{ "id": 2588447, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JOHNSON, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "1990-08-24", "docket_number": "No. 1-86-2183", "first_page": "417", "last_page": "432", "citations": [ { "type": "official", "cite": "202 Ill. App. 3d 417" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "411 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. 2d 559", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481510 ], "weight": 2, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0559-01" ] }, { "cite": "308 N.E.2d 364", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 421", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2514931 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0421-01" ] }, { "cite": "375 N.E.2d 941", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 480", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3357086 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0480-01" ] }, { "cite": "418 N.E.2d 757", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 859", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3160778 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0859-01" ] }, { "cite": "415 N.E.2d 618", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 1095", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3148954 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/1095-01" ] }, { "cite": "309 N.E.2d 725", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill. App. 3d 287", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2615464 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0287-01" ] }, { "cite": "504 N.E.2d 862", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 667", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3576078 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0667-01" ] }, { "cite": "522 N.E.2d 1146", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. 2d 221", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549839 ], "weight": 2, "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0221-01" ] }, { "cite": "386 N.E.2d 642", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "646" } ], "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 836", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3309244 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "842" }, { "page": "842-43" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0836-01" ] }, { "cite": "462 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 266", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5676395 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0266-01" ] }, { "cite": "480 N.E.2d 1293", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 684", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636135 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0684-01" ] }, { "cite": "476 N.E.2d 1344", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 16", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3442960 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0016-01" ] }, { "cite": "420 N.E.2d 727", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 910", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3119202 ], "pin_cites": [ { "page": "913" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0910-01" ] }, { "cite": "486 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "139 Ill. App. 3d 104", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3568688 ], "pin_cites": [ { "page": "115" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/139/0104-01" ] }, { "cite": "429 N.E.2d 526", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "87 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3030946 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "157" }, { "page": "157" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/87/0151-01" ] }, { "cite": "505 N.E.2d 1222", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "153 Ill. App. 3d 440", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3609512 ], "pin_cites": [ { "page": "446" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/153/0440-01" ] }, { "cite": "152 Ill. App. 3d 667", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3576078 ], "weight": 5, "year": 1974, "pin_cites": [ { "page": "676" }, { "page": "672" }, { "page": "676" }, { "page": "676-77" }, { "page": "676" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/152/0667-01" ] }, { "cite": "122 Ill. 2d 221", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549839 ], "pin_cites": [ { "page": "247-49" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/122/0221-01" ] } ], "analysis": { "cardinality": 1153, "char_count": 35388, "ocr_confidence": 0.749, "pagerank": { "raw": 1.8219203015542374e-07, "percentile": 0.7193361466247646 }, "sha256": "45889b573d6aba1896208c342fc725623361c6a3f0aa0a26e3fe535d769be805", "simhash": "1:ae73e55cd16304e2", "word_count": 5845 }, "last_updated": "2023-07-14T20:29:37.094110+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JOHNSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE EGAN\ndelivered the opinion of the court:\nThe defendant, Richard Johnson, and Charles Turner were indicted for residential burglary of the home of Carlo Farino at 1827 North Fairfield in Chicago. Turner pleaded guilty to the reduced charge of burglary and testified for the State in the jury trial of the defendant. The defendant was convicted of residential burglary and sentenced to 10 years\u2019 imprisonment.\nBefore trial the defendant moved to dismiss the indictment based on allegedly improper comments made by the assistant State\u2019s Attorney before the grand jury. Apparently, the defendant had been discharged after a preliminary hearing. Before the grand jury the following occurred:\n\u201cTHE FOREPERSON: Why was there a finding of no probable cause at the preliminary hearing?\nTHE WITNESS [Police Officer]: The Judge felt that the State\u2019s Attorney didn\u2019t produce enough questioning to prove that there was an actual burglary. The State\u2019s Attorney didn\u2019t ask enough questions, he felt.\n[STATE\u2019S ATTORNEY]: It was established through your testimony that something was taken from there identified by [the complaining witness] and recovered by you, is that correct?\nTHE WITNESS: Yes.\n[STATE\u2019S ATTORNEY]: The Judge wanted more?\nTHE WITNESS: More.\n[STATE\u2019S ATTORNEY]: Presumably a motion picture of the crime, I presume.\u201d\nThe defendant cites no authority to support his claim that the indictment should be dismissed. The applicable rule is expressed in People v. Stanley (1981), 95 Ill. App. 3d 910, 913, 420 N.E.2d 727, 730:\n\u201cWhere a defendant charges an irregularity or impropriety in the conduct of a prosecutor in a grand jury proceeding, the burden is on the defendant to show that the prosecutorial conduct complained of resulted in actual and substantial prejudice to him. [Citations.]\u201d\nThe trial judge determined that the defendant had failed to show any prejudice and denied the motion to dismiss. We agree that the offhand remark by the prosecutor was innocuous and, therefore, did not constitute actual and substantial prejudice.\nThe defendant next contends that reversible error occurred when the judge permitted the introduction of prejudicial hearsay evidence. The residence of Carlo Farino at 1827 North Fairfield was burglarized on August 28, 1984, and two radios were stolen. Farino was not home at the time of the burglary.\nOfficer Raymond Stampnick and his partner, Officer Ustaszewski, responded to a call of a burglary in progress at 1827 North Fairfield in Chicago. They both testified that when they arrived at the scene, several Hispanic men came up to them and told them that they had seen four individuals running from the scene and gave the officers descriptions of the individuals. The officer said that the men did not want to give their names because they did not want to become involved in the case. They then toured the area and saw a man who fit one of the descriptions that had been given to them. When they approached the. man, he ran and hid in some bushes. They placed that man, who was the defendant, under arrest and returned to 1827 North Fairfield where the defendant was identified by the Hispanic men.\nStampnick testified that, after the defendant was read his Miranda rights, he told the officers that he did not go into the house; he only stood on the back porch and acted as a lookout. He took them to an apartment building at 2606 West Homer where he said the other participants in the burglary could be found. The officers went into one of the apartments and arrested two juveniles and Chester Turner. The officers found two radios lying on the kitchen floor. Those radios were later identified by Carlo Farino as his property.\nAfter Turner pleaded guilty to the reduced charge of burglary, the State recommended a sentence of 30 months\u2019 probation and drug rehabilitation treatment conditioned upon Turner disclosing \u201cthe full truth\u201d in the defendant\u2019s trial. Turner testified that on August 28, 1984, he, along with two juveniles, James Mines and Michael Walker, and the defendant, tried twice to enter the house at 1827 North Fair-field. The first time they tried to get into the house Mines was not with them, and they tried entering through a window which the defendant broke, but they were too big to enter.\nAs they were walking back home, they met James Mines, who was of small build, and Mines agreed to return with them to Farino\u2019s house. They were trying to enter Farino\u2019s house because the defendant had told them that there was a large amount of money inside. Mines was able to enter the house through a back porch window which Turner said the defendant had opened. Once Mines was inside the house, he opened the back porch door and the defendant, Walker and Turner entered. They searched the bedroom for money, but when they could not find any, the defendant left. Turner, Mines and Walker took two radios and a tire pump from the house and left. As they were leaving the house they met up with the defendant and showed him what they had taken; the defendant told them that \u201che could pretty positively sell the stuff.\u201d The defendant left, and they went into the back apartment at 2606 Homer. About 10 minutes later the police arrived with the defendant and took Turner, Mines and Walker into custody.\nTurner gave the police a statement in which he said, \u201cI watched on the porch while the other two individuals went in.\u201d He admitted that that statement was not true and that he said it because he assumed that if he said he watched on the porch the charges might be accessory to residential burglary instead of residential burglary. He told the police that he was with two individuals rather than three because Mines and Walker were juveniles.\nThe prosecutors promised that they would recommend that part of his probation be placement in a live-in residential drug treatment center for treatment of drug addiction. He was addicted to cocaine and had been using cocaine for about two years. He used cocaine in various ways, snorting, smoking or shooting it with a hypodermic needle.\nHe testified that he was aware that the sentence for residential burglary was 4 to 15 years. When he was asked what sentences were possible for burglary, the State\u2019s objection was sustained. (No error is assigned to this ruling.) He testified over objection by the State that the prosecutors had told him he could not get probation after a conviction for residential burglary. He said that he used cocaine \u201cas much as pie] can get it.\u201d The cost of his cocaine habit ranged between $25 a day and $200 a day.\nThe defendant contends that reversible error occurred when the State was permitted to show that the unidentified Hispanic men first told the police officers that four individuals, whom the Hispanic men described, had fled from the scene and that those individuals later identified the defendant as one of the four men.\nIn its brief, the State does not attempt to justify the admission of the statements made to the police by the unknown Hispanic men. In oral argument in this court, for the first time, the State maintained that the evidence was admissible to explain police procedure. At our invitation, the State submitted certain authority to us. Although the State has waived the argument by not including it in its brief, we deem it appropriate to answer it.\nThere is appellate court authority which would support the introduction of the testimony of the police officers in this case on the ground that it explained police procedures. (See e.g., People v. Leverston (1985), 132 Ill. App. 3d 16, 476 N.E.2d 1344.) Two of the cases cited by the State in response to our invitation are People v. Loggins (1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293, and People v. Bryant (1984), 123 Ill. App. 3d 266, 462 N.E.2d 780. Those cases illustrate the misunderstanding that his arisen in the appellate courts over the difference between a police officer testifying that he had a conversation with a witness without disclosing the contents of the conversation and testifying to the contents of the conversation. In Loggins, police officers testified that two unidentified witnesses reported a license number to them and that a computer license check of the number revealed that the car was registered to the defendant. The appellate court rejected the claim of error and cited People v. Bryant. In Bryant, however, the officer testified only that he spoke to a \u201cwitness\u201d who did not give his name. The contents of the conversation between the police officer and the witness were not introduced. Consequently, Loggins\u2019 reliance on Bryant is misplaced. The distinction between an officer testifying to the fact that he spoke to a witness without disclosing the contents of that conversation and an officer testifying to the contents of the conversation is explained in People v. Johnson (1979), 68 Ill. App. 3d 836, 842, 386 N.E.2d 642, 646. If there be any doubt in the matter as a result of conflicting appellate court opinions, the supreme court in People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146, has resolved it. In Gacho, the police officer testified that he had a conversation with the deceased in the hospital and that after that conversation he and his partner went to look for the defendant. The supreme court rejected the claim of error and pointedly added this observation:\n\u201cHad the substance of the conversation that [the officer] had with [the deceased] been testified to, it would have been objectionable as hearsay. The testimony of [the officer], however, was not of the conversation with [the deceased] but to what he did and to investigatory procedure. [Citations.]\u201d (122 Ill. 2d at 248.)\nIt is clear to us, therefore, that the testimony of the police officers that other parties had identified the defendant was error.\nThe State does argue in its brief that the defendant waived any objection and that any error in admitting the identification evidence was harmless. We reject the State\u2019s argument that any objection was waived. Although the defendant did not object to the testimony of the police officer concerning the identification made by the unidentified persons, four days before the trial began the defendant made a written pretrial motion in limine to exclude all identification testimony by the police. A copy of that motion is in the record. The motion in limine was referred to during the argument on the defendant\u2019s post-trial motion; the judge remembered that he had denied the motion in limine but not the reasons for denying it. It is obvious to us, therefore, that the defendant did raise the matter properly in the trial court and that there is no waiver. With respect to the second part of the State\u2019s answer \u2014 that admission of the identification by unknown persons was harmless error \u2014 we will defer our discussion on this question until we consider the defendant\u2019s next argument that reversible error occurred during the State\u2019s closing argument.\nDuring the opening portion of the State\u2019s final argument the following occurred:\n\u201c[STATE\u2019S ATTORNEY]: [The police officers] spoke with four or five Hispanic people who were in the alley behind Mr. Farino\u2019s house, ladies and gentlemen. They did not get names. They asked for names, they asked for addresses. Those people did not want to be involved. Those people did not want to come into a court and testify against Richard Johnson or anybody else. Yes, they called in a burglary. Yes, they identified the defendants. Yes, they gave a complete description of the four people that ran. They don\u2019t want to come in. That does not take away from your duty, ladies and gentlemen. You wanted to come in. You wanted to serve and you are here to serve the People of the State of Illinois. You cannot take the same attitude as those four or five people that didn\u2019t want to come in and didn\u2019t want to do their duties and say what they saw about Richard Johnson. You are here and you have heard the evidence. Just because other people don\u2019t want to get involved, does not mean that criminals in this State go free. Enough people\u2014\n[DEFENSE ATTORNEY]: Objection.\nTHE COURT: Overruled.\u201d (Emphasis added.)\nLater, the prosecutor said that the police brought the defendant back and \u201c[the defendant] was identified.\u201d\nDuring the closing portion of the final argument the following occurred:\n\u201c[STATE\u2019S ATTORNEY]: You live in the community. We\u2019re lucky that people are good enough to pick up the phone and call. There are \u2014 a lot of them are scared. They have to live in that community. They don\u2019t want to give their names and their addresses.\n[DEFENSE ATTORNEY]: Objection, Judge. I object to this whole line of argument. There is no evidence of that.\nTHE COURT: Overruled.\n[STATE\u2019S ATTORNEY]: You live in the community and you know this.\n[DEFENSE ATTORNEY]: Objection, again.\nTHE COURT: The jury is to remember the testimony that was given at the trial. Proceed.\n[STATE\u2019S ATTORNEY]:. But we are fortunate that they do at least call up. They do cooperate to some exten[t]. That\u2019s good.\n* * *\n[STATE\u2019S ATTORNEY]: Ladies and gentlemen, you will also, I believe[,] be instructed that you are not to concern yourself with possible punishment. Now, this is not a mandatory prison case, there is a certain exception which counsel knows about and need apply.\n[DEFENSE ATTORNEY]: Objection.\nTHE COURT: Overruled.\n[DEFENSE ATTORNEY]: There is no basis-\nTHE COURT: Overruled.\n[STATE\u2019S ATTORNEY]: And it is for the judge to decide what the sentence should be. It is not your province.\u201d (Emphasis added.)\nThe prosecution\u2019s argument was improper for a number of reasons: first, it emphasized the improper hearsay evidence that the defendant had been identified by other persons (see People v. Johnson (1979), 68 Ill. App. 3d 836, 386 N.E.2d 642); second, it improperly suggested that the other persons who identified the defendant to the police did not testify because of fear, implicitly of the defendant (People v. Lopez (1987), 152 Ill. App. 3d 667, 504 N.E.2d 862); and third, it improperly suggested that the defendant could receive probation or, at least, could avoid imprisonment. People v. Neeley (1974), 18 Ill. App. 3d 287, 309 N.E.2d 725.\nThe State maintains that the defendant waived any assignment of error in the State\u2019s argument because, once again, the defendant did not raise it in his post-trial motion; that the defendant invited the State\u2019s argument that the witnesses were afraid to testify; and also invited the argument concerning punishment. The State contends further that any error in the final argument was also harmless.\nOn the question of waiver, the State is incorrect. The defendant did raise the State\u2019s improper argument in the post-trial motion. In addition, we do not agree that the defendant invited the argument that the witnesses were afraid or that the defendant might not be sentenced to the penitentiary.\nIn the defendant\u2019s closing argument, the defendant\u2019s attorney argued that the police did not use sufficient effort to have the unknown Hispanic men come to court. He repeated the police officer\u2019s testimony that the witnesses told him that they did not want to get involved. He argued that it was reasonable to infer that the Hispanic men told the police that the defendant was not the man. The State now contends that that argument invited the State\u2019s argument that the witnesses were afraid to testify. We do not agree that the defendant\u2019s argument that the witnesses might have said something else at the scene invited the argument that they did not come into court because of fear of the defendant.\nThe State also contends that the defendant invited the reference to possible punishment \u201cwhen [the defendant\u2019s attorney] argued that this case involved a mandatory prison term of 4-15 years.\u201d The State\u2019s brief does not refer to any part of the record to support its statement. We have reviewed the defense\u2019s closing argument, and the only reference to a sentence for residential burglary came when the defendant\u2019s attorney correctly recited the testimony of Turner that his attorney told him that the sentence for residential burglary was 4 to 15 years in the penitentiary and that there was no probation. This was a proper argument addressed to the motive of an accomplice in testifying. The greater the possible penalty, the greater inducement to testify in return for an avoidance of that penalty. That proper argument and correct statement of the law did not invite the incorrect and misleading statement by the prosecutor that, \u201cthis is not a mandatory prison case\u201d and that \u201cthere is a certain exception which counsel knows about and need apply.\u201d (Emphasis added.) The State tells us that its response was justified to point out the availability of treatment for the defendant under the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1985, ch. 111\u00bd, pars. 6301 et seq.). Under section 21 of the Act (Ill. Rev. Stat. 1985, ch. HV-k, par. 6321) the treatment was available only to addicts, and there is nothing in the record suggesting that the defendant was an addict. Moreover, the defendant was on probation at the time he was arrested for this offense, and the Act provided that one on probation or parole could not receive treatment unless the appropriate parole or probation authority consented to it. Therefore, we conclude that the defendant was not eligible for treatment under the Act and the argument was not only an incorrect statement of the law, which contradicted the statement of the defendant\u2019s attorney, but it suggested that the defendant\u2019s attorney made the statement knowing it to be untrue. To make the matter worse, the defendant\u2019s objections to this argument were overruled.\nAnother improper argument was made when the prosecutor sought to explain what prompted the State to make an agreement with Turner:\n\u201c[STATE\u2019S ATTORNEY]: On deciding in a situation where there is [sic] two or more co-defendants, whether we want to make an offer to somebody to get them to testify, we don\u2019t just flip a coin, say, well, we do Mr. A, heads, and Mr. B, tails.\n[DEFENSE ATTORNEY]: Objection, this is not based on the evidence.\nTHE COURT: Overruled.\n[STATE\u2019S ATTORNEY]: There\u2019s [sic] a lot of considerations that go into it. Mr. Turner, admitted to you, that he did wrong. He got up there and he admitted it. He\u2019s also admitted to you that he knows, he needs help. He has a drug problem. He does want to do something about it. But don\u2019t be misled, he\u2019s not going to go to any\u2014\n[DEFENSE ATTORNEY]: Objection.\nTHE COURT: Overruled.\n[STATE\u2019S ATTORNEY]: \u2014 go to any country club and get some treatment and walk out. It is an in-house treatment. He\u2019ll be in there. He can\u2019t walk out. You can\u2019t break a drug habit by being allowed to walk in and out.\n[DEFENSE ATTORNEY]: Objection.\nTHE COURT: That part will be sustained.\n[STATE\u2019S ATTORNEY]: He will be inside, he won\u2019t just be walking out.\n[DEFENSE ATTORNEY]: Objection, Your Honor.\nTHE COURT: Sustained.\u201d\nThat argument amounted to testimony concerning the security of the rehabilitation service which does not appear in the record. Despite the court\u2019s sustaining an objection, the prosecutor persisted in the argument. Once again, we disagree with the State\u2019s contention that the defendant\u2019s argument invited that response. However, we do not believe that this argument had the same prejudicial impact of the other arguments to which we have referred.\nWe thus conclude that error occurred in the admission of hearsay evidence and in the prosecution\u2019s closing argument. The issue is reduced to whether the errors were harmless. We agree that the evidence is sufficient to establish the defendant\u2019s guilt beyond a reasonable doubt, but we believe that the errors were not harmless and their cumulative effect deprived the defendant of a fair trial.\nThe State has cited four cases in support of its contention that the admission of the hearsay identification was harmless: People v. Sias (1980), 91 Ill. App. 3d 1095, 415 N.E.2d 618; People v. Anthony (1980), 90 Ill. App. 3d 859, 418 N.E.2d 757; People v. Smith (1978), 59 Ill. App. 3d 480, 375 N.E.2d 941; and People v. Coleman (1974), 17 Ill. App. 3d 421, 308 N.E.2d 364.\nThose cases, in varying forms, have expressed a general rule: hearsay identification is reversible error only when it serves as a substitute for courtroom identification or when it is used to strengthen or corroborate a weak identification. If, however, the testimony is merely cumulative or is supported by a positive identification and by other corroborative circumstances it constitutes harmless error. The State tells us that the testimony of Chester Turner provides the positive testimony of identification that supports the identifications made by the unknown persons. We are not prepared to characterize the testimony of Turner as \"positive.\u201d Turner, the principal witness against the defendant, was an accomplice and a narcotics addict. The testimony of accomplices and narcotics addicts is suspect as a matter of law. He made a false statement to the police as to his own participation and in that statement he made no mention of the defendant. His explanation that he inculpated only the juveniles, but not the defendant, because the defendant was an adult does not make sense. He knew that the defendant had brought the police to him and the juveniles. Under the circumstances, if the defendant had participated in the burglary, there was no reason for Turner not to say so.\nThe police officer testified that the unidentified witnesses said that they saw \u201cfour individuals running from the scene.\u201d The statement of the unidentified witnesses, if made and if true, contradicted Turner\u2019s testimony that the defendant left the premises five minutes before Turner and the two juveniles. Turner never testified that anyone fled from the scene; he said that he and the two juveniles walked back to Homer Street where they \u201cmet up with\u201d the defendant.\nOf' course, we cannot ignore the most damaging evidence against the defendant which was the fact that he led the police to the place where the stolen radios were recovered. But even that evidence would not be enough unless the State had introduced the testimony of Officer Stampnick that the defendant told him that he had acted as a lookout. That testimony, it is true, was undenied, but Stampnick\u2019s testimony was not without its infirmities. First of all, the statement was oral, and it was at odds with the testimony of Turner. Stampnick testified that he arrested the defendant approximately one block from the scene of the burglary. The defendant contended in oral argument that the proof showed that the defendant was arrested four or five blocks from the scene. In response to that argument, the prosecutor told the jury that the distance was really immaterial but conceded that the defendant was \u201ca few blocks away\u201d when he was arrested. Stampnick made no mention in his police report that the defendant was running, that he jumped on the railroad tracks or that he hid in bushes. Last, the argument made by the defense attorney that the police made less than a diligent effort to learn the identity of the identifying witnesses was a reasonable one. By these observations we do not mean to indicate that the testimony of the police officers was inherently unbelievable, but we do believe that respectable arguments may be made against accepting it.\nIn three of the four cases cited by the State, Sias, Smith and Coleman, the issue centered on testimony by a police officer that the victim, who testified and was subject to cross-examination, made an identification. In People v. Rogers (1980), 81 Ill. 2d 559, 411 N.E.2d 223, the supreme court held that where a victim identifies a defendant in court, he may testify that he previously identified the defendant before trial and, therefore, a third person may also testify that the victim identified the defendant. (81 Ill. 2d at 579.) Consequently, under Rogers, the testimony of the police officers in Sias, Smith and Coleman was proper.\nIn Anthony, the other case cited by the State, two witnesses identified the defendant. A third identifying witness testified on a motion to suppress evidence but not at the trial. The appellate court held that the police testimony that the third witness identified the defendant was harmless error in view of the fact that two other witnesses positively identified the defendant. Apart from the fact that there are not two positive identifications in this case, we note that the holding of Anthony is at odds with People v. Johnson (1979), 68 Ill. App. 3d 836, 386 N.E.2d 642. In Johnson, the charge was robbery and the complaining witness testified that the robber took four $5 bills and a stack of $1 bills. He estimated the total amount to be about $40. When the defendant was arrested shortly thereafter, the police recovered $46 from under a pile of clothing which was next to the defendant. The money recovered consisted of four $5 bills and twenty-six $1 bills. One witness positively identified the defendant, but the State also introduced testimony that another person, not called to testify, identified the defendant also. The State argued that the error was harmless because of the positive identification by one witness and the other corroborative evidence of the money recovered. The appellate court refused to accept the State\u2019s argument while noting that the positive identification alone might have been sufficient to convince the jury of the defendant\u2019s guilt. The court also held that the corroborative circumstance was not so overwhelming as to ameliorate the effect of the error in the introduction of the hearsay identification and the accentuation of the error when the prosecutor referred to the hearsay identification in his closing argument. 68 Ill. App. 3d at 842-43.\nWe believe that a case cited by the defendant, People v. Lopez (1987), 152 Ill. App. 3d 667, 504 N.E.2d 862, is much in point. In Lopez, the defendant was convicted of murder. A tavern owner, who knew the defendant, testified to an altercation between the deceased and the defendant in the witness\u2019 tavern. Another person, a woman, witnessed the altercation and identified the defendant as a participant. She testified that several hours later she saw the defendant shoot the victim to death in the tavern and then flee. She said that the defendant was wearing a sleeveless yellow tee-shirt and blue pants. A third witness, another customer, saw a man, wearing a yellow colored tee-shirt and blue pants, leave the tavern after the shooting. A fourth witness, a 14-year-old boy, testified that he saw the defendant enter a tavern with a gun, that he heard gunshots one minute later and that he saw the defendant leave with a gun in his hand and get into a brown Chevrolet Monte Carlo with a two-tone roof.\nPolice officers responding to a call of a tavern shooting stopped a brown Chevrolet Monte Carlo with a two-tone roof whieh the defendant was driving. He was wearing a sleeveless yellow tee-shirt and blue pants. Sometime later the defendant was brought back to the tavern by the police in a squadrol. One officer asked an unidentified woman to look inside the squadrol. After looking inside, the woman screamed, \u201cThat\u2019s him, that\u2019s him there.\u201d Later a number of people ran out of the tavern and also started screaming, \u201cThat\u2019s him, that\u2019s him.\u201d This court held that the evidence that the defendant was identified by unknown persons outside the tavern was prejudicial error. The court also held that prejudicial error also occurred during the State\u2019s closing argument when the prosecution referred to the hearsay identification outside the tavern. The appellate court reversed the conviction and remanded for a new trial. In response to the State\u2019s argument that the error was harmless, the court made this observation pertinent in this case:\n\u201cRegardless of a defendant\u2019s guilt or innocence, he is constitutionally entitled to a fair and impartial trial [citation]; here, defendant did not receive one.\u201d 152 Ill. App. 3d at 682.\nIn our judgment, the evidence of guilt was even stronger in Lopez than is the evidence of guilt in this case; it is also our judgment that the defendant in this case did not receive a fair and impartial trial.\nThe defendant has made other assignments of error including the claim that the court erred in denying him the right to file a motion to quash the arrest and suppress evidence or, alternatively, that his counsel provided ineffective assistance in failing to make a timely motion to quash the arrest and suppress the evidence. The defendant also contends that the State failed to prove beyond a reasonable doubt the factors required for Class X sentencing. Since this case is being remanded for a new trial, we need not consider these assignments of error.\nFor these reasons, the judgment of the circuit court is reversed and the cause remanded for a new trial.\nJudgment reversed and remanded.\nLaPORTA, P.J., concurs.", "type": "majority", "author": "JUSTICE EGAN" }, { "text": "JUSTICE RAKOWSKI,\ndissenting:\nI do not agree that the State committed reversible error when it introduced hearsay identification evidence and referred to that evidence in closing argument. Neither the cases cited by the majority nor the circumstances of this case support overturning an otherwise proper conviction because of the introduction of improper hearsay identification when the defendant confessed to the crime and his identification was not an issue at trial.\nAt trial, the State presented four witnesses: Johnson\u2019s adult accomplice, Chester Turner; the victim, Carlo Farino; and arresting officers Stampnick and Ustaszewski. Turner testified about the burglary committed with Johnson and two juveniles. Farino identified items taken from his home.\nOfficers Stampnick and Ustaszewski testified that they arrested Johnson after they responded to a call about a break-in at the victim\u2019s home. According to Stampnick, several male Hispanics came up to the police car and described four individuals whom they had observed running from the scene. According to Ustaszewski these witnesses had seen the four individuals break into a building. Both officers stated that the witnesses described the four alleged perpetrators. Shortly afterwards, when the officers observed Johnson jumping from nearby railroad tracks and hiding in some bushes, they arrested him.\nThe officers then took Johnson back to the crime scene, where the witnesses identified him. According to Ustaszewski, there were five to seven of these witnesses, but none of them would give his name to the police.\nThe officers testified further that Stampnick gave Johnson his Miranda rights. Afterwards, Johnson admitted acting as a lookout for the break-in. He then led the police to the house where Turner and the juveniles were waiting.\nIn its closing argument, the State referred once again to the unknown witnesses, their identification of Johnson, and their refusal to testify.\nOn appeal Johnson contends that the police testimony about the identifications made by unknown witnesses at the crime scene was hearsay and reversible error and this error was compounded when the State referred to the identifications in closing argument.\nWhen police testify about conversations with witnesses during an investigation, the State may introduce the fact of the conversation to show police investigative procedures but may not introduce the substance of the conversation. (Gacho, 122 Ill. 2d at 247-49.) I agree with the majority that the testimony here went beyond this permissible limit and thus constitutes error.\nUnlike the majority, however, I believe the error was a harmless one, that is, a \u201ctechnical violation of a rule of evidence not considered a sufficient basis for reversal because the admission or exclusion did not affect a substantial right of a party.\u201d (People v. Demeron (1987), 153 Ill. App. 3d 440, 446, 505 N.E.2d 1222.) This kind of error may be disregarded. (107 Ill. 2d R. 615(a).) One test for harmless error is \u201cwhether the evidence is cumulative or merely duplicates properly admitted evidence.\u201d (People v. Wilkerson (1981), 87 Ill. 2d 151, 157, 429 N.E.2d 526.) When the hearsay involves identification, the error is harmless unless \u201cit was a substitute for courtroom identification or used to strengthen or corroborate a weak identification.\u201d Lopez (1987), 152 Ill. App. 3d at 676.\nThe majority cites Lopez as a case on point. While I agree that Lopez is a correct statement of the law, it can easily be distinguished on its facts.\nFirst, in Lopez identification was an issue. While the defendant did not testify, his opening argument suggested a \u201cmodified alibi defense\u201d that he was in another tavern at the time of the shooting. Lopez, 152 Ill. App. 3d at 672.\nSecond, the hearsay identification in Lopez was used to \u201cstrengthen or corroborate a weak identification.\u201d (Lopez, 152 Ill. App. 3d at 676.) The court reasoned:\n\u201c[W]e are not convinced that the jury would have found [the court witnesses\u2019] identification of defendant to be as strong, as the State contends [sic], in the absence of the State\u2019s introduction and repeated exploitation of the [hearsay] squadrol identifications. At trial, it was disputed whether [one court witness] had told the police she was \u2018pretty sure\u2019 but not positive about her identification of defendant, and that she was hysterical after the shooting. The record also discloses that [another court witness] only saw defendant for approximately 10 seconds when he allegedly entered and left the tavern. In closing and rebuttal arguments, the State specifically stated that the [hearsay] identifications corroborated [these court witnesses\u2019] identifications of defendant as the shooter.\u201d Lopez, 152 Ill. App. 3d at 676-77.\nIn this case, by contrast, identification is simply not at issue. The hearsay witnesses merely indicated that Johnson had fled from the scene with three others. Even if these witnesses had appeared in court, they could do no more than place Johnson at the vicinity of the crime. The most important evidence against Johnson was his own confession to the police and his action in leading the police to a place where the three other burglars were waiting. Johnson\u2019s specific role in the burglary was at issue; his identity as a person on the scene was not.\nSince the hearsay \u201cmerely duplicated] properly admitted evidence\u201d (Wilkerson, 87 Ill. 2d at 157) and did not \u201csubstitute for courtroom identification\u201d or \u201cstrengthen or corroborate a weak identification\u201d (Lopez, 152 Ill. App. 3d at 676), it was harmless. The State\u2019s reintroduction of the hearsay identification in closing was also harmless unless the result of the trial \u201cmight have been otherwise had the remarks not been made.\u201d (People v. Love (1985), 139 Ill. App. 3d 104, 115, 486 N.E.2d 1337.) Again, since identification was not the issue, this brief closing reference to identification evidence which should have been excluded at trial was not reversible error.\nI would affirm.", "type": "dissent", "author": "JUSTICE RAKOWSKI," } ], "attorneys": [ "Kenneth L. Jones, of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Mercedes Luque-Rosales, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JOHNSON, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201486\u20142183\nOpinion filed August 24, 1990.\nRAKOWSKI, J., dissenting.\nKenneth L. Jones, of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Mercedes Luque-Rosales, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0417-01", "first_page_order": 439, "last_page_order": 454 }