People v. Johnson

557 N.E.2d 446, 199 Ill. App. 3d 577, 145 Ill. Dec. 676, 1990 Ill. App. LEXIS 783
Appellate Court of Illinois·Decided May 25, 1990·No. 1-87-3330·Published·Cited by 20 cases

Opinion

JUSTICE LORENZ

delivered the opinion of the court:

Defendant, Emmett Johnson, appeals from a jury verdict finding him-guilty of robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—1(a)). He was sentenced to six years’ imprisonment. We address the following two issues: (1) whether the admission of hearsay identification testimony amounted to plain error when the trial judge struck testimony and instructed the jury to disregard it; and (2) whether the failure to include a mental state as an element of robbery in jury instructions amounted to plain error. For the following reasons, we affirm.

The complaining witness, David Riffe, testified that on February 2, 1987, at approximately 2 a.m., he was robbed on a Chicago Transit Authority subway platform. Riffe testified that while he was surrounded by approximately eight men, defendant took Riffe’s wallet from his back pocket. Defendant searched through the wallet. The other men grabbed Riffe and searched his pockets. Riffe’s watch and glove were taken, as was $7 from his front pocket. One of the men gave Riffe his wallet back. When Riffe reached down to pick up his keys on the ground, he was hit and kicked in the back. At defendant’s instruction to check Riffe’s wallet for a bus pass, another man took the wallet again. That man and defendant argued and fought over the wallet. Riffe testified that they exchanged punches and Riffe noticed a cut over defendant’s eye. Riffe later found his wallet on the ground near where defendant was previously standing.

Riffe testified that after the robbery, a bystander on the subway platform, identified as Charles Weston, told Riffe he would telephone the police. When the police arrived and detained certain suspects, Riffe identified defendant as the man who took his wallet. Defendant told police he was trying to help Riffe. Riffe testified that the incident lasted approximately 20 minutes and the lighting conditions were very good.

On cross-examination, Riffe was questioned concerning his testimony at the preliminary hearing. At that hearing, Riffe testified he was hit in the face; however, at trial he did not recall that testimony or being hit in the face. Also at the preliminary hearing, Riffe testified that William Spears took his glove but he did not recall that testimony at trial.

Officer Ziolkowski testified that he responded to the call and saw Weston on the subway platform. Without objection from defendant, Ziolkowski testified:

“Q. Now, at that time, did you talk to Charles Weston?
A. Yes, I did.
Q. And after talking to Charles Weston, did Charles Weston do anything?
A. Yeah, he pointed to three male subjects, and he said, they had just robbed somebody.”

Ziolkowski testified that the three men, one of whom was defendant, were then arrested. He also testified that defendant was not injured at the time of his arrest because defendant was not taken to the hospital as required by police department policy when a person taken into custody is injured.

John Camden, an investigator for the Cook County sheriff’s police, testified that on May 13, 1987, which was approximately two weeks prior to trial, he served a subpoena for Charles Weston on his aunt. The next day, Camden went back to the same address and was told that Weston had moved the night before, after receiving the subpoena.

At the close of the State’s case, on defendant’s motion, Officer Ziolkowski’s testimony concerning what Weston told him was stricken as hearsay because Weston was an unavailable witness. The trial judge granted the motion and orally instructed the jury to disregard the testimony.

Defendant presented one witness, a photographer, who testified that pursuant to court order, he took photographs of defendant in jail on February 4, 1987. The photographs showed that defendant had injuries to his eye and lip.

Before closing arguments, defendant moved for a mistrial based on Officer Ziolkowski’s testimony that Weston identified defendant as one of the men who robbed Riffe. Defendant also argued that the State deliberately elicited the response; however, the trial judge rejected that argument. Defendant’s motion was denied.

Without objection from defendant, the jury was instructed on the elements of robbery from Illinois Pattern Jury Instructions, Criminal, Nos. 14.03 and 14.04 (2d ed. 1981) (hereinafter IPI Criminal 2d Nos. 14.03, 14.04). Also, a written jury instruction was given generally cautioning the jurors to disregard stricken testimony.

The jury found defendant guilty of robbery, and he was sentenced to six years’ imprisonment. His post-trial motion was denied and he now appeals.

Opinion

Defendant’s first argument concerns Officer Ziolkowski’s testimony at trial that Weston pointed at three men on the subway platform and said they robbed Riffe. Ziolkowski identified defendant as one of the three men. Defendant did not object to this testimony at the time it was elicited. At the close of the State’s case, defendant moved to strike the testimony as hearsay because Weston did not testify. The trial judge granted defendant’s motion and orally instructed the jury to disregard the testimony. Further, the jury was given a written instruction to disregard any stricken testimony. Defendant raised the issue in his post-trial motion; however, the motion was denied. On appeal, defendant contends this testimony was inadmissible hearsay and violated his sixth amendment right to confront witnesses against him.

An objection to hearsay testimony must be raised when the testimony is introduced otherwise the objection is untimely. (People v. Jones (1983), 119 Ill. App. 3d 615, 456 N.E.2d 926; see also People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070 (objection to evidence must be made at the time it is admitted or the objection will be waived).) To preserve an issue for appellate review, an objection must be made at trial and in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The failure to do so can result in a waiver of that issue on appeal (Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124); however, plain errors or defects affecting substantial rights may be considered on review although they were not raised in the trial court (107 Ill. 2d R. 615(a)).

In this case, defendant did not object to the hearsay testimony at the time it was elicited. To preserve an issue for review, an objection must be made both at trial and in a post-trial motion. Even though defendant eventually raised an objection at the close of the State’s case and raised the issue in his post-trial motion, his trial objection was not timely. The objection should have been raised when the hearsay testimony was introduced. The failure to raise a timely objection at trial can result in a waiver of that issue on appeal.

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People v. Johnson, 557 N.E.2d 446, 199 Ill. App. 3d 577, 145 Ill. Dec. 676, 1990 Ill. App. LEXIS 783 (Ill. Ct. App. 1990).

557 N.E.2d 446 (People v. Johnson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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