{
  "id": 1352901,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OBIE WARLICK, Defendant-Appellant",
  "name_abbreviation": "People v. Warlick",
  "decision_date": "1998-12-31",
  "docket_number": "No. 1\u201497\u20143758",
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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OBIE WARLICK, Defendant-Appellant."
    ],
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      {
        "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nThis garden variety burglary case raises an evidentiary issue that seems to be occurring with increasing frequency in the trials of criminal cases.\nObie Warlick (Warlick) was charged with burglary and possession of burglar tools. After a jury trial, he was found guilty of burglary. Because he had two prior burglary convictions, Warlick was sentenced as a Class X offender to 12 years\u2019 imprisonment. See 730 ILCS 5/5\u20145\u2014 3(c)(8) (West 1996).\nWarlick raises several issues. The only serious one is his claim he was unfairly prejudiced by the admission of a police call concerning a \u201cburglary in progress.\u201d While we find admission of the contents of the call was error, we also find the error was harmless. For that reason, we affirm Warlick\u2019s conviction and sentence.\nFACTS\nWe set out those facts necessary to an understanding of the hearsay issue.\nOnly two witnesses testified at trial. The first witness was Horus Frantino, the manager of Chicago Recycling Resource Center (Resource Center) located at 222 East 135th Place in Chicago. Frantino described the recycling center as a warehouse where materials such as aluminum cans and glass bottles were processed and stored. He said aluminum was compacted into bundles or \u201cbiskets\u201d weighing 1,500 pounds. The facility also housed a welding shop, an office area, and, above the office, a residence.\nFrantino testified Emiliano Lima and his son lived in the residence above the office. They had keys to the facility and, with Frantino\u2019s permission, parked their car \u2014 a Buick Skylark \u2014 inside the facility. Lima, Frantino explained, was currently in Brazil. Lima did not testify at trial.\nFrantino said he received a call from the Chicago police department sometime after midnight on February 17, 1997. In response to the call, Frantino went to the recycling center. When he arrived he saw that a window was open in the rear of the building. Frantino testified this window had been broken a few days earlier but had been boarded up with cardboard. When the facility closed at 4:30 p.m. on February 16, 1997, Frantino said, the window had been closed.\nInside the facility, Frantino saw Lima\u2019s parked car. The doors of the car were open. Frantino also saw a leather coat, which he knew to be Lima\u2019s, lying on the floor of the building near the open window.\nLater Frantino went to the police station. At the station, the police gave Frantino a bag of tools. Though Frantino could not specifically identify the tools, he said he returned them to the recycling center, where they were being used. The police also gave Frantino a briefcase, which was identified as belonging to Lima.\nFinally, Frantino testified he did not know Warlick and did not give him permission to enter the facility on February 16, 1997.\nThe second witness was Chicago police officer Albert Susnis. Officer Susnis testified he and his partner, Patrick Glinski, began working at 10 p.m. on February 16, 1997. Shortly after, at about midnight, they received a dispatch concerning a \u201cburglary in progress\u201d at 222 East 135th Place. Within two minutes they arrived at the Resource Center, where they were met by two men. One man identified himself as Emiliano Lima, the other was Lima\u2019s son.\nOfficer Susnis said he and his partner were directed to the rear of the recycling center and shown an open window. As they approached the open window, Officer Susnis observed a single set of footprints in the snow leading up to the open window. There were no footprints leading away. He also noted \u201csome stuff\u201d piled outside the window. The piled objects had enabled someone to enter the window, which was six to eight feet from ground level.\nOfficer Susnis testified his partner climbed on the pile of stuff and entered the facility through the window. At the same time, Lima let him into the facility through a side door. When he entered the facility, Officer Susnis said, he heard his partner yell, \u201cHe\u2019s running toward the east.\u201d Officer Susnis saw a man running and Officer Glinski in pursuit. Officer Susnis joined the chase. When cornered, the man, who was later identified as Warlick, hid under a truck. Warlick refused to come out from beneath the truck despite their commands that he do so. Officer Glinski then dragged Warlick from beneath the truck. Once captured, Warlick was advised of his rights, placed in handcuffs, and transported to the police station in another squad car that arrived on the scene.\nAfter Warlick was arrested, Officer Susnis investigated the premises. He observed a parked car inside the facility with its doors open. He said papers were strewn around on the floor, outside the car. Inside the facility, underneath the open window, Officer Susnis found a briefcase. Upon inspection, the briefcase contained personal papers belonging to Lima, as well as a Bible with Lima\u2019s name inside. Just outside the open window, Officer Susnis found a canvas bag containing tools, a can of paint, and some other small items. Officer Susnis testified he took the briefcase and bag of tools to the station to be inventoried. Later, these two items were returned to Frantino.\nOfficer Susnis noted that, at the time of his arrest, Warlick\u2019s home address was just eight blocks away from the Resource Center, at 13306 S. Corliss.\nThe State entered photographs of the scene into evidence. The photos, which depicted the facility, Lima\u2019s car, and the open window at the rear of the facility, were identified by both witnesses.\nWarlick did not testify, nor did he present any witnesses. In closing argument, defense counsel conceded that Warlick had been inside the facility without permission, but suggested he had not entered with the intent to commit a theft, but because it was cold outside and he wanted to get somewhere where he could warm up. The jury rejected this suggestion and returned a verdict of guilty of burglary.\nDECISION\nIn a motion in limine and again during trial the defense objected to allowing the jury to hear the contents of the radio call that sent police officers to the recycling center. The call contained two parts. First, \u201cburglary in progress.\u201d Second, \u201can intruder on the premises.\u201d\nBefore trial, the trial judge ruled \u201cintruder on the premises\u201d would not be allowed, but \u201cburglary in progress\u201d would be. At trial, then, Officer Susnis was asked:\n\u201cQ. Drawing your attention to a few minutes before midnight, did you receive a call?\nA. Yes, we did.\nQ. Do you remember where you were when you received that call?\nA. Approximately 125th and Michigan Avenue.\nQ. What was the call that you received?\nDEFENSE COUNSEL: Objection.\nTHE COURT: He can answer.\nA. A call for burglary in progress, 222 East 135th Place.\u201d\nNo limiting instruction was asked for or given.\nThe first question we must answer is whether \u201ca call for burglary in progress\u201d was inadmissible hearsay. The State contends it was not hearsay because the radio call was not being offered for its truth; but to explain the police officers\u2019 investigative procedure. The defense contends the call was inadmissible hearsay because it tended to prove a burglary in fact was taking place \u2014 a matter in controversy at trial.\nThis issue keeps turning up in our cases. While its resolution is not entirely clear, we do have guidance on where the line should be drawn.\nA police officer may recount the steps taken in the investigation of a crime and may describe the events leading up to the defendant\u2019s arrest \u201cwhere such testimony is necessary and important.\u201d People v. Simms, 143 Ill. 2d 154, 174, 572 N.E.2d 947 (1991). Even then, the evidence must satisfy some relevant nonhearsay purpose. That is, the words of the communication must not be considered or used for their truth, only to show that the words were spoken when that somehow matters in the case. In Simms, for example, out-of-court words to the police were allowed to show why the officers continued to question the defendant.\nAt times, the contents of a radio call may be admitted where \u201cnecessary to fully explain the State\u2019s case to the trier of fact.\u201d People v. Williams, 181 Ill. 2d 297, 313, 692 N.E.2d 1109 (1998) (911 tape admitted to show police officer acting in the course of his official duties).\nBystander statements \u2014 \u201cThere she goes, right there, she\u2019s running\u201d \u2014 were approved in People v. Pulliam, 176 Ill. 2d 261, 273, 680 N.E.2d 343 (1997), not for their truth, but to explain the steps taken by the police in investigating the crimes and arresting the defendant. Out-of-court statements to police officers were allowed for similar non-truth reasons in In re E.H., 299 Ill. App. 3d 42, 700 N.E.2d 1044 (1998), and People v. Wallace, 299 Ill. App. 3d 9, 701 N.E.2d 87 (1998).\nThe line easiest to follow was drawn in People v. Gacho, 122 Ill. 2d 221, 522 N.E.2d 1146 (1988). The supreme court said it was permissible for a police officer to testify he had a conversation with the victim, then set out to find the defendant, even though the jury might infer the victim had named the defendant. But, warned the court, had \u201cthe substance of the conversation *** been testified to, it would have been objectionable as hearsay.\u201d Gacho, 122 Ill. 2d at 248.\nIt is clear, then, there is no hearsay problem when the officer merely testifies he spoke to someone or heard some unspecified words and then did something. The jury is free to reach its own conclusions.\nBut invocation of phrases such as \u201cinvestigative steps\u201d or \u201cpolice procedure\u201d or \u201ccourse of the investigation\u201d should not be used as a substitute for principled analysis when the contents of a message, call, or other out-of-court statement are offered. The claim that the words are not being offered for their truth does not foreclose further inquiry.\nThe trial judge first must determine whether the out-of-court words, offered for some purpose other than their truth, have any relevance to an issue in the case. If they do, the judge then must weigh the relevance of the words for the declared nonhearsay purpose against the risk of unfair prejudice and possible misuse by the jury. See People v. Cameron, 189 Ill. App. 3d 998, 546 N.E.2d 259 (1989) (court should conduct a hearing out of the jury\u2019s presence to determine both the scope of third-party out-of-court statements and the need for the jury to hear them).\nPolice procedure or not, when the words go to \u201cthe very essence of the dispute\u201d (People v. Jones, 153 Ill. 2d 155, 160, 606 N.E.2d 1145 (1992)), the scale tips against admissibility. For example, in People v. Bruce, 299 Ill. App. 3d 61, 67, 701 N.E.2d 63 (1998), out-of-court statements identifying certain jewelry in defendant\u2019s possession as belonging to the murder victim were admitted in error because they \u201cwent beyond what was necessary to explain police procedure.\u201d Most recently, we held admission of the words of a search warrant was reversible error, rejecting a claim the evidence was necessary to explain why the police arrested the defendant for illegal possession of cocaine. People v. Virgin, 302 Ill. App. 3d 438 (1998).\nThe \u201cpolice procedure\u201d shibboleth has not proved persuasive in other cases. In People v. Cordero, 244 Ill. App. 3d 390, 392, 613 N.E.2d 391 (1993), a car theft c\u00e1se, admission of a police message that the car had been reported stolen was error because it \u201cwent to the very essence of the offense.\u201d It was treated as hearsay because of the risk the jury would consider the words for their truth.\nA radio message reporting a robbery and describing the car wanted in connection with the robbery was inadmissible hearsay in People v. Wallace, 210 Ill. App. 3d 325, 568 N.E.2d 1332 (1991). In People v. Johnson, 202 Ill. App. 3d 417, 559 N.E.2d 1041 (1990), out-of-court descriptions and identifications of the defendant went beyond police investigative steps and into inadmissible hearsay. Also see People v. Thomas, 199 Ill. App. 3d 79, 556 N.E.2d 1246 (1990) (radio dispatch informing officer of an \u201cintoxicated driver\u201d inadmissible in a driving under the influence of alcohol case); People v. Laurry, 5 Ill. App. 3d 713, 283 N.E.2d 895 (1972) (\u201crobbery in progress\u201d call should not have been admitted in an armed robbery trial); People v. Thompson, 128 Ill. App. 2d 420, 263 N.E.2d 124 (1970) (error in a robbery trial to admit a boy\u2019s out-of-court statement that a man was being robbed in a nearby hallway); People v. Hazen, 104 Ill. App. 2d 398, 244 N.E.2d 424 (1969) (error in a theft case to admit account of radio message that tended to identify the defendant).\nIn the case before us we see no good reason why the jury had to know the police officer received a \u201cburglary in progress\u201d call. Mere curiosity does not establish relevance. There was no issue concerning the officers\u2019 reason or motive for going to the recycling center. It simply did not matter. It would have been enough for the officer to testify he received a radio message, then went to the recycling center.\nThe contents of the call had slight or no relevance when offered for a nonhearsay purpose. It did not help the jury decide the case. On the other hand, a serious issue in the case was whether a burglary in fact was taking place. The risk of the jury misusing the evidence was palpable. A properly conducted balancing test would have weighed against admissibility. For that reason, we find admission of the \u201cburglary in progress\u201d call was error. Whether a prompt limiting instruction would have saved the error is something we need not decide, given our resolution of the next question \u2014 whether the error was prejudicial. But see People v. Williams, 181 Ill. 2d at 313-14; People v. Cordero, 244 Ill. App. 3d at 392.\nErroneous admission of hearsay will not be held reversible if there is no reasonable probability the jury would have acquitted the defendant had the hearsay been excluded. People v. West, 234 Ill. App. 3d 578, 590, 598 N.E.2d 1356 (1992). Here, on review of the record, we do not see how admission of the \u201cburglary in progress\u201d call could have significantly influenced the outcome of the trial.\nWarlick\u2019s lawyer conceded the defendant was inside the recycling center without authority. He attempted to persuade the jury Warlick entered the center to escape the cold and snowy night. The State contended there was sufficient evidence to prove he entered with the intent to commit theft. The jury agreed with the State, and we do not see how absence of the police call would have made any difference. We note, too, the State made no attempt to exploit the radio call during its final argument, in that way avoiding a potentially fatal exacerbation of the error.\nWe conclude admission of the hearsay was harmless error. We have considered the other issues raised by the defendant and find they do not merit further discussion. That is:\n(1) There was sufficient evidence to support the jury\u2019s verdict;\n(2) Whether the evidence was sufficient to support a conviction of possession of burglar tools is a nonissue since he was not convicted of that offense;\n(3) It was not error to deny a continuance to look into a newly added State witness when that witness did not testify;\n(4) Claims that the prosecutor made improper statements during final argument either were waived by a failure to make timely objection or are without merit; and\n(5) The sentence of 12 years for a third burglary conviction was not excessive.\nWe affirm the defendant\u2019s conviction and sentence.\nAffirmed.\nSOUTH, EJ, and McNAMARA, J, concur.",
        "type": "majority",
        "author": "JUSTICE WOLFSON"
      }
    ],
    "attorneys": [
      "Rita A. Fry, Public Defender, of Chicago (Michael Davidson, Assistant Public Defender, of counsel), for appellant.",
      "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Nancy Faulls, and Linda Halperin, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OBIE WARLICK, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201497\u20143758\nOpinion filed December 31, 1998.\nRita A. Fry, Public Defender, of Chicago (Michael Davidson, Assistant Public Defender, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Nancy Faulls, and Linda Halperin, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0595-01",
  "first_page_order": 613,
  "last_page_order": 619
}
