{ "id": 5384430, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY FRY, Defendant-Appellant", "name_abbreviation": "People v. Fry", "decision_date": "1993-11-10", "docket_number": "No. 1-87-0955", "first_page": "434", "last_page": "439", "citations": [ { "type": "official", "cite": "256 Ill. App. 3d 434" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "499 N.E.2d 422", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. 2d 516", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173661 ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0516-01" ] }, { "cite": "489 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 243", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495770 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0243-01" ] }, { "cite": "542 N.E.2d 386", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 768", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2647254 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0768-01" ] }, { "cite": "542 N.E.2d 814", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 668", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2658352 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0668-01" ] }, { "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": "455 N.E.2d 41", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "97 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5516622 ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0487-01" ] }, { "cite": "542 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 422", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2657433 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0422-01" ] }, { "cite": "486 N.E.2d 1347", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 21", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3569197 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0021-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] } ], "analysis": { "cardinality": 631, "char_count": 11656, "ocr_confidence": 0.761, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.33846664419431405 }, "sha256": "3ec4bc213e1ca0531b370ce075b0944842e14d1ff48553e79b938ed26858b997", "simhash": "1:769491ff43f7cfd3", "word_count": 1857 }, "last_updated": "2023-07-14T16:39:51.292435+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. HENRY FRY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE TULLY\ndelivered the opinion of the court:\nDefendant, Henry Fry, was charged with robbery, burglary and theft. Following a jury trial, Fry was found guilty of robbery and burglary and sentenced to an extended term of 10 years\u2019 incarceration. Defendant appeals from his conviction as well as the sentence.\nOn November 8, 1986, the victim, Dorthy Keys, was in her car driving south on Laramie Avenue in the City of Chicago. After crossing the intersection of West End Avenue and Laramie Avenue, she stopped for a red light at the intersection of Laramie Avenue and Washington Street. While waiting for the traffic signal to change, Keys heard a \"crashing\u201d sound and upon turning to her right, she observed a man reaching for her purse with his arms and upper torso through the broken window. She clenched her purse and struggled with the man for 10 to 20 seconds before he overcame her and took the purse. The purse contained Keys\u2019 wallet, credit cards, checkbook and $70 cash.\nThe intruder fled on foot with Keys\u2019 purse in the direction of West End Avenue. Keys pursued him in her car at a following distance of 15 feet. During his flight, the offender glanced back once, allowing Keys to observe his face momentarily. The man passed a large apartment building on the corner of West End and Laramie Avenue and turned down an alley; he then passed through a gate on the alley\u2019s right side. Keys parked her car to block the gate and asked a bystander to call the police. When the police arrived 10 to 15 minutes later, Keys described the offender as 5 feet 10 inches tall, weighing 170 pounds, wearing a black leather jacket with diagonal zippers, a tan sweater and jeans. About 30 to 45 minutes later, Keys observed a man walking through the alley toward her and the police. Although he was now wearing a tan jacket, Keys identified him to the police as the offender. Chicago police officers Michael Govea and Frank DiMaria testified on behalf of the State that, although they received Keys\u2019 description of the offender, it was not included in their written report. After interviewing Keys, the officers walked around the area behind the apartment building, in the vicinity where Keys had last seen the offender. Inside the building\u2019s courtyard, the officers observed an open window which led to the building\u2019s entrance onto Laramie Avenue. While looking for the offender, Officer DiMaria recovered Keys\u2019 wallet just inside the entrance on West End Avenue, the entrance closest to the alley.\nDuring this same time, Officer Govea interviewed Donald Jackson, a resident. Officer Govea testified that after speaking with Jackson, he went to the apartment of the \"offender,\u201d whom he later learned to be defendant Fry. No one answered the door at Fry\u2019s apartment. After the officers returned to the alley, Keys identified defendant as the man who had robbed her. The officers then accompanied Fry back to his apartment, which defendant gave them permission to search. While searching for the victim\u2019s purse, the officers recovered a black leather jacket matching Keys\u2019 description. The purse and its remaining contents were not recovered. Following a jury trial, defendant was found guilty of robbery and burglary and was sentenced to an extended term of 10 years\u2019 imprisonment.\nOn appeal, defendant raises the following errors: (1) the admission of the victim\u2019s prior out-of-court description of the offender was consistent with her in-court identification and was improperly used to bolster Keys\u2019 testimony; (2) the trial court improperly admitted hearsay testimony referring to him as \"the offender\u201d; (3) the prosecutor\u2019s closing argument was prejudicial; and (4) the trial judge improperly compelled defendant to be a witness against himself at the sentencing hearing.\nWe initially consider whether the victim\u2019s prior out-of-court description of the offender was improperly admitted into evidence. Technically, this issue has been waived on appeal, since defense counsel neither raised a contemporaneous objection to the testimony nor cited it in its post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) However, we may still consider this issue pursuant to the doctrine of plain error. (People v. Smith (1985), 139 Ill. App. 3d 21, 486 N.E.2d 1347.) That is, we must conclude that this admission so prejudiced defendant that its exclusion might have altered the outcome of the verdict.\nIn support of its argument, defendant relies upon several cases which have held that prior out-of-court statements made by a witness which are consistent with the witness\u2019 in-court testimony are inadmissible hearsay. (See, e.g., People v. Wheeler (1989), 186 Ill. App. 3d 422, 542 N.E.2d 524; People v. Smith (1985), 139 Ill. App. 3d 21, 486 N.E.2d 1347; People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41.) However, defendant ignores a statutory provision of Hlinois criminal procedure which states:\n\"Substantive Admissibility of a Prior Identification. A 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 Ill. Rev. Stat. 1985, ch. 38, par. 115 \u2014 12.\nPursuant to section 115 \u2014 12, the trial court properly admitted the prior identification of the defendant by Keys. Keys, the declarant, testified at trial and was subject to cross-examination. Moreover, the statement was one of prior identification after observing defendant several times. The identification was made a short time after the attack. The robbery occurred in broad daylight and Keys observed her offender at several different points: first, when he initially smashed her car window and grabbed her purse; second; when she pursued the offender into the alley, he looked back at her and also turned his face when entering the alley; finally, she observed defendant again at close range when he approached her and the police officers in the alley. These opportunities to view defendant were sufficient to establish an adequate basis for an in-court identification of defendant as the perpetrator.\nBased upon the foregoing evidence, we find that the testimony of Keys regarding her prior identification of defendant was proper. Moreover, any impropriety in the admission of this testimony was harmless error, as it did not so prejudice defendant as to warrant a new trial.\nThe second trial error raised by the defendant concerns the testimony of investigating Officer Govea, who testified as to his conversation with the maintenance man at defendant\u2019s apartment building, Donald Jackson. After conversing with Jackson, Officer Govea explained that he \"had gone to the apartment of the offender and knocked on his rear door.\u201d Defendant contends this description of his apartment as the \"apartment of the offender\u201d unduly prejudiced him, since at this time Officer Govea could not have known the identity of the offender. Defendant posits that this testimony was inadmissible hearsay since it implies that Jackson made a statement to Officer Govea, identifying defendant as the perpetrator.\nWe initially note that defense counsel neither objected to this testimony at trial nor raised it as improper hearsay in a post-trial motion. Therefore, unless we find this admission to be plain error, it has been waived for purposes of appeal. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.\nThe Illinois Supreme Court has held a police officer\u2019s testimony to be admissible where it is based on personal knowledge and investigating procedures. (People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146.) Gacho factually parallels the instant case in that the testifying officer stated that following his conversation with the victim, he began to search for the defendant. The court held the testimony admissible despite the logical inference to be drawn therefrom \"that the information received motivated the officers\u2019 subsequent conduct.\u201d Gacho, 122 Ill. 2d at 248.\nLikewise, in this case, Officer Govea testified that he went to the defendant\u2019s apartment after conversing with Jackson. He never testified, nor was he asked about, the substance of his conversation with Jackson. While it is true that Officer Govea improperly described defendant\u2019s apartment as the \"offender\u2019s apartment\u201d at a time when he could not have known this to be true, this was not improper hearsay. Defense counsel should have objected to this description on some other basis, such as relevancy, since this was an improper description of defendant as \"the offender.\u201d Nevertheless, we cannot hold, under the doctrine of plain error, that this admission so prejudiced defendant that absent this testimony the outcome of the trial would have altered.\nDefendant also raises on appeal the prejudicial comments of the prosecutor during closing argument to the jury. Although defense counsel did not raise a contemporaneous objection to said arguments, defendant\u2019s post-trial motion did contain a generic allegation that the closing arguments of the prosecutor were \"inflammatory.\u201d General averments of error, absent specific factual details supporting such an allegation, are insufficient to preserve the issue on appeal. (People v. Phillips (1989), 186 Ill. App. 3d 668, 542 N.E.2d 814; People v. Pendelton (1989), 185 Ill. App. 3d 768, 542 N.E.2d 386; People v. David (1986), 141 Ill. App. 3d 243, 489 N.E.2d 1124.) Moreover, the facts of this case are not so closely balanced and the specific comments not so egregiously prejudicial that we need consider this issue under the doctrine of plain error.\nFinally, defendant contends that the trial judge improperly questioned him during the sentencing hearing, violating defendant\u2019s fifth amendment constitutional right to be free from compelled self-incrimination. This right to remain silent extends to sentencing hearings. People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422.\nAfter hearing arguments in aggravation and mitigation, the trial court asked defendant if he wished to make a statement on his own behalf to which he responded \"No, sir.\u201d Defense counsel then indicated that his client wished to make a change or correction to the presentence investigation report. The trial judge then proceeded to read off a list of the facts in the report, asking defendant to verify their accuracy. In the course of this questioning, and after verifying the accuracy of the multiple convictions in the report, the judge commented: \"You didn\u2019t learn much, did you?\u201d Defendant then, on his own volition replied: \"I didn\u2019t learn much.\u201d\nWhile the trial judge may have improperly commented on defendant\u2019s lack of rehabilitation, the trial court never compelled defendant to make a self-incriminating statement. The trial judge never asked defendant if he committed the crime or whether he felt remorse. Under these circumstances, we cannot find that defendant\u2019s constitutional right to be free from self-incrimination was violated.\nFor all of the foregoing reasons, the decision of the circuit court of Cook County is hereby afiirmed in all respects.\nJudgment affirmed.\nRIZZI and CERDA, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE TULLY" } ], "attorneys": [ "Anne E. Meyer, of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and William John Healy, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY FRY, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1 \u2014 87\u20140955\nOpinion filed November 10, 1993.\nAnne E. Meyer, of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and William John Healy, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0434-01", "first_page_order": 456, "last_page_order": 461 }