People v. Yancy

• Citation: 306 Ill.Dec. 657,858 N.E.2d 454
• Decision Date: 29 December 2005
• Docket Number: No. 1-04-2605.,1-04-2605.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Danny YANCY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 454

858 N.E.2d 454

306 Ill.Dec. 657

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Danny YANCY, Defendant-Appellant.

No. 1-04-2605.

Appellate Court of Illinois, First District, Fourth Division.

December 29, 2005.

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago (Stephanie A. Fisher, Assistant Appellate Defender), for Appellant.

Richard A. Devine, State's Attorney, Cook County, Chicago (James E. Fitzgerald, Alan Spellberg, Kathleen Warnick, of counsel), for Appellee.

Justice GREIMAN delivered the opinion of the court:

Following a bench trial, defendant Danny Yancy was convicted of aggravated robbery. He was sentenced to eight years in prison for his aggravated robbery conviction and five years in prison for violating his probation. The court ordered defendant's sentences to run concurrently. On appeal, defendant contends: (1) that the trial court committed reversible error in admitting hearsay evidence that the quality assurance department agreed with the testifying forensic scientist's conclusion that fingerprints found at the scene of the crime matched defendant's; (2) that the trial court erred in sentencing him as a Class X offender pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (the Code) (730 ILCS 5/5-5-3(c)(8) (West 2002)), when his presentencing investigation report (PSI) did not show that he committed his first qualifying felony subsequent to the date required by the statute; and (3) that section 5-5-3(c)(8) of the Code deprived him of his constitutional right to a jury and due process rights.

At trial, Henryka Waskowski testified that she owns a bar on West Irving Park Road in Chicago. At 11 o'clock in the morning on March 5, 2002, Waskowski was in the bar, with the front door locked, cleaning up when a man she identified at trial as defendant knocked on the door. Waskowski let defendant in and he sat down at the bar. Waskowski observed that defendant had a crooked nose and short hair and that he was wearing a black jacket and a plaid shirt. Waskowski sat down on a stool behind the bar and talked with defendant for about 40 minutes while he drank two beers. No other patrons were in the bar. Waskowski and defendant discussed defendant's middle finger, which was deformed and would not bend. After drinking his second beer, defendant asked Waskowski for a beer "on the house." Waskowski denied defendant's request and indicated that it was time for him to leave. Defendant went to the bathroom. When he came out of the bathroom, defendant went behind the bar, told Waskowski that he had a gun and instructed her to open the register or he would kill her. Waskowski testified that she did not see a gun but that defendant's hand was in his pocket. Waskowski pressed a hidden panic button and told defendant that the police were coming. Defendant continued to demand money. Waskowski opened the register and defendant took out approximately $150. Defendant ordered Waskowski to go into the bathroom in the back of the bar. Instead, Waskowski ran out of the front door of the bar. On the sidewalk, she told a Chicago city worker what had happened. She later recounted the events of the morning to the police. When she went back into the bar, Waskowski observed that defendant had left his eyeglasses, a pack of cigarettes, a lighter and his beer bottle on the bar.

Evidence technician Officer Presnell testified that on March 5, 2002, he searched, photographed, collected evidence and dusted for fingerprints at Waskowski's bar. Presnell lifted seven latent fingerprints, two from the pack of cigarettes, one from the cigarette lighter and four from the beer bottle. Presnell also took Waskowski's fingerprints for elimination purposes.

Detective Lunsford was assigned to investigate the case. He learned that fingerprints had been recovered from the scene and on April 15, 2002, requested that the prints be submitted to the Automated Fingerprint Identification System (AFIS), a database housing fingerprint cards of people arrested in Illinois, for comparison and identification.

Anastasia Petruncio, a forensic scientist specializing in latent fingerprints, received the seven latent prints and identified four, one from the pack of cigarettes and three from the beer bottle, as suitable for comparison by AFIS. AFIS compiled a list of 10 candidates whose prints were similar to the latent prints. Petruncio compared defendant's print card, taken in 2000, to the latent prints. Between the card and the latent prints, Petruncio made more than five points of identification that indicated that the prints belonged to the same person. She determined to a reasonable degree of certainty that the four latent prints were defendant's. Petruncio further testified that the quality assurance department randomly reidentified the prints and agreed with her conclusion.

On October 25, 2002, Lunsford received a report from the Illinois crime lab that the latent prints had been matched to defendant's AFIS card. Defendant was arrested by fugitive apprehension unit Officer Dell on April 4, 2003. Thereafter, Waskowski was asked to view a lineup at the police station. She identified defendant out of the lineup as the man who had robbed her bar. After she identified defendant, Waskowski asked to see his left hand. Waskowski identified pictures of the lineup, defendant and defendant's finger at trial.

Fingerprint technician Stanley Mocaldo testified that on April 30, 2004, he took defendant's fingerprints.

Petruncio compared defendant's 2000 print card to his print card taken in 2004. She determined that the prints on the two cards belonged to the same person. Petruncio did not compare the 2004 card to the latent prints.

Defendant called responding Officer Ayalo, who testified that he interviewed Waskowski and indicated on his report that she had been drinking when the incident occurred. However, on cross-examination, Ayalo testified that he had made a mistake on his report and that Waskowski had not been drinking.

The court observed that, ordinarily, an identification by a single witness of the perpetrator of a crime that occurred over a year earlier would not be strong enough for a conviction. However, in this case, the single witness's testimony was corroborated by the fingerprint evidence. The court further noted that the evidence of defendant's guilt was overwhelming.

Defendant filed a motion for a new trial, which was denied. After hearing arguments in mitigation and aggravation, the court sentenced defendant to concurrent prison terms of eight years for aggravated robbery and five years for violation of probation.

On appeal, defendant first contends that the trial court committed reversible error in admitting Petruncio's testimony that the quality assurance department agreed with her identification of the latent prints. Defendant contends that the testimony was inadmissible hearsay used to bolster Petruncio's weak testimony. The State first responds that, because he failed to raise it in his posttrial motion, defendant has waived this contention (see People v. Enoch, 122 Ill.2d 176, 190, 119 Ill. Dec. 265, 522 N.E.2d 1124 (1988)), and observes that defendant has not alleged that the admission of the evidence was plain error (see People v. Herron, 215 Ill.2d 167, 187, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005) (when issue is waived, defendant bears the burden of demonstrating that plain error occurred)).

We agree that defendant has waived this contention. See People v. Howell, 358 Ill. App.3d 512, 294 Ill.Dec. 731, 831 N.E.2d 681 (2005). Waiver aside, we find that, though Petruncio's testimony that the quality assurance department agreed that the latent prints were defendant's was inadmissible hearsay, any error committed in admitting the testimony was harmless beyond a reasonable doubt and reversal is not warranted.

"Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted, and is generally inadmissible unless it falls within an exception." People v. Lawler, 142 Ill.2d 548, 557, 154 Ill.Dec. 674, 568 N.E.2d 895 (1991). Hearsay evidence is generally inadmissible because of the lack of an opportunity to cross-examine the declarant. People v. Jura, 352 Ill.App.3d 1080, 1085, 288 Ill.Dec. 318, 817 N.E.2d 968 (2004). "[T]estimony by a third party as to statements made by another nontestifying party identifying an accused as the perpetrator of a crime constitutes hearsay testimony and is inadmissible." People v. Lopez, 152 Ill.App.3d 667, 672, 105 Ill. Dec. 577, 504 N.E.2d 862 (1987).

The State argues that the challenged testimony was not offered for the truth of the matter asserted and was instead offered "to show that Ms. Petruncio's identification was not affected by human error." Specifically, the State points to the fact that, during cross-examination, Petruncio conceded that there is a risk of human error in identifying fingerprints. Thereafter, during redirect, Petruncio testified that in order to protect against human error, every identification is reviewed by a more experienced forensic scientist. She further testified that the quality assurance department randomly reidentifies prints, that it reidentified the prints in this case, and that "[t]he quality assurance department agreed with [her] finding." While Petruncio's redirect testimony that each identification was reviewed by a more experienced scientist and by the Quality Assurance Department was offered to show a minimized risk of human error and also alerted the trier of fact to the process by which fingerprints are identified and verified, contrary to the State's assertion, her testimony that the quality assurance department agreed with her identification was offered to prove the truth of the matter that it asserted: that the quality assurance department also found that the latent prints were defendant's. Accordingly, we find that the testimony was clearly improper...