                                     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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