People v. Jones

579 N.E.2d 970, 219 Ill. App. 3d 795, 162 Ill. Dec. 156, 1991 Ill. App. LEXIS 1511
Appellate Court of Illinois·Decided September 6, 1991·No. No. 1—87—3268·Published·Cited by 2 cases

Opinion

JUSTICE GORDON

delivered the opinion of the court:

A jury found defendant Ronald Jones guilty of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)) and aggravated unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 3.1). The court sentenced the 16-year-old defendant as an adult, to a term of years’ imprisonment. On appeal, defendant contends that the trial court improperly admitted hearsay identification testimony by two police officers; that the trial court improperly admitted the victim’s testimony about a prior lineup; that defendant was denied his right to a fair trial when the State failed to disclose information regarding a police officer’s identification of defendant prior to trial; that the court abused its discretion in sentencing defendant by considering irrelevant information contained in the victim impact statement; and that he was denied due process of law and ineffective assistance of counsel when the trial court failed to advise him of his right to be sentenced as a juvenile under the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 7(6Xc)).

Vivian Wallace testified that on July 5, 1986, at 8:30 p.m., she was entering her car on the passenger’s side when a man came up to the car with a gun drawn. He told her to open the door or he would blow her brains out. He entered the car on the driver’s side, and a second man, later identified as defendant, entered the back of the car. He also held a gun in his hand. She was able to see the faces of both men.

The driver pointed his gun at Wallace’s temple, and defendant put his gun to the back of Wallace’s head. Defendant demanded her purse. Wallace turned around to hand it to defendant, and again saw his face. The driver ordered Wallace to turn around while defendant rummaged through the purse. The driver then started the car and drove for several minutes, finally stopping in an alley. Defendant, with his gun still pointed at Wallace’s head, then demanded Wallace’s gold earrings, rings and necklace. The driver had his arm around Wallace’s shoulder and had his gun pointed in her face. Defendant then got out of the back seat and sat in front, next to Wallace, where she again observed his face. The two men told Wallace to get out of the car, and not to turn around or she would be shot. Defendant and the driver drove away in the car. Wallace telephoned the police.

Wallace testified further that she viewed more than one lineup. She made no identification in the first lineup, and identified defendant in the second lineup on July 18,1986.

Officer Anthony Maslanka testified for the State that on July 5, 1986, he investigated the armed robbery and discovered defendant’s name after speaking with Colvin.1 A lineup was held on July 18, 1986, and the victim identified defendant.

Officer Paul Phillips testified that on July 7, 1986, at 9:30 p.m., he was on patrol when he observed two men stripping the victim’s car. His partner apprehended Fredrick Colvin. Phillips chased the other man, whom he observed face to face for a second or two. Phillips was not able to catch the other man. Phillips was asked if he saw the other man in court.

The defense objected on the basis that it had received no discovery response or other notice that Phillips was an identification witness. The State responded: “It’s in the police reports.” The court overruled the objection. Defense counsel argued further: “There is nothing in the police report about him identifying anybody. I just want to make that clear.” The court replied, “Well, you made it clear. There’s been a response.” (The record shows that defendant submitted a detailed request for witnesses; occurrence witnesses; and identification witnesses. The State’s reply merely stated generally that the “State may call as witnesses any persons named in police reports” and other documents not relevant here.)

Phillips then pointed to defendant and stated: “I believe that’s the young man.” Phillips acknowledged that the police report did not state that he could identity the person he chased. He later told his superiors he could identify the man, but did not know if they included that fact in any follow-up reports.

Phillips also testified that the police received information about the second person from Colvin. He included in a report that the person’s first name was “Ronald” and last name was “Smith, Williams or Jones.”

Defendant first contends that it was improper to admit the hearsay testimony of Officers Phillips and Maslanka regarding Colvin’s identification of defendant as the man who ran away when Colvin was caught stripping the victim’s car.

Testimony regarding the prior identification of defendant as the perpetrator by a third person is hearsay since it is an out-of-court statement introduced to prove the truth of the matter asserted. (People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223; People v. Canale (1972), 52 Ill. 2d 107, 285 N.E.2d 133.) It would be inadmissible hearsay if “a third person were to testify that he saw or heard A identify B as the person who committed the offense,” unless that person was subject to cross-examination. People v. Rogers, 81 Ill. 2d at 579. See also Ill. Rev. Stat. 1989, ch. 38, par. 115 — 12; People v. Page (1987), 163 Ill. App. 3d 959, 516 N.E.2d 1371 (both person making prior identification and person testifying to prior identification must be available for cross-examination). See generally M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.16, at 435 (5th ed. 1990).

Maslanka testified that he spoke with Colvin and learned defendant’s name.

“[PROSECUTOR]: Pursuant to that investigation [of the armed robbery] did you gain a lead on any suspects?
A. Yes, I did.
Q. Who was that?
A. A suspect by the name of Ronald.
Q. And, did you subsequently in your investigation find out that person’s last name?
A. Yes, I did.
Q. What is his last name?
A. Ronald Jones.
Q. Now, how did you determine the suspects [sic] last name?
[DEFENSE COUNSEL]: Objection. Calls for hearsay answer I believe.
THE COURT: He may answer. Rephrase the question.
[PROSECUTOR]: Yes, Judge.
Q. Who did you speak to regarding this Ronald?
A. Subject by the name of Fredrick [Colvin].
Q. And, what were the circumstances surrounding your conversation with Fredrick [Colvin]?
A. Fredrick had been arrested for stripping Mrs. Wallace’s car that was taken in the robbery.”

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People v. Jones, 579 N.E.2d 970, 219 Ill. App. 3d 795, 162 Ill. Dec. 156, 1991 Ill. App. LEXIS 1511 (Ill. Ct. App. 1991).

579 N.E.2d 970 (People v. Jones) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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