Appeal from the Circuit Court of Cook County No. 99C6-61058-01 Honorable George M. Morrissey Judge Presiding.
The opinion of the court was delivered by: Justice Hall
On February 29, 2000, following a bench trial, defendant Theron Bradley, also known as Big Ron, was convicted of aggravated battery with a firearm and armed robbery of Larry Woods. On April 11, 2000, defendant was sentenced to 15 years' imprisonment for aggravated battery and 6 years' imprisonment for armed robbery, the sentences to be served consecutively. On May 10, 2000, defendant filed his notice of appeal. On May 15, 2000, defendant filed a motion to reduce his sentence, which the trial court denied on August 3, 2000. This consolidated appeal followed.
On appeal, defendant contends that: (1) the trial court erred by improperly admitting Detective Daniel Dempsey's testimony regarding Larry Woods' out-of-court statement identifying defendant as the individual who shot him; (2) the trial court erred by improperly considering facts not in evidence in finding defendant guilty of aggravated battery and armed robbery; and (3) the trial court erred in ordering that the sentences imposed for aggravated battery and armed robbery be served consecutively. For the reasons that follow, we affirm.
Defendant's conviction arose from the nonfatal shooting and armed robbery of Larry Woods on May 27, 1999, at approximately 3 a.m., near 137th and Parnell Avenue, in Riverdale, Illinois. Woods, a known drug dealer and member of the same street gang as defendant, testified that on May 27, 1999, at about 3 a.m. he was at the home of his friend, Laquita Franklin, when he got into an argument with the defendant over drugs and "gang[-]related things." After the argument ended, Woods left Ms. Franklin's home and proceeded to walk up the street.
As Woods was walking up the street away from the home, he heard defendant call his name. Woods testified that defendant asked him to "come here for a minute." Woods testified that when he stopped and turned around toward defendant, he saw defendant approaching him. Defendant was wearing gloves and was pulling a handgun from his behind his back. Woods was unarmed.
Defendant approached within approximately four feet of Woods, pointed his handgun at Woods and ordered him to "Give me your sh-t." Woods testified that he understood that defendant was referring to the illegal drugs that Woods had in his possession. Defendant fired a gunshot at the ground when Woods hesitated in turning over his drugs. Woods then threw his plastic bag of crack cocaine to the defendant. Defendant retrieved the bag of drugs, told Woods, "Man, I told you about playing with me," and then shot Woods once in the leg, shattering his femur.
Woods testified that after he was shot he ran across the street, but his leg "gave out" and he fell to the ground. As he was lying on the ground, Woods called out to the defendant, "Big Ron, don't leave me. Don't leave me out here." Defendant then crossed the street after Woods. Upon reaching Woods, defendant took approximately $40 in cash from Woods' pocket and told Woods, "Don't call my name." Woods testified that defendant threatened to shoot him again if he continued to call out defendant's name.
Woods eventually knocked on a nearby resident's window, and the resident called 911. Police officers arrived along with an ambulance, which transported Woods to Christ Hospital, where he received treatment for his gunshot wound.
Detective Daniel Dempsey testified that he arrived at the scene of the shooting at approximately 4 a.m., about an hour after the incident. He testified that when he arrived at the scene, Woods had already been taken to Christ Hospital. While at the scene, Detective Dempsey spoke with Officers Fionda and Graziano regarding the conversation they had with Woods prior to his removal to Christ Hospital.
Detective Dempsey then prepared a photo array based on the information that police officers Fionda and Graziano told him they received from Woods. Later, the same day of the shooting, Detective Dempsey took the array of photos to Christ Hospital and showed them to Woods. Detective Dempsey testified that Woods, upon examining the photo array, identified defendant as the individual who shot him.
I. Hearsay Identification Testimony
Defendant first contends that the trial court erred by admitting Detective Dempsey's testimony regarding Woods' out-of-court statement identifying defendant as the individual who shot him in the leg. Defendant requests that we consider the merits of this contention under the plain error rule, on the ground that the evidence in the case was closely balanced.
The State responds that defendant waived his hearsay argument and that the evidence was not so closely balanced as to warrant a plain error review. The State maintains, however, that if this court determines that defendant did not waive his hearsay argument, we should find, as the trial court did, that Woods' out-of-court statement identifying defendant as his assailant was properly admissible under the "excited utterance" exception to the hearsay rule. Further, the State contends that Detective Dempsey's testimony regarding Woods' out-of-court statement of identification was also properly admissible pursuant to section 115-12 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-12 (West 1996)), which pertains to the admissibility of an out-of-court statement of prior identification. Lastly, the State contends that even if we conclude that the trial court erred in admitting Detective Dempsey's objected to testimony, we should find that the error was harmless, since the trial court had independent evidence from which it concluded that Woods properly identified defendant as his assailant.
In order to preserve an issue for appellate review, a defendant must make a timely objection at trial and include the ground for objection in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). Since the record indicates that defendant failed to raise the issue of the admissibility of Detective Dempsey's testimony regarding Woods' out-of-court statement of identification in his posttrial motion, defendant has waived this issue for appeal. However, as previously mentioned, defendant requests that we consider the merits of the issue under the plain error rule, on the ground that the evidence was closely balanced.
To apply the plain error exception to the waiver rule, courts should first determine if the record shows that an error occurred. If not, end of story. If so, then courts should consider whether the error was plain error. People v. Precup, 73 Ill. 2d 7, 17, 382 N.E.2d 227 (1978). This criterion is met in criminal cases under two limited circumstances: (1) where the evidence is closely balanced and the error might have significantly affected the outcome of the case; or (2) where the error is so fundamental and of such magnitude that the accused was denied a fair trial and remedying the error is necessary to preserve the integrity of the judicial process. People v. Young, 128 Ill. 2d 1, 47, 538 N.E.2d 461 (1989); People v. Sanders, 99 Ill. 2d 262, 273, 457 N.E.2d 1241 (1983); see 134 Ill. 2d R. 615(a) *fn1 . If it is not plain error, end of story -- error is waived. If it is plain error, then courts can consider whether the error was reversible or not.
In the present case, the trial court erred in admitting Detective Dempsey's testimony regarding Woods' out-of-court statement under the "excited utterance" exception to the hearsay rule. However, this error is not reviewable under the plain error doctrine because an examination of the record reveals that the evidence was not close nor was the error of such magnitude as to preclude defendant from receiving a fair trial. The evidence showed that prior to the incident, Woods and defendant had known each other for approximately four months through their mutual membership in a street gang. Woods testified that defendant shot him in the leg shortly after they engaged in an argument over illegal drugs and "gang[-]related things." Based on the properly admitted evidence, the trial court stated that Woods' identification of defendant as his assailant was not an issue in the case. Therefore, we must reject defendant's contention that the evidence regarding Woods' identification of defendant as his assailant, was closely balanced. And thus, the trial court's error in admitting Detective Dempsey's testimony regarding Woods' out-of-court statement of identification under the "excited utterance" exception to the hearsay rule did not rise to the level of plain error and is not reviewable under the plain error doctrine. Moreover, even if we reviewed the error under the doctrine of plain error, we would hold that the error was harmless under the circumstances in this case.
A. Excited Utterance Exception to Hearsay Rule
The classical rationale underlying the spontaneous declaration or excited utterance exception to the hearsay rule was summarized ...