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November 14, 1997


Appeal from the Circuit Court of Cook County. Honorable Fred G. Suria, Jr., Judge Presiding.

As Corrected November 21, 1997. Released for Publication December 24, 1997.

The Honorable Justice Zwick delivered the opinion of the court. Greiman, P.j., and Theis, J., concur.

The opinion of the court was delivered by: Zwick

The Honorable Justice ZWICK delivered the opinion of the court:

Following a jury trial defendant, Robert Jones, was found guilty of the armed robbery of Elaine Ramos and sentenced to serve a term of natural life imprisonment as a habitual offender pursuant to the provisions of the Habitual Criminal Act (720 ILCS 5/33B-1 et seq. (West 1994)). He now appeals, alleging that (1) the State improperly bolstered Ramos's identification with so-called "non-identification testimony," (2) the State was erroneously permitted to elicit testimony regarding Ramos's excited reaction in viewing the defendant in a police lineup, (3) testimony that defendant had to be "writted out" of jail before he could be brought to the police lineup was unfairly prejudicial, (4) one of the State's witnesses was permitted to testify to a prior consistent statement in which Ramos told him, approximately a month after the incident, that a gun had been used in the robbery and (5) defendant was denied to a jury instruction on the offense of aggravated robbery. For the following reasons, we reverse and remand the case for further proceedings.

At trial, Elaine Ramos testified that she was walking to her car on March 1, 1995, at approximately 8 p.m. after shopping at the Target store located at 2656 North Elston. As she was putting her shopping bags into her car, she heard a car stop suddenly behind her. She turned and saw the defendant get out and run toward her with a gun in his hand. Although defendant had partially covered the gun with a towel, Ramos could see its barrel. Defendant walked up to Ramos and pointed the gun at her stomach. She testified that the defendant was right in her face and that the parking lot was "very, very well lit."

Ramos opened her wallet and gave defendant about $70. After she told defendant that she had no more money, defendant walked to his car and drove away. As he drove away, she looked at his license plate, then ran into Target and told the security people, "I've been robbed with a gun." She kept repeating the license plate number over and over.

When police arrived at the Target store, Ramos described the offender as an African-American male, light skin, at least six feet tall, about 160 pounds, with marks on his face and hair growth, wearing a tan jacket and dark pants. Ramos then gave a partial license plate number, "L-W-J." Ms. Ramos also told the police that she had seen the barrel of the gun.

A couple of days later, Ramos received a phone call from Detective Fernando Montilla. He took her to the Area 5 police station where Ramos looked at books of photos, but did not recognize the person who had robbed her. She told the detective that she had a clear image of the person and did not want to be confused by looking at more pictures.

On April 3, 1995, Ramos again went to Area 5, this time to view a lineup. When the curtains were opened, she immediately recognized defendant stating, "It was just instant recognition. He was just right in front of me, like again. And I was just, it was like seeing him. I just moved back, I started crying." Ramos told the detective conducting the lineup, "That's him, that's him." She was so upset to see defendant again that she "almost passed out."

On cross-examination, Ramos insisted that she had seen a gun during the robbery, stating that she could see both its barrel and defendant's hand around its handle. When asked if the gun was a revolver or a pistol, she stated that she did not know guns. She denied telling police that she saw a "possible handgun barrel," insisting that she told them she had been robbed with a gun.

Officer John Nowik testified that he received a radio call on March 1, 1995, directing him to meet a robbery victim at the Target store at 2656 North Elston. At the scene, Ms. Ramos told him that the offender was a black male, 6 feet tall and weighed about 170 pounds. He was in his 30s. He had dark pants, a tan jacket and wore gym shoes. His face had pock marks.

On cross-examination, Officer Nowik admitted that his police report of the incident indicated that the offender was "about 30," not "in his 30s." He also stated that the report did not describe a gun, but only indicated that the perpetrator had displayed "an unknown possible handgun barrel." Officer Nowik stated that Ramos never described the handle of the weapon.

Detective Montilla, a Chicago police robbery specialist testified that he had been assigned to the robbery of Elaine Ramos on March 1, 1995. In response to prosecutors questioning of when he had first come into contact with the defendant, Montilla stated that he had "writted him out--," and was interrupted by defendant's objection. The trial court instructed Montilla just to answer the question asked of him and Montilla then explained that he first came in contact with the defendant on April 3, 1995, when he arranged a police lineup for Ramos. He further testified that when he opened the curtain to show Ramos the lineup, she got very nervous and almost passed out. She subsequently identified the defendant as the offender. Montilla also stated, over defendant's objection, that Ramos told him a gun had been used in the robbery.

On cross-examination, Detective Montilla stated that defendant's height was 6 feet, 3 inches and that he was 43 years old. Montilla noted that his arrest report revealed that the defendant had a scar on his left cheek.

After hearing closing arguments, the jury found defendant guilty ...

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