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09/26/97 PEOPLE STATE ILLINOIS v. JUAN GONZALEZ

September 26, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JUAN GONZALEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 95--CF--0249. Honorable Timothy Q. Sheldon, Judge, Presiding.

Released for Publication October 24, 1997.

The Honorable Justice Thomas delivered the opinion of the court. Doyle and Rathje, JJ., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court:

A jury convicted defendant, Juan Gonzalez, of residential burglary (720 ILCS 5/19--3(a) (West 1996)). After denying defendant's posttrial motion, the trial court sentenced defendant to nine years' imprisonment. On appeal, defendant argues that we must reverse his conviction because (1) the trial court erred in admitting testimony concerning the sole eyewitness' prior identification of defendant, and (2) the State did not prove defendant's guilt beyond a reasonable doubt. We affirm.

We first address the admissibility of the prior identification. The State called Michelle Marquez as its sole identification witness. Ms. Marquez testified that, on the afternoon of February 6, 1995, she was home watching television. After hearing a loud banging noise outside, she looked out the window but could not identify the source of the noise. A few moments later, after hearing the back gate of her neighbors' fence open and close, she again looked out the window. This time, she saw two men leaving her neighbors' backyard through the gate. Ms. Marquez went to the front window of her house and watched as the two men, who were carrying loaded grocery bags, walked away down the street.

When asked to describe the two men, Ms. Marquez stated that they were both Hispanic with light brown skin, dark brown hair, and dark eyes. One of the men, who was wearing dark pants and a blue windbreaker, carried a pair of gold work gloves in the rear right pocket of his pants. The other man wore blue jeans, a waist-length tweed jacket, and a black and white "beanie." The State's Attorney then asked Ms. Marquez whether she saw either of the two men in the courtroom. Although defendant was seated at the defense table, Ms. Marquez responded, "No." Ms. Marquez explained that, although she is able to identify and describe accurately a person's clothing, she is "not good with faces at all."

Over defense counsel's objection, and notwithstanding Ms. Marquez' inability to identify defendant in open court, the trial court permitted the State then to question Ms. Marquez regarding her prior out-of-court identification of defendant. The trial court ruled that Ms. Marquez' prior identification was an exception to the hearsay rule and therefore admissible as substantive evidence under section 115--12 of the Code of Criminal Procedure of 1963. See 725 ILCS 5/115--12 (West 1996).

Ms. Marquez testified that, as the men continued to walk away, she got into her car and began to follow them. At no time while she was following the men did they dispose of the bags, split up, or join with others. After several blocks, the men entered an apartment house. Ms. Marquez returned home and called the police.

The police met Ms. Marquez at her home and drove her to the apartment house. Leaving Ms. Marquez in the backseat of a squad car parked two houses down, the police entered the apartment house and arrested defendant and his brother, Ismael. After bringing defendant and his brother out of the house, the police asked Ms. Marquez whether she saw the two men who had robbed her neighbors. Pointing to the two men who the police had brought out of the house, Ms. Marquez responded, "Yes." Ms. Marquez explained that, although she never got a good look at the men's faces, she was able to identify their clothing.

The State then called Officer Zegar of the Aurora police department to identify defendant as one of the two men whom Ms. Marquez identified from the backseat of the squad car.

Defendant argues that, because Ms. Marquez was unable to identify defendant in open court, the trial court should not have admitted as substantive evidence Ms. Marquez' prior identification of defendant. Instead, the trial court should have ruled the testimony inadmissible under section 115--10.1 of the Code of Criminal Procedure (725 ILCS 5/115--10.1 (West 1996)) as a prior inconsistent statement. The State responds that, under section 115--12, an in-court identification is not a prerequisite to the substantive admission of a prior out-of-court identification.

This issue requires us to consider the application of potentially competing evidentiary rules. On the one hand, section 115--10.1 precludes the trial court from admitting as substantive evidence a witness' prior inconsistent statement unless (1) the witness is subject to cross-examination concerning the statement; and (2) the statement was made under oath. 725 ILCS 5/115--10.1 (West 1996). In light of Ms. Marquez' inability to identify defendant in open court, Ms. Marquez' prior identification of defendant could be construed as a prior inconsistent statement. Because Ms. Marquez' prior identification statement was not made under oath, defendant argues that, under section 115--10.1, Ms. Marquez' prior identification was inadmissible as substantive evidence.

On the other hand, section 115--12 allows the trial court to admit as substantive evidence a prior statement of identification if (1) the declarant testifies at trial; and (2) the declarant is subject to cross-examination. 725 ILCS 5/115--12 (West 1996). In this case, Ms. Marquez testified at trial and was vigorously cross-examined by defense counsel. Thus, under ...


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