People v. Jones

No. 1-96-2046
November 14, 1997

THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
ROBERT JONES, ) Honorable
) Fred G. Suria, Jr.,
Defendant-Appellant. ) Judge Presiding.

JUSTICE ZWICK delivered the opinion of the court:
Following a jury trial defendant, Robert Jones, was found guilty of the armed
robbery of Elaine Ramos and sentenced to serve a term of natural life imprisonment as
a habitual offender pursuant to the provisions of the Uniform Code of Corrections, 720
ILCS 5/3-3(b)(1). He now appeals, alleging that (1) the State improperly bolstered
Ramos's identification with so-called "non-identification testimony," (2) the State was
erroneously permitted to elicit testimony regarding Ramos's excited reaction in viewing
the defendant in a police lineup, (3) testimony that defendant had to be "writted out"
of jail before he could be brought to the police lineup was unfairly prejudicial, (4) one
of the State's witnesses was permitted to testify to a prior consistent statement in which
Ramos told him, approximately a month after the incident, that a gun had been used
in the robbery, and (5) defendant was denied to a jury instruction on the offense of
aggravated robbery. For the following reasons, we reverse and remand the case for
further proceedings.
At trial, Elaine Ramos testified that she was walking to her car on March 1,
1995, at approximately 8 p.m. after shopping at the Target store located at 2656
North Elston. As she was putting her shopping bags into her car, she heard a car stop
suddenly behind her. She turned and saw the defendant get out and run toward her
with a gun in his hand. Although defendant had partially covered the gun with a
towel, Ramos could see its barrel. Defendant walked up to Ramos and pointed the gun
at her stomach. She testified that the defendant was right in her face and that the
parking lot was "very, very well lit."
Ramos opened her wallet and gave defendant about $70. After she told
defendant that she had no more money, defendant walked to his car and drove away.
As he drove away, she looked at his license plate, then ran into Target and told the
security people, "I've been robbed with a gun." She kept repeating the license plate
number over and over.
When police arrived at the Target store, Ramos described the offender as an
African-American male, light skin, at least six feet tall, about 160 pounds, with marks
on his face and hair growth, wearing a tan jacket and dark pants. Ramos then gave a
partial license plate number, "L-W-J." Ms. Ramos also told the police that she had
seen the barrel of the gun.
A couple of days later, Ramos received a phone call from Detective Fernando
Montilla. He took her to the Area 5 police station where Ramos looked at books of
photos, but did not recognize the person who had robbed her. She told the detective
that she had a clear image of the person and did not want to be confused by looking
at more pictures.
On April 3, 1995, Ramos again went to Area 5, this time to view a lineup.
When the curtains were opened, she immediately recognized defendant stating, "It was
just instant recognition. He was just right in front of me, like again. And I was just, it
was like seeing him. I just moved back, I started crying." Ramos told the detective
conducting the lineup, "That's him, that's him." She was so upset to see defendant
again that she "almost passed out."
On cross-examination, Ramos insisted that she had seen a gun during the
robbery, stating that she could see both its barrel and defendant's hand around its
handle. When asked if the gun was a revolver or a pistol, she stated that she did not
know guns. She denied telling police that she saw a "possible handgun barrel," insisting
that she told them she had been robbed with a gun.
Officer John Nowik testified that he received a radio call on March 1, 1995,
directing him to meet a robbery victim at the Target store at 2656 North Elston. At
the scene, Ms. Ramos told him that the offender was a black male, 6 feet tall and
weighed about 170 pounds. He was in his 30s. He had dark pants, a tan jacket and
wore gym shoes. His face had pock marks.
On cross-examination, Officer Nowik admitted that his police report of the
incident indicated that the offender was "about 30," not "in his 30s." He also stated
that the report did not describe a gun, but only indicated that the perpetrator had
displayed "an unknown possible handgun barrel." Officer Nowik stated that Ramos
never described the handle of the weapon.
Detective Montilla, a Chicago police robbery specialist, testified that he had
been assigned to the robbery of Elaine Ramos on March 1, 1995. In response to
prosecutors questioning of when he had first come into contact with the defendant,
Montilla stated that he had "writted him out --," and was interrupted by defendant's
objection. The trial court instructed Montilla just to answer the question asked of him
and Montilla then explained that he first came in contact with the defendant on April
3, 1995, when he arranged a police lineup for Ramos. He further testified that when
he opened the curtain to show Ramos the lineup, she got very nervous and almost
passed out. She subsequently identified the defendant as the offender. Montilla also
stated, over defendant's objection, that Ramos told him a gun had been used in the
robbery.
On cross-examination, Detective Montilla stated that defendant's height was 6
feet, 3 inches and that he was 43 years old. Montilla noted that his arrest report
revealed that the defendant had a scar on his left cheek.
After hearing closing arguments, the jury found defendant guilty of armed
robbery.
I.
Defendant first argues that the trial court committed reversible error in failing to
sustain his objection with regard to Ramos's "non-identification testimony." Specifically,
defendant complains that Ramos's testimony that she looked unsuccessfully through
mug books at police headquarters several days after the robbery was improper and
prejudicial. The State concedes that this questioning violated the supreme court's
holding in People v. Hayes, 139 Ill. 2d 89, 138, 564 N.E.2d 803 (1990), but argues
that the error is harmless.
In Hayes, the court found that the introduction of certain testimony, i.e.,
testimony that the prosecution's witnesses had failed to identify the perpetrator after
being driven around the crime scene and also upon viewing police photographs, was
irrelevant and improper, in part, because of its tendency to bolster the witnesses'
subsequent identification of the defendant. Hayes, 139 Ill. 2d at 138-39. The court
determined, however, despite the error, the "overwhelming evidence" of defendant's
guilt prevented the case from having to be reversed and remanded. Hayes, 139 Ill. 2d
at 139.
In drawing an analogy to Hayes, the State argues that there was "ample
testimony" establishing that Ramos identified defendant after seeing him at the scene,
and points out that the identification by Ramos was made after she observed him in
"well lit circumstances." We do not share the State's view of the quality of evidence in
this case. Rather than being overwhelming, we find the proof of guilt to be delicately
balanced.
Defendant was convicted by the uncorroborated testimony of a single eyewitness
who picked defendant out of a line-up more than a month after the offense occurred.
This single-finger identification was made by a woman who had never seen the
offender before the robbery and who, by her own account, was terrified throughout the
ordeal. There was not a scintilla of evidence corroborating the identification. In
contrast, no less than 6 witnesses identified the defendant in Hayes as the offender.
Hayes, 139 Ill. 2d at 139. Moreover, Ramos's description of the offender, made
immediately after the offense, gave the age of the offender as 30 or being in his 30's
when, in fact, defendant was 43-years old. Evidence also established that the defendant
had a scar on his left cheek, a scar which Ramos did not observe on the perpetrator at
the time of the robbery. While these facts would not be sufficient to prevail on a claim
of reasonable doubt, we agree with defendant's argument that the identification
testimony presented by the State is far from the type of evidence needed to render
harmless the conceded error which bolstered Ramos's identification. This is not altered
by the fact that the witness testified that she was sure of her identification or that the
crime scene was well lit. Accordingly, defendant's conviction must be vacated and the
case remanded for a new trial.
We now turn to a discussion of the remaining issues which may present
questions of law for the trial court on remand.
II.
Defendant argues that it was error for the trial court to allow testimony from
both Ramos and detective Montilla, over objection, as to how Ramos reacted upon
seeing the defendant at the police lineup. Defendant argues, "[t]he reliability of the
identification is not enhanced by evidence that, upon seeing defendant in the line-up,
[Ramos] cried, trembled, shouted `Oh my god' in disbelief, or felt as though she were
reliving the crime."
In describing her identification of the defendant, Ramos testified:
"They opened up the curtain. I looked in the room
and I just --- I mean I immediately saw him. It was just
instant recognition. He was just right in front of me, like
again. And I was just, it was like seeing him. I just moved
back, I started crying.
The officer said, `Do you recognize him?'
I said, `Oh my god, I can't believe this. Oh, my god.'
* * * * *
I said, `That's him, that's him.' My hand was shaking
and he said, `What number is he?' They said, `Is it 1, 2, 3,
4?'
I said, `It is No. 3. It is No. 3.'"
Regarding the same events, Detective Montilla testified:
"Mrs. Ramos got very nervous, almost passed out, and
pointed out Offender No. 3."
We find this testimony was properly admitted.
The general rule is that a witness may not testify as to statements made out of
court for the purpose of corroborating her testimony given at the trial relative to the
same subject. People v. Clark, 52 Ill. 2d 374, 388-90, 288 N.E.2d 363 (1972). This rule
is held to apply with equal force where a third person seeks to testify concerning the
prior consistent statements. People v. Fuelner, 104 Ill. App. 3d 340, 351, 432 N.E.2d 986 (1982). An exception to the rule is recognized, however, where the out-of-court
statement is one of identification. A prior identification is admissible because it refutes
the possibility that an in court identification is based solely on the suggestiveness of the
trial setting. People v. Rogers, 81 Ill. 2d 571, 411 N.E.2d 223 (1980). To this end,
section 115-12 of the Code of Criminal Procedure states that testimony concerning a
prior identification is not prohibited by the hearsay rule where, (1) the declarant
testifies at the trial or hearing, (2) the declarant is subject to cross-examination
concerning the statement and (3) the statement is one of identification of a person
made after perceiving him. 725 ILCS 5/115-12 (West 1996).
We simply disagree with the premise of defendant's argument on this issue.
When the fact finder is presented with testimony concerning a prior identification, the
identification is admitted to corroborate the witness's in-court identification pursuant to
section 115-12, and the reliability of that identification is necessarily put into question.
Many factors must be considered in assessing the reliability of the prior identification,
including the witness's level of certainty as demonstrated at the time of the lineup
confrontation. See Cleary and Graham's Handbook of Illinois Evidence (5th Ed. 1990)
pp. 439-40,  611.17. Therefore, we conclude that the trial court properly allowed the
challenged testimony.
III.
Defendant next contends that the trial court improperly allowed the introduction
of "other crimes" evidence. Before trial, defense counsel moved in limine to bar
testimony that he was "writted out" from the Cook County Jail for the lineup.
Defendant took the position that this testimony should not be admitted because it
tended to inform the jury that he was in custody for unrelated offenses. The prosecutor
informed the court he had anticipated the problem and had instructed the detectives
accordingly. Nonetheless, when Detective Montilla was asked by the prosecution the
date in which he had first come into contact with the defendant, the officer began his
answer by saying that he had "writted him out --." The court instructed the officer
simply to answer the question that had been asked of him.
The State argues that the issue has been waived because defendant did not
include the issue in his post-trial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). The State also argues that the term "writted out" is too obscure a
reference to have been prejudicial to the defendant. Regardless of the State's
arguments, however, we agree with defendant that the introduction of such testimony
presents serious concerns regarding defendant's right to a fair trial. Given our decision
to remand the case on other grounds, we need not comment on the ultimate question
of whether defendant was unfairly prejudiced by the reference. We simply note our
confidence that prosecutors and the trial court will take whatever precautions are
necessary to prevent the same error from recurring on remand.
IV
Defendant next contends that Officer Nowik should not have been permitted to
testify that on April 3, 1995, approximately one month after the robbery, Elaine
Ramos told him that she had been robbed by a man using a gun. Defendant argues
that such a "prior consistent statement" is not admissible. We agree.
The State concedes that proof of a prior consistent statement by a witness are
generally inadmissible unless they are made to rebut a charge or inference of recent
fabrication or motive to testify falsely, so long as the prior statement is made before the
alleged motive to fabricate existed. People v. Ashford, 121 Ill. 2d 55, 71, 520 N.E.2d 332 (1988). Thus, in analyzing the issue as to whether the trial court erred by
admitting a witness' prior consistent statement into evidence, it is necessary to analyze
whether the witness is alleged to have had the same motive to fabricate at the time she
made the prior consistent statement as she did at trial. See People v. Grisset, 288 Ill.
App. 3d 620, 626-27, 681 N.E.2d 1010 (1997). The prior consistent statement rebuts
the inference of fabrication only if the motive to fabricate is shown not to exist at the
time of the prior consistent statement. See Grisset, 288 Ill. App. 3d at 626 (rejecting
the court's contrary holding in People v. Antczak, 251 Ill. App. 3d 709, 622 N.E.2d 818 (1993)). Under the facts presented, the proper analysis fails to support the
admission of the prior consistent statement.
Defense counsel implied by his questioning of Ramos and Officer Nowik that
Ramos was unsure of the existence of a gun at the time she was interviewed at the
scene, on March 1, 1995. This was inconsistent with Ramos's trial testimony in which
she insisted that she had always claimed a gun had been used in the robbery. In order
for the prior April 3 prior consistent statement to be admitted under such facts, it
would have had to have been made before the interview on March 1, 1995 (as were
her statements in the store immediately after the robbery, "I've been robbed with a
gun"), not a month afterwards. Ramos's statement to Montilla on April 3, 1995, did
not rebut a charge of recent fabrication because defense counsel never implied that
Ramos had developed a motive to fabricate at any particular point in time after her
meeting with Montilla.
V.
Finally, defendant argues that the trial court committed reversible error in
failing to instruct the jury on the "lesser included offense" of aggravated robbery. We
reject defendant's argument, albeit for reasons that differ from those urged to us by the
State.
Although no person may be convicted of an offense that he or she has not been
charge with committing, a defendant may be convicted of an offense not expressly
included in the charging instrument if that offense is a lesser included offense of the
crime expressly charged. People v. Novak, 163 Ill. 2d 93, 105, 643 N.E.2d 762 (1994);
People v. Bryant, 113 Ill. 2d 497, 499 N.E.2d 413 (1986). A lesser included offense is
"established by proof of the same or less than all of the facts or a less culpable mental
state (or both), than that which is required to establish the commission of the offense
charged." 720 ILCS 5/2-9(a) (West 1996).
The State agrees with the defendant that aggravated robbery is a lesser included
offense of armed robbery, but argues that the trial court was nonetheless justified in
not giving an aggravated robbery instruction because the evidence was insufficient to
support it. We reject both the position of the State and the defendant on this issue
because we conclude that aggravated robbery is not a lesser included offense to the
charge of armed robbery, at least as the State has worded the indictment in this case.
The State's concession regarding the existence of a lesser included offense does not
control our analysis of the issue because it is our obligation, independent of the parties'
arguments, to achieve both a just result and to maintain a sound and uniform body of
precedent Wozniak v. Segal, 56 Ill. 2d 457, 460, 308 N.E.2d 611 (1974); People v.
Hanson, 273 Ill. App. 3d 332, 340, 652 N.E.2d 824 (1995). Whether a charged offense
encompasses a lesser included offense is a matter of law which we review de novo.
People v. Landwer, 166 Ill. 2d 475, 486, 655 N.E.2d 848 (1995).
As background, it is helpful to recognize the significant differences which exist
between the crimes of armed robbery and aggravated robbery. A defendant commits
the offense of armed robbery, a Class X offense, when he (1) takes property from the
victim; (2) by the use of force or by threatening the imminent use of force; and (3) does
so while armed with a dangerous weapon. 720 ILCS 5/18-2 (West 1996). A defendant
commits aggravated robbery, a less-serious Class 1 offense, when he (1) takes property
from the victim; (2) by the use of force or by threatening the imminent use of force;
and (3) while indicating verbally or otherwise to the victim that he is armed with a
firearm. 720 ILCS 5/18-5 (West 1996).
The first two elements of the offenses of armed robbery and aggravated robbery
are identical, but the third elements are quite distinct. The offense of armed robbery
requires the defendant to be armed with a "dangerous weapon." In contrast, the
offense of aggravated robbery requires that the defendant state or imply to the victim
that he has a "firearm." Moreover, the defendant need not threaten the victim with the
weapon for armed robbery to exist. Indeed, the victim need not even realize that the
defendant has a weapon, so long as the State can show the victim was otherwise forced
or threatened with imminent force to turn over property.
To illustrate the differing requirements of the two offenses, we note that a
defendant can be guilty of committing the more-serious offense of armed robbery and
yet not be guilty of the less-serious offense of aggravated robbery. Such is the case
when the defendant threatens his victim with a knife (because a knife is a "dangerous
weapon," but not a "firearm"), or when he carries a handgun, but does not show it or
tell his victim that he has it (because the armed robbery statute only requires defendant
to be "armed" with a weapon, and because the aggravated robbery statute requires the
defendant to state or imply to the victim that he has a firearm). Alternatively, a
defendant can be guilty of the less-serious offense of aggravated robbery and not the
more-serious offense of armed robbery, as when he falsely says he has a gun (because
armed robbery requires the defendant to be actually "armed with a dangerous
weapon"). A final scenario is that a defendant can be guilty of committing both crimes
in the same criminal act, as when he threatens the victim with a real gun (because a
gun is both a "dangerous weapon" and a "firearm"), or when he possesses a dangerous
weapon that is not a firearm, but tells his victim that he has a firearm.
In considering whether a crime is a lesser included offense of another, Illinois
follows a "charging instrument" analysis. Novak, 163 Ill. 2d at 112. Under this
approach, an offense is determined to be a lesser included offense not by analyzing the
statutory elements of the crimes involved and the possible theoretical ways in which
charged offense and alleged lesser included offense could be committed, but rather, by
comparing the charging instrument to the alleged lesser-included offense to see whether
the charging instrument sufficiently describes the "foundation" or "main outline" of that
offense. Novak, 163 Ill. 2d at 107, 114. Thus, in Novak, the court concluded that the
offense of aggravated criminal sexual abuse was not a lesser included offense of the
offense of aggravated criminal sexual assault because the indictment charging the
defendant with sexual assault indicated only that the defendant had committed an act
of penetration against the victim, failing to state that he had done so "for the purpose
of sexual gratification." The court concluded that the failure of the indictment to allege
this element of the charge of aggravated criminal sexual abuse resulted in the
indictment failing to set out the "foundation" or "main outline" of the abuse charge.
Novak, 163 Ill. 2d at 114. Three dissenting justices took the position that the missing
element could be reasonably inferred from the charging instrument which had alleged
penetration (Novak, 163 Ill. 2d at 121-25 (Nickles, J., dissenting)), but the court
implicitly rejected this argument in affirming.
The indictment in this case alleged armed robbery as follows:
"Robert Jones committed the offense of armed robbery in
that he, by the use of force or by threatening the imminent
use of force while armed with a dangerous weapon, to wit:
a handgun[,] took United States currency from the person
or presence of Elaine Ramos ***."
Although this indictment does allege the use of a firearm, an allegation sufficient to
meet part of the third element of the aggravated robbery statute, it clearly does not
allege that the gun was ever displayed to Ramos or that the defendant implied to
Ramos that he possessed a gun. We find that such allegations are a necessary
"foundation" or "main element" of the aggravated robbery charge and, as in Novak,
the missing element cannot be inferred. Accordingly, it was proper for the trial court to
refuse defendant's instruction and defendant is not entitled to an aggravated robbery
instruction on remand.
For the foregoing reasons, the judgment of the circuit court of Cook county is
reversed and remanded for further proceedings consistent with this opinion.
Reversed and remanded.
GREIMAN, P.J., and THEIS, J., concur.