Opinion
1-20-0196
12-23-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEMAR DORN, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 18 CR 15983 Honorable Peggy Chiampas, Judge, presiding.
JUSTICE ODEN JOHNSON delivered the judgment of the court. Justice Walker specially concurred in the judgment. Justice Tailor dissented.
ORDER
ODEN JOHNSON, JUSTICE
¶ 1 Held: The trial court erred in admitting unnecessary hearsay testimony regarding the course of a police investigation which prejudiced defendant and denied him a fair trial.
¶ 2 Following a jury trial, defendant DeMar Dorn was found guilty of aggravated battery of a peace officer (720 ILCS 5/12-3.05(d)(4)(i) (West 2018)) and resisting or obstructing a peace officer (720 ILCS 5/31-1(a-7) (West 2018)). The trial court merged the counts, and due to defendant's criminal background, imposed a Class X term of six years in prison for aggravated battery of a peace officer. On appeal, defendant contends that the trial court improperly permitted hearsay testimony as to the statements of two nontestifying witnesses. He further argues that the trial court erroneously instructed the jury regarding a police officer's use of force in effectuating an arrest, or alternatively that his trial counsel's failure to object to the instruction constituted ineffective assistance. For the following reasons, we reverse and remand for a new trial with directions.
¶ 3 Defendant was charged by information with four counts of aggravated battery of a peace officer and one count of resisting or obstructing a peace officer. Prior to trial, defendant filed a motion in limine seeking, in relevant part, to bar the State from eliciting testimony as to the "content" of unidentified citizen complaints regarding defendant's alleged behavior on a train.
¶ 4 At the hearing on the motion, the State argued the complained-of testimony would not be offered for the truth of the matter asserted, but rather to explain why officers went to a certain location and acted a certain way. Defendant's trial counsel responded that this information was prejudicial, suggested the trial court offer a limiting instruction, and posited that the officers could merely testify that they were "responding to a complaint from a passenger" and interacted with defendant after boarding the train.
¶ 5 The trial court found the testimony admissible for the limited purpose of showing the course of a police investigation and explaining the officers' actions, and stated it would instruct the jury accordingly. Defendant's trial counsel again asked the court to "limit the testimony" to omit "the content of what the concerned citizen said," and suggested the officers state that they "respond[ed] to a concern *** about a passenger." The trial court denied defense counsel's renewed request.
¶ 6 The State proceeded to trial on one count of aggravated battery of a peace officer and one count of resisting or obstructing a peace officer. Relevant here, count I for aggravated battery of a peace officer alleged that defendant caused bodily harm to Chicago police officer Roberto Verdin by kicking Officer Verdin while he was performing his official duties and that defendant knew Verdin was a police officer. See 720 ILCS 5/12-3.05(d)(4)(i) (West 2018).
¶ 7 At trial, Officer Verdin testified that around 8:20 a.m. on October 22, 2018, he and his partner, Officer Mnason Jose, were on the upper level of the Chicago Transit Authority (CTA) train platform at the Thompson Center, wearing uniforms and vests. The State asked what happened next, and defense counsel made a hearsay objection.
¶ 8 The trial court instructed the jury that "the testimony that you are about to hear is not being offered for the truth of the matter asserted" and "should not be considered by you as such." Rather, this testimony was "offered for a limited purpose to show the course of the police investigation to show why the officer took the actions he did based upon receiving that information."
¶ 9 Officer Verdin testified that passengers exiting a train stated that "they were in fear" of "an unruly male harassing people" on a certain car. As Officer Verdin approached that car, he heard a man's voice, which he described as "kind of being loud," and observed a man, whom he identified at trial as defendant, in the doorway. Officer Jose spoke to defendant, placed a hand on defendant's arm, and defendant "slap-pushed" it away. Officers Verdin and Jose then pushed defendant out of the car and tried to arrest him. Defendant, however, pushed and flailed his arms "in order to defeat the arrest." Defendant was irate and used racial slurs. Defendant did not appear to quite understand what was happening and did not relate his name or route of travel. After removing defendant from the train, the officers took him inside the Thompson Center.
¶ 10 Once inside the Thompson Center and as they rode the escalator, defendant continued to swear, use racial slurs, and pull away from the officers' hold. Once on the main level, the officers called for a transport vehicle and tried to calm defendant. At one point, in the lobby, defendant pushed away from Officer Jose. As Officer Verdin stepped forward to help. defendant kneed Officer Verdin in the groin. Officer Verdin felt a "sharp pain," but continued to move forward. Defendant kneed him a second time. Officer Verdin responded by punching defendant in the face to "control the situation." He next pushed defendant by the neck toward a wall. When defendant continued to pull away, the officers "took him *** to the ground" and Officer Verdin put his knee on the side of defendant's head. As a result of this incident, Officer Verdin had a "minor cut" to the left-hand pinky area as well as swelling and tenderness. He was later diagnosed with a hairline fracture to the left wrist and pinky.
¶ 11 The State published surveillance footage, included in the record on appeal, from the CTA platform and a train car. In the first platform video, Officer Verdin identified himself, Officer Jose, and the man who told them about the situation on the train. This video depicted the officers going to the train, removing defendant from the train, and the three men moving out of frame. After approximately two minutes, the video depicted the officers walking defendant into the Thompson Center.
The platform videos are silent, and the video from the train car only contains the sound of the train.
¶ 12 The video from the train car was then played, and Officer Verdin identified defendant. This video showed defendant, wearing a green backpack, standing in the doorway to a train car as it travels. Over the course of the approximately 20-minute video, defendant moved and danced in place. At certain points in the video, he moved his arms as he danced, turned around, and leaned forward. Defendant looked down as the officers entered the doorway. Officer Jose grabbed defendant's jacket and pulled him forward, and defendant responded by brushing off Officer Jose's hand. Officer Jose moved to grab defendant again, Defendant pushed Officer Jose's hand away again, and the officers forcibly removed defendant from the train.
¶ 13 The second platform video depicted events after defendant was removed from the train. This video showed defendant and the officers moving around in the bottom left-hand corner of the frame, defendant being handcuffed, Officer Verdin speaking to defendant, and the officers leading defendant off the train platform.
¶ 14 During cross-examination, Officer Verdin acknowledged that he did not obtain contact information from the concerned citizen and did not see defendant involved in an altercation on the train. As Officer Jose touched defendant's arm, Officer Verdin put a hand on defendant's backpack, and they both pulled him off the train. The encounter took seconds. In the lobby of the Thompson Center, after defendant kneed Officer Verdin a second time, Officer Verdin responded by punching defendant in the face and pushing his neck against a wall. The officers then performed an "emergency takedown." After the incident, Officer Verdin created a "tactical response report," which is generated after an officer uses force against a person.
¶ 15 Officer Jose testified that on the morning of October 22, 2018, he and Officer Verdin were in uniform on the upper CTA platform. The State asked if anything out of the ordinary occurred, and defense counsel objected. The trial court again instructed the jury that the testimony it was about to hear was not offered for the truth of the matter asserted, but for the limited purpose of showing a police investigation and why an officer acted as he did.
¶ 16 Officer Jose testified that a citizen approached and mentioned a disturbance on a train. The person pointed to a certain car, and as the officers walked to that car, a second person approached and pointed to the same car. From about 10 feet away, Officer Jose heard a man yelling in an "aggressive manner." When Officer Jose was at the train door, the second person said, "this is him" and pointed toward a person speaking loudly to another. At trial, Officer Jose identified defendant as the person that was yelling.
Defendant does not advance any argument on appeal that the circuit court erred by admitting Officer Jose's testimony.
¶ 17 Officer Jose approached defendant, asked him to exit, and grabbed his arm or jacket to drag him off the train. Defendant moved to exit, but then retreated, swatted Officer Jose's hand, and said he was not going anywhere. Jose tried to grab defendant again while instructing him to exit. After defendant swatted Jose's hand again, Jose and Verdin "forcefully" removed him from the train. Jose used force because he gave defendant two verbal orders to exit, but defendant refused and removed Jose's hand several times.
¶ 18 Defendant did not comply as Officers Jose and Verdin attempted to arrest him; rather, he tussled and pulled away. Once defendant was handcuffed, he settled down. Although the officers talked to defendant to determine what had occurred on the train, he did not respond so they took him downstairs. On the escalator, defendant tried to push off the walls, so the officers held him up. On the ground floor, defendant was "pretty angry," yelled obscenities, and did not cooperate when the officers asked him his name. They then moved defendant toward the back doors of the Thompson Center to wait for transport. Defendant told them not to touch him, pulled away, and kneed Officer Verdin in the groin twice. The officers performed an emergency takedown so that defendant could no longer "use his legs as a weapon."
¶ 19 The videos were played, and Officer Jose identified defendant, the two citizens who approached the officers, and the woman at whom he believed defendant was yelling.
¶ 20 During cross-examination, Officer Jose testified that he did not speak to other passengers because he observed defendant yelling at someone and perceived defendant to be "aggressive in nature." However, that person did not complain to Officer Jose. After Officer Jose put his hand on defendant, defendant swatted his arm away. At this point, the officers forcefully removed defendant from the train and tried to arrest him. Jose told defendant to place his hands behind his back but did not say that defendant was being "placed in custody."
¶ 21 Rozita Floyd, a CTA customer service assistant, testified that she heard a commotion and then observed two police officers and a man descending an escalator. The man was belligerent, cursing, and "fussing real[ly] loud." The officers took the man to the train station lobby. As the officers attempted to remove the man's backpack, he kneed one in the groin.
¶ 22 Chicago police detective Jessica Brady testified that she interviewed defendant at a police station. After she advised defendant of his Miranda rights, he agreed to speak and stated he was singing on the train when an officer approached. This statement was not videotaped or reduced to writing, although Detective Brady included it in her report. According to Brady, defendant told her that he complied with the officers' request to exit the train, but "went off" and asked the officers about his rights and probable cause and refused to put his arms behind his back to be handcuffed.
¶ 23 Defendant testified that he was on the train "vibing" and singing to music on his headphones when he was taken off the train, "snatched," slammed to the ground, and aggressively handcuffed and arrested. He stated that he was not yelling or arguing with anyone while on the train. Defendant further stated that the video showed him looking at someone and singing in that direction. He was on his way to a job program and was confused about why the officers were removing him from the train. Once he was taken off the train, defendant stated that he was handcuffed and unable to resist arrest. Defendant denied striking Officer Verdin in the groin.
¶ 24 During cross-examination, defendant identified himself singing in the video but denied singing loudly and yelling at another passenger. Defendant did not want to exit the train because it was not his stop. He denied pushing Officer Jose's hand, but rather, "sway[ed]" as if to say, "don't put your hand on me." Defendant "[p]robably at one point" told Officer Jose not to touch him and initially refused to put his hands behind his back but denied using racial slurs. He did not think police should arrest people "unlawfully." He denied kneeing Officer Verdin, and asserted the other witnesses were lying.
¶ 25 At the jury instruction conference, the State requested, in relevant part, Illinois Pattern Jury Instruction Criminal, No. 24-25.12 (approved July 18, 2014) (hereinafter IPI Criminal No. 24-25.12), which provides:
"A peace officer need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to effect the arrest or to defend himself from bodily harm while making the arrest."
Defendant's trial counsel did not object, and the trial court agreed to give the instruction.
¶ 26 In closing arguments, the State posited that when defendant's behavior became more than just a "minor annoyance *** two citizens who were so concerned felt the need that they needed to go to two police officers and tell them what the situation was and tell them that the defendant was causing a disturbance," beginning a chain of events ending with Officer Verdin's injury. The defense responded that the officers were aggressive from the outset, the video showed that the alleged victim was not looking at defendant, and the concerned citizens did not testify. Defendant's trial counsel argued that the officers created the situation and noted that Officer Verdin wrote a report because he used force against defendant. In rebuttal, the State argued that defendant did not comply with the officers' instructions, was "pissed off" and did not want to be arrested, and finally lashed out and kneed Verdin in the groin. The State further argued that an officer is justified in using force to effectuate an arrest, which Verdin did after being kneed in the groin twice.
¶ 27 The trial court instructed the jury with, among other instructions, IPI Criminal No. 24-25.12.
¶ 28 The jury found defendant guilty of aggravated battery of a peace officer and resisting or obstructing a peace officer. Defendant filed a motion for a new trial arguing, as relevant here, that the court erred in permitting testimony regarding the content of the citizen complaints, which prejudiced defendant even with the limiting instructions. The trial court denied the motion, stating that the evidence was admitted for the limited purpose of explaining the officers' actions.
¶ 29 At sentencing, the court merged the counts, and due to defendant's criminal background, imposed a Class X term of six years in prison for aggravated battery of a peace officer. Defendant did not move to reconsider his sentence. Defendant's timely appeal followed.
¶ 30 On appeal, defendant first contends that the trial court erred when it permitted Officer Verdin to testify as to the content of the statements made by nontestifying witnesses. He contends that the admission of hearsay testimony that "an unruly male [was] harassing people" on the train and they were "in fear" denied him a fair trial. Defendant notes that prior to trial, his trial counsel moved to preclude the State from eliciting the content of the conversation between two unidentified CTA passengers and the officers who removed defendant from the train, which was denied. At trial, the State then elicited testimony from Verdin about specific statements made by the unidentified passengers at trial, including defendant's alleged behavior on the train as well as how the passengers felt about defendant's alleged behavior. Defendant contends that because the officers did not observe what occurred on the trial, the substance of such statements was hearsay and went beyond what was necessary to explain the officers' course of investigation. The content of the conversation was relevant for its truth in that it presented the jury with the nontestifying citizens' characterization of defendant's actions on the trial, which the State then relied on to persuade the jury to believe the officers' version of events over defendant's denial of this conduct. Defendant was unable to cross-examine the concerned citizens because the officers failed to get their names so they were therefore unavailable for trial.
¶ 31 As noted above, the trial court denied defense counsel's motion in limine to bar the admission of the statements made to the officers by the unidentified, nontestifying witnesses, and subsequently admitted them at trial with a limiting instruction to the jury.
¶ 32 A motion in limine is addressed to the trial court's inherent power to admit or exclude evidence. People v. Williams, 188 Ill.2d 365, 369 (1999). A court of review will not reverse a trial court's grant or denial of a motion in limine absent a clear abuse of discretion. Id. However, a trial court must exercise its discretion within the bounds of the law. Id. Where a trial court's exercise of discretion has been frustrated by an erroneous rule of law, appellate review is required to permit the exercise of discretion consistent with the law. Id.
¶ 33 Similarly, a trial court's evidentiary rulings on hearsay testimony are reviewed for an abuse of discretion, which occurs when a ruling is arbitrary, fanciful, or unreasonable or when no reasonable person would take the view adopted by the trial court. People v. Caffey, 205 Ill.2d 59, 89 (2001); People v. Cook, 2018 IL App (1st) 142134, ¶ 29. Here defendant argues that the standard of review should be de novo because there is no factual dispute and only a question of law regarding whether the trial court properly applied the hearsay rules. Defendant is correct that there are instances where evidentiary rulings are reviewed de novo; this exception to the general rule of deference applies in cases where "a trial court's exercise of discretion has been frustrated by an erroneous rule of law." Cook, 2018 IL App (1st) 142134, ¶ 29 (quoting Caffey, 205 Ill.2d at 89). See also People v. Aguilar, 265 Ill.App.3d 105, 109 (1994) (applying de novo review where "the trial judge's decision was based on his interpretation of the admission exception to the rule against hearsay"); People v. Risper, 2015 IL App (1st) 130993, ¶¶ 33-34 (applying de novo review where the admissibly question turned on an interpretation of the law and "[n]one of the factors that would typically warrant the deferential standard are present here."). The State does not address the standard of review. We agree with defendant in this case, and will apply the de novo standard of review because the trial court misapplied the hearsay exception for the course of police investigation.
¶ 34 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted (People v. Jura, 352 Ill.App.3d 1080, 1085 (2004)) and is generally inadmissible at trial unless it falls within an exception to the rule (Caffey, 205 Ill.2d at 88). The fundamental reason for excluding hearsay is the lack of an opportunity to cross-examine the declarant. Jura, 352 Ill.App.3d at 1085 . Statements are not hearsay when offered for the limited purpose of showing the course of a police investigation where such testimony is necessary to fully explain the State's case to the jury. Id. In the case at bar, we address whether the statements elicited during Officer Verdin's testimony were properly admitted to explain the police investigation.
¶ 35 A police officer may testify about statements made by others, such as victims or witnesses, when such testimony is not offered to prove the truth of the matter asserted, but is instead used to show the investigative steps taken by the officer leading to the defendant's arrest. Id. There is a distinction, however, between an officer testifying to the fact that he spoke to a witness without disclosing the contents of that conversation and an officer testifying to the contents of the conversation. Id.; In re Jovan A., 2014 IL App (1st) 103835, ¶ 23 (an officer may not testify to the contents of any statements received or to information beyond what is necessary to explain his actions). Thus, it is clear that there is no hearsay problem when the officer merely testifies that he spoke to someone or heard some unspecified words and then did something so that the jury is free to reach its own conclusions. People v. Warlick, 302 Ill.App.3d 595, 599 (1998).
¶ 36 Turning to the case at bar, we find that Officer Verdin's testimony that unidentified citizens stated that "an unruly male [was] harassing people" on a certain train car and that "they were in fear" was not offered simply to show the course of the officer's investigation, but was in fact offered for the truth of the matter asserted, that is, to identify defendant as the person harassing passengers and causing them to be fearful. Such testimony constituted inadmissible hearsay. Though the State claimed, and the trial court found, that the testimony was not hearsay and was admissible to explain the officers' investigation and actions after receiving that information, we reject this characterization of Officer Verdin's testimony for two reasons.
¶ 37 First, we reject the notion that Officer Verdin's detailed testimony of the contents of his conversation with the unidentified citizens was necessary to explain the course of the investigation because Officer Jose also testified to the events leading to their encounter with defendant without revealing the contents of any conversation. Officer Jose simply testified that a conversation occurred with two citizens which led to them entering the train car and encountering defendant, which fully complied with the course of investigation exception to the hearsay rule. It is hard to imagine how Officer Verdin's detailed testimony about the specifics of the conversations was necessary when his partner testified to the same series of events at trial without recounting hearsay statements. Because of this, it was clearly unnecessary for the State to elicit the hearsay testimony from Officer Verdin.
¶ 38 Although the trial court provided a limiting instruction, we find that such instruction did not cure the error in this case. Here, the trial court purported to apply the course of investigation exception to hearsay with its limiting instruction to the jury. This was error. If this was a situation where only one officer testified and thus the only testimony presented to show the course of the investigation, then it could be argued that the trial court's decision to deny defendant's motion in limine was not error when coupled with the limiting instruction. However, that is not the case presented here where there were two officers testifying and the trial court was presented with the proffered testimony of each when it ruled on defendant's motion. Instead of applying the limiting language suggested by defense counsel, the trial court instead allowed the State to present Officer Verdin's hearsay testimony in its entirety with a limiting instruction that was not fully representative of the course of investigation hearsay exception. As noted above, such detailed testimony about the contents of the conversation with the citizens was clearly unnecessary when Officer Jose's nonhearsay testimony about the course of investigation is considered. We find that the trial court erred in admitting this testimony based on its erroneous interpretation of the hearsay exception for the course of a police investigation. Aguilar, 265 Ill.App.3d at 109.
We further believe that the outcome would be the same under the abuse of discretion standard as the extensive testimony by the officer was unnecessary to show the course of the police investigation in this case and was inadmissible because it recounted the contents of the conversation with the citizens. See People v. Davison, 2019 IL App (1st) 161094, ¶ 31.
¶ 39 Second, while reversal is not required when the admission of hearsay evidence is harmless beyond a reasonable doubt (Jura, 352 Ill.App.3d at 1089), the error in admitting Officer Verdin's hearsay testimony was compounded by the State's repeated references to Officer Verdin's testimony about defendant's alleged conduct on the train during closing argument. At one point in the closing argument, the State argued that the only reason the officers had contact with defendant that day was based on his prior conduct on the train. These references to the hearsay testimony served to persuade the jury that the officers' versions of events were correct and further to characterize defendant as a person who harassed others and caused them to be fearful. This characterization of defendant as a troublemaker bolstered the State's theory that defendant's misconduct escalated to that with which he was charged- resisting arrest and aggravated battery of a police officer. The State's remarks during closing argument went beyond explaining the course of the police investigation and instead served as substantive evidence in the case against defendant. Such inferences cannot be considered harmless where they were highly prejudicial and denied defendant a fair trial.
¶ 40 As such, we find that it was error to deny defendant's motion in limine to exclude the substance of the citizens' statements to the officers and to allow such evidence to be presented to the jury. Accordingly, we reverse and remand for a new trial without the admission of the hearsay evidence.
¶ 41 Defendant next contends that he was denied a fair trial when the trial court erred by instructing the jury as to an officer's justified use of force. He argues this issue was not "properly" before the jury and misled the jury into thinking it had to determine whether Officer Verdin's actions were justified. Defendant acknowledges forfeiting review of this issue because he failed to raise it in the trial court but asks this court to review it pursuant to the plain error doctrine. In the alternative, he contends that trial counsel's failure to object denied him effective assistance. Our decision on the first issue makes it unnecessary to consider this issue and we decline to do so.
¶ 42 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand for a new trial with instructions as noted herein.
¶ 43 Reversed and remanded.
¶ 44 JUSTICE WALKER, specially concurring:
¶ 45 I concur with the majority's holding that the trial court erred by admitting Officer Verdin's out-of-court statements when such statements were not necessary to explain the course of the police investigation. I also agree that the State's remarks during closing argument went beyond explaining the course of the police investigation and instead served as substantive evidence against Dorn. I write separately to address the police investigation exception to the hearsay rule more extensively and discuss how this exception does not apply to the facts in this case.
¶ 46 Our supreme court established that a police officer "may recount the steps taken in the investigation of a crime and may describe the events leading up to the defendant's arrest, where such testimony is necessary and important to fully explain the State's case to the trier of fact." People v. Simms, 143 Ill.2d 154, 174 (1991). Additionally, a police officer "may testify about his conversations with others, such as victims or witnesses, when such testimony is not offered to prove the truth of the matter asserted by the other but is used to show the investigative steps taken by the officer." Id.
¶ 47 However, "out-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." People v. O'Toole, 226 Ill.App.3d 974, 988 (1992). Thus, a police officer may not testify to information beyond what is necessary to explain the officer's actions. People v. Ochoa, 2017 IL App (1st) 140204, ¶ 41. "[O]ur courts have repeatedly held that the State may not use the limited investigatory procedure exception to place into evidence the substance of any out-of-court statement that the officer hears during his investigation, but may only elicit such evidence to establish the police investigative process." (Emphasis in original.) Id. (citing People v. Hunley, 313 Ill.App.3d 16, 33-24 (2000); People v. Jura, 352 Ill.App.3d 1080, 1085 (2004); People v. Gacho, 122 Ill.2d 221, 248 (1988) (noting that the admission of the officer's testimony would constitute hearsay had the officer testified to the substance of the conversation); People v. Jones, 153 Ill.2d 155, 160 (1992); People v. Johnson, 202 Ill.App.3d 417, 421-22 (1990)). The rationale behind this proposition is explained in People v. Trotter, 254 Ill.App.3d 514, 527 (1993), which states:
"[T]here is a distinction between an officer testifying to the fact that he spoke to a witness without disclosing the contents of that conversation and an officer testifying to the contents of the conversation. [Citation.] Under the investigatory procedure exception, the officer's testimony must be limited to show how the investigation was conducted, not to place into evidence the substance of any out-of-court statement or conversations for the purpose of establishing the truth of their contents. [Citation.] The police officer should not testify to the contents of the conversation [citation] since such testimony is inadmissible hearsay."
¶ 48 People v. Singletary, 273 Ill.App.3d 1076 (1995), and People v. Jura, 352 Ill.App.3d 1080, are instructive to this case. In Singletary, a police officer testified at trial that he received a tip from an informant that the defendant would be driving to a specific address to pick up a package of cocaine. 273 Ill.App.3d at 1078. Specifically, the officer testified that the informant provided him with "a description, a brief description of [defendant], type of auto that he would be riding in, and that he was going to go to 2971 South Dearborn and pick up a package of cocaine." Id. at 1082. The informant also provided the officer with the defendant's first name. Id. The appellate court held that the officer's testimony "went beyond what was necessary to explain investigatory procedures." Id. at 1084.
¶ 49 In Jura, three police officers testified at trial that they responded to a radio call of a "person with a gun" in an alley. 352 Ill.App.3d at 1082-83. The dispatcher described the man as "male White with a tattoo with a teardrop on his face." Id. After receiving the radio call, the officers went to the alley, saw the defendant discard a gun in a garbage can, and arrested him for possession of a gun. Id. The appellate court determined that the officers' testimony went beyond what was necessary to explain their investigatory procedures. Id. at 1086. The court reasoned that the officers' testimony about the reported crime and the description of the suspect had no relevant nonhearsay purpose because there was no issue at trial pertaining to the reasons why the officers proceeded to the alley. Id. at 1086. The State "merely needed to demonstrate that the officer was on duty, received radio call, and as a result of that call proceeded to the alley." Id.
¶ 50 Given the well-established case law, Officer Verdin's testimony that passengers exiting a CTA train stated that "an unruly male [was] harassing people" on the train car and that "they were in fear" was beyond necessary to explain his police investigation. There was no issue at trial regarding Officer Verdin's reason for approaching Dorn at the train platform, and his out-of-court statements added no significance to the investigatory procedure. Had Officer Verdin merely stated that he received information from train passengers that prompted him to approach the train car, this testimony would have been sufficient to meet the police investigation exception. However, Officer Verdin's out-of-court statements exceeded the bounds of the police investigation exception, and therefore, constitute impermissible hearsay.
¶ 51 I also agree with Justice Oden Johnson's finding that the error in admitting Officer Verdin's testimony was not harmless because it was exacerbated by the prosecutor's multiple closing remarks referencing Officer Verdin's testimony. As explained in supra ¶ 39, the prosecutor's remarks were used as substantive evidence to establish defendant's guilt rather than explain the officers' investigation procedure. See Singletary, 273 Ill.App.3d at 1085 (finding that the prosecutor's opening and closing remarks on the hearsay statements "went beyond what was necessary to explain investigatory procedures and was used to establish defendant's guilt rather than explain police conduct"); Jura, 352 Ill.App.3d at 1091 (same); People v. Williams, 289 Ill.App.3d 24, 34 (1997) (finding that the prosecutor's remarks were "an example of the recently recognized practice by prosecutors taking improper advantage of the admissibility of testimony by a police officer to explain his investigatory procedure, only to use that testimony, once admitted, to impermissibly use it in closing argument"). Therefore, the trial court erred when it denied Dorn's motion in limine to exclude Officer Verdin's out-of-court statements.
¶ 52 JUSTICE TAILOR, dissenting:
¶ 53 The majority concludes that Dorn is entitled to a new trial because the circuit court erred by admitting Officer Verdin's testimony, and the error was so prejudicial that it deprived Dorn of a fair trial. In my view, Officer Verdin's testimony was admissible under the course of investigation exception to the rule against hearsay because the contents of the conversation explain why the officers boarded the train car in which Dorn was riding, and the contents of the conversation were not relevant to any issue at trial. Further, even if Officer Verdin's testimony did contain inadmissible hearsay, any error in admitting it was harmless. I would affirm Dorn's conviction and, therefore, dissent.
¶ 54 A police officer may testify to out-of-court conversations "used to show the investigative steps taken by the officer." People v. Simms, 143 Ill.2d 154, 174 (1991). That is because statements by a police officer which explain the investigatory process are not offered to prove the truth of the matter asserted and, therefore, are not hearsay. People v. Armstead, 322 Ill.App.3d 1, 12 (2001). To prevent police officers from explaining their conduct during an investigation puts them "in the false position of seeming just to have happened upon the scene" and the defendant. (Internal quotation marks omitted.) People v. Cameron, 189 Ill.App.3d 998, 1004 (1989). Put another way, the officer should be allowed to explain his or her presence and actions. Id.
¶ 55 Under the investigatory process exception, a police officer may recount the steps of the investigation into the crime and describe the events that led to the defendant's arrest where such testimony is crucial to explain the State's case to the trier of fact. Simms, 143 Ill.2d at 174; see also People v. Ochoa, 2017 IL App (1st) 140204, ¶ 41 ("a police officer may testify about a conversation that he had with an individual and his actions pursuant to the conversation to recount the steps taken in his investigation of the crime"). However, this testimony must be limited, and "the police officer may not testify to information beyond what was necessary to explain the officer's actions." Id. For example, such testimony may not gratuitously reveal the substance of the conversations. People v. Henderson, 142 Ill.2d 258, 304 (1990).
¶ 56 As our supreme court has explained, if the substance of the conversation does not go to the essence of the dispute-meaning it does not prove any matter relevant to trial, but instead is offered to show the jury how the officer came to interact with the defendant-it is not hearsay. People v. Jones, 153 Ill.2d 155, 160-61 (1992). Here, Officer Verdin's testimony that a citizen stated "an unruly male [was] harassing people" on a certain train car and "they were in fear" was not offered for the truth of the matter asserted, that is, to identify Dorn as the person harassing passengers, but instead to explain why officers approached Dorn in the first place. Dorn was not charged with any offense related to his conduct on the train; whether he was being unruly and harassing people, and whether those people were in fear, was not relevant to any issue at trial. Instead, Dorn was charged with offenses that occurred after he was removed from the train. Officer Verdin's testimony was offered merely to show why the officers went to a particular train car and interacted with Dorn. As the circuit court found-and as our supreme court's precedent indicates-the testimony was not hearsay and was admissible to explain the officers' investigation and actions after receiving that information.
¶ 57 The circuit court expressly told the jury that it could not consider Officer Verdin's testimony for its truth, i.e., that Dorn caused a disturbance on the train and caused other passengers to be fearful. The majority concludes that the limiting instruction was insufficient. I do not agree. It is undisputed that the circuit court instructed the jury that the complained-of testimony was to be considered for the limited purpose of explaining a police investigation and the officers' actions after receiving certain information. Without such an instruction, "it cannot be presumed that the jury's use of the hearsay evidence was limited to a nonhearsay purpose." Ochoa, 2017 IL App (1st) 140204, ¶ 57. Here, the circuit court gave such an instruction prior to Officer Verdin's testimony, and further instructed the jury after closing argument that "[a]ny evidence that was received for a limited purpose should not be considered by you for any other purpose." Therefore, we "must presume, absent a showing to the contrary, that the jury followed the trial judge's instructions in reaching a verdict." People v. Williams, 181 Ill.2d 297, 314 (1998).
¶ 58 The majority does not clearly identify any showing that the jury failed to follow the trial judge's instruction. Instead, the majority finds that the State compounded the error by referencing Dorn's alleged conduct on the train during closing argument "to persuade the jury that the officers' versions of events were correct and further to characterize [Dorn] as a person who harassed others and cause them to be fearful." Supra ¶ 39. But nothing in the record supports the majority's belief that the jury might have relied on Officer Verdin's testimony when making its credibility determinations. The jury heard Dorn's testimony as to what occurred on the train prior to being removed by the officers and viewed surveillance video from inside the train depicting those events. The majority seems to believe that the jury-which was tasked with determining whether Dorn committed the offenses of aggravated battery of peace officer and resisting arrest-could not adequately evaluate the evidence before it or follow the trial judge's instructions simply because it heard Officer Verdin's testimony about events that occurred prior to the conduct giving rise to the charges against Dorn. The record does not support the majority's conclusion. I would find that the circuit court's limiting instruction sufficiently advised the jury as to how it could consider Officer Verdin's testimony and that the jury followed the trial judge's instruction.
¶ 59 Further, even if I agreed with the majority that the complained-of testimony was improperly admitted hearsay, I still see no grounds for reversal. Evidentiary errors do not require reversal when the errors were harmless. People v. Thompson, 2016 IL 118667, ¶ 67. The test is "whether it appears beyond a reasonable doubt that the error at issue did not contribute to the verdict obtained." In re Rolandis G., 232 Ill.2d 13, 43 (2008). In other words, the admission of inadmissible hearsay will not be considered reversible error "where there is no reasonable probability the jury would have found the defendant not guilty had the hearsay been excluded." Ochoa, 2017 IL App (1st) 140204, ¶ 58. There are at least three reasons why any error was harmless.
¶ 60 First, Officers Verdin and Jose, and Floyd, each testified that Dorn kneed Verdin in the groin. Dorn admitted to initially refusing to put his hands behind his back but denied kneeing Officer Verdin in the groin and asserted the State's witnesses were lying. Again, the complained-of testimony explained how Officers Verdin and Jose encountered Dorn but was unrelated to the conduct for which Dorn was convicted, namely, resisting arrest and kneeing Verdin in the groin. Thus, the complained of testimony could not have influenced the jury's verdict on the offenses for which he was convicted.
¶ 61 Second, the majority describes the surveillance video from inside the train car as depicting Dorn "mov[ing] and danc[ing] in place." Supra ¶ 12. I would add that, prior to the officers appearing on the video, Dorn can be seen moving his arms as he dances, turning around, and leaning in the direction of a sitting passenger, and lowering his face into a clear divider separating him and the passenger. While the video has no audio, it appears that Dorn is saying something in the direction of the passenger while gesturing with his arms. The video further shows that Dorn abruptly turns away from the passenger and stands upright just before the officers approached the open train car doors. Further, Officer Jose testified that citizens approached and stated there was a disturbance on a train. As Officer Jose approached the train, he heard someone yelling in an "aggressive manner," and that a citizen on the platform said "this is him" while pointing toward someone speaking loudly to another person, which occurred immediately before the officers began interacting with the Dorn. Dorn did not object to the admission of the surveillance video or to Officer Jose's testimony, and he does not raise any argument on appeal related to Officer Jose's testimony. Consequently, had Officer Verdin's testimony about the citizens' statements been excluded, there would be no reasonable probability the jury would have found Dorn not guilty of the offenses with which he was charged. Id. Further, even without Officer Verdin's testimony, the jury heard and saw evidence suggesting that Dorn was the one causing a disturbance on the train and could draw reasonable inferences from the video surveillance.
¶ 62 The majority finds that the State's reference, made in closing argument, "to the hearsay testimony served to persuade the jury that the officers' versions of events were correct and further to characterize defendant as a person who harassed others and caused them to be fearful." But the State was merely recounting the sequence of events that led the officers to get involved with Dorn in the first place. The majority speculates that this was an attempt to bolster the officers' credibility, but the majority does not identify anything in the record to support that theory. And again, whether Dorn was being unruly or disruptive on the train and whether passengers were fearful was not relevant to proving whether Dorn resisted arrest or committed aggravated battery of a peace officer. The jury heard conflicting testimony about the sequence of events and saw the surveillance video of Dorn on the train, and we must presume that the jury followed the law and the circuit court's limiting instruction when making its credibility determinations.
¶ 63 Third, the majority asserts that "the State's remarks during closing argument went beyond explaining the course of the police investigation and instead served as substantive evidence in the case against defendant." (Emphases added.) Supra ¶ 39. However, it is axiomatic that attorney argument is not evidence. Indeed, the circuit court repeatedly and expressly instructed the jury that attorney argument is not evidence. And to the extent that the majority suggests the State urged the jury to consider Officer Verdin's statements as substantive evidence, the record plainly shows the jury was instructed to do the opposite and the record is devoid of any indication that the jury failed to follow the circuit court's instructions.
¶ 64 I would find that Officer Verdin's testimony was not hearsay, but even if it was, any error in admitting it was harmless. I respectfully dissent.