People v. Brooks

Fourth Division
June 18, 1998

No. 1-97-0825

THE PEOPLE OF THE STATE OF ILLINOIS ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
MARCUS BROOKS, ) HONORABLE
) THEMIS J. KARNEZIS,
Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE WOLFSON delivered the opinion of the court:

Following a 1992 jury trial Marcus Brooks (Brooks) was
convicted of first degree murder and armed robbery, and was
sentenced to 50 years imprisonment. Brooks appealed, and we
reversed and remanded for a new trial. See People v. Brooks, 277
Ill. App. 3d 392, 660 N.E.2d 270 (1996). On February 13, 1997,
Brooks again was convicted of first degree murder and armed
robbery, and again was sentenced to 50 years imprisonment. He
appeals. We affirm.
Our opinion in Brooks' first appeal summarized the
background facts of this case. We will present facts here where
relevant to the issues in his second appeal.
Brooks raises four issues: (1) the trial court erred in
allowing the prosecution to present hearsay evidence regarding
Detective James Oliver's investigatory steps; (2) the trial court
erred in allowing the prosecution to present evidence the police
"hunted" Brooks for a week after the shooting; (3) the
prosecution made prejudicial comments during closing argument;
and (4) the trial court abused its sentencing discretion.
Brooks filed a post-trial motion alleging a wide variety of
putative trial errors, but he did not raise the first and second
issues in his post-trial motion. Illinois courts have
consistently held if a defendant fails to raise an issue in a
post-trial motion, the defendant waives such an issue on appeal,
in the absence of plain error. People v. Enoch, 122 Ill. 2d 176,
187, 522 N.E.2d 176 (1988); see also 725 ILCS 5/116-1(c) (West
1992)("A motion for a new trial shall specify the grounds
therefor.") Thus, Brooks waived these issues. Because the
State's evidence was strong, we decline to inspect the record for
plain error.
Additionally, on its merits, Brooks' first contention would
fail.
Hearsay is an out of court statement offered to establish
the truth of the matter asserted; hearsay generally is
inadmissible at trial. People v. Rogers, 81 Ill. 2d 571, 577,
411 N.E.2d 223 (1980). However, when an out of court statement
is offered into evidence for a purpose other than to prove the
truth of the matter asserted, the statement is not hearsay.
People v. Simms, 143 Ill. 2d 154, 173, 572 N.E.2d 947 (1991).
"*** [A] hearsay statement is allowed where it is 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 trier of fact ***." People v. Williams, 181 Ill. 2d 297, 313, 692 N.E.2d 1109 (1998); People v. Gacho, 122 Ill. 2d 221, 248, 522 N.E.2d 1146 (1988); People v. Jordan, 282 Ill. App.
3d 301, 305-06, 668 N.E.2d 90 (1996).
A police officer may testify to his investigatory
procedures, including the existence of conversations, without
violating the hearsay rule. People v. Jones, 153 Ill. 2d 155,
159-60, 606 N.E.2d 1145 (1992). Such testimony may not
gratuitously reveal the substance of the conversations. People
v. Henderson, 142 Ill. 2d 258, 304, 568 N.E.2d 1234 (1990).
Brooks contends Oliver's testimony violated the hearsay
rule. Oliver testified he spoke with Officer Troy Williams and
received a physical description (African-American male, five-
foot-seven-inches, 180 pounds) and nickname ("Shaun" or "Sean")
of one possible suspect. Oliver testified he used this
information to search his files, eventually obtaining Brooks'
name and address.
Arguably, this testimony did gratuitously reveal the
substance of the conversation between Oliver and Williams, but
its primary purpose was to recount Oliver's investigatory
procedure. Williams did not attach the physical description and
nickname to Brooks, much less identify him as a suspect.
Oliver's subsequent investigation revealed Brooks' name. And
Oliver had to discover Brooks' name somehow: "Any chronological
retelling of events is going to have to include the point in time
when the defendant became a suspect." Jones, 153 Ill. 2d at 161.
Oliver's testimony was not inadmissible hearsay.
Brooks misrepresents the record in his second contention.
The prosecution did not offer evidence the police "hunted" Brooks
for a week after the shooting. In fact, no prosecution witness
used the word "hunted." Rather, the police officers who
testified merely outlined their investigative steps which led to
Brooks.
Brooks contends this evidence of a lengthy investigation led
to a prejudicial inference that Brooks avoided arrest. A week-
long murder investigation, however, is not particularly lengthy.
Additionally, such an inference is not improper, especially where
Brooks testified he was aware he was a murder suspect, but did
not go to the police: "I don't just return to accusations like
that. Now, they say--police say something or just an accusation
I don't just do things like that." See People v. Wilson, 87 Ill.
App. 3d 693, 699, 409 N.E.2d 344 (1980).
Brooks' post-trial motion did allege, "The assistant state's
attorneys made prejudicial, inflammatory and erroneous statements
in both opening and closing argument that were designed to arouse
the prejudice and passions of the jury ***." Brooks' post-trial
motion specified several comments as prejudicial, but none of
these comments match those he challenges here. Thus, he waived
this issue. See People v. Forbes, 205 Ill. App. 3d 851, 863, 563 N.E.2d 860 (1990)(a generalized allegation of prejudice from the
prosecution's closing arguments will not preserve specific
comments for review).
Additionally, on its merits, Brooks' third contention would
fail.
Brooks contends the prosecution made prejudicial comments
during its closing argument when it said his alibi witness Trina
Davis did not testify. Brooks relied on his alibi defense and
testified he was with Davis on the night of the crimes. However,
Davis did not testify at trial. "*** [W]here a defendant injects
into the case the name of an alibi witness and then fails to call
the witness, the prosecutor may legitimately comment on the lack
of such evidence ***." People v. Kubat, 94 Ill. 2d 437, 498, 447 N.E.2d 247 (1983); see People v. Colts, 269 Ill. App. 3d 679,
695-96, 645 N.E.2d 225 (1993); People v. Pressley, 160 Ill. App.
3d 858, 865-66, 513 N.E.2d 921 (1987). The prosecution's
comments on Davis' unexplained absence were not improper.
We note the trial court sustained an objection to this
comment. Taken together with the court's admonishment that
jurors should disregard any comments to which it sustained an
objection, the court's ruling alleviated any possible unfair
prejudice this comment may have caused. See People v. Harris,
129 Ill. 2d 123, 160-61, 544 N.E.2d 357 (1989).
In its closing, the prosecution also said:
"People say why doesn't someone do something about ***
crime.
I submit to you, ladies and gentlemen, that today
you are that someone. You can do something about the
crime that riddles our community. You can do it by
returning a verdict of guilty--guilty of murder and
guilty of armed robbery."
Brooks contends this comment also was unfairly prejudicial. We
disagree. Virtually the same argument was made in Harris, 129 Ill. 2d 123. The court found no error: "It is entirely proper
for the prosecutor to dwell on the evil results of crime and to
urge the fearless administration of the law." Harris, 129 Ill. 2d at 159-60.
Finally, Brooks did not challenge his sentence in a post-
trial motion. "A defendant's challenge to the correctness of a
sentence or to any aspect of the sentencing hearing shall be made
by a written motion filed within 30 days following the imposition
of sentence." (Emphasis added.) 730 ILCS 5/5-8-1(c) (West
1997). A defendant must raise sentencing issues before the trial
court in order to preserve such issues on appeal. People v.
Reed, 177 Ill. 2d 389, 686 N.E.2d 584 (1997). Thus, Brooks
waived this issue.
Even if Brooks had not waived this issue, the trial court's
sentencing decision is entitled to great deference on appeal.
People v. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882 (1977). "A
trial judge is in a far better position than an appellate court
to fashion an appropriate sentence, because such judge can make a
reasoned judgment based upon firsthand consideration of [the
evidence] ***; whereas the appellate court has to rely entirely
on the record." People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351 (1991). This court will not disturb a sentence which falls
within the statutory limits unless it is an abuse of the trial
court's discretion, even if this court would have weighed the
evidence differently. Streit, 142 Ill. 2d at 19.
This sentence falls within the statutory limits of twenty to
sixty years for first-degree murder. See 730 ILCS 5/5-8-1(a)(1)
(West 1992). The trial court did not abuse its sentencing
discretion. See People v. Montanez, 281 Ill. App. 3d 558, 567,
667 N.E.2d 548 (1996).
AFFIRMED.
CERDA, P.J. and SOUTH, J., concur.