{
  "id": 3639292,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER DAVIS, Defendant-Appellant",
  "name_abbreviation": "People v. Davis",
  "decision_date": "1985-11-13",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER DAVIS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE WHITE\ndelivered the opinion of the court:\nFollowing a bench trial, defendant, Walter Davis, was found guilty of two counts of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, pars. 12 \u2014 4(a), 12 \u2014 4(b)(1)), and he was sentenced to serve two concurrent terms of four years. On appeal, defendant contends that the trial court erred in permitting the prosecution to use the eyewitness\u2019 prior identification of defendant at the preliminary hearing as substantive evidence of his guilt after the witness failed to make a positive identification of defendant at trial; that he was not proved guilty beyond a reasonable doubt; and that he was improperly sentenced on two counts of aggravated battery.\nThe complaining witness, Willie Smith, was shot on January 12, 1984. The following day, while he was in the hospital recovering from his injuries, Smith identified defendant\u2019s photograph. Thereafter, at the preliminary hearing, Smith positively identified defendant as his assailant. At trial, however, Smith testified that while defendant might have been the person who had shot him, he was not sure. Over the objection of defense counsel, the trial court permitted the prosecution in questioning Smith to present evidence of his identification testimony at the preliminary hearing, on the basis that the rule prohibiting such evidence had been changed. Defendant now claims that this was error.\nIn 1971, our supreme court in People v. Collins (1971), 49 Ill. 2d 179, 274 N.E.2d 77, held that prior contradictory statements of a witness may be received in evidence only for the purpose of impeaching the credibility of the witness and may not be considered as substantive evidence even where the declarant is available for cross-examination.\nIn 1980, the court in People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223, held that \u201cevidence of *** out-of-court identification * * * should be admissible, but should be used only in corroboration of in-court identifications and not as substantive evidence.\u201d Subsequently, the legislature, by Public Act 83 \u2014 367, added section 115 \u2014 12 to the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 115 \u2014 12), concerning the substantive admissibility of prior identification. That section provides:\n\u201cA statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.\u201d\nThe State argues that on May 22, 1984, when defendant went to trial, this provision was in effect and that it makes clear that prior identification testimony is admissible as substantive evidence. Therefore, the State contends that Smith\u2019s preliminary hearing testimony was properly admitted in defendant\u2019s trial. We do not agree.\nIn our view section 115 \u2014 12 represents a legislative response to People v. Rogers and that it enlarges the permitted use of consistent out-of-court statements to include use as substantive evidence in addition to use as corroboration evidence. Section 115 \u2014 12 did not, however, apply to inconsistent out-of-court statements. They were the subject of Public Act 83 \u2014 1042, which added section 115 \u2014 10.1 to the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 115 \u2014 10.1) concerning the admissibility of prior inconsistent statements. In relevant part that section provides:\n\u201cIn all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if\n(a) the statement is inconsistent with his testimony at the hearing or trial, and\n(b) the witness is subject to cross-examination concerning the statement, and\n(c) the statement\u2014\n(1) was made under oath at a trial, hearing, or other proceeding***.\u201d\nThere has been scholarly acceptance that these are the respective roles of section 115 \u2014 12 and section 115 \u2014 10.1. \u201cPrior to the enactment of section 115 \u2014 10.1, the use of prior inconsistent statements was limited to impeachment and was severely restricted when the impeachment was sought by the party who had called the witness to the stand.\u201d (Steigmann, Prior Inconsistent Statements as Substantive Evidence in Illinois, 72 Ill. B.J. 638 (1984).) The facts of the case at bar clearly would fall within the provisions of section 115 \u2014 10.1 but that enactment, Public Act 83 \u2014 1042, did not become effective until July 1, 1984, more than a month after defendant\u2019s trial and conviction. We find that at the time of trial the admission into evidence of Smith\u2019s preliminary hearing testimony identifying defendant as his assailant to be error.\nThe State says the error was harmless. In support of this contention, these uncontroverted facts are called to our attention: (1) Smith, on January 12, 1984, about 11 a.m. was at the entranceway of an apartment building at 6108 South Eberhart Avenue in Chicago; (2) a man on the second-floor balcony at that time shot Smith with a shotgun; (3) defendant resided in a second-floor apartment with a balcony overlooking the place where Smith was shot; (4) after the shooting, police officer Joseph Thompson, responding to a call, came to that address and went to a second-floor apartment where he found defendant and a shotgun \u201claying in full view right on the bed.\u201d At trial Smith testified that defendant could have been the man on the balcony with the shotgun, but he was not sure.\nThe State argues that this competent evidence \u201cindependent of Smith\u2019s positive identification testimony does establish defendant\u2019s guilt beyond a reasonable doubt.\u201d That, however, is not the issue before us. For the determination of whether the erroneous admission of the preliminary hearing testimony was harmless, the test is whether with the erroneously admitted evidence excluded the remaining evidence would lead the finder of fact to no conclusion other than that of defendant\u2019s guilt. (People v. Hannon (1942), 381 Ill. 206, 44 N.E.2d 923.) That cannot be said in the instant case. The error was not harmless. Davis is entitled to a new trial.\nFinally, the State argues that \u201cthe reversal of defendant\u2019s conviction and the ordering of a new trial on the basis of the allegedly improper use of the preliminary hearing testimony would be fruitless because a new trial would clearly result in a conviction where there would be no question that the testimony would be admissible pursuant to section 115 \u2014 10.1.\u201d We reject this argument suggesting that in the interest of judicial economy that we deprive the defendant of the new trial to which he is otherwise entitled.\nReversed and remanded.\nMcGILLICUDDY and RIZZI, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE WHITE"
      }
    ],
    "attorneys": [
      "James J. Doherty, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.",
      "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and Peter D, Fischer, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER DAVIS, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 84 \u2014 1564\nOpinion filed November 13, 1985.\nJames J. Doherty, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and Peter D, Fischer, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0769-01",
  "first_page_order": 791,
  "last_page_order": 794
}