APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
531 N.E.2d 891, 176 Ill. App. 3d 758, 126 Ill. Dec. 264 1988.IL.1660
Appeal from the Circuit Court of Cook County; the Hon. Themis Karnezis, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
At trial, Raymond Washington, no relation to the victim, testified for the State. On December 15, 1985, at approximately 9:45 in the evening, he was walking toward the Dreamweavers Motorcycle Club, which was also a pool hall, on the south side of Chicago. At that time, he saw the victim standing at a phone booth in front of the pool hall "getting ready to dial the telephone" and the defendant standing behind him. Both the victim and defendant were facing Washington at this time. As Raymond Washington walked toward the pool hall, he saw defendant walk behind the victim, pull a gun out of his jacket pocket with his right hand and shoot the victim in the back of the head. Washington was approximately 10 feet away from defendant and the victim at that time. After the shooting, defendant ran through the alley next to the pool hall. When the victim fell, he was holding the phone in one hand and a cigarette in the other. The victim was not armed, had not said anything to defendant and had not made any threatening gestures toward defendant before he was shot. Immediately thereafter, Washington entered the pool hall but did not tell anyone about the shooting. The police arrived approximately five minutes after the shooting but Washington did not tell them what he had seen because he did not want to get involved. He also testified that the lighting was "bright" and that he had gotten a good look at defendant's face. A couple of days after the shooting, Washington told the police what he had seen. He looked through police mugshot books but failed to identify anyone as the shooter. On December 31, Washington identified defendant out of a lineup as the shooter. Washington also testified that he had not made any anonymous phone calls to the police before the 31st. On cross-examination, Washington reiterated that the street lighting where the shooting occurred was bright and that defendant and the victim were approximately 10 feet away from him at the time of the shooting. He also testified that he was able to identify defendant out of the lineup because he "got a good look at his face."
Chicago police officer Raymond Jasten also testified for the State. When he and his partner arrived at the shooting scene the victim was lying with his feet at the base of the telephone booth and was holding a smoking cigarette in his right hand. He also testified that the telephone was hanging off the hook and that there was a fluorescent light over the telephone and "a street light right over the area." Chicago police detective Thomas Brankin corroborated Jasten's testimony regarding the lighting at the crime scene and the fact that the phone was dangling off the hook after the shooting. Detective Brankin also testified that when Raymond Washington viewed the lineup on the 31st, he did not wait until its completion before positively identifying defendant but identified him as soon as he saw him.
Chicago police detective Thomas Ptak testified that while on duty on December 30th, he received an anonymous phone call. The caller told the detective that the man "shot at 69th and Union was shot by a man by the name of Isaac Miles, whose name was -- whose nickname was called, Ike." As a result of the phone call, the police arrested defendant the same day.
On his own behalf, defendant testified that he could not actually remember where he was on December 15, 1985. However, he assumed he was at home, 5740 South Lafayette, from 9 to 10 at night. He then stated, however, that he could not say he spent the entire night at home. Defendant denied shooting Bradley Washington, whom he admitted having known since 1977. On cross-examination, defendant admitted telling the police a different story, after he was arrested, of his whereabouts on the night of December 15. Specifically, he told them that if he left his apartment that night, he and his girlfriend, Irene Ealey, walked to 57th and State at about 7 p.m. and called for a cab from there which arrived about an hour later. They took the cab to 4544 South Ellis, where they stopped to see someone named Brownie. After finding that Brownie was not home, they took the cab to the home of Irene Ealey's mother at 7839 South Muskegon, where Irene got out of the cab. Defendant took the cab back to Brownie's, who was still not home. He then took the cab to his mother's home at 4810 South Calumet, arriving there at about 11 or 12 p.m., and remained there the rest of the evening.
Irene Ealey testified for the State in rebuttal. She admitted being defendant's girlfriend in December 1985. However, she denied having gone on the evening of December 15 to any of the locations enumerated by defendant. She also denied knowing a person named Brownie.
On appeal, defendant first contends that the State committed plain error in introducing hearsay testimony of the anonymous phone call to the police in which defendant was named as Bradley Washington's murderer and also in referring to the phone call in closing argument.
Hearsay is testimony of an out-of-court statement offered to prove the truth of the matter asserted, the value of which rests on the credibility of the out-of-court asserter. (People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223.) The reason for excluding hearsay evidence is the absence of an opportunity to determine its veracity. (Rogers, 81 Ill. 2d at 577.) Generally however, the admission of hearsay evidence, although error, is harmless beyond a reasonable doubt where there is overwhelming evidence of guilt (People v. Requena (1982), 105 Ill. App. 3d 831, 435 N.E.2d 125, cert. denied (1983), 459 U.S. 1204, 75 L. Ed. 2d 436, 103 S. Ct. 1191; People v. Griffiths (1983), 112 Ill. App. 3d 322, 445 N.E.2d 521) or, as otherwise stated, where there is no reasonable possibility that the jury's verdict would have been different had the hearsay been excluded (People v. Hall (1980), 90 Ill. App. 3d 1073, 414 N.E.2d 201, cert. denied (1981), 454 U.S. 893, 70 L. Ed. 2d 207, 102 S. Ct. 388; People v. Griggs (1982), 104 Ill. App. 3d 527, 432 N.E.2d 1176; see also People v. White (1985), 134 Ill. App. 3d 262, 283, 479 N.E.2d 1121, cert. denied (1986), 475 U.S. 1126, 90 L. Ed. 2d 194, 106 S. Ct. 1650).
Applying these principles here, we conclude that the introduction of the evidence of the anonymous phone call to the police implicating defendant was not plain error requiring reversal of defendant's conviction. At bottom, defendant's argument rests on the contention that, while the identification testimony of one eyewitness is sufficient to sustain a conviction, it is not overwhelming evidence of guilt for purposes of determining the prejudicial effect of hearsay testimony. We disagree.
The admission of hearsay identification evidence constitutes plain error only where it is used to strengthen a weak eyewitness identification or as a substitute for a courtroom identification. However, it is harmless error where such evidence is merely cumulative or supported by a positive identification and other corroborative circumstances. (See, e.g., People v. Anthony (1980), 90 Ill. App. 3d 859, 418 N.E.2d 757; People v. Daliege (1976), 40 Ill. App. 3d 706, 352 N.E.2d 247; People v. Davis (1974), 20 Ill. App. 3d 948, 314 N.E.2d 723; People v. Coleman (1974), 17 Ill. App. 3d 421, 308 N.E.2d 364.) Another line of appellate court cases holds that where a conviction rests solely on the identification testimony of one witness, with no important corroborating circumstances, and such testimony was impermissibly bolstered by the admission of hearsay evidence, a new trial will be ordered. (See, e.g., People v. Riley (1978), 63 Ill. App. 3d 176, 379 N.E.2d 746 (and cases cited therein).) However, we believe that People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046, cert. denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285, justifies the Conclusion that the former rules represent the applicable principles in this area of criminal law.
In Gaines, a police officer testified that the defendant's brother had implicated him in the two murders with which the defendant was charged. The defendant contended that this hearsay testimony would deny him the right of confrontation under Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. The supreme court held:
"We need not decide whether the admission of this . . . testimony violated the Bruton rule, however, since the uncontroverted eyewitness testimony of Thomas was sufficient to sustain the defendant's conviction of murder, and the admission of [this] testimony would be harmless error. Brown v. United States (1973), 411 U.S. 223, 36 L. Ed. 2d 208, 93 S. Ct. 1565; Schneble v. Florida (1972), 405 U.S. 427, 31 L. Ed. 2d 340, 92 S. Ct. 1056; Harrington v. California (1969), 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726." (Gaines, 88 Ill. 2d at 366.)
In holding that the uncontroverted testimony of one eyewitness was sufficient to sustain a conviction for murder despite hearsay testimony implicating the defendant in the offense charged, Gaines implicitly establishes that the testimony of one eyewitness may constitute overwhelming evidence of guilt ...