People v. Matthews
People v. Matthews
Opinion
¶ 1 In August 2015, a jury found defendant Brandon Matthews guilty of one count of unlawful delivery of a controlled substance. The trial court sentenced him to 9 ½ years in prison.
¶ 2 On appeal, defendant argues (1) the trial court erred in admitting hearsay testimony, (2) the court erred in barring defense *601 counsel from asking about the identity of the confidential source, (3) the court erred in requiring the jury to view videos in the courtroom during deliberations, and (4) certain fines improperly imposed by the circuit clerk should be vacated. We affirm in part and vacate in part.
¶ 3 I. BACKGROUND
¶ 4 In September 2014, the grand jury indicted defendant on one count of unlawful delivery of a controlled substance ( 720 ILCS 570/401(c)(2) (West 2014)), alleging he knowingly and unlawfully delivered to a confidential source more than 1 gram but less than 15 grams of a substance containing cocaine. Defendant pleaded not guilty.
¶ 5 Defendant's jury trial commenced in August 2015. Springfield police officer Timothy Zajicek testified he developed a plan for a confidential source to conduct a controlled drug buy on June 10, 2014. Zajicek stated the male individual had "previously provided information about criminal activity." Prior to the controlled buy, Zajicek searched the source and provided him with $500 in prerecorded funds. Zajicek also searched the source's vehicle and installed two covert video-recording devices.
¶ 6 Zajicek stated the source had arranged for the controlled buy to take place at a gas station. The source sat in the driver's seat, and Zajicek sat in the front passenger seat. While waiting for the seller to arrive, the source told Zajicek that the seller called and said he only had $400 worth of cocaine to sell. The seller arrived and sat in the rear passenger seat. The source and the seller engaged in an exchange, with the source receiving a Baggie of crack cocaine. Zajicek was unable to see the seller's face because he was sitting right behind him. After looking at the video from the hidden cameras, Zajicek identified the seller as defendant. The source drove away and then handed the Baggie of crack cocaine to Zajicek.
¶ 7 On cross-examination, Zajicek stated the video did not capture the actual drug transaction between defendant and the source, as the exchange took place "off-frame." Zajicek stated the video showed defendant's left hand, holding what appears to be a plastic Baggie, move forward and then back, with the Baggie no longer visible. Defense counsel asked Zajicek for the name of the source, but the trial court sustained the State's objection. Zajicek stated the source sought consideration on a traffic citation. The $400 in prerecorded funds was not recovered from defendant.
¶ 8 Kristin Stiefvater, a forensic scientist with the Illinois State Police, testified she conducted tests on an off-white chunky substance, which she found to be 4.9 grams of cocaine.
¶ 9 Following closing arguments, the jury retired to deliberate and later sent a note asking to view the video. The State indicated it had two views that could be shown. Defense counsel stated the jurors saw the video during the evidentiary portion of the trial, as well as during the State's closing argument, and they should abide by the instruction to rely on their memories and notes. The trial court had the jury return to the courtroom to watch the videos. After the conclusion of the videos, the court directed the jury to return to the jury room to continue deliberating. The jury found defendant guilty.
¶ 10 In September 2015, defendant filed a posttrial motion, arguing, inter alia , the State failed to prove him guilty beyond a reasonable doubt and the trial court erred in barring the defense from learning the identity of the confidential source at trial. The court denied the motion.
¶ 11 At the October 2015 sentencing hearing, the trial court sentenced defendant *602 to 9 ½ years in prison. The court also ordered defendant to pay a $2000 mandatory drug assessment, a $100 crime lab fee, a $100 Trauma Center Fund fee, a $5 Spinal Cord Injury Fund fee, a $25 Criminal Justice Information Projects Fund fee, a $20 Prescription Pill and Drug Disposal Fund fee, and a $490 street-value fine. The court awarded defendant $575 in presentence credit for 115 days spent in custody. This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 A. Hearsay Testimony
¶ 14 Defendant argues the trial court erred in admitting hearsay testimony from Officer Zajicek over defense counsel's objection and in failing to conduct a hearing pursuant to
People v. Cameron
,
¶ 15 Initially, we note defendant acknowledges trial counsel did not raise this issue in a posttrial motion. Thus, the issue is forfeited on appeal. See
People v. Hestand
,
¶ 16 The plain-error doctrine allows a court to disregard a defendant's forfeiture and consider unpreserved error in two instances:
"(1) where a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error and (2) where a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process." People v. Belknap ,2014 IL 117094 , ¶ 48,387 Ill.Dec. 633 ,23 N.E.3d 325 .
¶ 17 Under both prongs of the plain-error analysis, the burden of persuasion remains with the defendant.
People v. Wilmington
,
¶ 18 "The hearsay rule generally prohibits the introduction of an out-of-court statement offered to prove the truth of the matter asserted therein."
People v. Williams
,
"A police officer may testify as to the steps taken in an investigation of a crime 'where such testimony is necessary and important to fully explain the State's case to the trier of fact.' [Citation.] '[O]ut-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.' [Citation.] Testimony about the steps of an investigation may not include the substance of *603 a conversation with a nontestifying witness." (Emphasis in original.) People v. Boling ,2014 IL App (4th) 120634 , ¶ 107,380 Ill.Dec. 134 ,8 N.E.3d 65 .
¶ 19 In
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 ,137 Ill.Dec. 505 ,546 N.E.2d at 263 (quoting Edward W. Cleary, McCormick on Evidence § 249, at 734 (3d ed. 1984) ).
¶ 20 When confronted with this type of situation, we stated "the trial court must carefully assess such testimony to ensure that it does not include more than is necessary to explain police conduct."
Cameron
,
¶ 21 In this case, defendant contends the trial court erred in admitting hearsay testimony from Officer Zajicek in two instances. In the first instance, the following exchange occurred between the prosecutor and Zajicek:
"Q. Now after installing the video equipment and looking in the car, what did you do?
A. We then proceeded to the location where the controlled buy was planned to have occurred.
Q. Where was that location?
A. At the Mobil gas station located on Stevenson Drive and Westlake Drive in Springfield, Illinois.
Q. Is that in Sangamon County?
A. Yes, it is.
Q. And how did you know to go there?
A. The [source] had arranged the controlled buy with the target and that was a location that the [source] was comfortable with."
Defense counsel then made a hearsay objection, which the court overruled.
¶ 22 We find no error in Officer Zajicek's answers. Zajicek simply explained the course of conduct he undertook in preparing for the controlled drug buy and in arriving at the location. See
People v. Simms
,
¶ 23 Even if we found Zajicek's answers improper, we find defendant has failed to establish he was prejudiced. See
People v. Herron
,
¶ 24 In the second instance, the following exchange occurred:
"Q. When you got to the Mobil gas station here in Sangamon County, did anything in particular happen to change the plan?
A. While waiting for the target to arrive, the confidential source had attempted phone contact with the target and was initially unsuccessful. And later contact was made. I was advised by the [source] that the target-
MR. WYKOFF [ (defense counsel) ]: Objection, hearsay, Your Honor.
THE COURT: I need to hear what they're going to say first. Go ahead.
THE WITNESS: I was advised by the confidential source that the target had phoned him and told him that he only had $400 worth of cocaine to sell and not $500.
THE COURT: Just a minute. Overruled. Go ahead."
¶ 25 Here, while Zajicek did not say the source identified defendant, the testimony regarding the future sale of $400 worth of cocaine elicited by the prosecutor went beyond what was necessary to explain police conduct. Thus, it was hearsay, and the trial court erred when it overruled defense counsel's objection.
¶ 26 Now that we have found error in this instance, the next and only question centers on whether the evidence is closely balanced.
People v. Sebby
,
¶ 27 We find the evidence was not closely balanced in this case. The evidence indicated Zajicek searched the confidential source and provided him with prerecorded funds. The source drove to the buy location with Zajicek sitting in the front passenger seat. The seller arrived and sat in the rear passenger seat. The source and the seller engaged in an exchange, and the source received a Baggie of crack cocaine. After the seller left and the source drove away, the source handed the Baggie of crack cocaine to Zajicek. While the hidden video did not capture the hand-to-hand drug transaction, Zajicek was able to identify the seller as defendant. The State also presented evidence the off-white chunky substance was 4.9 grams of cocaine. Given the nature of the evidence, defendant cannot show the improper hearsay testimony severely threatened to tip the scales of justice against him.
¶ 28 Defendant argues that without the inadmissible hearsay, the State failed to prove the element of knowledge beyond a reasonable doubt. However, "[k]nowledge may be, and ordinarily is, proven circumstantially."
People v. Ortiz
,
¶ 29 B. Confidential Source
¶ 30 Defendant argues the trial court erred in barring the defense from questioning Officer Zajicek about the identity of the confidential source. We disagree.
¶ 31 Illinois Supreme Court Rule 412(j)(ii) (eff. Mar. 1, 2001) provides "[d]isclosure of an informant's identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused." See also
People v. Criss
,
"Courts may consider several factors in applying this balancing test and determining whether fundamental fairness demands disclosure: '(1) whether the request for disclosure relates to the fundamental question of guilt or innocence rather than to the preliminary issue of probable cause; (2) whether the informant played an active role in the criminal act by participating in and/or witnessing the [event]; (3) whether the informant assisted in setting up its commission as opposed to being merely a tipster; and (4) whether it has been shown that the informant's life or safety would likely be jeopardized by disclosure of his identity.' * * * [Citation.]"
*606 People v. Hannah ,2013 IL App (1st) 111660 , ¶ 35,372 Ill.Dec. 105 ,991 N.E.2d 412 .
See also
People v. Rose
,
¶ 32 Here, defense counsel asked Officer Zajicek for the identity of the confidential source. The State objected based on relevance and the need "for a formal hearing to decide whether or not disclosure is necessary for the case." At a sidebar conference, the following exchange occurred:
"THE COURT: Did you make a motion to disclose?
MR. WYKOFF: Not pretrial, Your Honor. But I didn't care about the confidential informant pretrial. Now that we are in trial, he enjoys the right to confront, which is a different right. I was at pretrial Your Honor, we are asking for disclosure, there's no guarantees that the matter is going to proceed to trial or anything of the sort. So there's-the State has a vested interest in preserving that identity. But once we fall within the confines of the trial, Your Honor, the defendant has an absolute right to confront the accuser on that point.
THE COURT: So the answer is no, you didn't file a pretrial motion?
MR. WYKOFF: No, I did not, Your Honor."
The court sustained the objection and stated "[w]e're not going to talk about the identity anymore."
¶ 33 We find defendant has failed to meet his burden to show disclosure of the source's identity was necessary to prepare his defense. While defense counsel argued defendant has a right to confront his accuser, defendant does not have an absolute right to learn the identity of a confidential source. Moreover, counsel undoubtedly had the State's discovery and was aware the informant was the source of the information contained in the answers given by Officer Zajicek. Section 8-802.3 of the Code of Civil Procedure ( 735 ILCS 5/8-802.3 (West 2014) ) clearly provides the procedure for counsel to use when seeking the identity of a confidential source. Instead of raising this matter before trial, where both parties and the trial court could fully address the issue, counsel chose to raise it midtrial, when the court had to weigh the effects of a delay on the jury and the progress of the trial while attempting to make evidentiary rulings on the fly. It behooves us as a court of review to point out the inherent problems with such a tactic.
¶ 34 Counsel's explanation for waiting until midtrial was disingenuous at best. Counsel stated he "didn't care about the confidential informant pretrial," but at trial, defendant "enjoys the right to confront, which is a different right." What purpose do pretrial proceedings and pretrial discovery pursuant to Illinois Supreme Court Rule 412 (eff. Mar. 1, 2001) and Illinois Supreme Court Rule 413 (eff. July 1, 1982) have other than to prepare for trial? Using counsel's logic, the State had no need to tender discovery before trial since it was not relevant until then. It is difficult to believe counsel would not have realized the significance of the confidential source's identity until trial. As counsel did not demonstrate the disclosure of the source's identity was necessary to prepare a defense or was beyond the desire to cross-examine, the trial court did not err in *607 denying counsel's request to learn the source's identity from Officer Zajicek.
¶ 35 C. Jury Deliberations
¶ 36 Defendant argues the trial court committed reversible error when it required the jury to watch the surveillance video of the controlled drug buy during its deliberations while in the presence of the parties, court personnel, and the court. Although acknowledging he has forfeited this issue by failing to object at trial or raise it in a posttrial motion, defendant asks this court to review his claim under the second prong of the plain-error doctrine.
¶ 37 After the jury sent its note requesting to see the video and the discussion between the prosecutor and defense counsel, the trial court stated it would bring the jurors into the courtroom and "show them exactly what they saw in court again." After the jurors entered the courtroom, the court stated, in part, as follows:
"What I will do is I've asked the State to play the two views of the video, the exact same thing you saw in court in evidence that is going to be played for you. We'll play one. When that is done, I will have them play the other. When that is done, I will take-have the deputy return you to the jury room to continue your deliberations."
After the video was played, the court stated:
"Ladies and gentlemen, you have now seen the video as it was seen in the court yesterday, the exhibit. You now may return to the jury room and continue your deliberations."
¶ 38 Courts have found it "a basic principle of our justice system that jury deliberations shall remain private and secret."
People v. Johnson
,
¶ 39 In
People v. Rouse
,
*608
¶ 40 In
Johnson
,
¶ 41 In
People v. McKinley
,
¶ 42 In a fractured opinion, only Justice Carter found the court did not abuse its discretion.
McKinley
,
¶ 43 In this case, even if we agreed with defendant that the trial court erred in allowing the jury to view the video in the courtroom during deliberations, we find the alleged error does not rise to the level of structural error under the plain-error doctrine. We note our supreme court has "equated the second prong of plain-error review with structural error, asserting that 'automatic reversal is only required where an error is deemed "structural,"
i.e.
, a systemic error which
*609
serves to "erode the integrity of the judicial process and undermine the fairness of the defendant's trial." ' [Citations.]"
People v. Thompson
,
¶ 44 Defendant has failed to establish the alleged error in this case amounts to structural error, as the trial court's decision did not affect the fairness of defendant's trial and did not challenge the integrity of the judicial process. See
McKinley
,
¶ 45 D. Fines Imposed by the Circuit Clerk
¶ 46 Defendant argues this court should vacate various fines improperly imposed by the circuit clerk. We agree.
¶ 47 This court has previously addressed the impropriety of the circuit clerk imposing judicial fines. See
People v. Larue
,
¶ 48 In the case sub judice , the State concedes the following fines imposed by the circuit clerk must be vacated as void: (1) $50 for "Court Systems," (2) $10 for "Child Advocacy," (3) $15 for the "ISP OP Assistance Fund," (4) $5 for the "Drug Court Program," and (5) $100 for the "Victims Assist[ance] Fund." We agree and vacate these fines.
¶ 49 III. CONCLUSION
¶ 50 For the reasons stated, we affirm in part and vacate in part. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal.
¶ 51 Affirmed in part and vacated in part.
Presiding Justice Turner and Justice Harris concurred in the judgment and opinion.
Reference
- Full Case Name
- The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brandon MATTHEWS, Defendant-Appellant.
- Cited By
- 16 cases
- Status
- Unpublished