Find Legal Information

SECOND DIVISION
NOVEMBER 30, 2004

No. 1-02-0281

 

In May 2001, the defendant, A.J. Stackhouse, was chargedwith robbery (720 ILCS 5/18-1 (West 2000)), and aggravatedbattery (720 ILCS 5/12-4(b)(8) (West 2000)). Following a benchtrial in November 2001, the trial court found the defendantguilty of robbery (720 ILCS 5/18-1 (West 2000)). The trial courtsentenced the defendant to an extended 10-year term in theIllinois Department of Corrections (DOC).

The defendant appeals, arguing that the trial court erred in (1) permitting the State to augment the defense's offered stipulation, (2) allowing a police officer to testify that the victim identified the defendant at the scene, and (3) sentencing him to an extended-term sentence. Although we agree with the defendant on the first two issues raised on appeal, we nonetheless affirm.

BACKGROUND

The victim, David Vasquez Ortiz, testified that on April 15,2001, shortly before 8 p.m., he was walking toward the bus stopat 3158 West 63rd Street. Ortiz testified that he had consumedseveral beers earlier in the evening. While Ortiz was waitingfor the bus, a woman, later identified as Jennifer Geraci⁽¹⁾,approached him for a date. Ortiz turned her down. Once a busarrived at the bus stop, Ortiz attempted to get on the bus'sfirst step, but he was hit on the head from behind. Ortiztestified that he did not see who hit him. Ortiz testified that$20 and his watch were taken. Ortiz specifically testified thathis watch, which had a picture of Jesus Christ on it, was removedfrom his left wrist. Ortiz testified that after he was struck onthe back of his head, a Chicago Transportation Authority (CTA)bus driver came to his aid. Shortly thereafter, a police officerarrived and took him across the street to the parking lot of aWalgreen's drug store. Ortiz testified he recognized Geraci asthe woman who robbed him; however, he could not identify the man. While in the parking lot, the police officer returned Ortiz'swatch to him.

Sharon Davis, a CTA bus driver upon whose bus Ortiz soughtto board, testified that she saw Ortiz flagging her down, but awhite woman standing next to Ortiz, later identified as Geraci, was telling her to go on. Davis stopped the bus and Ortizattempted to get on; however, Geraci pulled Ortiz off the stepand a black man, later identified as the defendant, hit Ortizfrom behind. Davis testified that after the defendant hit Ortiz,both he and Geraci dragged Ortiz to the side of the bus. Davistestified that, using the mirror on the side of her bus, she wasable to see the defendant and Geraci going through Ortiz'spockets. Davis testified that before the date in question, shedid not know Ortiz, Geraci, or the defendant. Davis then made anin-court identification of the defendant.

Davis testified that she put her bus in neutral until thedefendant and Geraci were finished going through Ortiz's pockets,then she got off the bus, flagged down a police officer, andassisted Ortiz. When Davis got off of the bus, Ortiz was lyingon the side of the bus by the front wheel. The defendant andGeraci had walked south toward Walgreen's. Davis testified thatshe gave a police officer a description of the two individualsand pointed him in their direction of travel. Davis testifiedthat police officers immediately ran after the offenders.

Chicago police officer Michael Ferguson testified that hewas on duty around 8 p.m. on April 15, 2001. Officer Fergusontestified he was waved down by a CTA bus driver who told him thata man had just been robbed and the bus driver pointed to thevictim lying on the ground. The bus driver gave Officer Fergusona description of the offenders and pointed him in their directionof travel. Officer Ferguson testified that when he looked in thedirection indicated by Davis, he saw the two subjects walkingthrough Walgreen's parking lot. Officer Ferguson identified thedefendant as one of the individuals he detained in the parkinglot. Officer Ferguson testified that the other individual was awhite woman wearing a blue coat and blue jeans.

Officer Ferguson testified that he stopped the twoindividuals and placed them in custody. Officer Fergusontestified that a silver watch with a picture of Jesus Christ onit was recovered from the defendant's pocket. Officer Fergusontestified that he showed the watch to Ortiz. Officer Fergusonalso testified that Ortiz acknowledged the watch was his and saidthat it had been taken from him. Officer Ferguson testified thatOrtiz identified both the defendant and Geraci.

At this point, the State rested and the defendant testifiedon his own behalf.

The defendant testified that he had been convicted ofdelivery of a controlled substance in 1998 and unlawful use of aweapon by a felon in 2000. The defendant testified that prior tohis arrest on April 15, 2001, he was sitting in his dining room. The defendant testified that the back of his home abuts an alleyand a Walgreen's parking lot. The defendant testified that heleft his home because he heard Geraci yelling, "A.J. A.J. helpme. They took my money, took my money." The defendant testifiedthat he thought Geraci was being robbed so he went out on hisback porch and saw Geraci as well as a man everybody calls"Armando," identified as the victim Ortiz. The defendanttestified that he also saw "about six young black brothers readyto beat him [Ortiz] down."

The defendant testified that he eventually left his porch,walked down to the alley, and asked Ortiz what was wrong. Thedefendant testified that Ortiz told him that Geraci was botheringhim and that she claimed he owed her money. The defendant alsotestified that Ortiz told him that he did not have any money anddid not owe Geraci anything. The defendant testified that hetold Ortiz, "I say man, you out of it. You scummy." Thedefendant testified that by "scummy" he meant that Ortiz "wasdrunk. He didn't know nothing." The defendant testified that hesent Ortiz on his way, walking him to the bus stop for hissafety. The defendant testified that he thought Ortiz was indanger because Geraci was popular with the boys and they werewith her, ready to beat Ortiz.

The defendant testified that Ortiz got on the bus, but thenGeraci pulled him off. The defendant testified that he did nothit Ortiz on the back of the head, "I did not touch that man. Igot the hell away from there." The defendant testified that thepolice did not recover Ortiz's watch from him; however, thedefendant testified that he was present when the watch wasrecovered. The defendant testified that he was handcuffed to abar inside the police station at 63rd and St. Louis Streets whenOfficer Ferguson reached over to Ortiz's wrist, told Ortiz he hada nice watch, and said, "I want you to say Stackhouse has yourwatch." The defendant testified that he had dealt with OfficerFerguson in the past. When asked why Officer Ferguson would wantto set him up, the defendant replied it was because "I wasselling narcotics in the neighborhood and I stopped and theynever could catch me, right, so they been warning me and warningme and this is why. And plus they thought [Geraci] and I wereman and woman and they was against that."

On cross-examination, the defendant testified that he helpedOrtiz to the bus stop because Ortiz was drunk, they were friends,and they had hung out many times. By "help" the defendantclarified that they were walking and talking on the way to thebus stop. The defendant testified that he did not touch Ortizduring their walk to the bus stop or actually assist him ingetting on the bus. The defendant also testified that whenGeraci grabbed Ortiz, he got out of the way because he did notwant to be involved. The defendant testified that he left thebus stop and headed home. The defendant testified that Geraciwas "a friend of the family," and she caught up with him in theparking lot of Walgreen's.

A sidebar was then called. The State told the trial courtthat it had been asked to stipulate to something that wasallegedly said to police detectives and included in their policereport. The trial court asked the defense attorney for theproposed stipulation. Following the defense attorney's readingof the proposed stipulation, the State requested the remainder ofthe pertinent portion of the police report be entered intoevidence. The trial court heard the remainder and allowed intoevidence a more limited portion of the remainder of thestatement.

Closing arguments were then made. In reaching its verdict,the trial court recounted the facts it found most persuasive.Based on its recounting of the evidence, the trial court foundthat the charge of aggravated battery on a public way merged intothe robbery charge because the same force was used to accomplisheach offense. Accordingly, the trial court found the defendantguilty of robbery (720 ILCS 5/18-1 (West 2000)) only.

The defendant was sentenced on December 28, 2001. The trialcourt found that the defendant was previously convicted of aClass 2 felony making the defendant eligible for an extended-termsentence of 7 to 14 years. 720 ILCS 570/401 (West 2000). Thetrial court sentenced the defendant to an extended-term sentenceof 10 years in the DOC.

ANALYSIS

The defendant presents three arguments on appeal. Thedefendant first contends that the trial court erred in allowingthe State to "augment" the defense stipulation accepted by thetrial court. The defendant also argues the trial court erred inpermitting Officer Ferguson to testify that Ortiz identified thedefendant at the scene. Finally, the defendant argues that thetrial court erred in imposing an extended-term sentence.

I. Stipulation

The defendant contends that the trial "court erred inpermitting the State to augment the stipulation entered by thedefense as to a prior inconsistent statement, with inadmissiblehearsay and double hearsay of additional statements made by Davisto police detectives." The defendant contends that the augmentedmaterial was not only inadmissable hearsay but greatlyprejudicial. The defendant concedes this issue has beenforfeited, as no objection was made at trial and this issue wasnot raised in a posttrial motion. However, the defendantattributes the omissions to ineffective counsel and urges us toreview the matter under the plain error rule on the ground thatthe erroneous admission of the hearsay evidence denied thedefendant a fair trial.

The State contends that the addition to the defensestipulation was properly allowed by the trial court under thecompleteness doctrine. The State also argues that even if theaddition to the stipulation was not admissible under thecompleteness doctrine, the defendant has forfeited review of thisissue and has failed to demonstrate that this claimed error risesto the level of plain error. Accordingly, so the State contends,the defendant did not receive ineffective assistance from histrial counsel.

We first note that the trial court clearly considered thedefense stipulation regarding the prior inconsistent statement byDavis to the investigating police detectives, and the State'srequest to admit the balance of Davis's statement, as separateevidentiary issues. The trial court accepted the defensestipulation regarding the prior inconsistent statement by Davisto the investigating police detectives once the State indicatedit would stipulate to it. The State then sought to introduce thebalance of Davis's statement to the investigating detectivesunder the completeness doctrine. The trial court stated thatonce it hears the balance of Davis's statement, if the balance is"relevant and should be admitted as far as the other [statement],I'll consider it." Defense counsel then read the balance ofDavis's statement, and the trial court stated it would considerportions of the statement. Although the trial court did notstate the basis for its ruling, it appears clear that the trialcourt found the balance of the statement admissible under thecompleteness doctrine. We do not believe, however, that thetrial court's ruling was the equivalent of "permitting the Stateto augment the stipulation entered by the defense as to a priorinconsistent statement." We consider the issue before us to bewhether the balance of Davis's statement was admissible under thecompleteness doctrine.

A. Forfeiture

As stated above, the defendant did not object to either (1)the State's request, or (2) the trial court's ruling regardingthe information contained in the balance of Davis's statementthat it found relevant and pertinent to the proceedings. Moreover, the defendant did not raise as error the trial court'sconsideration of the balance of Davis's statement in hisposttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186, 522N.E.2d 1124 (1988). By not objecting at trial or raising thisissue in a posttrial motion, the defendant has forfeited thisissue for purposes of our review. Enoch, 122 Ill. 2d at 186. However, because the defendant asserts this claim in the contextof a challenge to the effectiveness of his trial counsel, we willexamine the record to determine whether there was error; if so,whether the error was plain; and, if so, whether the plain errorwas "of such a magnitude that the accused was denied a fair trialand remedying the error is necessary to preserve the integrity ofthe judicial process." People v. Bradley, 336 Ill. App. 3d 62,66, 782 N.E.2d 825 (2002).

B. Completeness Doctrine

The State contends the balance of Davis's statement was admissible under the completeness doctrine and, therefore, the trial court did not err in its ruling admitting the balance of Davis's statement. The defendant contends that the balance of Davis's statement was inadmissible hearsay and double hearsay, the admission of which "resulted in great prejudice [to the defendant]."

The completeness doctrine is an exception to the hearsayrule that provides, "'if one party introduces part of anutterance or writing the opposing party may introduce theremainder or so much thereof as is required to place that partoriginally offered in proper context so that a correct and truemeaning is conveyed to the jury.'" People v. Nunn, 301 Ill. App.3d 816, 821, 704 N.E.2d 683 (1998), quoting People v. Williams,109 Ill. 2d 327, 334, 487 N.E.2d 613 (1985), quoting Lawson v.G.D. Searle & Co., 64 Ill. 2d 543, 556, 356 N.E.2d 779 (1976). The right to bring out all of a writing or conversation is notabsolute and depends on the relevancy of the additional partsthat a party seeks to add. Nunn, 301 Ill. App. 3d at 821.

In this case, the trial court allowed the defendant'sstipulation regarding Davis's statement to the investigatingpolice detectives that at the time the victim was pulled off thebus and thrown to the ground by the defendant and Geraci,"[Davis] was unable to see the [victim] and offenders at thispoint because they were on the ground between the curb and herbus." This portion of Davis's statement was admitted to impeachher trial testimony. Thus, it was admitted for the limitedpurpose of challenging her trial testimony that she was able toobserve what transpired after the victim was pulled off the bus;clearly, the statement was not admitted as substantive evidence.

In response, the State sought to introduce the balance ofDavis's statement to the investigating police detectives: "Davisstated that she heard yelling and the victim demanding offendersto stop. Davis stated that the offenders fled behind a bus,crossed the street and entered the Walgreen's parking lot acrossthe street. At this time, the victim informed Miss Davis that hehad been robbed and Davis flagged down Officers Ferguson and Gilland pointed *** to the offenders." The trial court ruled itwould consider "the part about she heard yelling behind the bus,that will be allowed in. The part the victim said he was robbedI will consider that. *** The balance I won't."

The defendant properly challenges the application of thecompleteness doctrine to support the admission of the balance ofDavis's statement because "the additional portions of Davis'sstatement to police did not explain, qualify, or otherwise shedlight on the meaning of the prior inconsistent statement that wasintroduced." The State is unable to marshal a persuasiveresponse to this argument. We find none either. That Davisheard "yelling behind the bus" and that the victim said "he wasrobbed" cannot reasonably be understood to "shed light" on theimpeaching statement of Davis that she "was unable to see the[victim] and offenders" after they pulled the victim from thebus. The defense stipulation concerning Davis's statement, whichwas at odds with her trial testimony, was in no way connected tothe balance of Davis's statement that the State sought tointroduce. See People v. Pietryzk, 153 Ill. App. 3d 428, 438-39,505 N.E.2d 1228 (1987) (completeness doctrine inapplicable tostatement that did not "shed light" on the meaning of oralstatements but, rather, contradicted them); People v. Russell,177 Ill. App. 3d 40, 48, 531 N.E.2d 1099 (1988) ("if the relatedconversation is otherwise inadmissible, the principle ofcompleteness does not give a party an automatic right tointroduce it merely on the ground that the opponent has openedthe door").

Moreover, the application of the completeness doctrine tothe evidence sought to be admitted by the State is highlyquestionable for a separate and distinct reason. Thecompleteness doctrine is recognized as an exception to thehearsay rule. That is, the completeness doctrine is relied on tointroduce the balance of an out-of-court statement for the truthof the matter asserted, the classic definition of hearsay. Yet,the application of the strict definition of the completenessdoctrine in this case would lead to the illogical conclusion thatadmission of impeachment evidence (the defense stipulation) wouldlead to the admission of substantive evidence (the balance ofDavis's statement under the completeness doctrine) to "explain,qualify, or shed light" on nonsubstantive evidence! This cannotbe nor has the State presented any authority for this apparentlynovel legal theory.

Clearly, the balance of Davis's statement was hearsay, andin light of the limited purpose for which the defense stipulationwas admitted, the completeness doctrine is unavailable to theState to justify the admission of the balance of Davis'sstatement. The State's contention that the balance of Davis'sstatement also qualified under the "state of mind" exception tothe hearsay rule is rejected on the same basis.⁽²⁾

Although the trial court appeared to have admitted thebalance of Davis's statement pursuant to the completenessdoctrine, we are not so sure it intended to admit the balance ofDavis's statement as substantive evidence, as one wouldordinarily have to conclude based on the strict definition of thecompleteness doctrine as an exception to the hearsay rule. Rather, based on our reading of the trial transcript, we believethe trial court considered the balance of Davis's statement onlyas it impacted the defense stipulation: "Let me hear what theparagraph is. [If] I think it's relevant and should be submittedas far as the [defense stipulation,] I'll consider it." In otherwords, the balance of Davis's statement was admitted to mitigatethe impeachment value of the defense stipulation or, in effect,to "rehabilitate" Davis. See People v. Hicks, 28 Ill. 2d 457,463, 192 N.E.2d 891 (1963) ("where a witness has been impeachedby proof that he has made prior inconsistent statements, he maybring out all of the prior statements to qualify or explain theinconsistency and rehabilitate the witness"). Suchrehabilitative evidence, of course, would have to be admittedthrough Davis herself, and not by way of her statements to theinvestigating police detectives. And, perhaps, the State'sproffer of evidence was meant to do just that. Ultimatelyhowever, the balance of Davis's statement would be inadmissibleunder this theory as well, as it fails to "qualify or explain theinconsistency" set forth in the defense stipulation. Hicks, 28Ill. 2d at 463.

Consequently, the admission of the balance of Davis'sstatement given to the investigating police detectives was error,although not of the magnitude the defendant asserts based on ourreview of the evidence. We are not persuaded that the balance ofDavis's statement, as substantive evidence or not, in any realway "greatly prejudiced" the defendant. We base this conclusionon the overwhelming, nonhearsay evidence introduced against thedefendant.

Davis testified that as Ortiz attempted to get on the bus,she saw the defendant hit Ortiz on the back of the head. Davisalso testified that she saw the defendant and Geraci pull Ortizoff the bus and drag him to its side. The trial court foundDavis's testimony credible as she had no association with eitherthe defendant, Geraci, or Ortiz. Davis also testified that,using her bus's side mirror, she was able to see the defendantand Geraci going through Ortiz's pockets. This statement wasimpeached, however, by Davis's statement to police detectives,introduced into evidence by the defense stipulation, that she wasunable to see the victim and offenders when they were at the sideof the bus because they were on the ground between the curb andthe bus. The trial court stated that regardless of whether Daviswas able to see what occurred at the side of the bus, Davis wasable to place the defendant as an active participant in theassault and robbery of Ortiz. The trial court emphasized thatDavis testified she saw the defendant hit Ortiz on the back ofthe head, pull Ortiz off the bus, and drag him to its side.

Moreover, the defendant was found shortly after the robberyin a Walgreen's parking lot across the street from where therobbery occurred with Ortiz's watch, one of the items takenduring the robbery. Officer Ferguson found the watch in thedefendant's pocket. Officer Ferguson testified that he showedthe watch to Ortiz, and Ortiz acknowledged that it was his andthat it had been taken from him during the robbery.

The trial court specifically found the defendant's testimonyto be unbelievable. The trial court found that the defendant'stestimony that he walked Ortiz to the bus stop in order toprotect him made no sense when the defendant also claimed (1)Ortiz did not require any physical help on the walk to the busstop, and (2) he left the scene after Geraci pulled Ortiz off thebus.

Therefore, the trial court error in admitting the balance ofDavis's statement does not rise to the level of plain errorbecause of the limited purpose for which the disputed evidencewas used and in view of the overwhelming, nonhearsay evidenceagainst the defendant. See People v. Crespo, 203 Ill. 2d 335,349, 788 N.E.2d 1117 (2001) (no plain error where "[the]defendant has failed to show the error was prejudicial"). Consequently, the defendant suffered no prejudice, great orotherwise, by the trial error. See People v. Cowper, 145 Ill.App. 3d 1074, 1083, 496 N.E.2d 729 (1986) ("A judgment ofconviction will not be reversed merely because error wascommitted at trial unless it appears that the finding of guiltmay have resulted from such error"). Consequently, the defendantwas not denied effective assistance of counsel. See People v.Evans, 209 Ill. 2d 194, 808 N.E.2d 939 (2004) (no viableineffective assistance of counsel claim where there is noreasonable probability that the result of this case would havebeen different absent the trial error).

Absent a showing of prejudice to the defendant based on theestablished trial error, there is no plain error and theprocedural default will be honored. People v. Keene, 169 Ill. 2d1, 17, 660 N.E.2d 901 (1995). We therefore find the issueforfeited.

II. Officer Ferguson's Testimony

Next, the defendant argues it was error for the trial courtto allow Officer Ferguson to testify regarding a claimed prioridentification of the defendant by Ortiz shortly after therobbery occurred. The defendant argues that Officer Ferguson'stestimony regarding Ortiz's alleged identification of thedefendant was hearsay and improperly admitted under section 115-12 of the Code of Criminal Procedure of 1963. 725 ILCS 115-12(West 2000). According to the defendant, "[Officer] Ferguson'stestimony that Ortiz did identify [the defendant] in theWalgreen's parking lot does not conform to the rationale behindsection 115-12" because, "in this case, Ortiz testified that hedid not make an identification of [the defendant] at the sceneand Ortiz did not identify [the defendant] at trial."

A. Prior Identification

At the time of Officer Ferguson's testimony, the defendant'sattorney objected to statements regarding Ortiz's allegedidentification of the defendant on the evening of the robbery,arguing that it was hearsay. The trial court overruled theobjection based on section 115-10.1 (725 ILCS 5/115-10.1 (West2000)). However, in explaining its verdict, the trial courtrecounted the evidence it found persuasive and noted that it haderred in relying on section 115-10.1 (725 ILCS 5/115-10.1 (West2000)) when allowing Officer Ferguson's testimony; instead, itbased its ruling on section 115-12 (725 ILCS 5/115-12 (West2000)). The trial court also stated that the out-of-courtidentification "doesn't matter at all [because] there is morethan enough without this."

Ortiz was examined concerning his ability to identify themale offender at the time of the robbery by both the prosecutionand defense.

"Q. [The State]: When the man hit youfrom behind what happened to you?

A. [Ortiz]: I went on the ground.

Q. [The State]: Did you look at theman's face?

A. [Ortiz]: No.

* * *

Q. [The State]: Where did [the police]take you?

A. [Ortiz]: They took me across thestreet to a store, Walgreen's.

* * *

Q. [The State]: Who did you see[there]?

A. [Ortiz]: I seen the two guys thatrobbed me?

Q. [The State]: When you say two guys,was it two guys?

A. [Ortiz]: No, it was a lady and a man.

Q. [The State]: Were you able torecognize either of them?

A. [Ortiz]: Yes, the lady.

Q. [The State]: And the lady you recognized because that's the one you hadbeen having a conversation with?

A. [Ortiz]: Yes

Q. [The State]: The man you neversaw?

A. [Ortiz]: No, I did not see him.

* * *

Q. [Defendant's Attorney]: So you don't know who hit you, do you?

A. [Ortiz]: No, I didn't. That's what Isaid.

THE COURT: You said before a man hit youfrom behind. Were you able to see if it wasa man or a woman?

A. [Ortiz]: I just know that somebodyhit me from behind. I don't know which onehit me.

* * *

Q. [Defendant's Attorney]: And youcouldn't see who took your wallet?

A. [Ortiz]: No, I didn't see.

* * *

Q. [Defendant's Attorney]: And youdidn't see them as they were running away,did you?

A. [Ortiz]: No, I didn't.

THE COURT: Did you see who took yourwatch?

A. [Ortiz]: No. They were just pullingon it. I got dizzy with the hit on thehead."

Regarding the alleged out-of-court identification of thedefendant by Ortiz, the following testimony was elicited fromOfficer Ferguson by the prosecution.

"Q. [The State]: Did Mr. [Ortiz] comeand look at the two individuals that you hadstopped?

A. [Officer Ferguson]: Yes he did.

Q. [The State]: Was he able to identifyeither of them?

A. [Officer Ferguson]: Yes, he was.

* * *

Q. [The State]: Which one was heable to identify, if any?

A. [Officer Ferguson]: Both. Section 115-12 of the Code of Criminal Procedure (725 ILCS5/115-12 (West 2000)) provides: "A statement is not renderedinadmissible by the hearsay rule if (1) the declarant testifiesat the trial or hearing, and (2) the declarant is subject tocross-examination concerning the statement, and (3) the statementis one of identification of a person made after perceiving him." 725 ILCS 5/115-12 (West 2000). Under the plain language of thesection 115-12, the evidentiary foundation for admission of astatement of prior identification must satisfy all threeelements. See People v. Holveck, 141 Ill. 2d 84, 104-05, 565N.E.2d 919 (1990) (the three elements of section 115-12 weresatisfied where the identification witness testified about herout-of-court identification of the defendant and she was cross-examined about identifying a man in a newspaper photograph as"stranger danger"). "The language of this section does notrequire an in-court identification, nor does it prohibit theintroduction of a prior identification statement where thewitness fails to identify the defendant in open court." Peoplev. Bowen, 298 Ill. App. 3d 829, 834, 699 N.E.2d 1117 (1998).

The section does, however, require the declarant to testifyand be subject to cross examination regarding the out-of-courtidentification statement before a third party may testify to themaking of such a prior statement of identification by thedeclarant. "When a declarant *** testifies but fails to givetestimony concerning his out-of-court statement ofidentification, it is inadmissible hearsay for a third party ***to testify that the declarant made the out-of-court statement ofidentification." People v. Bradley, 336 Ill. App. 3d 62, 70, 782N.E.2d 825 (2002). In Bradley, the victim testified during thefirst day of a bench trial but was not examined regarding hisidentification of the defendant in a photo array made while thevictim was in the hospital because the array was not available onthe first day of trial. Bradley, 336 Ill. App. 3d at 70. Apparently, the photo array and the victim were both available onthe second day of trial, but the out-of-court identification ofthe defendant by the victim was not brought out. Nonetheless,the State elicited from the police detective that conducted thephoto lineup that the victim identified the defendant's photofrom the array. We held that the police detective's testimonywas hearsay and not admissible under section 115-12 because thedeclarant never testified regarding the out-of-courtidentification and, thus, was not subject to cross-examinationconcerning the prior statement of identification. Bradley, 336Ill. App. 3d at 70.

Here, we have direct testimony from the victim, under bothdirect and cross-examination, that he did not see the maleoffender during the course of the robbery and did not identifythe male offender shortly after the robbery during theconfrontation in the Walgreen's parking lot. Based on thistestimony and our decision in Bradley, we hold that OfficerFerguson's testimony that Ortiz identified "both" offenders inthe Walgreen's parking lot was inadmissible hearsay. Clear andunequivocal testimony that no identification was ever made of thedefendant by the victim of the crime precludes the admissibilityof an out-of-court identification statement by a third party noless so than when no testimony is elicited from the victimregarding "his out-of-court statement of identification." Bradley, 336 Ill. App. 3d at 70. Stated differently, if theabsence of testimony by the identification witness concerning"his out-of-court statement of identification" precludes theadmissibility of testimony by the third party regarding thedeclarant's prior identification statement, an unequivocal denialby the identification witness that he ever made an "out-of-courtstatement of identification" likewise precludes the admissibilityof any testimony by the third party of the alleged prioridentification statement under section 115-12. It is a logicaland compelling extension of our holding in Bradley that in theface of clear and unequivocal testimony by Ortiz that he neveridentified the defendant at the parking lot shortly after therobbery, Officer Ferguson's testimony that Ortiz identified"both" offenders shortly after the robbery was not admissible assubstantive evidence under section 115-12. Bradley, 336 Ill.App. 3d at 70.

Our holding is further supported by the plain language ofthe third element of section 115-12 that requires the witness'sidentification statement at issue be "made after perceiving him"in order to avoid the inadmissibility of such a statement by thehearsay rule. (Emphasis added.) See 725 ILCS 5/115-12 (West2000). "Perceive" is defined as "to recognize or identify." Webster's Third New International Dictionary 1675 (1986). Basedon this definition, it seems clear that the third elementrequires some evidence that Ortiz either "recognize[d] oridentif[ied]" the defendant at the time the statement ofidentification was allegedly made. 725 ILCS 5/115-12 (West2000). See e.g. Bowen, 298 Ill. App. 3d at 832 (eye-witness, outof court, identified a photograph of the defendant and identifiedthe defendant in a line-up but in court testified he identifieddefendant as a member of a rival street gang but not theshooter). In this case, Ortiz denied ever identifying thedefendant as one of the assailants.⁽³⁾ Thus, there is no evidencefrom Ortiz that he ever "perceived" the defendant at theconfrontation in the parking lot.

Nor do we believe that Officer Ferguson's testimonyqualifies as "some evidence" that Ortiz "perceived" thedefendant. To so hold would in effect transform this exceptionto the hearsay rule into a credibility contest between thedeclarant and the third party present for the alleged prioridentification statement. We have been presented with noauthority for such a broad reading of the section, nor does theplain language of section 115-12 support such an interpretation.If the identification statement attributed to Ortiz by OfficerFerguson were admissible as substantive evidence in the face ofsuch unequivocal and contrary evidence from Ortiz, it would makeillusory the section's safeguard of Ortiz being "subject tocross-examination concerning the statement." 725 ILCS 5/115-12(b) (West 2000). The search for truth through cross-examination concerning a prior statement of identification isrendered almost pointless where testimony is elicited from thepurported "declarant" that no out-of-court identificationstatement was ever made because the witness never had theopportunity to observe the defendant during the course of therobbery and, yet, a prior identification statement, without anyevidentiary support independent of the third-party witness'stestimony that the prior identification statement was made, isnevertheless admissible as substantive evidence through thetestimony of that third party. See generally People v. Johnson,255 Ill. App. 3d 547, 558, 625 N.E.2d 1073 (1993) (a sufficientlyreliable basis for admitting prior inconsistent statements assubstantive evidence must be shown to satisfy constitutional dueprocess requirements). In our judgment, the reliability of theprior identification statement attributed to Ortiz by OfficerFerguson is sufficiently undermined to preclude its admissibilitywhen cross-examination becomes a pointless exercise. See, e.g.,Dowie v. Black, 90 Ill. App. 167, 171-72 (1900) (testimony may bestricken if the witness thwarts the defendant's cross-examination). Our holding, however, is based on the absence ofthe necessary evidentiary foundation that the statement ofidentification sought to be admitted was made after Ortizperceived the defendant. The absence of this foundationprecludes the admissibility of a prior statement ofidentification under section 115-12 (725 ILCS 5/115-12 (West2000)).

Finally, we note that a fair reading of the State'sexamination of Ortiz suggests that the prosecution did notcontest during the course of the trial, what is now ourconclusion, that the victim never "perceiv[ed]" the defendant.

"Q. [The State]: And the lady yourecognized because that's the one you hadbeen having a conversation with?

A. [Ortiz]: Yes.

Q. [The State]: The man you never saw?

A. [Ortiz]: No, I did not see him."(Emphasis added.)

Relatedly, Officer Ferguson's testimony appears consistent withour conclusion.

"Q. [The State]: Did he [Ortiz] tell youhe got a look at one of them?

A. [Officer Ferguson]: Yes." (Emphasisadded.)

Accordingly, under the facts presented in this case, in theface of a clear and unequivocal denial by Ortiz that he everidentified the defendant as one of the offenders, the admissionof the prior identification statement attributed to Ortiz byOfficer Ferguson was inadmissible hearsay.

B. Harmless Error

Inadmissable hearsay will not require reversal if there isno reasonable probability that the defendant would not have beenfound guilty had the hearsay evidence have been excluded. Peoplev. West, 234 Ill. App. 3d 578, 590, 598 N.E.2d 1356 (1992). Evenin the absence of Officer Ferguson's testimony that Ortizidentified the defendant shortly after the robbery, as we havealready concluded, there was overwhelming, nonhearsay evidenceintroduced against the defendant. This second trial error,properly preserved by trial counsel, does not undermine theextensive incriminating evidence presented against the defendant. We find the trial court's error in admitting Officer Ferguson'stestimony to the alleged out-of-court identification of thedefendant by Ortiz to be harmless. Our assessment of theevidence is reinforced by the trial court's statement thatwhether Ortiz identified the defendant near the scene of therobbery "doesn't matter at all [because] there is more thanenough without this." "An error is harmless where a reviewingcourt can safely conclude that a trial without the error wouldproduce no different result." Bradley, 336 Ill. App. 3d at 69.

III. Extended-Term Sentence

Finally, the defendant argues his extended-term sentenceviolates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,120 S. Ct. 2348 (2000). Specifically, the defendant arguessection 5-5-3.2(b) of the Unified Code of Corrections violatesthe United States and Illinois Constitutions because it allowsthe trial court to impose an increased penalty based on a priorconviction without alleging the factual predicate for theextended-term sentence in the charging instrument. 730 ILCS 5/5-5-3.2(b) (West 2000).

In this case the defendant was convicted of robbery, a Class2 felony carrying a penalty of not less than three years, normore than seven years. 720 ILCS 5/18-1 (West 2000). However,the trial court imposed an extended-term 10-year sentence becausethe defendant had a prior felony conviction of the same orgreater class within the previous 10 years, specifically, themanufacture and delivery of cocaine (720 ILCS 570/401 (West1998); see 730 ILCS 5/5-5-3.2(b) (West 2000)).

Section 5-5-3.2(b) authorizes the imposition of an extended-term sentence where a defendant was convicted of a felony afterhaving been convicted of the same or a greater class felony inIllinois within the previous 10 years upon charges separatelybrought and tried. 730 ILCS 5/5-5-3.2(b)(1) (West 2000). The Apprendi Court held that, "[o]ther than the fact of a priorconviction, any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt." Apprendi, 530 U.S.at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. The SupremeCourt reasoned that prior convictions do not implicate Apprendibecause they involve proceedings with their own proceduralsafeguards. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120S. Ct. at 2362-63. As stated above, the Apprendi Court clearlyexempted prior convictions from the category of sentence-enhancing factors that must be submitted to a jury and provenbeyond a reasonable doubt. For this reason, this court hasalready rejected, on a number of occasions, the argument thatsection 5-5-3.2(b) violates the United States Constitution. SeePeople v. Pittman, 326 Ill. App. 3d 297, 298, 761 N.E.2d 171(2001). We find no need to further analyze this issue, andtherefore, we reject the defendant's argument.

As for the defendant's contention that section 5-5-3.2(b) isunconstitutional with regard to the Illinois Constitution, thiscourt has adopted the view expressed in Apprendi, that "adefendant's prior conviction does not relate to the commission ofthe offense with which he stands charged and that the priorconviction is the result of proceedings in which the defendanthad the right to a trial by jury and the State was required toestablish his guilt beyond a reasonable doubt." Pittman, 326Ill. App. 3d at 301; see Apprendi, 530 U.S. at 496, 147 L. Ed. 2dat 458-59, 120 S. Ct. at 2366. "We find these safeguards'mitigate constitutional concerns regarding defendant's dueprocess rights and jury trial guarantees.'" Pittman, 326 Ill.App. 3d at 301, quoting People v. Lathon, 317 Ill. App. 3d 573,587, 740 N.E.2d 377 (2000).

CONCLUSION

For the foregoing reasons, we affirm the defendant'sconviction and sentence.

Affirmed.

WOLFSON and HALL, JJ., concur.

1. Jennifer Geraci was also charged for her part in thiscrime. However, Geraci is not involved in the instant appeal.

2. It is doubtful that the "state of mind" exception evenapplies here where the declarant testified. See People v.Pineda, 349 Ill. App. 3d 815, 821, 812 N.E.2d 627 (2004) (holdingthat declarant must be unavailable for the state of mindexception to apply). However, we note that under the FederalRules of Evidence, statements are admissible under the state ofmind exception even if the declarant is available (Fed. R. Evid.803(3)), and it has been suggested that this should be the rulein Illinois. See People v. Hansen, 327 Ill. App. 3d 1012, 1023n.2, 765 N.E.2d 1033 (2002), citing M. Graham, Cleary & Graham'sHandbook of Illinois Evidence