People v. Topps
Annotate this Case
October 29, 1997
3rd Division
1-95-4339
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. ) No. 94-17968
)
CHARLES TOPPS ) THE HONORABLE
) FRANK DEBONI,
Defendant-Appellant. ) JUDGE PRESIDING.
PRESIDING JUSTICE COUSINS delivered the opinion of the
court:
Defendant, Charles Topps, was convicted in a jury trial of
aggravated arson and two counts of first degree murder on October
20, 1995. Defendant was sentenced to the Illinois Department of
Corrections for natural life for the murders and 30 years'
imprisonment, to run concurrently, for aggravated arson. On
appeal, defendant argues that: (1) plain error occurred when the
jury heard hearsay evidence and argument indicating that the
nontestifying codefendant and another individual informed police
that defendant perpetrated the crimes; (2) defendant was denied
his sixth amendment right to effective assistance of counsel; and
(3) the trial court erred by ignoring defendant's pro se
posttrial motion alleging ineffective assistance of counsel.
BACKGROUND
On June 28, 1994, defendant gave a written statement to
police, stating that on April 3, 1992, in Maywood, Illinois,
while accompanied by codefendant, Arthur Eppinger, and an
acquaintance, Dennis Moore, defendant gave $20 to an unknown
person to purchase cocaine for him. The unidentified person
never returned with defendant's money or any cocaine.
Subsequently, Moore offered to purchase the cocaine for
defendant, and the three men proceeded to Moore's apartment.
Defendant gave Moore $30 to purchase some cocaine in an upstairs
apartment, and Moore left to do so after asking Topps and
Eppinger to watch over his apartment. Moore failed to return,
and Eppinger's subsequent attempt to locate Moore was
unsuccessful. When Eppinger returned to defendant, he and
defendant began ransacking Moore's apartment, and Eppinger
suggested that defendant burn Moore's apartment. Defendant
further recounted in his written statement that he told Eppinger
to "go and light it" and that Eppinger subsequently lit a blanket
on fire.
At approximately 6:40p.m., the Maywood fire department
received a call to respond to a fire at the apartment building.
Two people died as a result of the fire. An expert in
determining the causes of fires testified that the fire
originated from Moore's unit and that it was started by someone
who had ignited a flammable item in the apartment. A medical
examiner also testified that the two deceased victims of the fire
died from carbon monoxide poisoning and that the manner of death
was homicide.
Betty Ringo, a tenant who lived directly across from Moore's
apartment, testified that just before the fire she heard two men
in the hallway arguing. She looked out of the peephole in her
front door and observed two men in front of Moore's apartment.
Angela Collins, another witness who had been visiting a friend in
a nearby apartment, testified that she heard male voices arguing
in the hallway about someone owing them money and stating that
they were going to burn the building down if they were not
repaid. Collins then opened the door, looked out into the
hallway, and observed codefendant Eppinger yelling at the shut
door to Moore's apartment. At that time, the building manager,
Ernest Barlow, exited from his apartment, approached the two
defendants, and told them both to leave the premises. Barlow
further testified that he followed the two men to the front door
of the building to make sure that they left. On his way back to
his apartment, Barlow stated that the fire alarm went off.
Tenant Betty Ringo testified that, upon hearing the fire alarm,
she looked through the peephole in her door once again and
observed flames emanating from Moore's apartment.
Sergeant Jesse Ingram, an investigator for the Maywood
police department, was immediately dispatched to the scene of the
fire. When he arrived, he spoke with fellow officer Chris Butler
about the possible cause of the fire. During their discussion,
Butler related an earlier conversation he had shared with
Eppinger, who was still at the scene at that time. Ingram, who
had known Eppinger for five years, went to speak with Eppinger
and subsequently radioed for assistance in his pursuit of Topps,
whose direct involvement in the fire was suspected after Ingram's
discussion with Eppinger. Barlow and Eppinger led Ingram to
Topps' residence, where defendant was arrested.
Eppinger was acquitted after a bench trial that took place
simultaneously with Topps' jury trial. On appeal of his
convictions for murder and arson, Topps seeks remand for a new
trial.
We affirm.
ANALYSIS
I
Defendant first contends that plain error occurred when the
jury heard inadmissible hearsay evidence and argument informing
it that the nontestifying codefendant and another person had told
police that defendant was the wrongdoer. Specifically, defendant
claims that, during Sergeant Ingram's testimony, the jury was
told that Eppinger had informed Ingram that defendant was
responsible for starting the fire. In addition, defendant
asserts that, during closing argument, the State reminded the
jury that the reason defendant became a suspect was because
Eppinger told the police that defendant was the perpetrator.
Defense counsel failed to object to Ingram's trial testimony and
to the prosecutor's use of allegedly hearsay evidence in closing
argument. The defense also failed to preserve this issue in a
posttrial motion.
Generally, failure to make a timely objection at trial and
to renew it in a posttrial motion constitutes a waiver of the
right to raise the issue on appeal. People v. Herrett, 137 Ill. 2d 195, 209 (1990); People v. Enoch, 122 Ill. 2d 176, 190 (1988).
Nonetheless, a limited exception to this rule exists in Supreme
Court Rule 615(a), which provides that plain errors affecting
substantial rights may be noticed on appeal, despite not being
objected to at trial and raised in a posttrial motion. 134 Ill.
2d R. 615(a). While hearsay violations have been reviewed as
plain error (People v. Singletary, 273 Ill. App. 3d 1076, 1084,
652 N.E.2d 1333, 1338 (1995); People v. Furby, 228 Ill. App. 3d
1, 9, 591 N.E.2d 533, 539 (1992)), the plain error rule is only
invoked where the errors at trial denied the accused a fair and
impartial trial or where the evidence is so closely balanced that
an innocent person may have been convicted due to prejudice
caused by the errors. Herrett, 137 Ill. 2d at 209-10; People v.
Carlson, 79 Ill. 2d 564, 576-77 (1980).
Hearsay evidence includes testimony in court of a statement
made out of court, such statement being offered as an assertion
to show the truth of matters asserted therein. See People v.
Simms, 143 Ill. 2d 154, 173 (1991); Singletary, 273 Ill. App. 3d
at 1081, 652 N.E.2d at 1336. A review of the trial record
reveals that Ingram's testimony contained no hearsay violations.
On the contrary, the testimony at issue was offered to establish
the investigatory steps taken by the police in their pursuit of
defendant and was not offered for the truth of the matters
asserted. First, the portions of Ingram's testimony cited by
defendant cannot be characterized as hearsay, since Ingram did
not divulge actual statements made by the out-of-court declarant,
Eppinger. Second, during Ingram's testimony, the prosecution
specifically requested Ingram to refrain from discussing the
substance of any conversations he had conducted with Eppinger,
and Ingram consistently responded accordingly. The transcript of
the direct examination of Ingram indicates that Ingram offered no
hearsay evidence but, rather, properly testified to his
investigatory procedures:
"Q. After you summoned the defendant Eppinger,
did the defendant Eppinger have a conversation with
you?
A. Yes, he did.
Q. Without going into the substance of the
conversation that you had with the defendant Eppinger,
what is the next thing that you did?
A. Attempted to locate another party, another
individual.
Q. And who did you attempt to locate?
A. A subject some called *** Topps by the last
name.
***
Q. And when you first made attempts to locate
this person by the name of Topps, did you go anywhere
or did you radio for assistance?
A. I radioed for assistance.
***
Q. What information did you give the officers at
that time?
A. Not verbatim, but I gave information to a
certain building description ***.
***
Q. All right, did you give the name of the
suspect over the air as well?
A. Yes.
Q. And what name did you give?
A. Last name Topps.
Q. Did you give a description of him?
A. Yes, I did.
***
A. Subject missing some front teeth. Subject of
a real soft nature ***.
***
Q. *** [A]t that point where did you go?
A. Well, I made a gesture towards the front door
where Detective Welch and Mr. Eppinger were near the
front door asking to have Mr. Eppinger step inside to
show us the location where the apartment of Mr. Topps
was.
Q. Without going into the substance of what the
defendant Eppinger may have said or done, what is the
next thing that you did?
A. Made an attempt to knock on the door ***."
We find that the foregoing testimony falls within the rule
stating that testimony by a police officer regarding
investigatory procedures that reveals the occurrence of a
conversation with a co-offender, but not its contents, is not
hearsay. People v. Pulliam, 176 Ill. 2d 261, 273-74 (1997);
People v. Gacho, 122 Ill. 2d 221, 248 (1988). Such testimony is
admissible even if the jury could conclude that police began
looking for defendant as a result of their conversation with
nontestifying witnesses, "as long as the testimony does not
gratuitously reveal the substance of [the nontestifying
witnesses'] statements and so inform the jury that they told the
police that the defendant was responsible for the crime." People
v. Henderson, 142 Ill. 2d 258, 304 (1990); see also People v.
Johnson, 116 Ill. 2d 13, 24 (1987).
In the case at bar, we find that the testimony at issue, as
well as the closing argument complained of, did not reveal the
substance of any conversations with Eppinger but, rather,
remained within the ambit of proper testimony and argument. In
our view, the cases relied upon by defendant on this issue are
inapposite. Therefore, we hold that no error occurred in the
course of Ingram's testimony.
II
Defendant also argues that he was denied his sixth amendment
right to effective assistance of counsel. Defendant bases this
argument on several grounds, claiming that his attorney: (1)
failed to present exculpatory evidence that he had promised to
produce in his opening statement; (2) failed to impeach Angela
Collins, whose damaging surprise testimony was presented for the
first time at trial; (3) failed to make objections to Ingram's
alleged hearsay testimony discussed in the section above; (4)
damaged defendant's case by inviting additional alleged hearsay
testimony during cross-examination of Ingram; and (5) failed to
move for a mistrial or a jury instruction explaining why
codefendant Eppinger was no longer involved in the case after the
State rested its case in chief.
In order to establish that one was denied effective
assistance of counsel, a defendant must show that counsel's
representation fell below an objective standard of reasonableness
and that there is a reasonable probability that, "were it not for
counsel's unprofessional errors, the result of the proceeding
would have been different." People v. Whitehead, 169 Ill. 2d 355,
380 (1996), citing People v. Albanese, 104 Ill. 2d 504, 525
(1984). In emphasizing defendant's duty to show prejudice,
Illinois courts have noted that the standard for judging a claim
of ineffectiveness must be whether counsel's conduct so
undermined the operation of the adversarial process that the
trial cannot be relied upon as having achieved justice. Albanese,
104 Ill. 2d at 525, quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984).
Defendant argues that the facts alleged satisfy the
aforementioned tests for a claim of ineffective assistance of
counsel. We disagree.
With respect to defendant's argument based on his attorney's
failure to produce promised exculpatory evidence, defendant
specifically points to defense counsel's opening remarks that
defendant would testify to his lack of culpability, that there
would be testimony showing that defendant's statement to police
was coerced, and that there would be evidence of someone else's
motive for setting the fire based on insurance. The trial
record, however, reveals that it was the defendant who changed
his mind and chose not to take the stand after the prosecution
rested its case. Defendant, therefore, cannot rightly attribute
to counsel any damage caused by the unfulfilled opening statement
concerning defendant's expected testimony. As to the issue of
police coercion, defense counsel made repeated attempts to
impeach officers on this subject. Although the officers
consistently denied coercing defendant into writing his statement
in a certain manner, defense counsel's impeachment efforts were
conducted in good faith. See People v. Goodloe, 263 Ill. App. 3d
1060, 1076, 636 N.E.2d 1041, 1052 (1994) (counsel's
representation not ineffective where attorney made good-faith
attempts to introduce evidence promised in opening statement);
see also People v. Coleman, 9 Ill. App. 3d 402, 407, 292 N.E.2d 483, 487 (1972). Defendant's similar contention that his
attorney failed to explore the issue of an alternate motive based
on insurance is also without merit. The record indicates that
defense counsel did, indeed, bring up this issue more than once
during cross-examination. Although the trial court at one point
prohibited questioning along the line of insurance, thereby
precluding defense counsel from further exploring the issue, we
believe that counsel made the requisite good-faith effort to
elicit relevant testimony.
Defendant also contends that his attorney erred by failing
to put into evidence certain police reports that would have
served to impeach Angela Collins, whose testimony implicated both
defendants and was not supported by any prior statement to the
police or the parties. Collins, the child and sister of the two
deceased victims of the apartment fire, was 9 years old at the
time of the incident and 13 years old when she testified.
Defense counsel objected during Collins' direct examination, and
Eppinger's attorney established that Collins had never informed
the police that she had heard the men in the hall threaten to
start a fire, that she had never told police that she had heard
the men demand any money, and that she had never given the police
a description of or identified the defendants during the two
years preceding trial. Eppinger's attorney moved for a mistrial,
claiming surprise by Collins' inculpatory testimony, since her
statements were absent from the pretrial discovery material. The
trial court denied Eppinger's motion based on the fact that the
prosecution alerted his counsel to Collins' testimony the day
before she testified and the fact that Eppinger's attorney
effectively impeached Collins during cross-examination in the
bench trial portion of the proceedings. Topps' attorney was
similarly unaware of Collins' expected testimony, and the court
noted that defendant was particularly prejudiced by not having
had the jury present during codefendant's counsel's effective
impeachment of Collins. Rather than declare a mistrial, the
court allowed defendant the opportunity to cure the prejudice by
putting into evidence any police reports and testimony that would
have established that Collins' statements had never been offered
before trial. Defendant's attorney never took advantage of this
opportunity, and defendant claims error therefrom.
It is our view that defense counsel may very well have
decided upon a strategy to use Collins' direct testimony to
support defendant's theory that Eppinger was to blame for the
fire. Indeed, Collins testified that it was Eppinger whom she
directly heard threatening to burn down the apartment building--
an observation that defense counsel likely did not want to
challenge. Although defendant may question the strategic value
of electing to not put the police reports and Collins' testimony
into evidence for impeachment purposes, we hold that defense
counsel's inaction in this regard fell within the wide spectrum
of defense tactics that Illinois courts have long considered to
be an improper basis for supporting a claim of ineffective
assistance of counsel. People v. Guest, 166 Ill. 2d 381, 394
(1995); People v. Flores, 128 Ill. 2d 66, 106 (1989); People v.
Hillenbrand, 121 Ill. 2d 537, 548 (1988) ("mistakes in trial
strategy or tactics or in judgment do not of themselves render
the representation incompetent"); People v. Madej, 106 Ill. 2d 201, 214 (1985).
Defendant further argues that his attorney erred by failing
to object to the alleged hearsay testimony elicited from Sergeant
Ingram by the prosecution. Since we have concluded that Ingram's
testimony relating to Eppinger did not constitute hearsay and
that no error occurred in allowing such testimony, we find that
defense counsel could not have properly based objections to the
testimony on grounds of hearsay.
Defendant also contends that his attorney prejudiced his
case by inviting hearsay testimony during cross-examination of
Ingram. In particular, defendant points to alleged hearsay
testimony elicited from Ingram by defense counsel that included
inculpatory statements from Eppinger and Barlow. Our review of
the transcript leads us to conclude that the testimony did not
contain hearsay. Assuming, arguendo, that Ingram's responses did
include hearsay, we hold that defendant cannot properly seek
review of this issue, since any such error was solicited by the
defense. Illinois courts have long held that an accused cannot
complain of the admission of testimony that was invited by the
defendant's own tactics at trial. People v. Scott, 148 Ill. 2d 479, 531 (1992); People v. Gacy, 103 Ill. 2d 1, 74 (1984); Ervin
v. Sears, Roebuck & Co., 65 Ill. 2d 140, 144 (1976); People v.
Brown, 275 Ill. App. 3d 1105, 1112, 657 N.E.2d 642, 647-48 (1995)
(a party may not seek relief from error he himself has injected
into the proceedings); People v. Rodriguez, 227 Ill. App. 3d 397,
408, 592 N.E.2d 18, 26 (1991). The alleged hearsay complained of
by defendant was invited as a result of defense counsel's
apparent strategy to show that Eppinger, perhaps in collusion
with Barlow, attempted to place full blame on defendant. Once
again, defendant's claim of ineffectiveness cannot be supported
by a claim based on defense counsel's trial strategy. People v.
Guest, 166 Ill. 2d 381, 394 (1995); People v. Flores, 128 Ill. 2d 66, 106 (1989); People v. Hillenbrand, 121 Ill. 2d 537, 548
(1988); People v. Madej, 106 Ill. 2d 201, 214 (1985).
Defendant's last contention of ineffective assistance of
counsel is based on his attorney's failure to request a curative
jury instruction following codefendant's acquittal. This
argument also fails. We agree with the State that a proper jury
instruction aimed at preventing jury bias against defendant after
Eppinger's dismissal from the proceedings already had been given.
Immediately after the prosecution rested its case, the trial
court gave the following instruction:
"At this time the defendant has an opportunity to
produce any evidence, if he would like to, and he
doesn't have to offer any evidence if he doesn't want
to, and because you as the jury would only be deciding
the case of Mr. Topps, there is no reason to have Mr.
Eppinger and his lawyers in this courtroom, so I have
let them leave the courtroom for this part of the
proceeding. Any defense or testimony they would have
would be made to me because you would not be making any
rulings for Mr. Eppinger."
Considering that the jurors were not made aware of the fact that
Eppinger had just been acquitted by the trial judge moments
before they were brought back into the courtroom for defendant's
case, we are convinced that this instruction adequately prevented
any jury bias that otherwise may have developed against
defendant. Therefore, defendant's claim that his attorney erred
in failing to request such an instruction has no foundation.
III
Lastly, defendant contends that the trial court erred in
ignoring his pro se motion for a new trial based on deficient
representation. This court held in People v. Spicer, 163 Ill.
App. 3d 81, 93, 516 N.E.2d 491, 500 (1987), that where defendant
is not denied effective assistance of counsel and there is no
evidence that the trial court neglected defendant's claim, any
error resulting from the trial court's failure to expressly rule
on defendant's pro se motion is harmless and a remand for a
hearing on that issue is unnecessary. Since we conclude that
defendant was not denied effective assistance of counsel at trial
and that there is no evidence that the trial court neglected
defendant's matter, the holding in Spicer is dispositive of
defendant's last contention in the case at bar. Accordingly, we
affirm the decision of the trial court.
Affirmed.
CAHILL and LEAVITT, JJ., concur.
3rd Division
1-95-4339
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. ) No. 94-17968
)
CHARLES TOPPS ) THE HONORABLE
) FRANK DEBONI,
Defendant-Appellant. ) JUDGE PRESIDING.
PRESIDING JUSTICE COUSINS delivered the opinion of the
court:
Defendant, Charles Topps, was convicted in a jury trial of
aggravated arson and two counts of first degree murder on October
20, 1995. Defendant was sentenced to the Illinois Department of
Corrections for natural life for the murders and 30 years'
imprisonment, to run concurrently, for aggravated arson. On
appeal, defendant argues that: (1) plain error occurred when the
jury heard hearsay evidence and argument indicating that the
nontestifying codefendant and another individual informed police
that defendant perpetrated the crimes; (2) defendant was denied
his sixth amendment right to effective assistance of counsel; and
(3) the trial court erred by ignoring defendant's pro se
posttrial motion alleging ineffective assistance of counsel.
BACKGROUND
On June 28, 1994, defendant gave a written statement to
police, stating that on April 3, 1992, in Maywood, Illinois,
while accompanied by codefendant, Arthur Eppinger, and an
acquaintance, Dennis Moore, defendant gave $20 to an unknown
person to purchase cocaine for him. The unidentified person
never returned with defendant's money or any cocaine.
Subsequently, Moore offered to purchase the cocaine for
defendant, and the three men proceeded to Moore's apartment.
Defendant gave Moore $30 to purchase some cocaine in an upstairs
apartment, and Moore left to do so after asking Topps and
Eppinger to watch over his apartment. Moore failed to return,
and Eppinger's subsequent attempt to locate Moore was
unsuccessful. When Eppinger returned to defendant, he and
defendant began ransacking Moore's apartment, and Eppinger
suggested that defendant burn Moore's apartment. Defendant
further recounted in his written statement that he told Eppinger
to "go and light it" and that Eppinger subsequently lit a blanket
on fire.
At approximately 6:40p.m., the Maywood fire department
received a call to respond to a fire at the apartment building.
Two people died as a result of the fire. An expert in
determining the causes of fires testified that the fire
originated from Moore's unit and that it was started by someone
who had ignited a flammable item in the apartment. A medical
examiner also testified that the two deceased victims of the fire
died from carbon monoxide poisoning and that the manner of death
was homicide.
Betty Ringo, a tenant who lived directly across from Moore's
apartment, testified that just before the fire she heard two men
in the hallway arguing. She looked out of the peephole in her
front door and observed two men in front of Moore's apartment.
Angela Collins, another witness who had been visiting a friend in
a nearby apartment, testified that she heard male voices arguing
in the hallway about someone owing them money and stating that
they were going to burn the building down if they were not
repaid. Collins then opened the door, looked out into the
hallway, and observed codefendant Eppinger yelling at the shut
door to Moore's apartment. At that time, the building manager,
Ernest Barlow, exited from his apartment, approached the two
defendants, and told them both to leave the premises. Barlow
further testified that he followed the two men to the front door
of the building to make sure that they left. On his way back to
his apartment, Barlow stated that the fire alarm went off.
Tenant Betty Ringo testified that, upon hearing the fire alarm,
she looked through the peephole in her door once again and
observed flames emanating from Moore's apartment.
Sergeant Jesse Ingram, an investigator for the Maywood
police department, was immediately dispatched to the scene of the
fire. When he arrived, he spoke with fellow officer Chris Butler
about the possible cause of the fire. During their discussion,
Butler related an earlier conversation he had shared with
Eppinger, who was still at the scene at that time. Ingram, who
had known Eppinger for five years, went to speak with Eppinger
and subsequently radioed for assistance in his pursuit of Topps,
whose direct involvement in the fire was suspected after Ingram's
discussion with Eppinger. Barlow and Eppinger led Ingram to
Topps' residence, where defendant was arrested.
Eppinger was acquitted after a bench trial that took place
simultaneously with Topps' jury trial. On appeal of his
convictions for murder and arson, Topps seeks remand for a new
trial.
We affirm.
ANALYSIS
I
Defendant first contends that plain error occurred when the
jury heard inadmissible hearsay evidence and argument informing
it that the nontestifying codefendant and another person had told
police that defendant was the wrongdoer. Specifically, defendant
claims that, during Sergeant Ingram's testimony, the jury was
told that Eppinger had informed Ingram that defendant was
responsible for starting the fire. In addition, defendant
asserts that, during closing argument, the State reminded the
jury that the reason defendant became a suspect was because
Eppinger told the police that defendant was the perpetrator.
Defense counsel failed to object to Ingram's trial testimony and
to the prosecutor's use of allegedly hearsay evidence in closing
argument. The defense also failed to preserve this issue in a
posttrial motion.
Generally, failure to make a timely objection at trial and
to renew it in a posttrial motion constitutes a waiver of the
right to raise the issue on appeal. People v. Herrett, 137 Ill. 2d 195, 209 (1990); People v. Enoch, 122 Ill. 2d 176, 190 (1988).
Nonetheless, a limited exception to this rule exists in Supreme
Court Rule 615(a), which provides that plain errors affecting
substantial rights may be noticed on appeal, despite not being
objected to at trial and raised in a posttrial motion. 134 Ill.
2d R. 615(a). While hearsay violations have been reviewed as
plain error (People v. Singletary, 273 Ill. App. 3d 1076, 1084,
652 N.E.2d 1333, 1338 (1995); People v. Furby, 228 Ill. App. 3d
1, 9, 591 N.E.2d 533, 539 (1992)), the plain error rule is only
invoked where the errors at trial denied the accused a fair and
impartial trial or where the evidence is so closely balanced that
an innocent person may have been convicted due to prejudice
caused by the errors. Herrett, 137 Ill. 2d at 209-10; People v.
Carlson, 79 Ill. 2d 564, 576-77 (1980).
Hearsay evidence includes testimony in court of a statement
made out of court, such statement being offered as an assertion
to show the truth of matters asserted therein. See People v.
Simms, 143 Ill. 2d 154, 173 (1991); Singletary, 273 Ill. App. 3d
at 1081, 652 N.E.2d at 1336. A review of the trial record
reveals that Ingram's testimony contained no hearsay violations.
On the contrary, the testimony at issue was offered to establish
the investigatory steps taken by the police in their pursuit of
defendant and was not offered for the truth of the matters
asserted. First, the portions of Ingram's testimony cited by
defendant cannot be characterized as hearsay, since Ingram did
not divulge actual statements made by the out-of-court declarant,
Eppinger. Second, during Ingram's testimony, the prosecution
specifically requested Ingram to refrain from discussing the
substance of any conversations he had conducted with Eppinger,
and Ingram consistently responded accordingly. The transcript of
the direct examination of Ingram indicates that Ingram offered no
hearsay evidence but, rather, properly testified to his
investigatory procedures:
"Q. After you summoned the defendant Eppinger,
did the defendant Eppinger have a conversation with
you?
A. Yes, he did.
Q. Without going into the substance of the
conversation that you had with the defendant Eppinger,
what is the next thing that you did?
A. Attempted to locate another party, another
individual.
Q. And who did you attempt to locate?
A. A subject some called *** Topps by the last
name.
***
Q. And when you first made attempts to locate
this person by the name of Topps, did you go anywhere
or did you radio for assistance?
A. I radioed for assistance.
***
Q. What information did you give the officers at
that time?
A. Not verbatim, but I gave information to a
certain building description ***.
***
Q. All right, did you give the name of the
suspect over the air as well?
A. Yes.
Q. And what name did you give?
A. Last name Topps.
Q. Did you give a description of him?
A. Yes, I did.
***
A. Subject missing some front teeth. Subject of
a real soft nature ***.
***
Q. *** [A]t that point where did you go?
A. Well, I made a gesture towards the front door
where Detective Welch and Mr. Eppinger were near the
front door asking to have Mr. Eppinger step inside to
show us the location where the apartment of Mr. Topps
was.
Q. Without going into the substance of what the
defendant Eppinger may have said or done, what is the
next thing that you did?
A. Made an attempt to knock on the door ***."
We find that the foregoing testimony falls within the rule
stating that testimony by a police officer regarding
investigatory procedures that reveals the occurrence of a
conversation with a co-offender, but not its contents, is not
hearsay. People v. Pulliam, 176 Ill. 2d 261, 273-74 (1997);
People v. Gacho, 122 Ill. 2d 221, 248 (1988). Such testimony is
admissible even if the jury could conclude that police began
looking for defendant as a result of their conversation with
nontestifying witnesses, "as long as the testimony does not
gratuitously reveal the substance of [the nontestifying
witnesses'] statements and so inform the jury that they told the
police that the defendant was responsible for the crime." People
v. Henderson, 142 Ill. 2d 258, 304 (1990); see also People v.
Johnson, 116 Ill. 2d 13, 24 (1987).
In the case at bar, we find that the testimony at issue, as
well as the closing argument complained of, did not reveal the
substance of any conversations with Eppinger but, rather,
remained within the ambit of proper testimony and argument. In
our view, the cases relied upon by defendant on this issue are
inapposite. Therefore, we hold that no error occurred in the
course of Ingram's testimony.
II
Defendant also argues that he was denied his sixth amendment
right to effective assistance of counsel. Defendant bases this
argument on several grounds, claiming that his attorney: (1)
failed to present exculpatory evidence that he had promised to
produce in his opening statement; (2) failed to impeach Angela
Collins, whose damaging surprise testimony was presented for the
first time at trial; (3) failed to make objections to Ingram's
alleged hearsay testimony discussed in the section above; (4)
damaged defendant's case by inviting additional alleged hearsay
testimony during cross-examination of Ingram; and (5) failed to
move for a mistrial or a jury instruction explaining why
codefendant Eppinger was no longer involved in the case after the
State rested its case in chief.
In order to establish that one was denied effective
assistance of counsel, a defendant must show that counsel's
representation fell below an objective standard of reasonableness
and that there is a reasonable probability that, "were it not for
counsel's unprofessional errors, the result of the proceeding
would have been different." People v. Whitehead, 169 Ill. 2d 355,
380 (1996), citing People v. Albanese, 104 Ill. 2d 504, 525
(1984). In emphasizing defendant's duty to show prejudice,
Illinois courts have noted that the standard for judging a claim
of ineffectiveness must be whether counsel's conduct so
undermined the operation of the adversarial process that the
trial cannot be relied upon as having achieved justice. Albanese,
104 Ill. 2d at 525, quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984).
Defendant argues that the facts alleged satisfy the
aforementioned tests for a claim of ineffective assistance of
counsel. We disagree.
With respect to defendant's argument based on his attorney's
failure to produce promised exculpatory evidence, defendant
specifically points to defense counsel's opening remarks that
defendant would testify to his lack of culpability, that there
would be testimony showing that defendant's statement to police
was coerced, and that there would be evidence of someone else's
motive for setting the fire based on insurance. The trial
record, however, reveals that it was the defendant who changed
his mind and chose not to take the stand after the prosecution
rested its case. Defendant, therefore, cannot rightly attribute
to counsel any damage caused by the unfulfilled opening statement
concerning defendant's expected testimony. As to the issue of
police coercion, defense counsel made repeated attempts to
impeach officers on this subject. Although the officers
consistently denied coercing defendant into writing his statement
in a certain manner, defense counsel's impeachment efforts were
conducted in good faith. See People v. Goodloe, 263 Ill. App. 3d
1060, 1076, 636 N.E.2d 1041, 1052 (1994) (counsel's
representation not ineffective where attorney made good-faith
attempts to introduce evidence promised in opening statement);
see also People v. Coleman, 9 Ill. App. 3d 402, 407, 292 N.E.2d 483, 487 (1972). Defendant's similar contention that his
attorney failed to explore the issue of an alternate motive based
on insurance is also without merit. The record indicates that
defense counsel did, indeed, bring up this issue more than once
during cross-examination. Although the trial court at one point
prohibited questioning along the line of insurance, thereby
precluding defense counsel from further exploring the issue, we
believe that counsel made the requisite good-faith effort to
elicit relevant testimony.
Defendant also contends that his attorney erred by failing
to put into evidence certain police reports that would have
served to impeach Angela Collins, whose testimony implicated both
defendants and was not supported by any prior statement to the
police or the parties. Collins, the child and sister of the two
deceased victims of the apartment fire, was 9 years old at the
time of the incident and 13 years old when she testified.
Defense counsel objected during Collins' direct examination, and
Eppinger's attorney established that Collins had never informed
the police that she had heard the men in the hall threaten to
start a fire, that she had never told police that she had heard
the men demand any money, and that she had never given the police
a description of or identified the defendants during the two
years preceding trial. Eppinger's attorney moved for a mistrial,
claiming surprise by Collins' inculpatory testimony, since her
statements were absent from the pretrial discovery material. The
trial court denied Eppinger's motion based on the fact that the
prosecution alerted his counsel to Collins' testimony the day
before she testified and the fact that Eppinger's attorney
effectively impeached Collins during cross-examination in the
bench trial portion of the proceedings. Topps' attorney was
similarly unaware of Collins' expected testimony, and the court
noted that defendant was particularly prejudiced by not having
had the jury present during codefendant's counsel's effective
impeachment of Collins. Rather than declare a mistrial, the
court allowed defendant the opportunity to cure the prejudice by
putting into evidence any police reports and testimony that would
have established that Collins' statements had never been offered
before trial. Defendant's attorney never took advantage of this
opportunity, and defendant claims error therefrom.
It is our view that defense counsel may very well have
decided upon a strategy to use Collins' direct testimony to
support defendant's theory that Eppinger was to blame for the
fire. Indeed, Collins testified that it was Eppinger whom she
directly heard threatening to burn down the apartment building--
an observation that defense counsel likely did not want to
challenge. Although defendant may question the strategic value
of electing to not put the police reports and Collins' testimony
into evidence for impeachment purposes, we hold that defense
counsel's inaction in this regard fell within the wide spectrum
of defense tactics that Illinois courts have long considered to
be an improper basis for supporting a claim of ineffective
assistance of counsel. People v. Guest, 166 Ill. 2d 381, 394
(1995); People v. Flores, 128 Ill. 2d 66, 106 (1989); People v.
Hillenbrand, 121 Ill. 2d 537, 548 (1988) ("mistakes in trial
strategy or tactics or in judgment do not of themselves render
the representation incompetent"); People v. Madej, 106 Ill. 2d 201, 214 (1985).
Defendant further argues that his attorney erred by failing
to object to the alleged hearsay testimony elicited from Sergeant
Ingram by the prosecution. Since we have concluded that Ingram's
testimony relating to Eppinger did not constitute hearsay and
that no error occurred in allowing such testimony, we find that
defense counsel could not have properly based objections to the
testimony on grounds of hearsay.
Defendant also contends that his attorney prejudiced his
case by inviting hearsay testimony during cross-examination of
Ingram. In particular, defendant points to alleged hearsay
testimony elicited from Ingram by defense counsel that included
inculpatory statements from Eppinger and Barlow. Our review of
the transcript leads us to conclude that the testimony did not
contain hearsay. Assuming, arguendo, that Ingram's responses did
include hearsay, we hold that defendant cannot properly seek
review of this issue, since any such error was solicited by the
defense. Illinois courts have long held that an accused cannot
complain of the admission of testimony that was invited by the
defendant's own tactics at trial. People v. Scott, 148 Ill. 2d 479, 531 (1992); People v. Gacy, 103 Ill. 2d 1, 74 (1984); Ervin
v. Sears, Roebuck & Co., 65 Ill. 2d 140, 144 (1976); People v.
Brown, 275 Ill. App. 3d 1105, 1112, 657 N.E.2d 642, 647-48 (1995)
(a party may not seek relief from error he himself has injected
into the proceedings); People v. Rodriguez, 227 Ill. App. 3d 397,
408, 592 N.E.2d 18, 26 (1991). The alleged hearsay complained of
by defendant was invited as a result of defense counsel's
apparent strategy to show that Eppinger, perhaps in collusion
with Barlow, attempted to place full blame on defendant. Once
again, defendant's claim of ineffectiveness cannot be supported
by a claim based on defense counsel's trial strategy. People v.
Guest, 166 Ill. 2d 381, 394 (1995); People v. Flores, 128 Ill. 2d 66, 106 (1989); People v. Hillenbrand, 121 Ill. 2d 537, 548
(1988); People v. Madej, 106 Ill. 2d 201, 214 (1985).
Defendant's last contention of ineffective assistance of
counsel is based on his attorney's failure to request a curative
jury instruction following codefendant's acquittal. This
argument also fails. We agree with the State that a proper jury
instruction aimed at preventing jury bias against defendant after
Eppinger's dismissal from the proceedings already had been given.
Immediately after the prosecution rested its case, the trial
court gave the following instruction:
"At this time the defendant has an opportunity to
produce any evidence, if he would like to, and he
doesn't have to offer any evidence if he doesn't want
to, and because you as the jury would only be deciding
the case of Mr. Topps, there is no reason to have Mr.
Eppinger and his lawyers in this courtroom, so I have
let them leave the courtroom for this part of the
proceeding. Any defense or testimony they would have
would be made to me because you would not be making any
rulings for Mr. Eppinger."
Considering that the jurors were not made aware of the fact that
Eppinger had just been acquitted by the trial judge moments
before they were brought back into the courtroom for defendant's
case, we are convinced that this instruction adequately prevented
any jury bias that otherwise may have developed against
defendant. Therefore, defendant's claim that his attorney erred
in failing to request such an instruction has no foundation.
III
Lastly, defendant contends that the trial court erred in
ignoring his pro se motion for a new trial based on deficient
representation. This court held in People v. Spicer, 163 Ill.
App. 3d 81, 93, 516 N.E.2d 491, 500 (1987), that where defendant
is not denied effective assistance of counsel and there is no
evidence that the trial court neglected defendant's claim, any
error resulting from the trial court's failure to expressly rule
on defendant's pro se motion is harmless and a remand for a
hearing on that issue is unnecessary. Since we conclude that
defendant was not denied effective assistance of counsel at trial
and that there is no evidence that the trial court neglected
defendant's matter, the holding in Spicer is dispositive of
defendant's last contention in the case at bar. Accordingly, we
affirm the decision of the trial court.
Affirmed.
CAHILL and LEAVITT, JJ., concur.
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