People v. Ford
| Decision Date | 10 July 1974 |
| Docket Number | No. 58518,58518 |
| Citation | 21 Ill.App.3d 242,315 N.E.2d 87 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alphonso FORD, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Bernard Carey, State's Atty. of Cook County, for plaintiff-appellee; Kenneth L. Gillis, Linda West Conley, Chicago, of counsel.
The defendant-appellant was convicted of theft and battery in a bench trial and sentenced to one year on each charge with the sentences to be served concurrently. In this appeal the defendant maintains that he was not proven guilty beyond a reasonable doubt and that the trial court erred in admitting improper hearsay evidence which prejudiced the defendant and prevented him from receiving a fair trial. The defendant also contends that it was error to convict and sentence him for both theft and battery when both convictions arose from conduct involving a single transaction.
The complaining witness, Barbara Hastings, testified at the trial that on August 29, 1972, she as a passenger in her mother-in-law's car and that they were stopped at a red light at 251 North Western Avenue in Chicago. It was a little after 11:00 p.m. and the window on the passenger side was open. The complainant stated that someone struck her and stole her purse which was on her lap. The prosecutor asked the complainant if she was the person's face and she stated, 'As he was turned running away, I got like a side view.' The complainant did identify the defendant in court as the person who took her purse. She also testified that there were street lights near the intersection where she was located. On cross-examination the complainant stated she did not see the individual who struck her and took her purse approach the vehicle and that when she saw a side view of her assailant he was approximately fifteen feet away. She stated she never saw a full view of her assailant's face and although she gave the police a general description of the man, she did not particularize his facial characteristics. The complainant testified she saw the side view of her assailant for only a few seconds because he was running away.
The State called Investigator Kaplan who testified that he showed the complainant about nine photographs on September 1, 1972, and he was asked if she picked out a photograph at this time. The defendant's counsel objected and stated, 'I don't see why the complaining witness wasn't called on this if she picked out the photographs, why should the officer testify to what she did?' The prosecutor replied, 'Defense can call her if they wish to examine her, they can call her as their own witness.' The objection was overruled and Kaplan was allowed to testify that the complainant picked out a photograph of the defendant. There were no further questions asked of Investigator Kaplan.
The defendant testified and stated that he was not in the vicinity of 251 N. Western on August 29, 1972, and that he had never seen the complainant before. The defendant denied ever striking the complainant or taking her purse and stated he was at home on the evening in question.
We are of the opinion that the trial court erred in admitting improper hearsay evidence which prejudiced the defendant. Officer Kaplan's testimony that the complainant picked out a photograph of the defendant was hearsay. Evidence of this type is admissible only if the person who made the out-of-court identification is present, testifies to his prior identification and is subject to cross-examination. (People v. Keller, 128 Ill.App.2d 401, 263 N.E.2d 127, 1970.) In the case of People v. Smith, 105 Ill.App.2d 8, 245 N.E.2d 23, 1969, the complaining witness testified that after the robbery the police showed her some pictures and the prosecution developed the subject when the arresting officer testified that the complainant had picked out a photograph of the defendant. The court stated:
(People v. Smith, Supra, at 12, 245 N.E.2d at 25.)
In the case at bar the complaint did not testify as to her prior identification of the defendant. Investigator Kaplan's testimony was obviously introduced to bolster the complainant's in court identification of the defendant and to prove the truth of the matter asserted in his testimony. It is significant to note that the only matter he was called to testify about was the out-of-court identification by the complainant.
The procedure used in the case at bar to strengthen the testimony of the complainant was error and it prejudiced the defendant. As stated in People v. Poole, 121 Ill.App.2d 233 at 238, 257 N.E.2d 583 at 585, 1970:
As stated previously the complainant did not testify as to her out-of-court assertion and therefore, it was not subject to being tested through cross-examination by the defendant against whom it was offered.
The State has attempted to bring the instant controversy within the rule of People v. Keller, Supra, by maintaining that the complainant was present and available and that the defendant could have called her as a witness for the defense. However, the Keller case requires that the declarant testify to his prior identification and be subject to cross-examination. In the instant case neither of these requirements had been met. While we agree that the defendant could have called Mrs. Hastings as a defense witness, it was not incumbent upon him to do so and in addition we fail to see how she would have been subject to...
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