their testimony, challenged on appeal by the defendant as inadmissible hearsay,taking each witness in turn. Officer John Fitzgerald testified that on the morning of June 30,2001, he received a radio call of a "person with a gun." No objection was made by defensecounsel. When the prosecutor asked if the radio call gave any other information, Fitzgeraldanswered, "The description that was broadcast was a male White with a tattoo with a teardrop onhis face." No objection was made by defense counsel.

The following testimony was further elicited by the State from Officer Fitzgerald regardingthe radio call:

"THE STATE: Did it [the radio dispatch] give any location?

OFFICER FITZGERALD: Yes, it did.

THE STATE: What was the location.

OFFICER FITZGERALD: 2845 West 38th Street, in thealley.

THE STATE: Did it provide any other indicators in thedescription besides a White male with a teardrop, for instance,height?

OFFICER FITZGERALD: I think it might - -

DEFENSE COUNSEL: Objection, Judge.

THE COURT: Sustained."

Later, during the direct-examination, Officer Fitzgerald testified that defendant matched thedescription provided by the radio call:

"THE STATE: When you turned into the alley, what, ifanything, did you observe?

OFFICER FITZGERALD: We observed a person matchingthe description.

DEFENSE COUNSEL: Objection, Judge.

THE COURT: Sustained.

THE STATE: Well, you testified that you heard adescription on the radio, is that correct?

OFFICER FITZGERALD: Yes."

Further, during the direct examination of Officer Fitzgerald, the State asked the following:

"THE STATE: Were you able to observe if any of the fourpeople had any teardrops on their face?

DEFENSE COUNSEL: Objection -- I'll withdraw.

OFFICER FITZGERALD: No, they did not."

Officer Paul Matthews testified that he also received a radio call regarding a "person witha gun." That hearsay statement was elicited twice within the space of three questions asked bythe State:

"THE STATE: When you were at 35th and Union, did youreceive a radio call?

OFFICER MATTHEWS: There was a radio assignmentdispatched and simulcast. We responded to a person with a guncall.

THE STATE: What do you mean by simulcast? Was thatover your radio?

OFFICER MATTHEWS: It's over the radio and citywideradio as well.

THE STATE: What was it called?

OFFICER MATTHEWS: Person with a gun call."

No objection by defense counsel was made.

The prosecutor, directly following the above questions, elicited additional hearsayregarding the substance of the radio call by asking whether it contained any other information. Matthews testified that the call "[g]ave the location of 2845 West 38th Street in the alley, and itgave a description of the person as well." The prosecution elicited further hearsay by asking whatdescription was given and Matthews responded, "It was a male White, approximately six feettall." No objection by defense counsel was made to any of the hearsay elicited by the State.

Officer Steve Barsch testified he was on routine patrol with his partner, Matthews, whenhe received a radio call regarding "a person with a gun at the location of 2845 West 38th Street inthe alley." No objection was made by defense counsel. The prosecutor elicited additionalsubstantive hearsay by asking if the radio call provided a description of the suspect. OfficerBarsch answered, "Yes, there was. It described the person with a gun to be a White male,approximately six feet tall with a tattoo of a teardrop under his right eye." No objection bydefense counsel was made to the detailed hearsay description elicited by the State.

Later, during the direct examination, the State questioned Officer Barsch as follows:

"THE STATE: Drawing your attention for a moment backto when you first arrived at the alleyway, and you said youobserved the Defendant. You said you observed four otherindividuals standing towards the side back portion of the vehicle, isthat correct?

OFFICER BARSCH: Yes.

THE STATE: Did they match this description that you werearmed with when you got to the scene?

DEFENSE COUNSEL: Objection.

THE COURT: Sustained.

THE STATE: Did any of the other individuals haveteardrops or tattoos on their faces, if you remember?

OFFICER BARSCH: No, they did not."

Both Fitzgerald and Barsch testified none of the other four men in the alley with defendant hadteardrop tattoos on their faces. Officer Barsch again mentioned the radio call during directexamination by testifying as follows: "The call came out as a person with a gun. There was awitness to him standing with a gun. I knocked on a few doors." No objection was made bydefense counsel.

When the officers arrived, they observed five men standing by a car in the alley. Each ofthe three officers testified that when defendant saw them, he removed a handgun from hiswaistband, ran across the alley, threw the gun in a garbage can and ran through a gangway. Officers Matthews and Barsch chased defendant, arrested him, returned him to the alley, placed him in a squad car, and eventually took him to the police station.

ANALYSIS

A defendant is guaranteed the right to confront the witnesses against him by theconfrontation clauses of both the United States and Illinois Constitutions. U.S. Const., amends.VI, XIV; Ill. Const. 1970, art. I,