People v. Lewis ( 2006 )

Docket No. 101747.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RONEL
ALEXIS LEWIS, Appellant.
Opinion filed November 30, 2006.
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Defendant Ronel Alexis Lewis was convicted of criminal drug
conspiracy (720 ILCS 570/405.1 (West 2002)) and unlawful delivery
of a controlled substance (720 ILCS 570/401(d) (West 2002)). The
circuit court of McLean County sentenced him to seven years’
imprisonment on each offense, to be served concurrently. The
appellate court vacated defendant’s conviction of criminal drug
conspiracy, but otherwise affirmed the judgment of the trial court. 361
Ill. App. 3d 1006.
We allowed defendant’s petition for leave to appeal. 177 Ill. 2d R.
315(a). On appeal to this court, defendant contends that the trial court
erred in admitting a police detective’s testimony that another witness
made an out-of-court identification of defendant. Defendant argues
that this testimony was not admissible under the hearsay exception
contained in section 115–12 of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/115–12 (West 2002)). We hold that the
trial court did not err in admitting the disputed testimony under
section 115–12. Accordingly, we affirm the judgment of the appellate
court.
I. BACKGROUND
At defendant’s bench trial, Lori Clem testified that she received
several telephone calls from her former neighbor, Charlie, who wanted
Clem to obtain crack cocaine for him. Clem initially refused, but
agreed to purchase the cocaine after her boyfriend asked her to take
a profit from the transaction. Clem’s boyfriend wanted money to buy
heroin.
Clem testified that she planned to buy the cocaine from her
neighbors who lived across the alley. She identified the neighbors as
Marcella Miramontes, Marcella’s boyfriend Cory, and defendant.
According to Clem, Miramontes had stated on an earlier occasion that
either she or defendant could supply Clem with drugs. Miramontes
gave Clem her cell phone number and defendant’s cell phone number.
Clem testified that she had often seen defendant working on his car in
the alley over the course of three or four weeks prior to this
transaction. She had waved to defendant, but did not speak to him
beyond saying “hello.” Clem knew defendant only by his nickname,
“Rail.”
Clem called defendant on his cell phone after agreeing to purchase
the crack cocaine for Charlie. Defendant told Clem to call him back
when the buyer arrived. After Charlie arrived, Clem called defendant
again. Defendant told Clem to meet him at the back of her house.
Clem received $100 from Charlie and walked toward the back of her
house to meet defendant.
Clem testified that she met defendant on her back porch. She gave
defendant $80 in exchange for a cellophane package containing crack
cocaine. Defendant then walked back across the alley to his house
while Clem walked to the car and delivered the cocaine to Charlie. At
that point, Clem recognized the driver of the car and asked if he was
a police officer. The driver denied being a police officer and they
-2-
drove away. Clem testified that this was the first time she had
purchased drugs from defendant, but she had bought drugs from Cory
on one previous occasion. She identified defendant in court as the man
she knew as “Rail.”
Detective John Heinlen testified that he had been working with a
confidential informant named Charlie. They had been attempting to
purchase crack cocaine from Clem in an effort to identify her supplier.
Charlie called Clem to arrange the purchase. Heinlen and Charlie then
drove to Clem’s house in an undercover police car. When they
arrived, Clem approached the car. While Heinlen, Charlie and Clem
were speaking, Heinlen observed a man in the alley behind Clem’s
house approximately 30 yards from the car. Heinlen testified that the
man walked to within 10 to 15 yards of the car. Heinlen testified that
he had a clear view of the man, and he identified defendant as the
individual he saw approach the car.
Clem received $100 from Charlie and walked with defendant
behind her house. Detective Heinlen testified that he did not observe
any exchange of drugs and money between Clem and defendant. When
they emerged from behind the house, Clem walked toward the car and
defendant walked back toward the alley. Clem approached the car and
asked if Heinlen was a police officer. After Heinlen denied being a
police officer, Clem handed him the package containing cocaine. The
next day, Clem was arrested and transported to the police station
where she spoke with Detective Heinlen.
Heinlen testified that Clem identified the person who sold her the
cocaine as “Rail.” Heinlen connected that nickname to defendant and
obtained a photograph of defendant. Heinlen immediately recognized
the person in the photograph as defendant. Heinlen testified that he
showed the photograph to Clem. When the prosecutor inquired as to
Clem’s reaction to the photograph, defendant objected on the ground
that the question called for hearsay. The trial court overruled the
objection, stating that it was admissible “[u]nder 115–12.” Heinlen
then testified that Clem identified the man in the photograph as Rail.
Clem stated he was the person who had sold her cocaine the previous
day.
Defendant presented testimony of several of his family members.
They testified that defendant was visiting them in Milwaukee at the
time of this transaction. Defendant’s family members testified that
-3-
defendant arrived in Milwaukee the day before the transaction
occurred and he stayed for approximately 10 days.
At the State’s request, the trial court took judicial notice of a
McLean County case involving several traffic tickets issued to “Ronel
A. Lewis.” The traffic tickets were issued in Bloomington, Illinois,
during the time period when defendant’s family members claimed
defendant was in Milwaukee. The State also recalled Detective
Heinlen for rebuttal testimony. Heinlen testified that he saw defendant
near the location of the drug transaction the day after it occurred.
The trial court found defendant guilty of both offenses. Defendant
filed a posttrial motion asserting, in pertinent part, that he was not
proven guilty beyond a reasonable doubt because the State presented
hearsay testimony at trial. The trial court denied defendant’s motion
and sentenced him to concurrent terms of seven years’ imprisonment.
On appeal, defendant argued that the trial court erred in admitting
Detective Heinlen’s testimony concerning Clem’s out-of-court
identification of defendant. 361 Ill. App. 3d at 1007. The appellate
court held that Heinlen’s testimony was properly admitted under
section 115–12 of the Code. 361 Ill. App. 3d at 1012-19. The
appellate court also held that defendant could not be convicted of both
the inchoate offense of criminal drug conspiracy and the underlying
principal offense of delivery of a controlled substance. 361 Ill. App.
3d at 1019. The appellate court, therefore, affirmed defendant’s
conviction of delivery of a controlled substance, but vacated his
conviction of criminal drug conspiracy. 361 Ill. App. 3d at 1020.
II. ANALYSIS
On appeal to this court, defendant renews his argument that the
trial court erred in admitting Detective Heinlen’s identification
testimony under section 115–12 of the Code (725 ILCS 5/115–12
(West 2002)). The State initially responds that defendant has forfeited
this argument because his trial objection and posttrial motion were not
sufficiently specific to preserve the alleged error.
To preserve an issue for review, a defendant must both object at
trial and raise the issue in a written posttrial motion. People v. Enoch,
122 Ill. 2d 176, 186 (1988). The posttrial motion must specify the
-4-
grounds for a new trial. Enoch, 122 Ill. 2d at 187. In discussing the
purpose of the forfeiture rule, this court has stated:
“ ‘Failure to raise issues in the trial court denies that court the
opportunity to grant a new trial, if warranted. This casts a
needless burden of preparing and processing appeals upon
appellate counsel for the defense, the prosecution, and upon
the court of review. Without a post-trial motion limiting the
consideration to errors considered significant, the appeal is
open-ended. Appellate counsel may comb the record for every
semblance of error and raise issues on appeal whether or not
trial counsel considered them of any importance.’ ” Enoch,
122 Ill. 2d at 186, quoting People v. Caballero, 102 Ill. 2d 23,
31-32 (1984).
In this case, defendant raised a hearsay objection to the admission
of Heinlen’s identification testimony. The trial court found the
testimony was admissible under the hearsay exception contained in
section 115–12. The trial court, therefore, evidently understood that
defendant was challenging the admissibility of the testimony under
section 115–12. The court considered and ruled upon that issue. Thus,
we conclude that the trial objection was sufficient to preserve the issue
of the admissibility of the testimony under section 115–12.
In his posttrial motion, defendant asserted that he was not proven
guilty beyond a reasonable doubt because the State presented hearsay
testimony. This motion is sufficient to identify the admission of
hearsay testimony as an issue. The State argues that the motion was
insufficient to preserve the issue because defendant “did not identify
the hearsay testimony or even the name of the witness involved.” The
record shows, however, that there were only three objections during
this one-day bench trial. One of those objections was based on
relevance. The other two objections, based on hearsay, occurred
within a short time of each other and both were related to Heinlen’s
identification testimony. Thus, the trial court would not have been
confused on the hearsay testimony defendant was challenging in his
motion. Given this record, we find that the posttrial motion was
sufficient to identify the claimed error for the trial court’s
consideration and to limit the claimed errors on appeal. Defendant did
not forfeit this issue for review.
-5-
On the merits, defendant argues that the section 115–12
requirements were not satisfied for admission of Detective Heinlen’s
testimony concerning Clem’s out-of-court identification. Thus,
defendant contends that Heinlen’s testimony was inadmissible hearsay.
Section 115–12 provides that:
“A statement is not rendered inadmissible by the hearsay
rule if (a) the declarant testifies at the trial or hearing, and (b)
the declarant is subject to cross-examination concerning the
statement, and (c) the statement is one of identification of a
person made after perceiving him.” 725 ILCS 5/115–12 (West
2002).
First, we note that there is some disagreement in the appellate
court over the interpretation of section 115–12. In this case, the
appellate court held that a declarant is not required to testify about his
or her out-of-court identification before a third party testifies to the
identification. 361 Ill. App. 3d at 1012-13. Other appellate court
panels have held section 115–12 requires the declarant to testify about
the identification before a third party may testify on that subject. See
People v. Stackhouse, 354 Ill. App. 3d 265, 278 (2004); People v.
Bradley, 336 Ill. App. 3d 62, 70 (2002). Thus, we first resolve this
conflict in the construction of section 115–12 before determining
whether the requirements of the statute were satisfied in this case.
The construction of a statute is a question of law subject to de
novo review. People v. Bonutti, 212 Ill. 2d 182, 188-89 (2004). Our
primary goal in construing a statute is to determine and give effect to
the intent of the legislature. Metzger v. DaRosa, 209 Ill. 2d 30, 34
(2004). The best indication of the legislature’s intent is the language
of the statute, given its plain and ordinary meaning. People ex rel.
Ryan v. Agpro, Inc., 214 Ill. 2d 222, 226 (2005), quoting Caveney v.
Bower, 207 Ill. 2d 82, 87-88 (2003). When statutory language is plain
and unambiguous, we must apply the statute as written without resort
to aids of statutory construction. People v. Collins, 214 Ill. 2d 206,
214 (2005). We will not depart from the plain statutory language by
reading into the statute exceptions, limitations, or conditions that the
legislature did not express. People ex rel. Department of Professional
Regulation v. Manos, 202 Ill. 2d 563, 568 (2002). Further, a court
may not add provisions that are not found in a statute.
Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 153 (1997).
-6-
The plain language of section 115–12 requires the declarant to
testify and be subject to cross-examination on the identification
statement. 725 ILCS 5/115–12 (West 2002). There are no other
requirements for admission of a third party’s testimony about the
declarant’s out-of-court identification. The statute does not expressly
require the declarant to testify on the out-of-court identification before
a third party may testify about that identification. This court may not
add a requirement for the order of the witness’ testimony when it is
not found in the plain language of the statute. See King v. First
Capital Financial Services Corp., 215 Ill. 2d 1, 26 (2005) (in
construing a statute, a court may not add new provisions that depart
from the plain meaning of the statutory language). In sum, the
language of section 115–12 is plain and unambiguous, and it does not
require a declarant to testify to the out-of-court identification before
a third party may offer testimony on that matter.
As noted, Bradley and Stackhouse have held that section 115–12
requires a declarant to testify on his or her out-of-court identification
before a third party may testify about that identification. Bradley and
Stackhouse conflict with our holding that the plain language of section
115–12 does not impose a requirement concerning the order of the
witness’ testimony. Accordingly, we hereby overrule Bradley and
Stackhouse to the extent that those cases conflict with our decision.
We now turn to the application of section 115–12 to the facts of
this case. Defendant contends that Heinlen’s testimony was not
admissible under section 115–12 because Clem was not subject to
cross-examination on the statement. According to defendant, Clem
was not available for cross-examination on her out-of-court
identification because the State failed to raise this issue on direct
examination and the scope of cross-examination is limited to the
subject matter on direct. Defendant was, therefore, precluded from
cross-examining Clem on her out-of-court identification.
The State responds that Clem was available for cross-examination
on her out-of-court identification of defendant because she could have
been recalled to testify after Heinlen testified about the identification.
The State also argues that defendant could have cross-examined Clem
about her out-of-court identification after she testified for the State.
According to the State, defendant would not have been restricted by
the scope of direct examination on the critical issue of the accuracy of
the identification.
-7-
We agree with the State that Clem was “subject to cross-
examination concerning the statement” as required by section 115–12.
First, Clem was available to be cross-examined about her out-of-court
identification after the State concluded its direct examination. On this
point, we note that section 115–12 is based upon Federal Rule of
Evidence 801(d)(1)(C). M. Graham, Cleary & Graham’s Handbook
of Illinois Evidence §611.16, at 468 (8th ed. 2004). In construing
Federal Rule 801(d)(1)(C), the Supreme Court has held that a witness
is “subject to cross-examination” when he or she is placed on the
witness stand, under oath, and responds willingly to questions. United
States v. Owens, 484 U.S. 554, 561, 98 L. Ed. 2d 951, 959, 108 S. Ct.
838, 844 (1988). Here, Clem was placed on the witness stand, was
under oath, and responded willingly to questions.
Defendant, nonetheless, argues that he was prevented from cross-
examining Clem about her out-of-court identification because it was
not raised by the State on direct examination. Although the scope of
cross-examination is generally limited to the subject matter of direct
examination and to matters affecting the witness’ credibility, this
limitation is construed liberally to permit inquiry into subjects tending
to explain, discredit, or destroy the witness’ direct testimony. People
v. Terrell, 185 Ill. 2d 467, 498 (1998). When the principal issue is the
identification of the accused, the defendant will be given wide latitude
to question the identifying witness on any matter explaining,
modifying, or discrediting the witness’ testimony. People v. Morris,
30 Ill. 2d 406, 409 (1964).
Here, defendant did not attempt to cross-examine Clem on her
out-of-court identification. Defendant cannot now claim he would not
have been permitted to question her on that subject, particularly given
this court’s case law allowing cross-examination of an identifying
witness on all matters that may explain, modify, or discredit the
identification. If the trial court had been given the opportunity to apply
our case law, defendant should have been allowed to question Clem
on her out-of-court identification because that subject is directly
relevant to challenging the identification made from the witness stand.
We, therefore, reject defendant’s argument that he was precluded
from cross-examining Clem on her out-of-court identification because
it was beyond the scope of direct examination.
We acknowledge that defendant may have declined to question
Clem on her out-of-court identification based on trial strategy.
-8-
Defendant may have decided not to address this issue given that the
State did not raise it on direct examination and Clem’s out-of-court
identification may not have been helpful to his defense. Defendant,
nevertheless, had the opportunity to cross-examine Clem on this issue.
An opportunity to cross-examine on the issue is all that is required
under section 115–12(b).
Moreover, even if defendant initially declined to cross-examine
Clem on her out-of-court identification based on trial strategy, he
could have recalled Clem for cross-examination after Detective
Heinlen testified about that identification. The decision whether to
allow a witness to be recalled is within the discretion of the trial court.
People v. Cobb, 97 Ill. 2d 465, 480 (1983). It is an abuse of
discretion, however, for the trial court to deny a request to recall a
witness when the denial will deprive the defendant of an opportunity
to present evidence crucial to the defense. Cobb, 97 Ill. 2d at 480-81;
People v. Gray, 209 Ill. App. 3d 407, 414 (1991).
Here, the record shows that the identification of defendant was the
critical issue in this case. Given the crucial nature of this evidence, it
would have been an abuse of discretion for the trial court to deny
defendant’s request to recall Clem to cross-examine her on her out-of-
court identification. Further, as previously noted, there is no order-of-
testimony requirement in section 115–12. The fact that Clem would
not have testified on her out-of-court identification of defendant
before Heinlen testified about that identification does not preclude
admission of Heinlen’s testimony under section 115–12.
In sum, we conclude that Clem was subject to cross-examination
on her out-of-court identification of defendant as required by section
115–12. The trial court did not err in admitting Detective Heinlen’s
testimony on the out-of-court identification.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the appellate
court affirming the judgment of the circuit court.
Affirmed.
-9-