People v. Bowen

FIFTH DIVISION
Filed: 8/14/98

No. 1-96-3276

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. )
)
MAURICE BOWEN, ) HONORABLE
) MARCUS SALONE,
Defendant-Appellant. ) JUDGE PRESIDING.


PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
After a bench trial, the defendant, Maurice Bowen, was found
guilty of first degree murder and unlawful use of a weapon by a
felon, and was sentenced to 60 years' imprisonment. On appeal, the
defendant contends that (1) the admission of prior inconsistent and
unsworn statements as substantive evidence of identification was a
denial of his right to due process, (2) the evidence failed to
prove the offender's identity, (3) the court's consideration of his
demeanor was reversible error, and (4) his 60-year sentence was an
abuse of discretion. We affirm.
The following evidence was adduced at trial. Jacqueline
Smith, Vanessa Brown, and April Johnson saw the victim, James
Nance, standing near the corner of 50th and Elizabeth Streets at
around 9 p.m. on the evening of February 28, 1993, as they walked
to a party in the neighborhood. Nance was talking to a girl
standing in the window of the second floor apartment at 5002 South
Elizabeth. He was wearing a hooded Texas Longhorn jacket and black
pants.
The three women stayed at the party about 20 minutes and then
left. As they walked back towards the intersection of 50th and
Elizabeth, they heard gunshots coming from the corner where the
victim had been standing. Jacqueline testified that Nance was
standing in the same spot as before. She observed a tall, thin
person dressed in black and wearing a hooded jacket approach within
four feet of Nance, point a gun at Nance's chest, and fire numerous
shots at his face and chest. Jacqueline and the other women ducked
until the shooting stopped, and then ran over to Nance and found
him lying on the ground covered in blood. April offered a similar
account of the shooting, but Vanessa testified that she immediately
ducked behind a car and did not see the actual shooting. None of
the women could see the perpetrator's face. Nance, who was 13
years old at the time, died of multiple gunshot wounds.
Lamont Brown, an admitted gang member, testified at trial that
he was outside his apartment at 5002 Elizabeth on the afternoon of
February 28, 1993, when he saw a blue Malibu drive by twice. Brown
recognized the men in the car as "Bam," "Ricardo," and "Maurice,"
who were rival gang members he had known for a couple of years. As
the Malibu stopped at 50th and Elizabeth, the occupants looked at
Brown and then drove away. Brown was wearing a Texas Longhorn
jacket and black pants.
Brown said he went inside to play with his niece. He then
went to a front room facing the street, opened the window, and
talked with his sister, Vanessa, and his ex-girlfriend, April, who
were standing across the street. Brown saw a boy in front of his
building conversing with someone who lived in the apartment above
Brown's. He later learned this boy was Nance. Nance wore a Texas
Longhorn jacket and had his hood pulled up on his head. While
Nance was in front of Brown's apartment, the blue Malibu again
drove down Elizabeth. According to Brown, Bam was driving the car,
Maurice was in the front passenger seat, and Ricardo was in the
back seat. Brown stated that the car stopped a few houses away and
Maurice exited the passenger's side with his hood covering his head
and walked towards Nance. Maurice approached Nance and pulled out
a handgun. Maurice pointed the gun at Nance and fired several
shots. After the shooting stopped, Brown exited his apartment and
saw Nance lying on the ground and Maurice running across the street
into a gangway.
Brown denied that the defendant in the courtroom was the same
Maurice in the blue Malibu that had shot Nance. He explained that
he was familiar with two people named Maurice, both of whom were
members of a street gang in conflict with Brown's gang. Brown
admitted owning a Texas Longhorn jacket with a hood in February
1993, but said that the coloring was different than the jacket worn
by Nance. Brown also acknowledged that he had been sent to the
Audy Home because he had gotten into a fight with a relative of
Ricardo a month before Nance's shooting.
Brown recalled speaking with Detective Cliff Gehrke at the
Audy Home, but he denied being shown any photographs. Brown
admitted that he attended a line-up on June 17, 1993, and
identified the defendant. However, Brown explained that he did not
identify the defendant as the person who shot Nance; rather, he
identified the defendant as a member of a rival gang. Brown said
that it was the other Maurice he knew, not the defendant, who shot
Nance. According to Brown, he told the police that the defendant
was not the perpetrator but the police warned him that if he
"didn't say it was him they was (sic) going to--I would never see--
only way I see my family is behind the glass and they'd drop some
of my cases and they'll drop some of my juvenile cases."
Brown denied telling anyone that, two days prior to his trial
testimony, the defendant had made faces at him and stared at him
while Brown was in a holding cell at Cook County Jail. Brown
further denied telling the prosecutor and others the day before his
testimony that the defendant had all of his "buddies" look at his
face so they could remember him if Brown identified the defendant.
In impeachment of Brown, the defense presented his criminal
record and history of delinquency. In addition to an adult
conviction for aggravated discharge of a firearm, he had two
adjudications of delinquency for possession of a controlled
substance and criminal sexual assault.
Detective Cliff Gehrke testified that he was assigned to
Nance's murder. Gehrke recalled that, when he viewed the body,
Nance was wearing a Texas Longhorn jacket. Gehrke met with Brown
at the Audy Home in May 1993, after Gehrke was informed that Brown
was a possible eye-witness to Nance's murder. Gehrke was
accompanied by Assistant State's Attorney Martin Fogerty and
Assistant Public Defender Lisa Kaufman.
Gehrke learned that Brown had been living at 5002 Elizabeth in
February 1993 with his mother and sister, Vanessa, and that he had
witnessed the shooting from an apartment window overlooking the
street. Gehrke stated that, after Brown gave him some first names
and a nickname of the perpetrators, he went and retrieved
photographs and returned to the Audy Home with Fogerty and Kaufman.
According to Gehrke, he showed Brown an array of five or six
photographs and Brown identified a photograph of the defendant as
the person who shot Nance. Gehrke testified that both he and Brown
signed the back of the defendant's photograph.
Gehrke said that Fogerty then spoke with Brown and prepared a
written four-page statement of Brown's account of the shooting.
According to Gehrke, Brown reviewed the statement, was allowed to
make changes, and signed each of the pages. The police located the
defendant and brought him in for a line-up. Gehrke testified that
Brown identified the defendant out of five individuals in the line-
up as the one who shot Nance.
On March 23, 1996, Gehrke observed Brown on the corner of 50th
and Elizabeth, arrested him, and brought him into the police
station. Gehrke testified that his arrest was pursuant to a
warrant for contempt of court with regard to the instant case.
The parties stipulated that, on March 27, 1996, the day before
trial, Brown was in the holding cell across from the elevator used
to transfer prisoners at Cook County Jail. During the time Brown
was in the holding cell, the defendant and other prisoners walked
past the cell and stood for approximately one minute near the
elevator. The parties further stipulated to the testimony of a law
clerk from the State's Attorney's office who, if called to testify,
would state she was present for a conversation between State
counsel, another assistant State's Attorney, and Brown on March 28,
1996, during which Brown refused to talk. When asked what was
wrong, Brown said the defendant and some of his "buddies" looked at
him in the holding cell so that they could remember his face.
After discussion with counsel, the trial judge allowed into
evidence, as a prior inconsistent statement under section 115-10.1
of the Code of Criminal Procedure (Code) (725 ILCS 5/115-10.1 (West
1996)), one sentence from the written statement taken by Fogerty in
which Brown recalled that "when Maurice got out of the car he put
his hood up on his head, and started walking towards James." This
statement contradicted Brown's testimony at trial that Maurice
emerged from the blue Malibu with his hood already on his head.
During closing arguments, defense counsel objected to the
State's contention that Brown's prior out-of-court identifications
of the defendant were admissible as substantive evidence under
section 115-12 of the Code (725 ILCS 5/115-12 (West 1996)). In
rendering his decision, the trial judge referred at length to
Brown's prior identifications of the defendant and noted that the
case "is essentially a single witness ID situation." The judge
found the defendant guilty of first degree murder. The defendant's
motion for reconsideration or, alternatively, for a new trial was
denied, and he was sentenced to 60 years' imprisonment. This
appeal followed.
The defendant initially contends that the admission of Brown's
prior statements as substantive evidence of identification was
reversible error where he denied making the statements at trial and
testified that the defendant did not commit the crime. The State
maintains that such statements were admissible under section 115-12
of the Code which provides:
" 115-12. Substantive Admissibility of Prior
Identification. 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 1996).
The defendant contends that section 115-12 of the Code
provides a hearsay exception for out-of-court identifications only
if the prior statements at issue are consistent with an
identification of the defendant at trial. People v. Davis, 137
Ill. App. 3d 769, 484 N.E.2d 1098 (1985). In Davis, this court
read section 115-12 narrowly and concluded that it merely permitted
the admission of prior consistent identification statements as both
corroborative and substantive evidence. Thus, because the
complaining witness in Davis was unable to identify Davis in open
court, the court held the witness' prior identifications were not
admissible as substantive evidence under section 115-12. See
Davis, 137 Ill. App. 3d at 771-72.
However, section 115-12 on its face permits the substantive
admission of prior identification statements without regard to
whether the witness makes an in-court identification. The language
of this section does not require an in-court identification, nor
does it prohibit the introduction of a prior identification
statement where the witness fails to identify the defendant in open
court. See 725 ILCS 5/115-12 (West 1996).
In People v. Holveck, 141 Ill. 2d 84, 565 N.E.2d 919 (1990),
a case subsequent to Davis, the State questioned its identification
witness about her out-of-court identification of the defendant but
did not attempt an in-court identification. The supreme court
determined that the elements of section 115-12 were satisfied and
that the out-of-court identification was properly admitted because
the witness testified at trial and was subject to cross-
examination. Holveck, 141 Ill. 2d at 105. Thus, Holveck does not
restrict the hearsay evidence admissible under section 115-12 to
those prior identifications which corroborate a positive in-court
identification.
The defendant relies on the supreme court's statement in
People v. Lewis, 165 Ill. 2d 305, 651 N.E.2d 72 (1995) that
"[section 115-12] is designed to permit the use of prior consistent
out-of-court statements as corroborative or substantive evidence of
a witness' prior identity of a defendant." (Emphasis in original.)
165 Ill. 2d at 343. However, a close reading of Lewis indicates
that this passage refers to the fact that the defendant argued that
section 115-12 permitted the substantive admission of a prior
statement that misidentified him as the offender. Specifically,
the defendant there proffered an arrest report description which
conflicted with prior descriptions of the assailant in the incident
reports. The court noted that the arrest report description was
neither corroborative of the complaining witness' prior
identification of the defendant nor was it substantive evidence of
such. Lewis, 165 Ill. 2d at 343. Therefore, the statute did not
apply in that instance. Lewis, 165 Ill. 2d at 343.
Section 611.16 of Cleary & Graham's Handbook of Illinois
Evidence states:
"[P]rovided the declarant testify at trial and be
subject to cross-examination concerning the prior
statement of identification of a person made after
perceiving him, the prior statement of identification,
testified to by the declarant or another witness,
including a police officer, is now admissible as an
exception to the hearsay rule as substantive evidence
without regard to whether the statement of prior
identification corroborates a positive in-court
identification by the declarant, is offered as a
substitute for an inability to make an in-court
identification, or to bolster a weak in-court
identification on the part of the declarant." M. Graham,
Cleary & Graham's Handbook of Illinois Evidence 611.16
at 435-36 (6th ed. 1994).
We adopt this position set forth in Cleary and Graham. People v.
Gonzalez, 292 Ill. App. 3d 280, 685 N.E.2d 661 (1997). In
Gonzalez, the Second District also emphasized that sound public
policy supports the proposition that section 115-12 permits the
introduction of a prior identification even where the witness is
unable to identify the defendant in open court. Whereas a witness'
initial identification of the defendant often occurs within days or
hours of the crime, the defendant's trial typically occurs months
after the initial identification. Therefore, an identification
closer to the time of the crime should not be kept from the jury
solely because the witness is later unable to identify the
defendant at trial when he may have since modified his appearance.
See Gonzalez, 292 Ill. App. 3d at 287. Accordingly, we conclude
that the trial court properly admitted as substantive evidence
Brown's prior identification of the defendant, despite his
inability or refusal to identify the defendant in open court.
We reject the defendant's argument, based on People v.
Johnson, 255 Ill. App. 3d 547, 626 N.E.2d 1073 (1993), that the
admission of Brown's prior identifications violated the defendant's
right to federal due process because these statements failed to
meet the constitutional guarantees of trustworthiness. We
distinguish Johnson, which referred only to section 115-10.1 in
determining that "an additional inquiry must be made to show that
the admission of a prior inconsistent statement satisfies
constitutional due process requirements." 255 Ill. App. 3d at 558.
Moreover, in United States v. Owens, 484 U.S. 554, 98 L. Ed. 2d 951, 108 S. Ct. 838 (1988), the Supreme Court considered a
defendant's challenge under the confrontation clause to Rule
801(d)(1)(C) of the Federal Rules of Evidence (Fed.R.Evid.
801(d)(1)(C)), from which our section 115-12 of the Code is taken
(see People v. Robinson, 163 Ill. App. 3d 991, 516 N.E.2d 1322
(1987)). In its constitutional analysis, the Court determined that
the dangers associated with hearsay are not implicated when a
hearsay declarant is present at trial and subject to unrestricted
cross-examination. Owens, 484 U.S. at 560, 98 L. Ed. 2d at 958,
108 S. Ct. at 843. Rather, the constitutional requirements are
satisfied where the traditional protections of the oath, cross-
examination, and opportunity for the jury to observe the witness'
demeanor are present. Owens, 484 U.S. at 560, 98 L. Ed. 2d at 958-
59, 108 S. Ct. at 843.
The defendant next contends that the State failed to prove his
guilt beyond a reasonable doubt. It is not the function of this
court to retry a defendant when considering a challenge to the
sufficiency of the evidence. People v. Steidl, 142 Ill. 2d 204,
226, 568 N.E.2d 837 (1991). Rather, the relevant question is
whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Steidl,
142 Ill. 2d at 226.
The occurrence witnesses all testified similarly, although no
one, except Brown, saw the perpetrator's face. Brown testified
that he saw the shooter's face, but that it was another Maurice he
knew, not the defendant. However, we have affirmed the trial
court's decision allowing into evidence Gehrke's testimony as to
Brown's prior identification of the defendant. Gehrke testified
that Brown recognized the three individuals in the blue Malibu as
Bam, Ricardo, and Maurice. According to Gehrke, Brown said that
Maurice exited the Malibu, pulled up his hood, walked up to Nance,
and shot him several times before running down an alley. Gehrke
testified that Brown picked the defendant's picture out of a
photograph array as the person that shot Nance, and that he and
Brown both signed the defendant's photograph. Moreover, Gehrke
testified that Brown picked the defendant out of a line-up as the
person that shot Nance. Although Brown insisted that he merely
identified the defendant as a rival gang member, the trial court
was entitled to believe Gehrke's statements and reject Brown's
explanation.
The trial court could have attributed Brown's actions in court
to his fear of the defendant and other rival gang members. Brown
was arrested and put in Cook County jail during the week prior to
the defendant's trial. The parties stipulated to the fact that
Brown told prosecutors that the defendant and his friends looked at
him in the holding cell so that they would remember his face.
Although Brown denied these stipulations at trial, the trial judge
could have properly determined that Brown was afraid to identify
the defendant and felt compelled to recant his earlier statements.
Given Gehrke's testimony and the occurrence testimony of Brown
and the other witnesses, we cannot say that no rational trier of
fact could have found the elements of the charged offense to have
been proved beyond a reasonable doubt. Accordingly, we affirm the
defendant's conviction for first degree murder.
The defendant next contends that the trial court's
consideration of his demeanor was reversible error since the
defendant exercised his fifth amendment right not to testify at
trial. In finding the defendant guilty, the trial judge stated:
"I have watched the demeanor of the witnesses and
[sic] as well as the demeanor of the defendant. Based
upon the credibility of the witnesses, the Court find
[sic] the defendant guilty as charged."
The defendant has correctly noted that a defendant's demeanor, in
any respect other than during his testimony, does not constitute
evidence in a case. See People v. Foss, 201 Ill. App. 3d 91, 559 N.E.2d 254 (1990). However, in order for the trial judge's comment
here to amount to reversible error, the defendant must demonstrate
that it constituted a material factor in the conviction. People v.
Brown, 172 Ill. 2d 1, 38, 665 N.E.2d 1290 (1996). A review of the
record indicates that, while the comment was improper, it was also
an isolated remark, and the judge did not dwell on the issue of the
defendant's demeanor in rendering a conviction. Nor has the
defendant demonstrated how the statement constituted a material
factor in the outcome of his trial. Accordingly, we find the error
to be harmless since the defendant was not prejudiced.
The defendant next contends that his 60-year term of
imprisonment was an abuse of the trial court's discretion. The
State argues that the defendant waived this issue by failing to
object during the sentencing hearing and failing to file a post-
sentencing motion. People v. Reed, 177 Ill. 2d 389, 393-94, 686 N.E.2d 584 (1997); 730 ILCS 5/5-8-1(c) (West 1996)). The defendant
contends that Reed, which was decided after the sentencing in this
case, does not apply. However, the supreme court in Reed did not
direct that its decision be applied prospectively only. Moreover,
section 5-8-1(c) of the Unified Code of Corrections, on which Reed
is based, was amended by Public Act 88-311, effective August 11,
1993, long before the defendant was sentenced here. We conclude
that Reed applies to the present case.
Accordingly, we may review this issue only if we find plain
error, which occurs "when a defendant is deprived of a substantial
right, and, thus is deprived of a fair trial, or when an error is
made in a case with closely balanced evidence." People v. Bean,
137 Ill. 2d 65, 80, 560 N.E.2d 258 (1990). We find no basis on
which to invoke the plain error doctrine here. The sentence was
within the statutory limits (see 730 ILCS 5/5-8-1(a) (West 1996)),
the court considered the proper factors, and we find no abuse of
the trial court's discretion. Accordingly, we hold that the
defendant has waived any contentions of error at sentencing by
failing to raise those issues in a post-sentencing motion in the
trial court.
For the foregoing reasons, we affirm the judgment of the
circuit court of Cook County. As part of our judgment, we grant
the State's request and assess the defendant $100 as costs for
defending this appeal.
Affirmed.
THEIS and HOURIHANE, JJ., concur.