People v. Rice

Case Date: 03/30/2001
Court: 1st District Appellate
Docket No: 1-99-1788 Rel

1-99-1788 

 

FIRST DIVISION
March 30, 2001

 

THE PEOPLE OF THE STATE OF
ILLINOIS,

     Plaintiff-Appellee

          v.

CION RICE,

     Defendant-Appellant.

)
)
)
)
)
)
)
)
)
)
Appeal from the
Circuit Court of
Cook County


No. 98 CR 19106

The Honorable
Joseph G. Kazmierski, Jr.,
Judge Presiding.

JUSTICE COHEN delivered the opinion of the court:

The defendant and codefendant were charged by indictment with five counts offirst degree murder, three counts of attempted first degree murder, one count ofaggravated battery with a firearm, two counts of aggravated discharge of afirearm and two counts of aggravated battery. The defendant and the codefendantreceived separate trials.

A jury convicted the defendant of first degree murder and attempted firstdegree murder. At the sentencing hearing the State presented a multitude ofvictim impact statements. The trial court granted a motion by the defense askingthat it consider only those statements from the immediate family of the murdervictim and not those from friends and employers. The trial court sentenced thedefendant to concurrent terms of 50 years in prison for the first degree murderand 10 years for the attempted first degree murder.

The defendant appeals his conviction, arguing that the trial court committedreversible error in admitting hearsay testimony from police officers to theeffect that bystanders at the crime scene had said the defendant was involved inthe crime. He also appeals his sentence, arguing that by statute the court wasonly permitted to consider one victim impact statement in sentencing him formurder. The State contends that the defendant's sentence is void and that hemust be resentenced because the sentencing statute mandated consecutive ratherthan concurrent sentences.

We affirm.

BACKGROUND

The following evidence was presented at the trial of defendant, Cion Rice.(His codefendant, Donzell Lowe, was tried separately.) Late in the evening ofJune 21, 1998, Reggie Rupert and his girlfriend Gerchaton Young (Gercha) weretalking outside the house of her cousin, Kamara Evans. Reggie had been chargedwith the murder of the brother of Donzell Lowe and was now out on bail. Gerchawas sitting in the front passenger seat of a car parked in front of Kamara'shouse. Gercha's sister Quintina Young sat in the driver's seat. Reggie stoodoutside the car next to Gercha. Kamara and Lawanna Smith, a friend of Quintinaand Gercha, stood outside the car next to Quintina. Terrell Robinson, anothercousin of Quintina and Gercha, stood on the sidewalk nearby.

According to Reggie Rupert, at about 11:20 p.m. a maroon car came down thestreet with four people inside. The two men in the backseat started firing atthem. Reggie testified that he recognized the man in the backseat on thedriver's side as Cion Rice, whom he had seen a few times previously around theneighborhood. He recognized the man in the backseat on the passenger side asDonzell Lowe. Reggie further testified that when the shooting started, a fewbullets went by him, and then one hit him in the hand and another hit him in theright hip. He fell to the ground behind the car. Shortly afterward he heardKamara screaming Gercha's name. He did not see either Cion or Donzell exit thecar during the course of the attack.

When the police came, Reggie told them that he recognized the gunmen asDonzell and Cion. Paramedics then arrived at the scene and took Reggie to ChristHospital, where he remained for two days. Two detectives interviewed him at thehospital.

Terrell Robinson testified that the neighborhood where the shooting tookplace was controlled by the Gangster Disciples street gang. Terrell said that hethought Reggie was a Gangster Disciple but did not know for certain. In the daysbefore the shooting, Cion had been riding around the neighborhood on a bicycle.As he did, he would often make hand signs insulting to the Gangster Disciples.Three days prior to the shooting, Terrell had been standing outside with Reggieand some other gang members. Cion passed on his bicycle and pointed at Reggieand said he was going to kill him.

Terrell said that on the night of June 21, 1998, a reddish car drove by andhe saw Cion with his hands out the window firing a gun. Cion was in the backseaton the driver's side. Terrell said Cion was the only person that he saw with agun. He did not see anyone get out of the car. After he heard a couple of shots,Terrell started running. He took refuge in a neighbor's house until he heard thecar pull off. When he went back outside, he saw Reggie in the street saying thathe had been shot. Terrell told his grandmother and she called the police. Whenhe went outside again, Quintina said that Gercha had been shot.

Lawanna Smith testified that she knew Gercha and Reggie and knew Cion andDonzell as well. She had attended grade school with Cion. When the shootingoccurred, she had gone inside the house to talk to her boyfriend. She heardgunshots and went to the window. She saw Cion standing on the sidewalk acrossthe street holding a gun. She did not see a car on the street other thanGercha's. She then ran downstairs. When she got outside, Cion had gone. Reggiewas lying in the street saying he had been hit.

Kamara Evans and Quintina Young testified that they heard gunshots and feltbullets whiz by them but in the commotion they did not see the assailants. Onebullet went through Kamara's hair, grazing her scalp. After the gunfire ceased,Quintina saw that Gercha had been shot in the head. She went with Gercha to thehospital where, soon afterward, Gercha died.

Chicago police officer Sean Pickett testified that he and his partner,Officer Saul Arambula, went to the scene of the shooting in response to a radiocall. When they arrived, about 30 onlookers were crowding around the car. He andhis partner spoke with the onlookers. At trial the prosecutor asked:

"Q. Did you develop information or did you and your partner develop information as to people who maybe were involved in this shooting?

A. Yes

Q. What names did you receive?

A. Cion and Donzell."

Chicago police officer Charles Kocanda testified that he and his partner,Officer Andre Parham, heard the radio call and went to the scene of theshooting. When they arrived, many bystanders were around screaming and yellingfor help. They exited the car to investigate and Officer Kocanda "walkeddown to talk to the young man lying on the street."

"Q. Between the two of you did you and your partner develop information as to somebody who was involved in this shooting?

A. Yes.

Q. What name did you develop?

A. The name that I learned was Cion."

One of the bystanders led them to Cion's house. They rang the doorbell and anelderly man answered. They later learned that this man was Cion's grandfather,W.C. Rice. The officers said they wanted to speak to Cion and W.C. let them inand called him. Cion came out from the rear of the house wearing dark shorts,gym shoes and no shirt. After Cion put on a shirt they took him to the scene ofthe shooting and then later to the police station.

The defendant called three family members as witnesses: his grandfather W.C.Rice, his grandmother Catherine Rice and his sister Davina Rice. Cion also tookthe stand on his own behalf. The members of the Rice family testified that, atthe time of the shooting, Cion was subject to a court-ordered curfew. He wasonly permitted to leave the house to go to school. W.C. drove him to and fromschool. Cion did not have a car. The curfew was monitored by people whosometimes called or came to the house to make sure Cion was there. However, noone called or came by on June 21, 1998.

The family lived in a three-bedroom house a few blocks away from the scene ofthe shooting. All the outer doors were locked and could only be opened, evenfrom the inside, with a key. The windows in Cion's room had bars, which alsocould only be opened with a key. Only W.C. and Catherine had keys. Catherinewent to bed around 8 p.m. on June 21, 1998. She had all the keys in her bedroomin her dresser. She testified that she locks her bedroom from the inside. Davinatestified that Cion was there when she went to bed around 10:30. W.C. waswatching television in the living room that evening. He testified that Cion wasin his bedroom watching television also. The only time W.C. saw Cion leave hisroom was to get something to drink from the refrigerator at around 11:20 p.m. Ataround 11:45, the police rang the doorbell and W.C. got the keys from thebedroom and let them in.

W.C. and Cion testified that on June 18, 1998, the day when Cion was allegedto have threatened Reggie, Cion went straight to school and straight home anddid not leave the house the rest of the day. All four family members testifiedthat Cion did not have a bicycle.

Cion testified that he was a member of the Blackstones street gang, as wasDonzell. The Blackstones are a rival gang of the Gangster Disciples. Cion hadknown Donzell since kindergarten. He admitted that he had been upset at the timewhen Donzell's brother was killed. He denied he was still upset, however,explaining that the murder occurred three years previously and, in any case, hehad not been a close friend of Donzell's brother.

The jury convicted Cion of the first degree murder of Gercha Young and theattempted first degree murder of Reggie Rupert.

At the sentencing hearing the State presented 23 victim impact statements.The defense moved to strike the statements from friends and employers, arguingthat the applicable statute mandated that only statements from family memberscould be considered. The judge granted the motion and said he would onlyconsider the 10 victim impact statements that were from members of GerchaYoung's family. The judge sentenced the defendant to concurrent terms of 50years' imprisonment for the first degree murder and 10 years' imprisonment forthe attempted first degree murder. The defendant made a motion for a new trial,arguing that there had been insufficient evidence to sustain his conviction. Thetrial court denied the motion.

The defendant now appeals his convictions and his sentence. He argues thathis convictions must be overturned because the court improperly admitted hearsaytestimony from Officers Pickett and Kocanda relating that unnamed bystandersidentified Cion and Donzell as the gunmen. The defendant further argues that hissentence must be vacated and remanded for a new hearing because according tostatute the trial court was permitted to consider only one victim impactstatement from a member of Gercha Young's family. The State also argues that thesentence must be vacated and remanded. According to the State, the sentence isvoid because it is in violation of a statutory requirement. The State arguesthat, under the sentencing statute, the trial court was required to imposeconsecutive, rather than concurrent, terms of imprisonment.

ANALYSIS

I

Officer Kocanda and Officer Pickett both testified that they were given thedefendant's name as a person who might be involved in the crime. Also, theytestified that someone told them where the defendant lived. According to thedefendant, all this testimony was inadmissible hearsay. The defendant did notobject to the purported hearsay testimony at trial or in a posttrial motion.Accordingly, the State contends that the defendant has waived the issue. Peoplev. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129 (1988). The defendantnow asks us to nevertheless reach the issue under the plain error exception. 134Ill. 2d R. 615(a).

The testimony of Officer Kocanda does not present a hearsay problem. While itis true that Officer Kocanda testified that his partner, Officer Parham, talkedto bystanders at the crime scene, Officer Kocanda testified that he himselfspoke to "the young man lying on the street," i.e., ReggieRupert. While the prosecutor asked about information given both to OfficerKocanda and to his partner, Officer Kocanda only related the information thatReggie gave to him, and not the (potentially double hearsay) statements thatunnamed bystanders may or may not have made to his partner. Reggie Rupert was incourt and had already testified that he had given the police the defendant'sname. His testimony identifying the defendant as one of the gunmen was subjectto adversarial testing. As a result, Officer Kocanda's testimony was admissibleunder a provision of the Code of Criminal Procedure of 1963:

"Substantive Admissibility of Prior Identification. A statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him." 725 ILCS 5/115-12 (West 1998).

Officer Pickett's "hearsay" testimony, however, raisessignificantly more complex issues. In response to the prosecutor's questioning,Officer Pickett testified that he and his partner had received information fromunidentified bystanders that Cion and Donzell were "involved in" theshooting. In context, we believe "involved in" clearly implied thatthey were the gunmen or accomplices.

The State correctly notes that an officer may testify regarding his or herinvestigatory procedures, including the occurrence of conversations, withoutviolating the hearsay rule. People v. Jones, 153 Ill. 2d 155, 159-60, 606N.E.2d 1145, 1146 (1992). This is true even if a logical inference may be drawnthat the officer took subsequent steps as a result of the substance of thatconversation. People v. Gacho, 122 Ill. 2d 221, 248, 522 N.E.2d 1146,1159 (1988).

Here the testimony in question revealed not only the occurrence of theconversation, but also the content of the conversation. At one time, thisarguably would have rendered the testimony inadmissible. See Gacho, 122Ill. 2d at 248, 522 N.E.2d at 1159. However, in People v. Pulliam, 176Ill. 2d 261, 680 N.E.2d 343 (1997), the Illinois Supreme Court seems to havegiven its imprimatur to the introduction of the contents of such statements. In Pulliam,the defendant had attempted to escape arrest by the police. The statements atissue in Pulliam were statements pointing out the suspect as she fled("There she goes, right there, she's running"), and exclamations whenthe defendant was apprehended ("They got her, there she is right there,they got her in the car"). Pulliam, 176 Ill. 2d at 273, 680 N.E.2dat 349. The supreme court found that the statements were not offered to show thetruth of the matter asserted, i.e., that the defendant fled and that shewas taken into custody. Pulliam, 176 Ill. 2d at 274, 680 N.E.2d at 350.

The State insists that Officer Pickett's testimony was offered to shed lighton police procedure rather than to establish the truth of the matter related.However, this bare assertion of the State does not automatically render thetestimony admissible. This court is not obligated to accept the State'sinterpretation of what the purpose of the testimony was. People v. Warlick,302 Ill. App. 3d 595, 599, 707 N.E.2d 214, 218 (1998). Conversations betweenpolice and people providing information about a crime will generally occur inthe context of an investigation. The reality is that it will almost always bepossible to describe testimony revealing the content of conversations with thepolice as evidence offered to shed light on the investigation of the crimerather than on the crime itself. If reviewing courts allowed the mere invocationof the words "police procedure" to preclude further analysis, thislimited exception would effectively swallow the hearsay rule with regard topolice officers. The compelling protections that gave rise to the hearsay rulesmust not be so easily discarded.

The facts before us bear much resemblance to those in People v. Furby,228 Ill. App. 3d 1, 591 N.E.2d 533 (1992). The defendants in Furby werecharged with theft. In the course of his testimony, a police officer let slipthat an anonymous source had told him that one of the defendants was possibly"involved in" the theft. Furby, 228 Ill. App. 3d at 9, 591N.E.2d at 539. As in this case, the defense did not object. Nevertheless, theappellate court reviewed the testimony as plain error. Furby, 228 Ill.App. 3d at 8, 591 N.E.2d at 539.

On appeal, the State argued that the officer's testimony was "intendedto show that [the officer] received information from an anonymous source--notthat Jim Furby was guilty." Furby, 228 Ill. App. 3d at 10, 591N.E.2d at 540. However, the court noted that other evidence that had beenpresented already established all that this testimony could legitimately be usedto prove. Accordingly, the court concluded:

"The only conceivable reason for the complained-of testimony was to further tie James to the theft charge. Contrary to the State's argument, we find that the testimony was admitted for the truth of the matter asserted and is, therefore, hearsay." Furby, 228 Ill. App. 3d at 10, 591 N.E.2d at 540.

Even if we do accept that the State elicited the testimony in question forthe purpose of shedding light on police procedure, that must not be the end ofthe inquiry. The testimony, considered as an explanation of police procedure,must be relevant to a fact of consequence in the case. See People v. Monroe,66 Ill. 2d 317, 321-22, 362 N.E.2d 295, 297 (1977). "[T]he explanation forwhy the police did what they did may add nothing to the determination of thedefendant's guilt or innocence." 1 B. Bergman & N. Hollander, Wharton'sCriminal Evidence