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People v. Johnson

OPINION FILED JUNE 27, 1979.

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

v.

MICHAEL JOHNSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. VINCENT BENTIVENGA, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

The defendant, Michael Johnson, was convicted of armed robbery in a jury trial and sentenced to serve four to six years in the penitentiary. On appeal the defendant contends that the court erred in admitting into evidence the testimony of a police officer that the complaining witness had made a prior out-of-court identification of the defendant, and that several improperly prejudicial comments by the prosecutor during closing arguments deprived him of a fair trial.

The complaining witness, Ned Waits III, testified that on April 9, 1975, he was walking to school on Adams Street in an easterly direction when an automobile traveling west on Adams stopped near him. As two men left the car, one man stepped in front of Waits while the other went behind him. The man in front of him took out a gun and demanded that Waits remove his coat. After Waits took off his coat, the man behind him took it and asked Waits if he had any money. Waits answered no and the two men re-entered the car and departed. Waits returned home, informed his father of the incident and notified the police.

Waits identified the defendant as the man with the gun and stated that he had observed the defendant in his neighborhood about two to three weeks before the crime. Waits testified that he had described the man with the gun for the police as a 150- to 160-pound, 18-year-old man who walked with a limp and had a crippled left arm and a hump back. He also gave the police the address of the man he had described.

Investigator Patrick Foley of the Chicago Police Department testified that he and his partner questioned the defendant subsequent to his arrest and after he was informed of his Miranda rights. The following then occurred:

"[Assistant State's Attorney: Q. Officer, when you said you informed Michael Johnson of the allegations against him, what exactly did you inform him?

A. I informed him that Ned Waits had identified him.

[Defense Counsel]: Objection, Judge, to out-of-court identification.

The Court: Objection overruled.

A. Ned Waits had identified him as the man who had the gun and robbed him, took his leather jacket."

In addition, Foley testified that the defendant stated that although he was present at the scene of the robbery, he did not participate in the crime.

Officer Michael O'Sullivan of the Chicago Police Department testified that he and his partner arrested the defendant in the vicinity of 25 South Central Park, the address Waits had given the police.

The defendant testified that he was walking on Adams Street when he noticed three boys taking Waits' coat and "slinging him against the wall." He testified that he observed the robbery, laughed at the incident and watched the three boys as they ran past him. On cross-examination the defendant named the three boys who allegedly robbed Waits; however, he admitted that he did not volunteer this information to the police at the time of his arrest. After the defendant's testimony, the defense rested its case. The jury returned a verdict of guilty and judgment was entered thereon.

The defendant argues that the trial court erred in admitting Officer Foley's testimony that he informed the defendant that Waits had identified him. He maintains that Waits did not testify during the trial concerning this out-of-court identification; therefore, Foley's testimony concerning the prior identification was hearsay ...


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