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People v. Sias





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT SULSKI, Judge, presiding.


Rehearing denied January 19, 1981.

Fred Sias brings this appeal from his conviction on two counts of aggravated battery for which he was sentenced to a minimum of 4 years and a maximum of 12 years. He raises the following issues on appeal: (1) whether the court erred in admitting a hearsay account of an out-of-court identification of the defendant into evidence; and (2) whether the court erred in sentencing the defendant to the extended term provision in effect at the time of the offense.

We affirm.

The testimony at the trial reveals the following facts. Maurice Broderick, the complaining witness, testified that he left work at approximately 7:50 a.m. on the morning of October 28, 1977, after working the midnight shift as general foreman at the 400 North Pulaski facility of the Chicago and Northwestern Railroad. He explained that he exited the plant and walked two blocks to the steps that go down to Pulaski Road so that he could catch the Lake Street elevated train. He did not have his reading glasses on at this time. As he reached the sidewalk at the bottom of the stairs an employee of the railroad, whom he recognized as Fred Sias, approached him. When the two men were approximately two feet apart, the defendant said, "Maury, you are not on company property now." In the conversation which ensued, Broderick addressed Sias by name and explained to him that each of them had a responsibility to perform his own job at the shop. This referred to the fact that Broderick had recently written a report concerning Sias' work performance. During this conversation the two men agreed to return to the shop and talk to the shop superintendent about Sias' grievance with Broderick concerning the report. However, as Broderick headed up the stairs to return to the shop, Sias shot him in the face and then the buttocks. Broderick returned to the shop where he met Ben Gerlock, another general foreman, who asked him what had happened. Broderick told Gerlock that Sias shot him. As a result of his injury, Broderick suffered paralysis of his vocal chords, the left side of his tongue, and his left arm. Additionally, his saliva gland and the muscles in his left shoulder were damaged.

Broderick further testified that he had worked for the railroad for 36 years. While he had never directly supervised Sias, who had been employed by the railroad for two years, Broderick had supervised foremen directly over Sias in his capacity as general foreman. In his capacity as general foreman and after receiving complaints from foremen that they could never find Sias, Broderick had written three reports concerning Sias. The last report was written a week prior to the shooting incident. Broderick stated that he had no personal feelings against Sias which caused him to prepare these reports. He noted that, after writing the second report, Sias told him that he should "get off his back" and that he knew which way Broderick went home. While Broderick could not remember talking to investigating police officers subsequent to the incident in the emergency room, he did remember talking to police officers and viewing pictures they brought him a few days after the incident.

Two additional witnesses testified for the State. Gerlock substantiated Broderick's testimony that at a few minutes after 8 a.m. on the date of the incident, Broderick entered the shop bleeding and told him what had happened. Police officer Robert Podgorny testified that he and his partner went to the hospital where Broderick had been taken for emergency care to interview him. After this interview, Podgorny testified that he and his partner attempted to locate Sias at two addresses which they had obtained from his employment file. The next day the police officers went to the hospital with a photograph of Sias and four other photographs. Podgorny testified that the victim picked out Sias' picture when asked to identify the man who shot him. This testimony was allowed over a defense objection that such testimony was hearsay. Upon finding out that Sias' brother Charles was a police officer, police officer Podgorny made arrangements to have defendant's brother surrender the defendant. Thereafter, Sias did voluntarily come down to the station where he was booked. After this testimony the State rested and the defense moved for a directed verdict. The directed verdict was denied after argument by both parties.

Jim Bishop, a fellow employee of Sias, testified for the defense that on the night prior to the incident, he and Sias attended a concert. After stopping for a few drinks and playing several games of chess, the two men retired around 2 a.m. Bishop testified that he slept on Sias' couch and that Sias slept in his bedroom. Bishop awoke about 7:30 a.m. and quickly got ready for his 8 a.m. shift. He left Sias' apartment somewhere between 7:40 a.m. and 7:50 a.m. while Sias was still asleep. It took about 7-10 minutes to reach the plant from Sias' apartment. On cross-examination, Bishop admitted that he did not know Sias' whereabouts after he left Sias' apartment.

Also testifying for the defendant was his brother, Charles Sias, who testified that his brother, Fred, called him the day after the incident and told him that he had heard from his friends that the police were looking for him. The defendant was charged after surrendering himself at the police station. The defense rested at this juncture.

In rebuttal, the State presented the testimony of Craig Russell, who testified that he worked for the Chicago and Northwestern Railroad at the Pulaski Road plant. He stated that on October 28, 1977, he had just arrived to work the first shift when he saw the defendant at about 7:20 or 7:30 a.m. Later, at about 7:50 a.m., as he was waiting to start his shift, he again saw Sias. This time Sias was walking near the north exit of the plant which is near the Pulaski Road exit. We note that the defendant was not scheduled to work until 4 p.m. that day and that it was stipulated at trial that the defendant did not work on the day of the incident. On cross-examination, discrepancies in Russell's court testimony and his testimony at the company hearing were revealed as to what day Russell had seen Sias before work and whether he had seen him once or twice that morning.

The jury returned a conviction on the aggravated battery charges. Subsequently, the defendant filed a motion for judgment of acquittal and for a new trial. These were denied. At the sentencing hearing, several witnesses testified in aggravation and mitigation. Among those to testify was Robert Hester, an employee of the railroad, who stated that Sias had called him to ask him to start a rumor at work that a Robert Salinas had shot the complaining witness. At the sentencing hearing the defendant was allowed to elect whether he wished to be sentenced under the extended term provision which existed at the time of the commission of the offense or the provision which existed at the time of sentencing. The defendant elected to be sentenced under the law in effect at the time of the commission of the offense. After considering the presentence report, the trial court sentenced the defendant to a term of from a minimum of 4 years to a maximum of 12 years. A timely notice of appeal was subsequently filed.

The defendant's first argument is that the admission of Officer Podgorny's hearsay identification testimony was reversible error because it was used to strengthen and corroborate an otherwise weak identification by complaining witness Broderick. We have examined the record, as recently amended to include the defendant's post-trial motion, and find that this issue was not raised by the defendant in his post-trial motion. It is a well-established proposition in Illinois that issues not raised in a defendant's post-trial motion are waived. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856; People v. Nelson (1968), 41 Ill.2d 364, 243 N.E.2d 225; People v. Reynolds (1980), 85 Ill. App.3d 549, 407 N.E.2d 64.) The waiver rule was created to encourage defendants to specify alleged errors in a motion for a new trial in order to "eliminate unnecessary reviews and reversals" where the motion is meritorious. (People v. Irwin (1965), 32 Ill.2d 441, 444, 207 N.E.2d 76.) An exception to this rule exists, however, if the alleged error, which would otherwise be subject to the waiver rule, constitutes plain error under Supreme Court Rule 615(a). (Ill. Rev. Stat. 1977, ch. 110A, par. 615(a); People v. Pickett; People v. Coleman (1980), 83 Ill. App.3d 429, 403 N.E.2d 1266; People v. Witted (1979), 79 Ill. App.3d 156, 398 N.E.2d 68.) Under that provision, any errors "affecting substantial rights may be noticed although they were not brought to the attention of the trial court." Ill. Rev. Stat. 1977, ch. 110A, par. 615(a).

The rule concerning whether the admission of hearsay identification testimony constitutes plain error is succinctly stated in People v. Smith (1978), 59 Ill. App.3d 480, 375 N.E.2d 941:

"* * * the admission of hearsay identification testimony constitutes reversible error only when used as a substitute for in-court identification or when introduced to strengthen and corroborate a weak identification. If the hearsay testimony is merely cumulative [citations], or is supported by a positive identification and other corroborative circumstances [citation], it constitutes harmless error [citation]. It has further been held that if the person who made the out-of-court identification is present, testifies to his prior ...

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