2021 IL App (1st) 172827-U
FIRST DIVISION March 22, 2021
No. 1-17-2827
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. ) ) KEVIN MCINNIS ) Honorable ) Joan Margaret O’Brien, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE PIERCE delivered the judgment of the court. JUSTICES HYMAN and COGHLAN concurred in the judgment.
ORDER
¶1 Held: Defendant was proven guilty beyond a reasonable doubt. The trial court did not err in allowing prior consistent statements.
¶2 Following a jury trial, defendant, Kevin McInnis, was convicted of two counts of
aggravated kidnapping, one count of armed robbery, and one count of home invasion. On appeal,
he argues that the State failed to prove him guilty beyond a reasonable doubt and that the trial 1-17-2827
court erred in allowing consistent statements to be introduced. For the following reasons, we
affirm the judgment of the trial court.
¶3 BACKGROUND
¶4 On December 20, 2013, the victim, Z.S., was living on South Honore with her family.
She was a 17-year-old senior in high school. She usually drove to school, leaving around 7:15
a.m., and picking up some friends along the way.
¶5 Shortly after 7 a.m., the victim was getting ready to leave for school. She had her book
bag and her work bag with her. Her car was parked on the side of her house. As she was leaving
through the back door, she saw a man standing by her next-door neighbor's porch. She did not
pay any particular attention to this man because her neighbor had sons and she thought that this
man might have been a friend of one of their sons.
¶6 As she locked the back door, she heard her gate open. She was concerned that someone
was trying to enter through the gate, so she tried to unlock her back door to get back inside her
house. When she got the door unlocked, she heard someone tell her, "You might as well open it
back up." She did not turn around at that point because she was focused on the gun that was on
the side of her head.
¶7 She walked back into her house through the back door. Inside the back door, there was a
landing that led upstairs to the kitchen and downstairs to the basement. The man walked behind
her into the kitchen and told her to put her bags down and give him her cell phone. The man
asked her who was inside the home, and she told him no one. The man then forced her into the
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bedroom that the victim shared with her sister. The victim turned on the bedroom lights, and she
complied with the man's demand to sit on her sister's bed.
¶8 While sitting on the bed facing the man, she was able to get a full, frontal view of him
and his gun. He was wearing light blue jeans, a red coat, a black hoodie, a backpack, knit
gloves, and some sort of mask on his face. The mask was cut out around the eyes and the mouth
so she could see the area roughly halfway up his nose, to a little past his eyebrows, and the upper
lip and mouth area. She identified defendant as the man with the gun in open court.
¶9 The victim started to cry because she was really scared. Defendant told her to stop crying
because he was not going to touch her. Defendant told her to show him the rest of the house and
waved his gun in whatever direction he wanted her to go. Defendant pointed the gun towards the
victim's mother's bedroom. The victim turned on the light but stood in the doorway while
defendant looked around. He looked in a nightstand drawer and found a can of mace. He
removed it, chuckled, and said, "Not me."
¶ 10 Defendant then directed the victim to the basement. The basement consisted of a sitting
area with couches and a television, her stepfather's office, and a bathroom. Defendant told her to
sit on the stairs while he looked around. After he was finished looking around, he directed her
back upstairs. When they got back upstairs, defendant directed her to return to her bedroom,
where he took her sister's iPad and Play Station 4 gaming system and put it inside his backpack.
He then forced her back to her mother’s room and took her mother's digital camera and a dish
with loose change and dumped it into his backpack.
¶ 11 Afterwards, defendant forced the victim to sit on a chair at the dining room table and
instructed her to enter the password into her mom's laptop. She could not remember the
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password because she was too scared. Defendant also asked the victim for the password to her
cell phone and her sister's iPad, and he wrote them down.
¶ 12 Defendant looked through the victim's book bag and her work bag. He asked her where
she worked. She told him that she worked at Jewel but gave him the address to a different store.
He asked her about the whereabouts of her grandmother, and she told him that her grandmother
lived with them every other weekend. He also asked about her mother, and the victim told him
that her mother was at work.
¶ 13 During the time that defendant was forcing the victim around her house, the victim's best
friend was trying to call the victim on her cell phone. Defendant eventually made the victim
answer her phone and tell her friend that she was going to be a little late. At this point, defendant
had been inside her home for a little over an hour.
¶ 14 Defendant then directed her back to the basement and told her to sit on the stairs, because
he had to use the bathroom Defendant told the victim "not to try anything" while he went inside
the bathroom. Afterwards, he told her to sit on the couch in the television area while he looked
at their Nintendo Wii games. He told the victim that he did not want to take them because it
looked like they played these games often. The victim told him that he could have them and
defendant said, "I'm going to need another bag." The victim retrieved her sister’s drawstring bag
with her sister’s name on it. She chose that bag because she thought that it would assist in
helping to identify the things that were taken from her house. As they were walking, defendant
walked past a small bar cart in the victim's dining room. He took a bottle of alcohol and said,
"[t]his is for me." She responded, "[]sn't this all for you?" Defendant laughed, waved his gun,
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and said, "[y]ou're funny. I like that." They returned to the basement, where defendant took the
Nintendo Wii.
¶ 15 Defendant then told the victim that he was about to leave. He instructed her to sit on the
basement stairs. Once she was seated, he looked at her and asked her if she believed in God and
if she went to church. The victim said that she did. He responded, "[s]o, I'm going to pay, huh?"
¶ 16 Defendant then told the victim to go upstairs with him and leave the house with him.
Before they walked out through the back door, defendant hugged the victim and grabbed her
buttock. Defendant was one to three inches away from the victim's face. Defendant then made
her walk through the back of the house with him and through the alley behind her house. The
victim got into her car and drove to her best friend's house. She called the police from her
friend's house, and she told the officer what had happened. She gave a report to a female officer,
who came to her house.
¶ 17 The next day, December 21, 2013, the victim was at home with her mother and her sister.
Her sister yelled from inside her bedroom that "the robber's on my phone." When the victim and
her mother rushed into the room, the sister showed them her cell phone, and it had screen shots
of photos taken from her iPad. The victim took those photos from her sister's cell phone and put
them onto a computer screen to enlarge them, but she did not recognize the person in the photos.
One of the photos had a username or social media "handle" on it. From that information, the
victim and her family members were able to find the real name of the person that she saw in
those photos, Michael McInnis. The victim then viewed Michael McInnis' Facebook page,
which contained photos of him. He was not the person who had robbed her. However, while
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looking through Michael McInnis' Facebook page, she eventually saw a photo of defendant, the
person who robbed her.
¶ 18 The victim printed out the photos that were taken with her sister's iPad and took them to
the police station the next day. She did not print out any of the photos that she saw of defendant
or any other photos of Michael McInnis from his Facebook page because she was scared. She
told the officers that she thought that the person in the photos might be a relative of the person
who robbed her.
¶ 19 Later, the victim got a call from the police, who told her to come back to the police
station to view a line-up and see if she could identify the person who robbed her. She went to the
police station with her mother, sister, and best friend. She read and signed a line-up warnings
disclosure and then viewed a line-up, where she picked defendant because he was “the person
that robbed her." She recognized that defendant was wearing the same jeans that he had worn
when he robbed her, and she recognized his mustache, his "bushy" eyebrows, and his "old-
looking" eyes. She could not tell defendant's hairstyle when he robbed her because he was
wearing a hoodie. The person who was on these downloaded photos was not in the line-up.
When she saw defendant in the line-up, she immediately recognized him as the person who
robbed her.
¶ 20 On December 30, 2013, the victim was inside a courtroom at 111th Street and heard
defendant's voice, which she immediately recognized it as the voice of the person who robbed
her. While defendant was inside her home, she heard his voice many times, and described it as
"kind of high pitched."
¶ 21 On December 22, 2013, Officer Cesar Candelario was working behind the front desk at
the station when the victim turned over several photos. Officer Candelario was already aware
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that the victim had reported a home invasion, armed robbery, and aggravated kidnapping. He
recognized the individual in the photos as someone he knew from patrolling the area and
subsequently learned his name was Michael McInnis. Officer Candelario did not recall whether
the victim told him that the person in the photos was not the robber.
¶ 22 Officer Candelario and his partner, Officer Weatherly, went to the location where they
believed that Michael McInnis was living. When they arrived, they saw Michael McInnis on the
sidewalk in front of that home. The officers detained him and took him to the police station
where he was informed of his Miranda rights. Michael agreed to waive those rights and spoke
with the officers. As a result of that conversation, the officers returned to Michael’s home to
recover the proceeds from the robbery.
¶ 23 There, the officers met with Angela Harris, the mother of defendant and Michael
McInnis. She signed a consent to search the home. The officers went to the area of the home
where Michael had told them they could find the proceeds of the robbery. The officers recovered
the proceeds of the robbery under a chair by the furnace room, as well as a firearm from the
basement, which the victim identified at trial as the firearm that defendant pointed at her head.
Harris called defendant while the officers were still in the basement and they had a conversation
about the proceeds of the robbery and the cell phone that he had in his possession. Officer
Weatherly then spoke with defendant on the phone. After that conversation, the officers returned
to the station to wait for defendant to turn himself in. When defendant turned himself in, he had
the stolen phone in his possession.
¶ 24 Michael McInnis testified that he was 24 years old, his date of birth was November 28,
1992, and defendant was his brother. In December of 2013, he was living on South Honore with
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his mother, sister, and brother, Marcus, but defendant was not living there. Michael attended
Youth Connection Leadership Academy, an alternative high school in Chicago.
¶ 25 On December 20, 2013, he came home from school in the afternoon, but denied that he
saw defendant that day. He further denied or did not recall that defendant told him “he had got
something.” He also denied receiving any items, including an iPad and a digital camera that was
removed from a gray Nike bag, that defendant showed him a gray Nike bag and that bag made a
sound as if there was a bunch of change in it and that he took the iPad, turned it on, took a few
photos with it, and then loaded these photos to Facebook and Instagram.
¶ 26 Michael did recall that he was arrested by Chicago police officers on December 22, 2013,
but he did not recall having a conversation with the officers. He did not recall telling officer
where they could find the robbery proceeds, that the robbery proceeds were given to him by his
brother, and that they could find robbery items in the basement of their home. Michael did not
recall speaking with a detective or ASA Hanichak. He did not recall composing a typewritten
letter with the help of ASA Hanichak. He did not recall telling ASA Hanichak that he came
home from school that afternoon and defendant was there. Defendant showed him a gray Nike
bag and pulled out an iPad and a digital camera. He could hear the change “jangling” in the bag.
The next day, he grabbed the iPad, turned it on, took a few photos, uploaded these photos onto
Instagram and Facebook, and turned the iPad off.
¶ 27 Michael was shown his typewritten statement but stated that he did not recognize it. He
did acknowledge his signature on the statement. He also acknowledged some of the photos from
the iPad that were introduced at trial, including ones of himself. He similarly did not recall
telling ASA Hanichak that he had been treated well by the police, that he was offered food to eat
and drink, that he was not handcuffed while providing his statement, that he made the statement
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freely and voluntarily, that he was not under the influence of drugs or alcohol, that he could read
and write English, demonstrating it by reading aloud the first paragraph of his statement, or that
he was allowed to make changes to his statement.
¶ 28 ASA Hanichak testified that he was working in the felony review unit on December 23,
2013 and was assigned to assist in the investigation of this case. He spoke with the victim and
Michael McInnis at the police station. After the victim viewed the line-up, ASA Hanichak
interviewed the victim. She told him that the person in the photos she turned into the police was
not the person who had come into her house and held her at gunpoint. He then interviewed
Michael McInnis. At the conclusion of this conversation, Michael agreed to provide a written
summary of the conversation. ASA Hanichak typed up the summary and then reviewed the
statement with Michael by first asking him to read aloud the first paragraph to demonstrate that
he could read and understand English. Then, they reviewed the rest of the statement together line
by line, with ASA Hanichak reading it aloud. Michael was given the opportunity to make
changes to it.
¶ 29 The statement was published to the jury and stated in relevant part: On Friday afternoon,
December 20, 2013, he came home from school and defendant was at home. Defendant pulled
out an iPad and a digital camera from a gray Nike bag. Defendant showed him the bag with the
“stuff” and Michael could hear a lot of change “jangling” inside the bag. He did not look inside
the bag. The next day, Michael grabbed the iPad, turned it on, took a few photos, and
downloaded the photos onto Instagram and Facebook. Afterwards, Michael turned off the iPad.
Michael stated that some of the photos he took were shown in court. Michael stated that he had
been treated well by the police and ASA Hanichak, he was offered a drink, no threats or
promises had been made to him to get him to make this statement, and he was making this
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statement freely and voluntarily. He was also not under the influence of drugs or alcohol at this
time. Michael could read and write English and demonstrated it by reading the first paragraph of
the statement aloud. He was then allowed to make corrections to the statement, and everything in
the statement was true and correct. Attached to the statement was a photograph taken of Michael
at the police station. At trial, Michael McInnis was shown the typewritten statement and he
acknowledged his signature.
¶ 30 The parties then entered into several stipulations. Chicago Police Officer Mendiola-
Kunis was an evidence technician and on December 20, 2013, she went the location of the crime
and collected two swabs of biological material from the basement toilet. She submitted it to the
crime lab in a sealed condition for potential future DNA analysis, and a proper chain of custody
was always maintained. Michael Pagan, an investigator with the Cook County State’s
Attorney’s Office, collected a buccal swab from defendant’s mouth. The swabs were sealed,
inventoried, and submitted to the Illinois state police crime lab. Elizabeth Sisler, a forensic
scientist in the Forensic Science Section of the Illinois State Police Science Command, would be
qualified as an expert in the field of forensic biology. She received the swabs that were used to
collect possible cellular material from a toilet seat and preserved these swabs for future DNA
analysis. Chicago Police Officer Bobby Weatherly arrived at South Honore pursuant to an
investigation of an armed robbery, home invasion, and aggravated kidnapping. While there, he
recovered a .357 caliber revolver with a defaced serial number. He inventoried the firearm in a
sealed evidence bag. The revolver was transported to the Illinois State Police latent fingerprint
unit for analysis and comparison. John Gorski, a forensic scientist with the Illinois State Police,
would be qualified as an expert in the field of fingerprint analysis, comparison, and identification
based on his training and education, and would be qualified to render an expert opinion in the
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field of forensic fingerprint identification. On August 21, 2014, he received a .357 caliber
revolver along with four live cartridges, in a sealed condition. He analyzed the revolver and the
live cartridges but did not find any latent print impressions suitable for comparison. Wendy
Gruh, a forensic scientist at the Illinois State Police Science Center, and an expert in the field of
forensic biology and DNA analysis, conducted a DNA analysis of the known buccal standard
obtained from defendant. She also conducted a DNA analysis of the swab taken from the toilet
seat. From the toilet seat, she was able to find a mixture of DNA profiles identified; a mixture of
two people. She identified one female DNA profile and one additional DNA type. Because the
DNA profile matched that of a female, and defendant was male, she did not conduct any further
testing. She was unable to determine if the additional DNA type came from a male or a female.
She compared it to defendant’s buccal standard, and she could exclude defendant from that DNA
type. As she explained, this did not mean that defendant did not have contact with the toilet seat,
but that the more a person has contact with a surface, the more it would be likely for a transfer of
DNA to occur onto that surface.
¶ 31 Defendant rested without calling any witnesses. The jury found defendant guilty of
aggravated kidnapping while wearing a hood, robe, or mask (Count 2); aggravated kidnapping
while armed with a firearm (Count 4); home invasion (Count 6); and armed robbery (Count 5).
Defendant was sentenced to an aggregate of 31 years’ imprisonment.
¶ 32 Defendant filed a motion to reconsider his sentence. In his motion, he argued that his
sentence violated the one-act, one-crime doctrine where his conviction for aggravated
kidnapping (with a mask or hood) is a second conviction carved out of the same act of
kidnapping (with a firearm). The trial court denied this argument but reduced defendant’s
sentence to 28 years’ imprisonment on the grounds that the original sentence was excessive.
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¶ 33 Defendant now appeals his convictions and sentence.
¶ 34 ANALYSIS
¶ 35 Defendant argues that the State did not prove him guilty beyond a reasonable doubt.
Defendant argues that the victim’s testimony, identifying defendant as the offender, was
unworthy of belief and therefore insufficient to establish his guilt.
¶ 36 When the defendant challenges the sufficiency of the evidence, the reviewing court must
determine, after viewing the evidence in the light most favorable to the State, whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A reviewing court affords great deference
to the trier of facts and does not retry the defendant on appeal. People v. Smith, 318 Ill. App. 3d
64, 73 (2000). “[A] reviewing court must allow all reasonable inferences from the record in favor
of the [State].” People v. Cunningham, 212 Ill. 2d 274, 280 (2004). A criminal conviction will
not be reversed “unless the evidence is so improbable or unsatisfactory that it creates a
reasonable doubt as to the defendant’s guilt.” People v. Graham, 392 Ill. App. 3d 1001, 1009
(2009).
¶ 37 It is within the function of the trier of fact to assess the credibility of the witnesses,
determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in the
evidence. Id. It is not the duty of the trier of fact to accept any possible explanation that favors
the defendant’s innocence and “elevate it to the status of reasonable doubt.” People v. Siguenza-
Brito, 235 Ill. 2d 213, 229 (2009). A reviewing court will not substitute its judgment for that of
the trier of fact. People v. Sutherland, 223 Ill. 2d 187, 242 (2006).
¶ 38 Here, defendant alleges that the identification testimony of the victim was insufficient to
support his conviction. Illinois applies the following factors to assess identification testimony:
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(1) the opportunity the witness had to view the criminal at the time of the crime; (2) the witness’s
degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the
level of certainty demonstrated by the witness at the identification confrontation; and (5) the
length of time between the crime and the identification confrontation. Neil v. Biggers, 409 U.S.
188, 199-200 (1972); People v. Slim, 127 Ill. 2d 302, 307-08 (1989). “A single witness’
identification of the accused is sufficient to sustain a conviction if the witness viewed the
accused under circumstances permitting a positive identification.” Slim, 127 Ill. 2d at 307.
¶ 39 With respect to the first factor and second factors, the victim testified that she spent over
an hour with defendant in her home. She got a full-frontal view of defendant when he forced her
to sit on her sister’s bed. Even though defendant had on a mask the holes in it were big enough
that she could see the area roughly halfway up his nose, to a little past his eyebrows, and the
upper lip and mouth area. She also had several conversations with defendant where they were
face to face. She also was able to view defendant as they walked through the house, from room
to room, while he looked for things to steal. In addition, right before defendant left, he was one
to three inches away from her face as he gave her a hug and grabbed her buttock. The victim
was clearly focused on defendant during the entire time they roamed about the house because he
held her at gunpoint.
¶ 40 As to the third factor, at trial, the victim provided a thorough description of defendant to
the police, including a description of what he was wearing. While defendant wore a mask when
he was inside the victim’s home, the mask was cut out so that she could see defendant’s eyes and
mouth. The victim testified that the mask did not interfere in any way with her ability to identify
defendant.
¶ 41 As to the level of certainty demonstrated by the victim and the length of time between the
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crime and the identification, the victim positively identified defendant in a physical line-up
within three days of the crime. She testified that she picked defendant out of the line-up because
he was “the person that robbed her.” She noted that he was wearing the same jeans that he had
worn when he held her at gunpoint and robbed her and also recognized his mustache, his
“bushy” or “thick” eyebrows, and his eyes, which made him look “older.” She also testified that
defendant spoke a lot and she heard defendant’s voice many times while he held her at gunpoint
inside her home and that his voice was “kind of high pitched.” She was able to identify his voice
inside a courtroom several days after the offense. When she identified defendant as the offender
at trial, she testified that she immediately recognized him as the offender, despite defendant’s
attempt to change his hair style. Finally, there were only three days between the offense until the
victim identified defendant in the line-up. Clearly, the evidence established defendant’s identity
as the offender beyond a reasonable doubt.
¶ 42 Defendant also argues that the victim’s identification was insufficient because there “was
no physical evidence connecting [him] to the offense and the circumstances surrounding [the
victim’s] identification of him…” This argument completely ignores the other evidence against
him, including the fact that when defendant turned himself into the police within days of the
robbery, he had the victim’s cell phone in his possession. See People v. Housby, 84 Ill. 2d 415,
423 (1981) (the recent unexplained possession of stolen property is a factor that may be
considered in determining guilt).
¶ 43 Furthermore, defendant argues that there was conflicting testimony about who was the
offender, Michael, or him. Defendant urges that Officer Candelario testified that when the
victim came to the police station on December 22nd, she had several photographs in her
possession and she told him that the person in the photos was the person who had robbed her.
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However, Officer Candelario was later impeached by his own police report, which stated that he
had “received information for Sixth District personnel...” and it did not say that he had
interviewed the victim. In addition, the victim testified on cross-examination that the person in
these photographs was not the offender. The jury, as the trier of fact in this case, had the
opportunity to assess the credibility of the witnesses, determine the appropriate weight of the
testimony, and resolve conflicts or inconsistencies in the evidence. Graham, 392 Ill. App. 3d at
1009. We will not substitute our judgment for that of the trier of fact. Sutherland, 223 Ill. 2d at
242.
¶ 44 Finally, defendant next argues that there was error in this case when the State improperly
elicited prior consistent statements twice. Initially, on cross examination, the victim testified that
Michael McInnis, the person depicted in the photograph that she gave to police, was not the
person who robbed her in her home. Defendant claims that after the victim was impeached and
without any evidence that she had a motive to lie, the State recalled her to testify to the same
version and then called ASA Hanichak who also testified that the victim told him that the person
in the photograph was not the person that robbed her. Defendant argues that he was prejudiced
by the improper consistent statements because the jury erroneously heard three times that
Michael was not the robber and only once that he was.
¶ 45 The State argues that defendant has forfeited this issue because defendant failed to
include this issue in his posttrial motion. We agree. People v. Enoch, 122 Ill. 2d 176, 186
(1988) (forfeiture occurs when a defendant fails to object at trial and fails to include an issue in
his motion for a new trial). Defendant, however, urges us to review this issue for plain error.
¶ 46 The plain-error doctrine permits a court of review to consider error that has been forfeited
when either,
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“(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is
serious, regardless of the closeness of the evidence. In the first instance, the defendant
and that the evidence was so closely balanced that the error alone severely threatened to
tip the scales of justice against him. The State, of course, can respond by arguing that the
evidence was not closely balanced, but rather strongly weighted against the defendant. In
the second instance, the defendant must prove there was plain error and that the error was
so serious that it affected the fairness of the defendant's trial and challenged the integrity
of the judicial process. [Citation.] Prejudice to the defendant is presumed because of the
importance of the right involved, ‘regardless of the strength of the evidence.’ (Emphasis
in original.) [Citation.] In both instances, the burden of persuasion remains with the
defendant.” People v. Herron, 215 Ill. 2d 167, 187 (2005).
However, we must first determine whether an error actually occurred. People v. Lewis, 234 Ill.
2d 32, 43 (2009).
¶ 47 During the direct examination of the victim, the victim testified that she took the photos
that were taken with her sister’s stolen iPad to the police station. The State asked her, “What did
you tell the police about those pictures,” and defense counsel objected on the basis of “[h]earsay.
Prior consistent statement.” The objection was sustained.
¶ 48 Later, during cross-examination, the following colloquy occurred:
“[DEFENSE COUNSEL]: Did you write down on the photographs themselves that the
person depicted in these three photographs was not the person that robbed you?
[VICTIM]: I don’t remember writing that down, but I told that to the police verbally.
[DEFENSE COUNSEL]: Who is the police officer that you told this to?
[VICTIM]: I don’t remember.”
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Defense counsel continued to cross-examine the victim as to the identity of the police officer that
she spoke to, and asked the following:
“[DEFENSE COUNSEL]: But you remember telling him that that’s not the robber?
[VICTIM]: I remember telling a [sic] officer it wasn’t the robber.”
Then, during cross-examination of Officer Candelario, defense counsel asked him, “Did [the
victim] tell you that she saw the robber at Michael McInnis’ website?” Officer Candelario
responded, “When she came to the station, she brought the picture saying that that was the guy
that robbed her.”
¶ 49 After Officer Candelario’s testimony, the State requested to recall the victim as a witness.
Defense counsel objected, and during a sidebar, the following colloquy occurred:
“[DEFENSE COUNSEL]: I just want to say that recalling her would be repetitive, Judge.
She had a full and fair chance to speak and say anything she wanted to say. If there is
something omitted or something she didn’t talk about, we can cover that now, but I think
that just calling her back to the stand would be repetitive.
[COURT]: Well, if it is going to be repetitive, I won’t allow that, but I mean, the State is
still in their case in chief. There is no rule I have ever heard of that you can’t recall
someone. Is it a little unusual? Yes, but if this were in your case and you asked me to
recall a witness, I would let you do the same thing. State, did you want to say anything?
[PROSECUTOR]: Judge, based on what Counsel just drew out, when we asked in my
direct examination of [the victim] one of the questions was “What did you tell the police
when you were given that picture?” Counsel objected, it was sustained and now he’s
trying to get - - he’s gotten the other half of the conversation in Officer Candelario. Based
on that, there is clear indication that, during the cross of [the victim], as well as Officer
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Candelario, of recent fabrication, that’s why, among other things, why would [sic] we be
calling her back.
I believe the exact objection by Counsel was prior consistent statements, and he
just then opened the door. He objected, it was sustained. Now he’s getting the same exact
conversation just with the answer that he wants, and it also serves as impeachment for
Officer Candelario.
[COURT]: As I said, I’ll let the State recall the witness just to address those issues.”
¶ 50 The State recalled the victim during which the following colloquy occurred, in pertinent
part:
[PROSECUTOR]: When you went to the Police Department and you brought the three
pictures of Michael, did you tell the officers there that this is the guy who robbed you?
[THE VICTIM]: No
[PROSECUTOR]: Why didn’t you tell him the guy in the picture was the guy who
robbed you?
[THE VICTIM]: Because I knew that wasn’t who robbed me.
[PROSECUTOR]: Did you want to see the person who actually robbed you get caught?
[THE VICTIM]: Yes.
[PROSECUTOR]: What did you tell them you thought the guy that came over in the
Cloud, what did you tell them?
[THE VICTIM]: I thought maybe he was a relative of him.”
¶ 51 Later, ASA Hanichak testified during direct examination that he spoke to the victim
before he spoke with Michael McInnis. Over an unspecified objection by defense counsel, ASA
Hanichak then testified that the victim told him that the person in the photo given to the police
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was not the person that had come into her house and held her at gunpoint.
¶ 52 Generally, a witness's prior consistent statements are inadmissible to corroborate the trial
testimony of that witness because they serve to unfairly enhance the witness's credibility. People
v. Johnson, 2012 IL App (1st) 091730, ¶ 60. This rule, however, does not apply to statements of
identification. People v. Shum, 117 Ill. 2d 317, 342 (1987); People v. Tisdel, 201 Ill. 2d 210, 217
(2002). Section 115-12 of the Code of Criminal Procedure of 1963 (Code), titled “Substantive
Admissibility of Prior Identification” provides:
“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.” 725 ILCS 5/115-12 (West 2016).
¶ 53 We find that no actual error occurred here. The testimony complained of amounted to
prior statements of identification under section 115-12, not prior consistent statements. The
victim testified at trial and was subject to cross-examination. The complained of testimony
merely recounted steps in the identification process and, accordingly, are statements of
identification. In addition, ASA Hanichak’s testimony regarding the victim’s prior consistent
statements of identification also fall under the purview of section 115-12. See Shum, 117 Ill. 2d
at 342 (holding that where a witness testifies that he previously identified an offender and that
witness has been cross-examined, a third party may testify that he heard or saw that witness
identify the offender). According to the supreme court:
“The plain language of section 115-12 requires the declarant to testify and be subject to
cross-examination on the identification statement. [Citation.] There are no other
requirements for admission of a third party's testimony about the declarant's out-of-court
19 1-17-2827
identification [statement].” People v. Lewis, 223 Ill. 2d 393, 402-03 (2006).
¶ 54 Because the witness's statements were properly admitted under section 115-12, no error
occurred and plain error analysis is not necessary.
¶ 55 CONCLUSION
¶ 56 For all the reasons stated herein, we affirm the judgment of the trial court.
¶ 57 Affirmed.