People v. Bruce

SECOND DIVISION
SEPTEMBER 15, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. ) No. 95--CR--12124
)
DWAYNE BRUCE, ) THE HONORABLE
) VINCENT GAUGHAN,
Defendant-Appellant. ) JUDGE PRESIDING

JUSTICE COUSINS delivered the opinion of the court:

Following a jury trial, defendant Dwayne Bruce was convicted
of first degree murder and armed robbery. He was sentenced to an
extended term of 100 years for murder and 6 years consecutively
for armed robbery. He now appeals both the conviction and the
sentence. Defendant contends that his conviction must be
reversed because the trial court erred and violated his
constitutional right to a fair trial by: (1) admitting hearsay
testimony when detectives testified that members of the victim's
family identified jewelry that the defendant was wearing at the
time of his arrest as the victim's, and (2) admitting into
evidence a handgun seized from a car that he was driving. The
defendant also contends that the trial court abused its
discretion in imposing the maximum allowable extended term of 100
years' incarceration for the murder conviction.

BACKGROUND
Robyn Cherry testified that in the evening of May 11, 1993,
she went to a party in the Ida B. Wells housing project with her
boyfriend, Dwayne Taylor. At that party, they met up with the
defendant and some other individuals, whose names were Kenny,
Courtney Donelson, Troy, and Robert Seals.
Mr. Taylor suggested that they stick someone up. The group
agreed to do so and left in Mr. Taylor's station wagon in order
to find someone to rob. They went south on the Dan Ryan
Expressway and exited at 111th Street.
At first the group's attention was drawn to a white Lexus.
Because the car was a Lexus and had expensive accessories, they
assumed that its driver was wealthy. After following this car for
several blocks, however, they lost it.
Shortly before 9 p.m. they saw another vehicle, a black
Nissan Pathfinder. The driver was Tedrin West, who was on the
way to a friend's house to watch a Bulls game. His father had
given him the Pathfinder for his twenty-first birthday. Mr. West
had with him some jewelry, a beeper and a cellular phone. Dwayne
Taylor said "We got us a vic," meaning a robbery victim.
The group followed Mr. West to a currency exchange. While
Mr. West was inside wiring some money, Mr. Taylor hid behind the
car with a gun in his hand. When Mr. West got back in the
Pathfinder, Mr. Taylor put the gun to the window. He ordered Mr.
West to take the keys out of the ignition and open the door. Mr.
West complied and then Mr. Taylor, the defendant, and Robert
Seals got in the Pathfinder with Mr. West and drove off. Their
companions followed in the station wagon.
The Pathfinder went to three different houses. At each,
Dwayne Taylor called out to his associates in the station wagon
that Mr. West was "playing games." Then they drove to a deserted
street. Mr. Taylor and the defendant, each armed, exited the
Pathfinder with the victim. The defendant ordered the victim to
lie down on the ground and then shot him in the back of the head.
Mr. Taylor showed the others jewelry taken from Mr. West.
Ms. Cherry testified that among these items was a chain which she
described as a "flip-flop." The defendant had a gold ring with a
diamond-encrusted six-point star. According to Ms. Cherry, he
displayed this ring as proceeds of the robbery.
Then the group drove back toward the Dan Ryan Expressway.
They were driving in a "crazy" manner and ran a stop sign. At
this point two police officers tried to stop the Pathfinder.
They pulled the Pathfinder over twice, and twice it sped away
after the officers exited their vehicle. Then the police found
the Pathfinder abandoned on the side of the expressway, with the
door open and the motor running. They impounded the Pathfinder
and then notified Thomas West, Tedrin West's father, since the
title was in his name.
After picking up the Pathfinder, Thomas West called his ex-
wife, Tedrin's mother, to let her know that the Pathfinder had
been found abandoned. Ms. West, extremely worried, called the
police. She tried to reach Tedrin on his beeper and cellular
phone, but received no answer. Finally a man answered on the
cellular phone. She did not recognize his voice and asked where
Tedrin was. The man said "He's gone." "Gone where? Where is
Tedrin?" she asked. "He's gone, bitch," the man replied and then
hung up.
When the police arrived, Ms. West gave them a photograph of
her son. Within an hour they found his body.
Later, the police went over records for Tedrin's cellular
phone. Subsequent to the murder, calls had been made to two
women, each a mother of a child of the defendant.
A few weeks later, police officers pulled over the defendant
when he ran a red light. They arrested him and recovered a .38-
caliber revolver from the car. This gun was of the same general
type as that used to kill Mr. West.
Meanwhile, Mr. Taylor had sent Ms. Cherry to stay with his
sister in Iowa, because he was afraid that she might turn him in.
About a year later Ms. Cherry returned to Chicago, and, as Mr.
Taylor had feared, she went to the police.
In exchange for a reduction in charges against her, she
agreed to testify about this murder and about an unrelated home
invasion and murder. She was questioned by Detectives Michael
McDermott and James Boylan. Ms. Cherry related to them the
events surrounding the murder and told them that the defendant
was the one who had fired the shot. Although she did not know
the defendant's real name at that time, she was able to give a
physical description and an address.
The police were not able to find the defendant at that
address, but in a few months they located him and arrested him.
The defendant had in his possession a ring with a diamond
encrusted six-point star and a "flip flop" chain. When
questioned about these items, the defendant said that he had
bought them, but he did not remember where.
At the request of the detectives, members of Mr. West's
family came to look at the jewelry. In response to a question on
direct examination, Detective Boylan told the jury that "family
members" identified the ring as Tedrin's. When the detectives
confronted the defendant with this identification, he told them
the names of stores where he said he had bought the ring and
chain. They released the defendant at that time, but re-arrested
him sometime afterwards upon finding out that a gun having the
class characteristics of the murder weapon had been found on the
defendant after he ran the red light.
The defendant was charged, tried and found guilty of armed
robbery and first degree murder. He was eligible for the death
penalty. At the sentencing hearing, the judge learned of other
crimes committed by the defendant, including a conviction as a
juvenile for attempted murder. In mitigation the defense
stressed that, as the defendant was still relatively young, he
had rehabilitative potential. Also, the defense pointed out that
the defendant had shown remorse in expressing his condolences to
the victim's family. The court sentenced the defendant to 100
years for the first degree murder count and 6 years, to be served
consecutively, for the armed robbery count.
The defendant appeals the conviction and sentence on three
grounds. First, he contends that the .38-caliber revolver should
not have been allowed into evidence because there was
insufficient evidence to link it to the crime. Next he argues
that the testimony of the detectives regarding the identification
of the jewelry by "family members" was inadmissible hearsay and
that it was reversible error for the court to admit it. Finally,
the defendant maintains that the trial court abused its
discretion in imposing the maximum extended-term prison sentence
for first degree murder allowable under law.
We affirm.

ANALYSIS
The defendant maintains that the gun was inadmissible
because it was irrelevant. We disagree.
As long as the gun could have been the murder weapon, it was
competent evidence. If a person accused of a crime possesses a
weapon suitable for the commission of that offense when arrested,
the weapon is admissible even if it cannot be shown that it was
the weapon actually used. People v. Magby, 37 Ill. 2d 197, 202
(1967).
There is an indication in Detective Boylan's notes that Ms.
Cherry said the gun used to commit the murder had a brown handle.
The gun that was found with the defendant had a black handle.
Although the .38 revolver was of the same type as that used to
kill Mr. West, the defense points out that there are millions of
guns of this type in the United States.
Defendant argues that since the murder weapon had a brown
handle, the black .38 could not have been the gun used. Thus, he
concludes, it is irrelevant, even if one takes Magby into
account.
But there was also evidence that the murder weapon had a
black handle. Ms. Cherry so testified in court. The matter was
properly left before the jury under the doctrine of conditional
relevance.
Conditional relevance is treated as follows: If the
relevance of a piece of evidence depends on the truth of some
other fact, the piece of evidence is admissible if there is
sufficient evidence to support a finding by a reasonable juror
that the factual condition has been fulfilled. Marvel
Engineering Co. v. Commercial Union Insurance Co., 118 Ill. App.
3d 844, 848, 455 N.E.2d 545, 548 (1983); see also 1 J. Strong,
McCormick on Evidence 53, at 215-16 (4th ed. 1992).
In this case, the relevance of the offered gun depended upon
whether the handle of the murder weapon was black. There was
sufficient evidence to support a finding by a reasonable juror
that the handle was black. So the gun was properly admitted.
The defense also maintains that even if the gun was
relevant, any relevance was outweighed by unfair prejudice and
surprise. Specifically, the defense asserts that presenting the
gun to the jury likely encouraged it to place a much greater
weight on the gun as evidence than was warranted, given the
length of time between the crime and the identification of the
weapon. Whether relevant evidence is to be excluded as unfairly
prejudicial is a matter in the sound discretion of the trial
court. People v. Chambers, 179 Ill. App. 3d 565, 577, 534 N.E.2d 554, 560 (1989), citing People v. Ward, 101 Ill. 2d 443, 455-56
(1984). We do not have a basis in the record to find an abuse of
discretion.
Defendant next argues that the trial court erred by allowing
Detective Boylan to answer a question as to whether "family
members" identified the jewelry. The defense made timely
objection to the question as calling for hearsay. The trial
court overruled the objection, and the witness answered the
question in the affirmative.
Later, on cross-examination of Detective Boylan by the
defense counsel, the following were the pertinent questions and
answers:
"Q. And you then asked him more questions about the
jewelry, is that correct?
A. I informed him that he had been -- that it had been
identified.
Q. By whom?
A. By Tedrin West's brother.
Q. Okay. Do you know his name?
A. I believe it was Kelly."
Whether the ring with the star belonged to the victim or to
the defendant was a point of much contention in the trial. The
jury heard Detective Boylan testify that family members at the
police station had identified the ring as belonging to Tedrin.
The defense argued at trial that the ring had belonged to
the defendant all along. The six-point star on the front is a
symbol used by the defendant's gang, the Gangster Disciples.
Also, the ring had a "G" engraved in it, probably standing for
"Gangster," as Detective Boylan conceded. Tedrin West was not in
a gang.
In defending admission of the statement, the State argues
that when "the declarant is available in court or there is an
opportunity to ascertain the veracity of the testimony by cross-
examination, there is no hearsay problem." While some of the
members of Mr. West's family were in court, Kelly West, the
person who actually made the identification, was not available
for cross-examination.
The prosecution further contends that the statement was not
hearsay because it was elicited not for its truth but, rather, to
explain investigative procedure. The State argues that the
identification by family members explained why the detectives
went back to ask the defendant a second time where he had
obtained the jewelry.
Relative to the prosecution's contention, a police officer
may, in order to clarify the progress of an investigation,
testify that he or she has had a conversation with a third party.
The officer may not, however, testify as to the substance of that
conversation, unless it would otherwise be admissible, or (1) is
necessary to explain police procedure, and (2)the content of the
conversation does not go to "the very essence of the dispute."
People v. Jones, 153 Ill. 2d 155, 160 (1992); People v.
Singletary, 273 Ill. App. 3d 1076, 1084, 652 N.E.2d 1333, 1338
(1995). Here, whether the ring belonged to the victim or to the
defendant obviously goes to the essence of the charge of armed
robbery.
Furthermore, in our view, Detective Boylan's testimony went
beyond what was necessary to explain police procedure. In People
v. Gacho, 122 Ill. 2d 221 (1988), the supreme court said that it
was permissible for a police officer to testify that he had a
conversation with the victim and then set out in search of the
defendant, even if this would raise the inference that the victim
had implicated the defendant. The court cautioned, however, that
had "the substance of the conversation *** been testified to, it
would have been objectionable as hearsay." 122 Ill. 2d at 248.
Under Gacho, it would have been permissible for Detective
Boylan to testify that he talked with the victim's family and
then went to ask the defendant about the jewelry again. The
jurors could have drawn their own conclusions. However, in the
instant case we hold that the purported identification was
hearsay, and it was error to admit it.
Although the admission of Detective Boylan's testimony
regarding the substance of the conversation with family members
was error, we further hold that the error was harmless for the
following reasons: First, the record establishes that the trial
judge recognized the mistake later in the trial and took steps to
correct it. In response to a motion in limine by the defense, he
admonished the prosecution not to mention the hearsay statement
in closing argument. Also, at the beginning of instructions to
the jury, he gave the following special instruction:
"First, I want to give you a special instruction, and
that's concerning the testimony of Detective Boylan.
On the date that Mr. Bruce was arrested, on December
21, 1994, Detective Boylan testified that the brother of
Tedrin West, Kelly West, identified the jewelry. All right.
That is a hearsay statement and that is not evidence."
Moreover, there was other testimony linking the ring to the
victim. The victim's mother testified that the ring belonged to
her son. The defense could, and did, cross-examine her on that
point, bringing out its theory that the ring belonged to the
defendant since he and not the victim was a member of the
Gangster Disciples. In addition, Ms. Cherry testified that the
defendant showed her the ring as proceeds of the robbery. Under
these circumstances, the error by the trial judge was harmless.
Relative to the sentence, after listening to arguments of
the attorneys, the trial judge stated that he was imposing an
extended-term sentence of 100 years' incarceration pursuant to
section 5-5-3.2(b)(1) of the Unified Code of Correction (730 ILCS
5-5-3.2(b)(1) (West 1994)). Given the defendant's criminal
record, including an attempted murder conviction as a juvenile,
we cannot say that the trial judge abused his discretion. This
court has noted that there is "a strong [legal] presumption that
a trial court's sentencing decision is based upon proper legal
reasoning, and the court will be presumed to have considered any
evidence of mitigation which is before it." People v. Partin, 156
Ill. App. 3d 365, 373, 509 N.E.2d 662, 667 (1987).
For the foregoing reasons, the decision of the trial court
is affirmed.
Affirmed.
GORDON, P.J., and McNULTY, J., concur.