Court of Appeals of Illinois, First District, Fourth Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 11 CR 5480. Honorable Michael Brown, Judge Presiding.
For APPELLANT: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Appellate Defender, Benjamin A. Wolowski, Assistant Appellate Defender, OFFICE OF THE ILLINOIS STATE APPELLATE DEFENDER, Chicago, IL.
For APPELLEE: Anita Alvarez, State's Attorney, Alan J. Spellberg, Mary P. Needham, Jocelyn M. Schieve, Assistant State's Attorneys, OFFICE OF THE ILLINOIS STATE'S ATTORNEY, Chicago, IL.
JUSTICE ELLIS delivered the judgment of the court, with opinion Justices Howse and Cobbs concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant Roderic Risper was convicted of attempted robbery and sentenced to the Cook County department of corrections boot camp. On appeal, defendant contends that he was denied his right to a fair trial due to three references made at trial to the identification of defendant as a perpetrator of the crime by a witness who ultimately did not testify--the first by the State in its opening statement, and twice later by police officers during their testimony. Defendant argues that these references violated his right to confront the witnesses against him and denied him a fair trial.
[¶2] We affirm. We agree that each of these references to a nontestifying witness's identification of defendant as a culprit was error, but we find the errors harmless beyond a reasonable doubt.
[¶3] Defendant was tried on charges of attempted robbery and aggravated battery. Prior to trial, defendant filed a motion in limine requesting that the court bar the State from presenting hearsay testimony from Chicago police officer Isagany Peralta. Specifically, defendant noted that at a previous hearing on his motion to suppress, Officer Peralta had testified that he arrested defendant and codefendant, Albernard Clinton, after an unidentified Chicago Transit Authority (CTA) employee told him " those two were involved." Defendant argued that under the investigatory procedure exception to the hearsay rule, an officer's testimony must be limited to describing how he conducted the investigation and cannot include the substance of an out-ofcourt statement to prove the truth of the matter asserted.
[¶4] At a hearing on the motion, the State acknowledged that the CTA employee was never identified and was not available to testify as a witness. The trial court ruled that Officer Peralta could testify that he spoke with a CTA employee, and that after doing so, he was directed toward a group of individuals. The court instructed the State that it could not use that testimony to infer the identity of defendant or codefendant.
[¶5] During voir dire, the court informed the jury panel that the list of potential witnesses included Gerardo Cortes, Cynthia Kindle, Jennifer Heim and Sascha Mehlhase, as well as four police officers. During her opening statement, the prosecutor stated that the evidence would show that defendant and codefendant were part of a group of men that repeatedly punched Gerardo Cortes and tried to steal his cell phone while he was riding on a CTA train. The prosecutor stated " there were other individuals that saw the whole thing, that had a clear view of his face, and they will be able to identify this defendant, Roderic Risper, as the same defendant that was on that train. The same defendant that partook in the punching and beating of Gerardo Cortes." The prosecutor explained that defendant and codefendant were detained by police, and then stated " [a] couple of minutes, not even 5 minutes later, Cynthia Kindle, Gerardo Cortes, and another witness had already positively identified this defendant, Roderic Risper, and Albernard Clinton as the same two individuals that punched, beat, and tried to take Mr. Cortes's iPhone."
[¶6] At trial, Gerardo Cortes testified that, at approximately 4:30 p.m. on March 25, 2011, he was riding alone on the CTA blue line train, sitting in an aisle seat, and listening to music on his iPhone through headphones when a group of four or five people surrounded him, sat down and looked at him. Cortes felt uneasy and moved his phone lower on his lap. Defendant, who wore his hair in small twists, sat across the aisle from Cortes to his right, and Cortes could see his profile. Codefendant, who had darker skin and was short and stocky, sat behind Cortes. Most of the group wore dark clothing, but codefendant wore a tan jacket. Cortes felt a punch to the back of his head, and the people surrounding him started punching him repeatedly. Someone in the group told Cortes, " Give it up. Give it up," and reached for the iPhone in his lap, which Cortes then placed inside his pocket. The group continued punching Cortes for about a minute with defendant standing to Cortes' right. When the train stopped at the Clark and Lake station, the group ran off the train, and when Cortes looked up, one of the men punched him in the right eye, giving him a black eye.
[¶7] Cortes testified that after the group fled the train, two women approached him and said they saw everything that had happened. Cortes and the women, one of whom was Cynthia Kindle, went upstairs and outside, where an ambulance and police were waiting. Cortes briefly told the police what happened, and they told him and the women to get inside the back of the ambulance. About five minutes later, the police brought defendant and codefendant to the ambulance, told Cortes and the women to look out the back window, and asked if they could identify the men. Cortes identified defendant and codefendant as two of the men from the group that beat him on the train. Specifically, Cortes identified defendant as the man who sat to his right, and codefendant as the man who sat behind him. In court, Cortes also identified photographs of defendant and codefendant as the two men from the train who sat to the right of him and behind him, respectively, and testified that they were the same men he identified from the ambulance.
[¶8] Cortes testified that four days before trial, defense counsel and defense investigator Mary Waller Clemons arrived at his
dorm room unannounced to question him. He told them that he was not required to speak with them but did so, anyway. Cortes acknowledged that he told them that he did not recall much about the incident because it had occurred two years earlier. He further acknowledged telling them that he never looked any of his attackers in the face but saw their side profiles. Cortes explained that he told counsel that he did not make an identification of defendant because he interpreted an " identification" to mean looking someone in the eye; he testified that he was able to identify defendant from his " characteristic traits," including his hair and his profile. Cortes testified that he did not see defendant hit him but felt punches to the right side of his body, and the only person standing to his right was defendant.
[¶9] Cynthia Kindle testified that she was riding the CTA blue line train with her coworker, Jennifer, when she observed defendant walking through the emergency doors, going from car to car, looking at people who were on their cell phones. Kindle described defendant as a tall African-American man with twists in his hair, dressed in mostly black clothing. Defendant walked through their car twice and returned a third time with four other men. The group of men stopped by Cortes, who was sitting four rows in front of Kindle facing her. Defendant stood to the side of Cortes in the aisle, two men stood behind Cortes, and one man stood at the doors. Kindle had an unobstructed view of defendant's profile for approximately a minute. As the train neared the Clark and Lake station, the men began punching Cortes and continued hitting him for more than a minute. When the train pulled into the station, the man standing near the door yelled " [l]et's go," and when the doors opened, the group of men, including defendant, ran from the train.
[¶10] Kindle testified that she called 911 and gave the dispatcher descriptions of the men. Kindle and Jennifer then approached Cortes to see if he was okay. They left the train together and spoke with the conductor. Upstairs at the street level, they spoke with police officers. Kindle told an officer that the offenders were a group of five men, the majority of them dressed in black, but one man wore a purple or blue leather jacket. She did not recall telling police that one man wore a cream-colored jacket. She described one of the men as tall with twists in his hair, and another man as short and stocky with a short haircut. Cortes, Kindle and Jennifer got into the back of an ambulance. Five minutes later, the police returned with two suspects, and Kindle looked through the back window of the ambulance and recognized them as two of the men who had hit Cortes. Kindle identified defendant as the man with twists in his hair whom she saw doing most of the hitting, and the second man was the short and stocky man who had been standing behind Cortes. In court, Kindle identified photographs of defendant and codefendant as two of the men from the train who hit Cortes and testified that they were the same men she identified from the ambulance.
[¶11] Chicago police officer Isagany Peralta testified that he and his partner, Officer Alvarez, responded to a call of a battery in progress involving five or six juvenile men hitting one person. Officer Peralta testified that when they entered the train station, CTA personnel directed them to " the location where they thought offenders from or people involved in the actual fight were still." Defense counsel voiced a hearsay objection. In overruling that objection, the ...