Find Legal Information

Third Division

December 18, 2002

Nos. 1-00-1603 & 1-00-2701 cons.

JUSTICE HALL delivered the opinion of the court:

On February 29, 2000, following a bench trial, defendantTheron Bradley, also known as Big Ron, was convicted ofaggravated battery with a firearm and armed robbery of LarryWoods. On April 11, 2000, defendant was sentenced to 15 years'imprisonment for aggravated battery and 6 years' imprisonment forarmed robbery, the sentences to be served consecutively. On May10, 2000, defendant filed his notice of appeal. On May 15, 2000,defendant filed a motion to reduce his sentence, which the trialcourt denied on August 3, 2000. This consolidated appealfollowed.

On appeal, defendant contends that: (1) the trial courterred by improperly admitting Detective Daniel Dempsey'stestimony regarding Larry Woods' out-of-court statementidentifying defendant as the individual who shot him; (2) thetrial court erred by improperly considering facts not in evidencein finding defendant guilty of aggravated battery and armedrobbery; and (3) the trial court erred in ordering that thesentences imposed for aggravated battery and armed robbery beserved consecutively. For the reasons that follow, we affirm.FACTUAL BACKGROUND

Defendant's conviction arose from the nonfatal shooting andarmed robbery of Larry Woods on May 27, 1999, at approximately 3a.m., near 137th and Parnell Avenue, in Riverdale, Illinois. Woods, a known drug dealer and member of the same street gang asdefendant, testified that on May 27, 1999, at about 3 a.m. he wasat the home of his friend, Laquita Franklin, when he got into anargument with the defendant over drugs and "gang[-]relatedthings." After the argument ended, Woods left Ms. Franklin'shome and proceeded to walk up the street.

As Woods was walking up the street away from the home, heheard defendant call his name. Woods testified that defendantasked him to "come here for a minute." Woods testified that whenhe stopped and turned around toward defendant, he saw defendantapproaching him. Defendant was wearing gloves and was pulling ahandgun from his behind his back. Woods was unarmed.

Defendant approached within approximately four feet ofWoods, pointed his handgun at Woods and ordered him to "Give meyour sh-t." Woods testified that he understood that defendantwas referring to the illegal drugs that Woods had in hispossession. Defendant fired a gunshot at the ground when Woodshesitated in turning over his drugs. Woods then threw hisplastic bag of crack cocaine to the defendant. Defendantretrieved the bag of drugs, told Woods, "Man, I told you aboutplaying with me," and then shot Woods once in the leg, shatteringhis femur.

Woods testified that after he was shot he ran across thestreet, but his leg "gave out" and he fell to the ground. As hewas lying on the ground, Woods called out to the defendant, "BigRon, don't leave me. Don't leave me out here." Defendant thencrossed the street after Woods. Upon reaching Woods, defendanttook approximately $40 in cash from Woods' pocket and told Woods,"Don't call my name." Woods testified that defendant threatenedto shoot him again if he continued to call out defendant's name.

Woods eventually knocked on a nearby resident's window, andthe resident called 911. Police officers arrived along with anambulance, which transported Woods to Christ Hospital, where hereceived treatment for his gunshot wound.

Detective Daniel Dempsey testified that he arrived at thescene of the shooting at approximately 4 a.m., about an hourafter the incident. He testified that when he arrived at thescene, Woods had already been taken to Christ Hospital. While atthe scene, Detective Dempsey spoke with Officers Fionda andGraziano regarding the conversation they had with Woods prior tohis removal to Christ Hospital.

Detective Dempsey then prepared a photo array based on theinformation that police officers Fionda and Graziano told himthey received from Woods. Later, the same day of the shooting,Detective Dempsey took the array of photos to Christ Hospital andshowed them to Woods. Detective Dempsey testified that Woods,upon examining the photo array, identified defendant as theindividual who shot him.

ANALYSIS

I. Hearsay Identification Testimony

Defendant first contends that the trial court erred byadmitting Detective Dempsey's testimony regarding Woods' out-of-court statement identifying defendant as the individual who shothim in the leg. Defendant requests that we consider the meritsof this contention under the plain error rule, on the ground thatthe evidence in the case was closely balanced.

The State responds that defendant waived his hearsayargument and that the evidence was not so closely balanced as towarrant a plain error review. The State maintains, however, thatif this court determines that defendant did not waive his hearsayargument, we should find, as the trial court did, that Woods'out-of-court statement identifying defendant as his assailant wasproperly admissible under the "excited utterance" exception tothe hearsay rule. Further, the State contends that DetectiveDempsey's testimony regarding Woods' out-of-court statement ofidentification was also properly admissible pursuant to section115-12 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS5/115-12 (West 1996)), which pertains to the admissibility of anout-of-court statement of prior identification. Lastly, theState contends that even if we conclude that the trial courterred in admitting Detective Dempsey's objected to testimony, weshould find that the error was harmless, since the trial courthad independent evidence from which it concluded that Woodsproperly identified defendant as his assailant.

In order to preserve an issue for appellate review, adefendant must make a timely objection at trial and include theground for objection in a written posttrial motion. People v.Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). Since therecord indicates that defendant failed to raise the issue of theadmissibility of Detective Dempsey's testimony regarding Woods'out-of-court statement of identification in his posttrial motion,defendant has waived this issue for appeal. However, aspreviously mentioned, defendant requests that we consider themerits of the issue under the plain error rule, on the groundthat the evidence was closely balanced.

To apply the plain error exception to the waiver rule,courts should first determine if the record shows that an erroroccurred. If not, end of story. If so, then courts shouldconsider whether the error was plain error. People v. Precup, 73Ill. 2d 7, 17, 382 N.E.2d 227 (1978). This criterion is met incriminal cases under two limited circumstances: (1) where theevidence is closely balanced and the error might havesignificantly affected the outcome of the case; or (2) where theerror is so fundamental and of such magnitude that the accusedwas denied a fair trial and remedying the error is necessary topreserve the integrity of the judicial process. People v. Young,128 Ill. 2d 1, 47, 538 N.E.2d 461 (1989); People v. Sanders, 99Ill. 2d 262, 273, 457 N.E.2d 1241 (1983); see 134 Ill. 2d R.615(a)⁽¹⁾. If it is not plain error, end of story -- error iswaived. If it is plain error, then courts can consider whetherthe error was reversible or not.

In the present case, the trial court erred in admittingDetective Dempsey's testimony regarding Woods' out-of-courtstatement under the "excited utterance" exception to the hearsayrule. However, this error is not reviewable under the plainerror doctrine because an examination of the record reveals thatthe evidence was not close nor was the error of such magnitude asto preclude defendant from receiving a fair trial. The evidenceshowed that prior to the incident, Woods and defendant had knowneach other for approximately four months through their mutualmembership in a street gang. Woods testified that defendant shothim in the leg shortly after they engaged in an argument overillegal drugs and "gang[-]related things." Based on the properlyadmitted evidence, the trial court stated that Woods'identification of defendant as his assailant was not an issue inthe case. Therefore, we must reject defendant's contention thatthe evidence regarding Woods' identification of defendant as hisassailant, was closely balanced. And thus, the trial court'serror in admitting Detective Dempsey's testimony regarding Woods'out-of-court statement of identification under the "excitedutterance" exception to the hearsay rule did not rise to thelevel of plain error and is not reviewable under the plain errordoctrine. Moreover, even if we reviewed the error under thedoctrine of plain error, we would hold that the error washarmless under the circumstances in this case.

A. Excited Utterance Exception to Hearsay Rule

The classical rationale underlying the spontaneousdeclaration or excited utterance exception to the hearsay rulewas summarized in Wigmore on Evidence as follows:

"This general principle is based on the experiencethat, under certain external circumstances of physicalshock, a stress of nervous excitement may be produced whichstills the reflective faculties and removes their control,so that the utterance which then occurs is a spontaneous andsincere response to the actual sensations and perceptionsalready produced by the external shock. Since thisutterance is made under the immediate and uncontrolleddomination of the senses, and during the brief period whenconsiderations of self-interest could not have been broughtfully to bear by reasoned reflection, the utterance may betaken as particularly trustworthy (or at least as lackingthe usual grounds of untrustworthiness), and thus asexpressing the real tenor of the speaker's belief as to thefacts just observed by him; and may therefore be received astestimony to those facts." 6 J. Wigmore, Evidence