Appeal from the Circuit Court of Cook County; the Hon. Robert
L. Massey, Judge, presiding.
PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
Following a joint jury trial with co-defendant Cornelius Boyd, defendants John Trass and Finner Bryant were found guilty of aggravated battery, home invasion and two counts of armed robbery. (Ill. Rev. Stat. 1983, ch. 38, pars. 12-4, 12-11, 18-2.) Trass was sentenced to serve a concurrent sentence of 13 years. Bryant received a concurrent sentence of 15 years. The appeals of Trass and Bryant have been consolidated by this court. Boyd did not join in the appeal.
The following issues are presented for our review: (1) whether the trial court erred in denying Bryant's motion for severance; (2) whether Bryant was denied his sixth amendment right to confront witnesses; (3) whether Trass was proved guilty beyond a reasonable doubt; (4) whether the court erred in allowing a police detective to testify as to one of the victim's nonidentification of two men he previously had erroneously pointed out to the police; and (5) whether certain alleged prosecutorial misconduct resulted in both defendants being denied a fair trial. For the reasons set forth below, we reverse as to Bryant and affirm as to Trass.
Testifying for the State at trial were the victims, brothers Joseph and John Jackson. Joseph testified that on June 29, 1982, at approximately 3:20 a.m., he left his estranged wife's apartment and began walking home to his brother John's apartment located in a Chicago housing project at 120 North Hermitage Avenue. Joseph was carrying $180 in one of his socks and $3 in his pocket. As he approached his brother's apartment building, he saw a group of five men and one woman standing in the lobby. The group included defendants Trass and Bryant, co-defendant Cornelius Boyd and another man later identified as Austin Smith. *fn1 The other group members were not identified.
Joseph testified that after noticing the group, he decided to walk around to the other side of the building. Upon doing so, he was approached by Bryant, who put a gun to his head and demanded money. Bryant then took the $183 from Joseph's sock and pocket and began beating him. Joseph stated that the rest of the group members joined in the beating. At that point, Joseph broke free and fled up the stairs to the fifth floor, but then fell and was caught by Bryant who demanded more money from him, threatening to "blow his brains out." When Joseph responded that his wife had money upstairs, the entire group, including Trass, got into an elevator and accompanied Joseph to his brother John's apartment. When John answered the door, the group forced their way inside the apartment.
Both Joseph and John testified as to the events inside John's apartment. Their testimony established that Austin Smith initially held John at gunpoint in the kitchen while Bryant took Joseph into a bedroom and forced him to search through a closet to find more money. Bryant took John's shotgun from the closet. Shortly thereafter, Smith, John and the unidentified female member of the group entered the bedroom. As Joseph continued to search through the closet, John was robbed and then blindfolded and forced to lie face down on the bed.
After approximately 25 minutes, one of the male intruders ordered the woman to get one of John's children who were asleep in another bedroom. The intruder then removed John's blindfold, and he saw the woman holding his three-year-old daughter. Bryant held a shotgun to the child's head and threatened, "If you don't have the money when I count to five, I'm going to shoot her." Bryant started counting, but he stopped at number four, and struck Joseph on the head with a gun. He then left, followed by the other group members.
John Jackson viewed two post-arrest lineups on July 15, 1982. At these lineups, he identified Trass and Boyd as two of the men who entered his apartment on June 29, 1982. His brother Joseph did not view any lineups. At trial, each brother positively identified Trass and Bryant as two of their assailants.
Detective Vick Switski testified he interviewed Trass immediately before and after the lineup in which John Jackson identified Trass. Switski stated that prior to the lineup, Trass told him he had been with his girlfriend at the time of the incident. However, when Switski asked for the girlfriend's name, address and telephone number, Trass admitted that he had been on the first floor of the housing project in question at the time of the incident. He told Switski that he had witnessed the attack on Joseph Jackson, but had not participated in it. Trass also stated that after the attack, he went up to the seventh floor of the project and had seen several persons enter John Jackson's apartment, but had not entered the apartment himself.
Neither Bryant nor Trass testified at trial. Trass presented the alibi testimony of his girlfriend, Bessie Stevenson, who stated she was with Trass on the night of the crime. Bryant presented no evidence at trial.
• 1 Defendant Bryant first argues that the trial court erred in denying his motion for severance. We agree. The general rule is that defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Lee (1981), 87 Ill.2d 182, 187, 429 N.E.2d 461.) It is incumbent upon the defendant seeking severance to make a specific showing, prior to trial, that he will be prejudiced by a joint trial. (People v. Laboy-Rivera (1984), 126 Ill. App.3d 197, 201, 466 N.E.2d 1144.) In ruling on a motion for severance, the court is to make a prediction about the likelihood of prejudice at trial, taking into account the papers presented, the arguments of counsel and any other knowledge of the case developed from the proceedings. (People v. Daugherty (1984), 102 Ill.2d 533, 541, 468 N.E.2d 969.) The decision of the trial court will not be disturbed absent an abuse of discretion. People v. Lee (1981), 87 Ill.2d 182, 429 N.E.2d 461.
Severance motions are generally granted based on two types of prejudice. One of these types occurs when defenses of the various defendants are so antagonistic that a severance is imperative to assure a fair trial. (People v. Daugherty (1984), 102 Ill.2d 533, 468 N.E.2d 969.) The other type of prejudice occurs when a co-defendant has made hearsay admissions that implicate the defendant and such statement is likely to be admitted into evidence. (102 Ill.2d 533.) In such cases, the "defendant may be denied his constitutional right of confrontation if the co-defendant's hearsay admission is admitted against him and the defendant is unable to cross-examine the co-defendant because the latter does not testify." (102 Ill.2d 533, 541.) This latter type of situation is commonly referred to as a Bruton problem. Bruton v. United States (1968), 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620.
In the present case, Bryant alleged both forms of prejudice. His petition in support of his motion for severance indicated that he would give testimony at trial exculpating himself and implicating the other three co-defendants, including Trass. Specifically, his petition revealed that "[p]petitioner would testify that he was attempting to aid the complaining witness from being robbed by the other three co-defendants." As counsel for Bryant correctly asserted at the hearing on the severance petition, Bryant's testimony would be in direct conflict with and antagonistic towards the recounting of the events in co-defendant Trass' statement to the police. In that statement, Trass related that he was present at the scene where the crimes occurred and, although he himself did not participate, he did see defendant Finner Bryant approach and demand money from complaining witness Joseph Jackson. The State had informed the court that it intended to introduce the statement at trial. Over the objection of Bryant's attorney, the trial court at the severance hearing agreed to allow the State to use a redacted form of Trass' statement, substituting for Bryant's name "a male." The essence of the redacted statement, which was introduced at trial through the testimony of Detective Vick Switski, was that Trass saw Joseph Jackson approached by "a male" who demanded money from him which "the male" said Jackson owed him; Jackson refused to give him any money and then a "group of males who were with this original male, jumped onto Jackson and wrestled him to the ground."
We believe that even in its redacted form, there remained a clear implication that defendant Bryant was "the male" referred to in Trass' statement. Switski's testimony disclosing the contents of the statement was supplied to the jury after Joseph Jackson had taken the witness stand and testified that on the morning in question defendant Bryant had approached him and demanded money which Bryant said Joseph owed him. Significantly, at the hearing on the severance motion, counsel for Bryant apprised the court of the likelihood that Joseph Jackson would testify that Bryant approached him and demanded money, thereby making it clear to jurors that Bryant was "the male" referred to in Trass' redacted statement. The trial court therefore was put on notice of the high risk of prejudice inherent in this situation.
It is clear that in ruling on the severance motion, the trial court was required to consider the redacted statement in conjunction with all of the other evidence to be presented by the State. (People v. Clark (1959), 17 Ill.2d 486, 162 N.E.2d 413; People v. McVay (1981), 98 Ill. App.3d 708, 424 N.E.2d 922.) For example, in McVay, two defendants were convicted of burglary in a joint trial. Prior to trial, one of the defendants made a statement to a third person who testified to its contents at trial. Although this statement did not name the other defendant, it did ...