People v. Risper , 34 N.E.3d 627 ( 2015 )

2015 IL App (1st) 130993
FOURTH DIVISION
June 4, 2015
No. 1-13-0993
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 5480
)
RODERIC RISPER, ) Honorable
) Michael Brown,
Defendant-Appellant. ) Judge Presiding.
JUSTICE ELLIS delivered the judgment of the court, with opinion
Justices Howse and Cobbs concurred in the judgment and opinion.
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.
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¶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, 1 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-of-
court 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 2 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
1
Codefendant's case was severed from defendant's; he is not a party to this appeal.
2
Various spellings of Heim's last name appear throughout the record; we use this spelling for
consistency.
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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
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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
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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
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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 court defined
hearsay for the jury and explained that, in this instance, the officer was explaining the steps in his
investigation, which is an exception to the hearsay rule, and that the jury should consider his
statement only for that purpose and should not consider the actual substance of his statement.
¶ 12 Officer Peralta further testified that after speaking with CTA personnel, he and Officer
Alvarez headed toward the upstairs platform and encountered Cortes being treated by medical
personnel. After speaking with Cortes, who gave them a brief description of the offenders, the
officers went to the upstairs platform on the south side of the tracks and saw five or six juvenile
men running on the north side platform. As the officers ran across to the north platform, the
group of men ran through the exit to the street and fled the area. Officer Peralta testified that he
was then "directed by the CTA agent and standing witnesses that people that were also involved
were still there." The trial court overruled defense counsel's objection and denied her request for
a sidebar. The officer testified that he was directed to defendant and codefendant, both of whom
were wearing dark clothing, and one of whom had twists in his hair. The officers detained
defendant and codefendant and brought them downstairs to the ambulance, where they were
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identified. The prosecutor asked Officer Peralta who identified defendant, and he said, "the
actual victim and then there was three witnesses standing by at the time."
¶ 13 The trial court granted defense counsel's request for a sidebar, at which time counsel
moved for a mistrial arguing, in relevant part, that the State presented identification testimony
from the victim and one witness, not three witnesses, and unless the State was going to call two
more witnesses who would identify defendant, his right to confrontation was violated. The court
ruled that it would strike that portion of Officer Peralta's testimony because identification
testimony was only presented from Cortes and Kindle, and it would instruct the jury to disregard
that testimony. The court stated that there were apparently two additional witnesses whom the
State had decided not to call and that the additional identifications would not be allowed. The
court further stated that it could cure the problem by striking the testimony and instructing the
jury, and that the circumstances did not warrant a mistrial.
¶ 14 Defense counsel then alleged that the prosecutor intentionally elicited the additional
identification testimony from Officer Peralta, noting that in her opening statement, the prosecutor
stated that defendant had been identified by Cortes, Kindle and another witness. The prosecutor
denied that the elicitation was intentional. The trial court pointed out that defense counsel did not
object during the State's opening statement. The prosecutor explained that she was trying to call
one other eyewitness, Jennifer Heim, to testify in rebuttal. The court again noted that counsel did
not object during the opening statement and denied the motion for a mistrial.
¶ 15 When the trial resumed, the court informed the jurors that the last question and answer
were stricken and instructed them to disregard that testimony. Officer Peralta then testified that
Cortes and Kindle both identified defendant and codefendant. Officer Peralta acknowledged that
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one of the men in the group that fled the scene was wearing a tan jacket. He also acknowledged
that defendant and codefendant did not run from police, but were walking away from them.
¶ 16 Chicago police detective Michael Lynch testified that when he was assigned to
investigate the offense in this case, he learned that two individuals had been identified during a
show-up at the scene. When the prosecutor asked Detective Lynch to explain what a positive
show-up is, he replied "[t]hey were identified by the victim and the two witnesses." Defense
counsel objected on the basis of hearsay, and the prosecutor responded that the testimony was to
describe the detective's course of conduct. The trial court overruled the objection and instructed
the jury to consider the testimony for the limited purpose of explaining what action the detective
took next. The court specifically admonished the jury not to consider the substance of the
testimony—that the offenders were identified by the victim and two other persons—for the truth
of that statement, but only for the purpose of the detective explaining what he did next.
¶ 17 Detective Lynch then explained that a show-up is conducted to identify the offender. The
detective testified that he spoke with Cortes and Kindle and learned that each of them had
identified defendant and codefendant at the scene. Detective Lynch later spoke with defendant,
and after Lynch advised him of his Miranda rights, defendant told the detective that he had been
on the train walking from car to car with a group of men looking for seats, and when he left the
train with his friend, he looked back and saw those men hitting Cortes and demanding his phone.
Defendant said a man with dreadlocks punched Cortes in his right eye, and as defendant and his
friend walked off the train, the group of men ran past them. Detective Lynch acknowledged that
Kindle told him that the man she saw walking between train cars and hitting Cortes was wearing
a cream-colored jacket, not dark clothing. Kindle also told him that one man wore purple and had
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dreadlocks, and three others wore black. Detective Lynch testified that no video of the incident
was available from the CTA.
¶ 18 Defendant testified that he and codefendant, whom he only knew as "Alpha," were on the
blue line train and planned to transfer to the green line train at the Clark and Lake station to go
home. The train was crowded, and they walked to another car to find seats and sat down, at
which point defendant listened to his iPod with headphones. A few minutes later, three unknown
men walked through the door from another car and sat behind them. When the train arrived at the
station, defendant and codefendant walked to the exit, and when defendant looked back to see if
he forgot anything, he saw the unknown men hitting Cortes and trying to take his phone. One
man wore a purple jacket and had dreadlocks, and another man wore a beige jacket and had short
hair. Defendant and codefendant left the train, and when they were on the escalator going to the
green line platform, the three unknown men ran past them. Defendant was sitting on a bench
waiting for the train when the police approached and grabbed him. They brought him down to
the street and told him to stand near an ambulance, then brought him to the police station.
¶ 19 Defendant did not recall being advised of his Miranda rights but told the officers what he
saw on the train. Defendant denied hitting Cortes and denied knowing the men who attacked
him. Defendant acknowledged that on the day of the attack, he wore dark clothing and had twists
in his hair. He further acknowledged that he sat across the aisle from Cortes for 10 to 15 minutes,
but testified that codefendant sat with him next to the window, rather than behind Cortes.
¶ 20 Defense investigator Mary Waller Clemons testified that she accompanied defense
counsel to interview Cortes, and after initially telling them that he did not have to speak with
them, he answered their questions. Cortes told them that he could not identify the people who
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attacked him other than to say that they were black men and there were more than two of them.
Cortes further stated that he could not remember anything about that day.
¶ 21 During jury instructions, the court admonished the jurors that they should disregard any
questions that were withdrawn or to which objections were sustained and to disregard any
testimony that was stricken. The court further advised that any evidence that was received for a
limited purpose should not be considered for any other purpose. In addition, the court explained
that opening statements are made to acquaint the jurors with the facts the attorneys expect to
prove and are not evidence, and that any statement by counsel that was not based on properly
admitted evidence at trial should be disregarded. Following deliberations, the jury found
defendant guilty of attempted robbery but not guilty of aggravated battery.
¶ 22 In his posttrial motion, defendant argued that the trial court erred when it allowed
inadmissible hearsay that an unknown CTA employee identified defendant and codefendant.
Defendant also argued that Jennifer Heim's out-of-court identification of defendant was admitted
three times during the trial – in the prosecutor's opening statement and during the testimony of
both Officer Peralta and Detective Lynch. The trial court noted that defendant testified that he
was on the train at the time of the attack, just as the State's witnesses had testified, and thus
identification was not an issue. The court expressly found that defendant was not prejudiced by
any identification testimony because he testified that he was there. The court explained that the
real issue was whether defendant was responsible for the charged offenses and noted that the jury
found him responsible for the attempted robbery, but not the aggravated battery. The court found
that a rational jury could decide the case exactly as it did here and denied defendant's posttrial
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motion. Thereafter, the trial court sentenced defendant to the Cook County department of
corrections boot camp.
¶ 23 On appeal, defendant contends that he was denied his right to a fair trial where a hearsay
identification allegedly made by an unidentified, nontestifying witness was mentioned by the
prosecutor in her opening statement and then referenced by Officer Peralta and Detective Lynch
during their testimony.
¶ 24 We first consider the prosecutor's remark in opening statement. Defendant contends that
the prosecutor included a hearsay identification in her opening statement when she stated that
Cortes, Kindle, "and another witness had already positively identified this defendant" and
codefendant as the two men who beat Cortes and tried to take his phone. (Emphasis added.)
Defendant argues that the State did not call a third eyewitness who identified him, and therefore,
the statement was inadmissible hearsay.
¶ 25 This is not a "hearsay" objection per se, because an opening statement is not evidence,
and the prosecutor's comments are not sworn testimony. People v. Kliner, 185 Ill. 2d 81, 127
(1998). The question here is whether it was unfair for the State to mention the substance of this
third, unnamed individual's testimony when, in fact, that witness did not ultimately testify and
defendant was unable to cross-examine that witness on that substance.
¶ 26 Initially, the State claims that defendant forfeited this issue for review because he did not
make a timely objection during the prosecutor's opening statement, instead raising the issue well
after the remark was made, during a subsequent sidebar during Officer Peralta's testimony. But
we agree with defendant that he could not reasonably be expected to object during the opening
statement, at which point in time he had no idea that the State would fail to call this third
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identification witness. An objection is untimely if it is not asserted as soon as the grounds for the
objection become apparent. People v. Koch, 248 Ill. App. 3d 584, 593 (1993); People v.
Trefonas, 9 Ill. 2d 92, 98 (1956). At the time of the opening statement, such grounds were not
apparent to defendant. Indeed, even at the point in time when defendant did object, the State was
still claiming that it wanted to call this third witness in rebuttal. We find no forfeiture here.
¶ 27 We also agree with defendant that the State's reference to "another witness" in its opening
statement was improper. The purpose of an opening statement is to apprise the jury of what each
party expects the evidence to prove. People v. Leger, 149 Ill. 2d 355, 392 (1992). It is thus
"improper for counsel to make opening statements about testimony to be introduced at trial and
then fail to produce that evidence." Kliner, 185 Ill. 2d at 127. But our supreme court has held that
reversible error in this context only occurs "where the prosecutor's opening comments are
attributable to deliberate misconduct of the prosecutor and result in substantial prejudice to the
defendant." (Emphasis in original.) Id.; see also People v. Crawford, 2013 IL App (1st) 100310,
¶ 138. We are required to find each of those elements before reversing, and here we find neither.
¶ 28 First, defendant on appeal explicitly "does not contend that there was any kind of bad
faith on the part of the prosecution during its opening statements," nor did the trial court find
any. From our independent review of the record, we see no basis on which we would disagree
with defendant's concession.
¶ 29 More importantly, we further find that defendant did not suffer substantial prejudice as a
result of this improper comment. First, there was significant, credible evidence at trial that tied
defendant to this crime, including the identification of defendant by two different witnesses.
Second, the trial court instructed the jurors, at both the beginning of the trial and at its
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conclusion, that opening statements are not evidence, and that they should disregard any
statement not based on the evidence admitted at trial. We believe these instructions were
sufficient to cure the erroneous remark in opening statements. See People v. Peeples, 155 Ill. 2d
422, 482 (1993) (prosecutor's reference to defendant as " 'human predator' " in opening statement
was error but was cured by trial court twice instructing jurors that opening statements were not
evidence); Kliner, 185 Ill. 2d at 127-28 (prosecutor erred in opening statement by telling jury
that defendant purchased certain firearms when State did not introduce such evidence and
prosecutor "should have known" he would be barred from doing so, but error was not prejudicial
where trial court twice instructed jury that opening statements were not evidence); People v.
Butler, 12 Ill. App. 3d 541, 548 (1973) (prosecutor's promise in opening statement that witness
would testify as to various facts was error when State did not call witness, but error was not
prejudicial in light of prosecutor's admission in opening statement that opening statements were
not evidence); People v. Lampton, 108 Ill. App. 3d 41, 46 (1982) (prosecutor's comment in
opening statement that witness would describe shooter did not cause substantial prejudice, even
though witness never testified, where both counsel and trial court informed jury that opening
statements were not evidence). The strength of the evidence against defendant and the curative
effect of the jury admonishments convince us that defendant suffered no substantial prejudice.
¶ 30 Defendant next argues that the State introduced inadmissible hearsay evidence that
prejudiced his right to a fair trial and violated his right to confront the witnesses against him.
Specifically, defendant argues that, on two separate occasions at trial, State witnesses testified
that various unidentified, non-testifying witnesses identified defendant as one of the perpetrators
of the crime in question. The first one we will consider is the testimony of Detective Lynch, who
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testified that, when he arrived at the scene, defendant and codefendant "were identified by the
victim and two witnesses."
¶ 31 Initially, the parties disagree on our standard of review. The State claims that we should
review the trial court's rulings on the hearsay challenges for an abuse of discretion. Defendant
argues that the appropriate standard of review is de novo, claiming that the "surrounding facts"
are not in dispute and that the issue raised is purely a question of law. He argues that this court is
reviewing the trial court's interpretation of the hearsay rules.
¶ 32 Typically, evidentiary rulings are within the trial court's sound discretion and will not be
disturbed on review unless the court has abused that discretion. People v. Caffey, 205 Ill. 2d 52,
89 (2001). This is a highly deferential standard, where error is found only if the trial court's
ruling is so arbitrary or fanciful that no reasonable person would agree with the view adopted by
the court. Id. The reason for this deferential standard is that the trial court's decision to admit
evidence is often not made in isolation, but rather after consideration of many circumstances,
including questions of prejudice and reliability, which the trial court is in a more suitable
position to analyze than a reviewing court. Id.
¶ 33 But this deferential standard is not universally applicable. Caffey itself noted that de novo
review of evidentiary rulings is appropriate in instances where the trial court is alleged to have
applied an " 'erroneous rule of law.' " Id. (quoting People v. Williams, 188 Ill. 2d 365, 369
(1999)). Moreover, where the credibility of the witnesses is not at issue, no relevant facts are in
dispute, and the court's ruling is not related in any way to a balancing of probity versus
prejudice—in other words, when the considerations on which we typically defer to the trial court
are not present—and the only issue for the reviewing court is the correctness of the trial court's
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legal interpretation, de novo review is appropriate. People v. Aguilar, 265 Ill. App. 3d 105, 109
(1994). In Aguilar, which our supreme court cited as an example of a proper de novo review of
an evidentiary ruling (see Caffey, 205 Ill. 2d at 89), the court considered whether the trial court
had properly interpreted the admissions exception to the hearsay rule. Because the case
"involve[d] a legal issue and did not require the trial court to use its discretion regarding fact-
finding or assessing the credibility of witnesses," the court found de novo review appropriate.
Aguilar, 265 Ill. App. 3d at 109; see also People v. Mitchell, 165 Ill. 2d 211, 230 (1995) (though
review of decision on motion to suppress was typically subject to manifestly-erroneous standard,
"[d]e novo review by this court is appropriate *** when, as here, neither the facts nor the
credibility of witnesses is questioned").
¶ 34 We apply a de novo standard to the question before us. None of the factors that would
typically warrant the deferential standard are present here. There is no argument by any party
that casts the slightest doubt on the credibility of Detective Lynch's account of events
surrounding the alleged hearsay statements. That is, defendant does not deny that Detective
Lynch spoke with nearby witnesses who identified defendant as one of the perpetrators. There is
no disputed issue of fact, no question as to Lynch's demeanor or credibility, at least not with
regard to the alleged hearsay testimony. There was no discussion of any balance of the probative
nature of the evidence versus its prejudicial impact, or of evidence being cumulative or
repetitive. To the contrary, the trial judge engaged in a purely legal analysis in ruling on that
testimony. As our review is limited to the correctness of that legal analysis, the review is de
novo.
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¶ 35 Hearsay is a statement, other than one made by the declarant while testifying at trial or in
a hearing, offered in evidence to prove the truth of the matter asserted. Ill. R. Evid. 801(c) (eff.
Jan. 1, 2011). Due to its feared lack of reliability, it is inadmissible unless it fits within an
exception recognized by state statute, case law, or the Illinois Rules of Evidence. Caffey, 205 Ill.
2d at 88; see Ill. R. Evid. 802 (eff. Jan. 1, 2011). Testimony regarding an out-of-court statement
that is offered to prove something other than the truth of the matter asserted therein is, by
definition, not hearsay. People v. Banks, 237 Ill. 2d 154, 180 (2010); Ill. R. Evid. 801(c) (eff.
Jan. 1, 2011).
¶ 36 In addition, while defendant has a constitutional right to confront the witnesses against
him (U.S. Const., amend. VI), "[t]he confrontation clause 'does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted.' " Banks, 237 Ill.
2d at 182 (quoting Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)). Thus, if defendant
cannot establish that challenged testimony is hearsay, he likewise cannot prevail on a claim
under the confrontation clause.
¶ 37 Defendant contends that Detective Lynch's testimony constituted per se inadmissible
hearsay identification that violated his right of confrontation. This testimony arose after
Detective Lynch explained that when he arrived on the scene, a "positive show-up" had already
taken place. When asked to "please explain what a positive show-up means," Detective Lynch
responded that defendant and codefendant "were identified by the victim and two witnesses." As
we have already explained, only two witnesses—the victim and Ms. Kindle—testified at trial as
to defendant's involvement in the crime. This third witness did not testify.
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¶ 38 Defense counsel immediately objected on the basis of hearsay. The State responded that
the testimony was relevant to the detective's "course of conduct." The trial court then addressed
the jury, informing it that he was overruling the hearsay objection and instructing the jury to
consider the testimony for the limited purpose of explaining what action the detective took next.
The court specifically admonished the jury not to consider the substance of the testimony—that
the offenders were identified by the victim and two other persons—for the truth of that
statement, but only for the purpose of the detective explaining the progression of the actions he
took.
¶ 39 The trial court allowed the challenged testimony for this limited purpose, based on the
long-settled doctrine that a law enforcement officer may testify about statements made by others,
such as victims or witnesses, when such testimony is offered not to prove the truth of the matter
asserted, but instead to show "the investigative steps taken by the officer leading to the
defendant's arrest." People v. Pulliam, 176 Ill. 2d 261, 274 (1997). This is not an exception to the
hearsay rule; it is a relevant basis for admission of the testimony other than the truth of the matter
asserted in those statements and, as such, is not hearsay in the first instance. People v. Gacho,
122 Ill. 2d 221, 248 (1988). The relevance of the testimony lies in explaining to the jury how a
law enforcement investigation led to the defendant. Without such testimony, a jury might not
understand how an officer got from point A to point C; it might appear to the jury that the officer
had less than a valid basis for considering the defendant to be a suspect. See People v. Jones, 153
Ill. 2d 155, 161 (1992) ("Any chronological retelling of the events is going to have to include the
point in time when the defendant became a suspect."); People v. Trice, 217 Ill. App. 3d 967, 977
(1991) (trial court properly allowed such evidence to explain why police focused investigation
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on defendant; without it, trial court properly feared that jury would be " 'left with the impression
that this investigation fell out of thin air' ").
¶ 40 Because it is not hearsay, testimony recounting the steps taken in a police investigation
does not violate defendant's sixth amendment right to confront the witnesses against him. People
v. Henderson, 142 Ill. 2d 258, 304 (1990); People v. Peeples, 377 Ill. App. 3d 978, 986 (2007).
This holds true even if, as a result of this testimony, a jury might be able to infer "that the police
began looking for a defendant as a result of what nontestifying witnesses told them." Henderson,
142 Ill. 2d at 304; Gacho, 122 Ill. 2d at 248 (such testimony is not hearsay, even if "the inference
logically to be drawn therefrom is that the information received motivated the officers'
subsequent conduct" (internal quotation marks omitted)).
¶ 41 But the critical caveat to this doctrine is that the testimony cannot reveal the substance of
the statements made by the nontestifying witnesses to the officer in the course of the
investigation. Henderson, 142 Ill. 2d at 304 (such testimony is relevant "as long as the testimony
does not gratuitously reveal the substance of [the nontestifying witnesses'] statements and so
inform the jury that they told the police that the defendant was responsible for the crime"). In
Gacho, for example, an officer testified that he visited the victim at the hospital, interviewed the
victim, and then went out looking for defendant as a suspect. This testimony was not hearsay
because the substance of what, precisely, the victim told the officer had not been recounted to the
jury. Id. But if the substance of that conversation had been admitted—if the officer had testified
that the victim identified the defendant—it would have constituted impermissible hearsay. Id.;
Jones, 153 Ill. 2d at 160 (noting that "[i]n Gacho, the substance of the conversation would have
gone to the very essence of the dispute: whether the defendant was the man who committed the
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crime" and would have been impermissible hearsay if admitted). Thus, while the State is entitled
to provide a logical recounting of the sequence of events in an investigation that led the police to
defendant, an officer may not testify to the content of any statement he or she received. In re
Jovan A., 2014 IL App (1st) 103835, ¶ 23.
¶ 42 In this case, it is clear that, when Detective Lynch testified that defendant and
codefendant "were identified by the victim and the two witnesses," including in that group a
nontestifying third witness, the detective's testimony went beyond a mere recounting of
investigative steps to reveal the content of what the witnesses told them. It was thus inadmissible
hearsay. Because defendant was not permitted to cross-examine this third, non-testifying witness
as to the credibility of his or her identification, defendant's right to confront the witnesses against
him was violated. See, e.g., People v. Johnson, 116 Ill. 2d 13, 28 (1987).
¶ 43 Confrontation errors do not automatically mandate reversal, however. Id. We will affirm
defendant's conviction if we conclude that the error was harmless beyond a reasonable doubt. Id.;
Chapman v. California, 386 U.S. 18, 24 (1967). In determining whether a constitutional error is
harmless beyond a reasonable doubt, we may consider whether the excluded evidence
contributed to the conviction; whether the evidence against defendant was overwhelming; and
whether the excluded evidence was cumulative or duplicative of other evidence. People v.
Wilkerson, 87 Ill. 2d 151, 157 (1981).
¶ 44 We believe that the State has carried its burden of showing that this error was harmless
beyond a reasonable doubt. First and foremost, the trial court immediately admonished the jury
that it could only consider Detective Lynch's testimony for the limited purpose of understanding
why the detective proceeded to interview defendant, and not for the truth of the statements made
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by the witnesses to Detective Lynch. The trial court also instructed the jury, at the close of trial,
that it should disregard questions and answers that had been ruled on by the court as improper.
We presume a jury will follow the instructions from the trial court. People v. Taylor, 166 Ill. 2d
414, 438 (1995); Aguirre v. City of Chicago, 382 Ill. App. 3d 89, 100 (2008). Further, as we have
already explained above, we find that the evidence against defendant was strong. Two
individuals, the victim and Ms. Kindle, identified defendant as a perpetrator of the crime, and
neither was significantly impeached. Ms. Kindle, in particular, identified defendant every step of
the way during the commission of the crime, from his initial scouting of a potential victim as he
moved between train cars to his participation in the attempted robbery. Contrary to defendant's
assertion, we did not find any significant impeachment or challenge to her testimony. In light of
the strength of the evidence and the curative effect of the instructions to the jury, we find the
error harmless beyond a reasonable doubt.
¶ 45 The final error asserted by defendant concerns the testimony of Officer Peralta, who
testified that defendant was identified by "the actual victim and then there [were] three witnesses
standing by." We need not concern ourselves with the appropriate standard of review on this
hearsay/confrontation clause claim—de novo versus abuse of discretion—because the State
makes no attempt to defend the admissibility of this testimony, thereby forfeiting any argument
that the testimony was not improper hearsay. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). We will
thus proceed directly to consider whether this error was harmless beyond a reasonable doubt.
Johnson, 116 Ill. 2d at 28; Wilkerson, 87 Ill. 2d at 157.
¶ 46 As the State notes, the trial court sustained defendant's prompt objection to the testimony
and then instructed the jury that "the last question and answer will be stricken. You are to
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disregard the last question and answer." The prompt sustaining of an objection, combined with a
proper jury instruction to disregard the testimony, is typically sufficient to cure an error
involving inadmissible hearsay. People v. Mims, 403 Ill. App. 3d 884, 897 (2010). We presume
that the jury followed this instruction. Id.; see Taylor, 166 Ill. 2d at 438; Aguirre, 382 Ill. App.
3d at 100.
¶ 47 We recognize that defendant has identified three instances where reference was made to
at least one non-testifying witness's identification of defendant—one in opening statements, and
two during testimony from police officers. Defendant argues that, even if none of these errors
independently warranted a new trial, they do so cumulatively. We cannot agree. In the two
instances where defendant objected, the trial court promptly ruled, sustaining the objection to the
Peralta testimony and instructing the jury to disregard it, and instructing the jury to consider the
testimony only as to Detective Lynch's course of conduct and not as to the truth of the statements
made to him by the non-testifying witnesses. And though defendant did not object to the
improper statement made in opening argument, the trial court twice instructed the jury that
opening statements are not evidence. In a similar fact pattern where references to non-testifying
witnesses' identification of defendant were introduced during trial and during counsel's
statements to the jury, our supreme court found that the trial court's instructions to the jury were
sufficient to cure any prejudice. Jones, 153 Ill. 2d at 161. But we do not rest on the trial court's
instructions alone. We also find that the State presented strong evidence of defendant's guilt, as
we have explained above at length. We do not see how these cumulative errors made any
meaningful contribution to the guilty verdict; we find no basis for believing that, absent these
errors, a different verdict would have resulted. We therefore affirm defendant's conviction.
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¶ 48 Affirmed.
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