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People v. Johnson

OPINION FILED FEBRUARY 8, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ERNEST JOHNSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RUDOLPH JANEGA, Judge, presiding.

MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the circuit court of Cook County the defendant, Ernest Johnson, was found guilty of armed robbery. He was sentenced to a term of four to 12 years. On appeal the defendant argues reversible error occurred when reference was made both in testimony and in closing arguments to an identification of the defendant by a person who did not testify at trial.

Cathy Andrelewicz, the victim of the robbery, testified for the State. On February 17, 1976, she was working as the cashier at the East End Pharmacy on Chicago Avenue in Oak Park, Illinois. At approximately 5 p.m. she was preparing to leave work and was at the front of the pharmacy near the cash register. A man entered the store carrying a rolled-up newspaper. He picked up a container of ice cream and placed it on the counter in front of Andrelewicz. She was ringing up the purchase when the man pulled a knife on her. The robber reached over the counter into the cash register and took four $5 bills and a stack of $1 bills, totaling about $40. He went to the door but then returned and removed a roll of pennies from the cash register. Andrelewicz testified that she was able to remember the amount and denominations of the cash because she had taken the extra money to the back room just before the robbery.

After the defendant left the store Andrelewicz pressed the alarm button. The police arrived shortly thereafter. She described the robber to Officer Gryncewicz as a male Negro, wearing a blue knit cap, a red jacket, tan pants and sunglasses. Andrelewicz testified the store lights were on during the robbery and that she had seen and talked with the robber five or six times in the past year when he had been in the store.

Shortly after the robbery Andrelewicz was taken to the Oak Park police station to view a lineup. She picked the defendant out of a four-man lineup as the man who had robbed the store. Andrelewicz also made an in-court identification of the defendant. On cross-examination Andrelewicz said it was not possible that she could be wrong in her identification of the defendant.

Gryncewicz testified that he and his partner, Officer Bucholz, answered the radio call which reported a robbery at the East End Pharmacy. After talking to Andrelewicz, Gryncewicz spoke to a Dr. David Rollins as he was leaving the store. Rollins told Gryncewicz that a man he saw leaving the pharmacy was wearing red gym shoes and carrying sunglasses. Gryncewicz and Bucholz then proceeded to an apartment building at 5940 W. Superior, located about half a block east of the pharmacy. Gryncewicz knocked on the door of the basement apartment three times before the door was opened by Jimmy Savania. Gryncewicz testified that as they entered the apartment they observed the defendant leaving the bathroom. The defendant was pulling up a pair of dark blue pants which were "much too large" for him. He was also wearing a pair of brown construction boots which were untied. The officers searched the "immediate vicinity" around the defendant's person but did not conduct a complete search for the clothing described by Andrelewicz because they had no search warrant. Officer Bucholz recovered $46 from under a pile of clothing which was next to the defendant at the time of his arrest. The money consisted of four $5 bills and 26 $1 bills.

Savania was the first witness for the defense. He testified that he lives in the basement apartment where the defendant was arrested. Savania said that on the afternoon of the robbery he and the defendant and two others were drinking and gambling in his apartment. The defendant left the apartment at one point during the afternoon and returned four or five minutes later with a six-pack of beer. The defendant had been back in the apartment for about an hour before the police knocked on the door. Savania also testified that the defendant did not change his clothes before the police arrived. When the police arrived, the witness and the others hid the money with which they had been gambling. Savania testified that the police searched the entire apartment.

On cross-examination, and over the defendant's objection, the State asked Savania if the "man from the pharmacy" came to the apartment and identified anyone. Savania said the man from the pharmacy had identified the defendant.

The defendant testified on his own behalf. He described his brief absence from the apartment for the purpose of buying some beer. He also said he had been in the pharmacy before the date of the robbery but did not recall ever meeting or speaking with Andrelewicz. On cross-examination, the defendant said he had never been in the pharmacy before the date of the robbery. The defendant also testified that he was wearing blue pants the entire day of the robbery.

On rebuttal, Officer Stachura testified that at the time of the arrest the defendant said he had not left the apartment on the day of the crime.

In closing arguments the Assistant State's Attorney said the defendant had been identified not only by Andrelewicz but also by Rollins. The State apologized for Rollins' absence and said it was impossible to get him to come from Connecticut to testify. The defendant's objections to these comments were overruled.

On appeal, the defendant argues testimony that an out-of-court identification was made of the defendant as the offender was prejudicial hearsay when the person making the identification did not testify at trial, particularly where the single competent identification of the defendant was offset by alibi testimony and physical evidence which conflicted with the identification.

We must initially address the State's contention that the defendant waived any error in the introduction of the alleged hearsay by not objecting properly and, additionally, that the defendant's motion for a new trial did not preserve this issue for appeal purposes. The State calls our attention to the objection made during trial to Officer Gryncewicz's testimony concerning Rollins' confrontation with the defendant. That objection was phrased in terms of "no foundation."

• 1 Even if the objection to Gryncewicz's testimony was improperly worded, the defendant's later objection to Officer Bucholz's description of Rollins' identification was correct, in that the defense counsel stated "Objection, Your Honor, to the hearsay." Additionally, the defense timely objected to Savania's testimony concerning "the man from the ...


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