{ "id": 3309244, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNEST JOHNSON, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "1979-02-08", "docket_number": "No. 76-1608", "first_page": "836", "last_page": "843", "citations": [ { "type": "official", "cite": "68 Ill. App. 3d 836" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "235 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. App. 2d 436", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2820177 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/91/0436-01" ] }, { "cite": "190 N.E.2d 738", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "741" } ], "opinion_index": 0 }, { "cite": "28 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363269 ], "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0116-01" ] }, { "cite": "315 N.E.2d 87", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "pin_cites": [ { "page": "89" } ], "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 242", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5372230 ], "year": 1963, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0242-01" ] }, { "cite": "357 N.E.2d 174", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "179" } ], "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 735", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2726187 ], "weight": 2, "pin_cites": [ { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0735-01" ] }, { "cite": "308 N.E.2d 364", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "369" }, { "page": "369" } ], "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 421", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2514931 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "427" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0421-01" ] }, { "cite": "207 N.E.2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "78" } ], "opinion_index": 0 }, { "cite": "32 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2841109 ], "pin_cites": [ { "page": "443-44" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0441-01" ] }, { "cite": "243 N.E.2d 225", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "226" } ], "opinion_index": 0 }, { "cite": "41 Ill. 2d 364", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853826 ], "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0364-01" ] } ], "analysis": { "cardinality": 718, "char_count": 15998, "ocr_confidence": 0.881, "pagerank": { "raw": 1.738415202053591e-07, "percentile": 0.7066522025029258 }, "sha256": "5ab907a5a8087f9508a10c558d23be943b943e3a89a6df1da01aee9ba9cbfc32", "simhash": "1:82278d3d675c9502", "word_count": 2585 }, "last_updated": "2023-07-14T14:49:10.381789+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. ERNEST JOHNSON, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE JIGANTI\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Cook County the defendant, Ernest Johnson, was found guilty of armed robbery. He was sentenced to a term of four to 12 years. On appeal the defendant argues reversible error occurred when reference was made both in testimony and in closing arguments to an identification of the defendant by a person who did not testify at trial.\nCathy Andrelewicz, the victim of the robbery, testified for the State. On February 17, 1976, she was working as the cashier at the East End Pharmacy on Chicago Avenue in Oak Park, Illinois. At approximately 5 p.m. she was preparing to leave work and was at the front of the pharmacy near the cash register. A man entered the store carrying a rolled-up newspaper. He picked up a container of ice cream and placed it on the counter in front of Andrelewicz. She was ringing up the purchase when the man pulled a knife on her. The robber reached over the counter into the cash register and took four *5 bills and a stack of *1 bills, totalling about *40. He went to the door but then returned and removed a roll of pennies from the cash register. Andrelewicz testified that she was able to remember the amount and denominations of the cash because she had taken the extra money to the back room just before the robbery.\nAfter the defendant left the store Andrelewicz pressed the alarm button. The police arrived shortly thereafter. She described the robber to Officer Gryncewicz as a male Negro, wearing a blue knit cap, a red jacket, tan pants and sunglasses. Andrelewicz testified the store lights were on during the robbery and that she had seen and talked with the robber five or six times in the past year when he had been in the store.\nShortly after the robbery Andrelewicz was taken to the Oak Park police station to view a lineup. She picked the defendant out of a four-man lineup as the man who had robbed the store. Andrelewicz also made an in-court identification of the defendant. On cross-examination Andrelewicz said it was not possible that she could be wrong in her identification of the defendant.\nGryncewicz testified that he and his partner, Officer Bucholz, answered the radio call which reported a robbery at the East End Pharmacy. After talking to Andrelewicz, Gryncewicz spoke to a Dr. David Rollins as he was leaving the store. Rollins told Gryncewicz that a man he saw leaving the pharmacy was wearing red gym shoes and carrying sunglasses. Gryncewicz and Bucholz then proceeded to an apartment building at 5940 W. Superior, located about half a block east of the pharmacy. Gryncewicz knocked on the door of the basement apartment three times before the door was opened by Jimmy Savania. Gryncewicz testified that as they entered the apartment they observed the defendant leaving the bathroom. The defendant was pulling up a pair of dark blue pants which were \u201cmuch too large\u201d for him. He was also wearing a pair of brown construction boots which were untied. The officers searched the \u201cimmediate vicinity\u201d around the defendant\u2019s person but did not conduct a complete search for the clothing described by Andrelewicz because they had no search warrant. Officer Bucholz recovered $46 from under a pile of clothing which was next to the defendant at the time of his arrest. The money consisted of four $5 bills and 26 *1 bills.\nSavania was the first witness for the defense. He testified that he lives in the basement apartment where the defendant was arrested. Savania said that on the afternoon of the robbery he and the defendant and two others were drinking and gambling in his apartment. The defendant left the apartment at one point during the afternoon and returned four or five minutes later with a six-pack of beer. The defendant had been back in the apartment for about an hour before the police knocked on the door. Savania also testified that the defendant did not change his clothes before the police arrived. When the police arrived, the witness and the others hid the money with which they had been gambling. Savania testified that the police searched the entire apartment.\nOn cross-examination, and over the defendant\u2019s objection, the State asked Savania if the \u201cman from the pharmacy\u201d came to the apartment and identified anyone. Savania said the man from the pharmacy had identified the defendant.\nThe defendant testified on his own behalf. He described his brief absence from the apartment for the purpose of buying some beer. He also said he had been in the pharmacy before the date of the robbery but did not recall ever meeting or speaking with Andrelewicz. On cross-examination, the defendant said he had never been in the pharmacy before the date of the robbery. The defendant also testified that he was wearing blue pants the entire day of the robbery.\nOn rebuttal, Officer Stachura testified that at the time of the arrest the defendant said he had not left the apartment on the day of the crime.\nIn closing arguments the Assistant State\u2019s Attorney said the defendant had been identified not only by Andrelewicz but also by Rollins. The State apologized for Rollins\u2019 absence and said it was impossible to get him to come from Connecticut to testify. The defendant\u2019s objections to these comments were overruled.\nOn appeal, the defendant argues testimony that an out-of-court identification was made of the defendant as the offender was prejudicial hearsay when the person making the identification did not testify at trial, particularly where the single competent identification of the defendant was offset by alibi testimony and physical evidence which conflicted with the identification.\nWe must initially address the State\u2019s contention that the defendant waived any error in the introduction of the alleged hearsay by not objecting properly and, additionally, that the defendant\u2019s motion for a new trial did not preserve this issue for appeal purposes. The State calls our attention to the objection made during trial to Officer Gryncewicz\u2019s testimony concerning Rollins\u2019 confrontation with the defendant. That objection was phrased in terms of \u201cno foundation.\u201d\nEven if the objection to Gryncewicz\u2019s testimony was improperly worded, the defendant\u2019s later objection to Officer Bucholz\u2019s description of Rollins\u2019 identification was correct, in that the defense counsel stated \u201cObjection, Your Honor, to the hearsay.\u201d Additionally, the defense timely objected to Savania\u2019s testimony concerning \u201cthe man from the pharmacy\u201d and to the prosecutor\u2019s reference to Rollins\u2019 identification during his closing argument.\nWe also believe the defendant adequately preserved this issue for appeal purposes in his motion for a new trial. The defendant\u2019s written motion for a new trial stated, in part, \u201cThe State, over objection of the defense, questioned Officer Stachura, on redirect, as to an alleged identification of the defendant by a witness who was not present and who did not testify at trial.\u201d The defendant concedes that this point should have referred to Bucholz rather than Stachura, but submits that the point nevertheless adequately apprised the trial judge of the testimony to which he was objecting. The State contends this statement \u201cdoes not set out the particular hearsay statements now claimed to be prejudicial and therefore these contentions are deemed waived.\u201d\nThe general rule is that \u201cfailure to present a reviewable issue in a written motion for a new trial constitutes a waiver of the issue.\u201d (People v. Nelson (1968), 41 Ill. 2d 364, 366, 243 N.E.2d 225, 226.) As was also noted by our supreme court:\n\u201cThe purpose of this rule is apparent. Requiring defendant\u2019s written motion for a new trial to specify the errors allegedly entitling him to a new trial may save the delay and expense inherent in an appeal in those instances where the motion is meritorious. Additionally, it focuses the attention of the trial judge upon those aspects of the proceedings of which the defendant complains, and gives to the reviewing court the benefit of the judgment and observations of the trial court with reference thereto.\u201d (People v. Irwin (1965), 32 Ill. 2d 441, 443-44,207 N.E.2d 76, 78.)\nWe believe the defendant\u2019s motion for a new trial, although it incorrectly identified the witness and did not use the word \u201chearsay,\u201d was sufficient in particularity to inform the trial judge that the testimony as to the out-of-court identification of the defendant was the subject of the objection.\nThis brings us to the main issue, that is, whether the testimony concerning Rollins\u2019 out-of-court identification of the defendant constitutes reversible error. The State\u2019s response to this argument is twofold: (1) that the evidence was properly admitted for the limited purpose of showing why the arresting officers acted as they did; and (2) that even if improperly admitted, the error was harmless due to Andrelewicz\u2019s identification together with \u201cother corroborative circumstances.\u201d\nThe State cites People v. Coleman (1974), 17 Ill. App. 3d 421, 308 N.E.2d 364, and People v. Byrd (1976), 43 Ill. App. 3d 735, 357 N.E.2d 174, in its argument that the hearsay identification was properly admitted for the purpose of describing \u201cinvestigatory procedure.\u201d In Coleman the court admitted a police officer\u2019s testimony that he had had a conversation with a particular witness and had then proceeded to the hospital where the defendant was found and arrested. The appellate court affirmed the conviction, noting that the officer \u201cdid not testify to the substance of the conversation, but merely to the fact that a conversation took place. As such, both the fact of the conversation and his subsequent conduct were within his personal knowledge and competent as testimony of the officer\u2019s investigatory procedure.\u201d (17 Ill. App. 3d 421, 427, 308 N.E.2d 364, 369.) Byrd is relied upon for the rationale supporting the Coleman holding:\n\u201cThe State must be permitted to make some explanation why a previously unidentified defendant was arrested and shown to the victim of a crime. If this were not permitted defense counsel could play upon it in argument, asking why the defendant \u2014 of all the men in the world \u2014 was on trial, insinuating that the accused was arrested without reason.\u201d 43 Ill. App. 3d 735, 742, 357 N.E.2d 174, 179.\nWe believe the testimony in this case went well beyond that sanctioned by the Coleman court. Gryncewicz was asked during the trial whether Rollins had occasion, in the presence of Gryncewicz, to face the four men who were in the room. Gryncewicz responded in the affirmative, over objection of the defense. The prosecutor then asked \u201cAfter Dr. Rollins faced the four men in the room, what if anything did you do?\u201d The policeman responded that the defendant was then placed under arrest. Savania was asked by the State if \u201cthe man from the pharmacy came over\u201d to his apartment. Over objection,, the witness responded in the affirmative. The prosecutor then asked if he identified anybody in the basement. Over objection the witness responded that the defendant had been identified. Finally, on redirect, Bucholz was asked who identified the defendant in the basement apartment. Over objection the witness said Rollins had identified him.\nUnlike the Coleman case, the testimony here was not limited to \u201cthe fact that a conversation took place.\u201d The policemen\u2019s testimony concerning the fact that they had a conversation with Rollins before proceeding to the apartment where the defendant was found may have been admissible as explanatory of their \u201cinvestigatory procedure.\u201d The same cannot be said of Savania or Bucholz\u2019s testimony to the effect that Rollins had actually identified the defendant in a face-to-face confrontation.\nA leading treatise on the law of evidence explains the rationale for the admissibility of testimony describing investigatory procedures:\n\u201cIn criminal cases, the arresting or investigating officer will often explain his going to the scene of the crime or his interview with the defendant, or a search or seizure, by stating that he did so \u2018upon information received\u2019 and this of course will not be objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay.\u201d (McCormick, Law of Evidence \u00a7248, at 587 (2d ed. 1972).)\nOfficer Bucholz\u2019s and Savania\u2019s testimony was likely to be construed by the jury as evidence that an identification of the defendant by Rollins had occurred. This testimony should have been excluded as hearsay.\nThe final issue is whether the testimony concerning the hearsay identification was harmless error in light of the positive identification of the defendant by Andrelewicz together with the other corroborative circumstances.\nThe general rule , is that evidence of an out-of-court identification is admissible \u201conly if the person who made the out-of-court identification is present, testifies to his prior identification and is subject to cross-examination.\u201d (People v. Ford (1974), 21 Ill. App. 3d 242,244,315 N.E.2d 87, 89.) As expressed by the Illinois Supreme Court, \u201c[t]he fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered.\u201d People v. Carpenter (1963), 28 Ill. 2d 116,121, 190 N.E.2d 738, 741.\nHowever, the admission into evidence of an out-of-court identification, while hearsay, does not amount to reversible error per se. Reversal will be the result \u201conly when it serves as a substitute for courtroom identification or when it is used to strengthen and corroborate a weak identification. However, if the hearsay testimony is merely cumulative [citations omitted], or is supported by a positive identification and by other corroborative circumstances [citations omitted], it constitutes harmless error.\u201d People v. Coleman (1974), 17 Ill. App. 3d 421, 428, 308 N.E.2d 364, 369.\nWe cannot say that the admission of the testimony concerning Rollins\u2019 identification of the defendant was harmless. The actual identification by Rollins was mentioned not merely on one occasion, but rather by at least two witnesses, Bucholz and Savania. Furthermore, the prosecutor himself re-emphasized this testimony in closing arguments by putting Rollins\u2019 identification in the same category as Andrelewicz\u2019s admissible identification and by apologizing for Rollins\u2019 absence at trial. The jury could not help but believe that both identifications were part of the evidence they should consider in determining the defendant\u2019s guilt or innocence.\nThe State urges us to find this error harmless because of the positive identification by Andrelewicz and the other corroborative circumstances. We cannot do so. While Andrelewicz\u2019s identification alone may have been sufficient to convince the jury of the defendant\u2019s guilt, we cannot ignore the repeated references to Rollins\u2019 identification and the effect this may have had on the jury. Additionally, the error was accentuated when the prosecutor referred to the Rollins\u2019 identification in his closing argument. (People v. Turner (1968), 91 Ill. App. 2d 436,235 N.E.2d 317.) Finally, we do not believe that the \u201ccorroborative circumstances\u2019\u2019 were so overwhelming as to ameliorate the effect of this error.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded.\nReversed and remanded.\nJOHNSON and LINN, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE JIGANTI" } ], "attorneys": [ "Ralph Ruebner and Steven Clark, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Joan S. Cherry, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNEST JOHNSON, Defendant-Appellant.\nFirst District (4th Division)\nNo. 76-1608\nOpinion filed February 8, 1979.\nRalph Ruebner and Steven Clark, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Joan S. Cherry, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0836-01", "first_page_order": 858, "last_page_order": 865 }