a police officer’s testimony about defendant’s mother’s pointing to a weedy lot where the officer later recovered a pistol was not admitted for the truth of the matter asserted but “offered to explain the steps in his investigation of the crime”
How later courts described this case
- a police officer’s testimony about defendant’s mother’s pointing to a weedy lot where the officer later recovered a pistol was not admitted for the truth of the matter asserted but “offered to explain the steps in his investigation of the crime”
Written by the judges who cited it.
The opinion
PRESIDING JUSTICE McNULTY, respectfully dissenting:
The majority acknowledges that Aguilera, the only witness who identified defendant as the shooter, acted as an accomplice. When a criminal conviction rests upon the testimony of an accomplice, that testimony should have the “ ‘absolute conviction of the truth.’ ” Wilson, 66 Ill. 2d at 349, quoting People v. Zaeske, 67 Ill. App. 2d 115, 121 (1966). The conviction of the truth is conspicuously absent from Aguilera’s testimony.
Aguilera first told the court that when he saw defendant on the evening of September 17, 1995, they did not do anything or go anywhere, and he saw no crime take place. Then he admitted that he, defendant, and three others he named drove around Melrose Park together.
The testimony then becomes nearly incoherent, as Aguilera said:
“So we got off the car and I seen [defendant], his brother and Jose.
I was with them, go inside the house.
Q. Then what happened?
A. We were in a fight so we had gathered some rocks and bottles and later on they had came out so we had went to the park.”
The prosecutor chose not to attempt to clarify this testimony, although this testimony provided the setting for the assertion that Aguilera saw defendant shoot at the other gang in the park.
Aguilera’s testimony lacks corroboration in any significant detail. Compare People v. Waln, 169 Ill. App. 3d 264, 272 , 523 N.E.2d 1318 (1988); Wilson, 66 Ill. 2d at 350. Aguilera never mentioned a blue LeSabre, nor did the prosecutor ask the make of the car Aguilera and defendant rode around in that night. According to Aguilera’s testimony, the three others in the car did not include defendant’s brother or Jose Rocha. Fong and Hernandez both swore they saw defendant with his brother and Rocha that evening, around the time Aguilera said he was riding with defendant. “[Contradiction of an accomplice’s testimony, as well as material corroboration, is entitled to considerable weight.” People v. Eddington, 129 Ill. App. 3d 745, 779 , 473 N.E.2d 103 (1984).
Most significantly, the testimony of Fong and Hernandez corroborates one of Aguilera’s prior statements to police. Aguilera said he, too, was with Rocha when Rocha drove around Melrose Park, and then they all went to defendant’s home. But in that statement, Aguilera told police that defendant’s brother, not defendant, shot the gun. The record before the court gives no indication of why the police rejected that version and continued questioning Aguilera until he implicated defendant. The evidence in the record corroborates the statement Aguilera made to police, implicating defendant’s brother, better than it corroborates his courtroom testimony.
The prosecution elected not to try to show defendant guilty as his brother’s accomplice. Without some evidence to help the trier of fact determine that the earlier statement implicating defendant’s brother is false, the evidence cannot support the conviction of defendant beyond a reasonable doubt. Accordingly, I dissent.