People v. Newbill

NO. 4-05-0902 Filed 7/19/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
ANTHONY J. NEWBILL, ) No. 04CF2071
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

On August 16, 2005, following a mistrial due to a hung

jury, a subsequent jury found defendant, Anthony J. Newbill,

guilty of robbery (720 ILCS 5/18-1 (West 2004)). On October 3,

2005, because this was defendant's third Class 2 felony, the

trial court sentenced defendant as a Class X offender, which

carries a term of 6 to 30 years' imprisonment (730 ILCS 5/5-8-

1(a)(3) (West 2004)). On October 3, 2005, the court sentenced

defendant to the maximum 30 years. Defendant also received 328

days of credit for his time spent in custody. Defendant appealed

his conviction and sentence, arguing that (1) the court abused

its discretion in admitting a police officer's hearsay testimony;

(2) the 30-year sentence was excessive; and (3) defendant must

get one additional day of credit for time served. We affirm.

I. BACKGROUND

In the early morning hours of November 9, 2004, the 20-
year-old victim, Megan Flaherty, met up with some friends at

"Brother's" bar on Green Street in Champaign, Illinois. Accord-

ing to Flaherty's testimony, Flaherty had only consumed Coca-Cola

to drink. Flaherty left the bar by herself and began talking on

her cellular telephone as she made the one-block walk back to her

apartment. Flaherty noticed two men, one of whom she later

identified as defendant, walking behind her. The men followed

Flaherty to the foot of the stairs leading up to her apartment.

Defendant told Flaherty to hang up her phone and

Flaherty said, "No." Again, defendant told Flaherty to hang up

her phone. Flaherty said, "No, please don't." Defendant then

pulled Flaherty's phone away from her ear and pulled Flaherty's

purse off her shoulder. The other man shoved Flaherty to the

ground, and the two offenders took off running. Defendant stole

Flaherty's purse, which contained her driver's license, credit

and debit cards, as well as a digital camera valued at $300.

Flaherty ran upstairs to her apartment, woke up one of

her roommates, and fell to the floor crying. Flaherty told her

roommate that she had been mugged. The roommate called the

police. Champaign police officer Kristy Miller questioned

Flaherty at Flaherty's apartment. During the course of their 15-

to 20-minute conversation, Flaherty provided Miller with a

physical description of the defendant but was unable to provide

any description of the other perpetrator. Miller then called

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Flaherty's father and told him to cancel Flaherty's credit cards.

Shortly thereafter, the police got a call from the

clerk at a local convenience store, who stated that a man had

tried to purchase items with a stolen credit card. The man

matched the description Flaherty had given police. The store

clerk provided the police with a description of defendant's

vehicle and the first several characters of the vehicle's

license-plate number. Police located a vehicle matching the

description and performed a stop. Defendant was the driver of

the vehicle. Defendant tried to flee the vehicle on foot but was

ultimately apprehended. Upon searching defendant, police found

Flaherty's credit cards and driver's license in defendant's

pocket.

Police brought Flaherty to a large parking lot to

perform a "showup" of defendant. Flaherty remained in the police

vehicle, and defendant was situated under a streetlight about 100

feet away. Flaherty asked if defendant could be moved closer,

but the police refused for safety reasons. Flaherty told police

that she was 85% sure that defendant was the man who had robbed

her. Flaherty told the police that the jeans and leather jacket

defendant was wearing were a "definite match" with the clothes of

the man who had robbed her and that the general build of defen-

dant was a match. However, Flaherty had some doubt because the

man who had robbed her had been wearing a red sweatshirt under-

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neath the leather jacket and defendant was not wearing a red

sweatshirt at the "showup." Also, Flaherty did not feel that she

was close enough to the defendant at the "showup" to get a good

look at him. After police took defendant away, they showed

Flaherty a red sweatshirt that had been in defendant's car.

Flaherty thought this was the same red sweatshirt and then felt

more certain that defendant was the man who had robbed her.

In court, Flaherty stated that she was 100% sure that

defendant was the man who had robbed her. When asked why she was

even more certain than she had been at the showup, Flaherty

stated that defendant had been less than two feet away from her

when he had robbed her. Flaherty had been able to see his facial

features very clearly. Flaherty stated that, in contrast,

defendant had been standing too far away at the "showup." Now

that Flaherty could again get a good look at defendant's facial

features in the courtroom, she was 100% certain defendant had

robbed her.

The State called Officer Miller as a witness. Miller

was the officer who had initially interviewed Flaherty in her

apartment after Flaherty's roommates called the police. The

State asked Miller "what, if anything, [Flaherty] said to

[Miller]" during the apartment interview regarding the incident.

The defense immediately objected, arguing that Miller's testimony

would constitute hearsay. Following a sidebar conference outside

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the presence of the jury, the trial court overruled the defense's

objection. Miller was allowed to testify to the content of her

15- to 20-minute interview with Flaherty. Miller testified that

Flaherty had provided a description of the individual who had

robbed her, and she specifically testified that Flaherty told

Miller the robber was:

"a black male, 5'7" to 5'8", medium

build. He had a goatee and a mustache, pos-

sibly with some gray in the mustache. Had a

dark-colored baseball cap on, a red hoody

sweatshirt with a black knee-length leather

coat on and jeans."

During the jury instruction conference, the court stated:

"THE COURT: *** [W]e need to make a

record on [the] hearsay objection *** con-

cerning the testimony of *** Officer Kristy

Miller. [Defense] objected as to hearsay.

[The State] indicated exception of the hear-

say rule and that it was an excited utter-

ance. I overruled the objection, allowed the

testimony. It was a bit more than I thought

it was going to be. Anything surplusage to

the excited utterance, I believe, would be

harmless error beyond a reasonable doubt

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 ***."

A jury thereafter convicted defendant of robbery, and

the trial court sentenced defendant as stated. At the hearing on

the motion for a new trial, the court again addressed defendant's

hearsay objection but this time stated that the testimony was

admissible because an officer may testify as to what a victim

told her in order to explain subsequent investigatory steps.

Again the court held that to the extent the testimony exceeded

its legitimate purpose, it was harmless error. This appeal

followed.

II. ANALYSIS

A. Officer Miller's Testimony

Defendant argues on appeal that Officer Miller's

testimony concerning Flaherty's description of defendant was

inadmissible hearsay and the trial court erred in admitting said

testimony. Evidentiary rulings are within the discretion of the

trial court, and this court will not reverse the trial court's

ruling absent an abuse of discretion. People v. Caffey, 205 Ill.

2d 52, 89, 792 N.E.2d 1163, 1188 (2001).

The State argues on appeal that this court should

affirm the trial court's ruling under the statutory hearsay

exception for statements of identification. See 725 ILCS 5/115-

12 (West 2004). Though this specific argument was not raised

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before the trial court, an appellee may raise any argument in

support of the trial court's judgment, provided they have a

sufficient factual basis before the trial court. People v.

Pinkonsly, 207 Ill. 2d 555, 563, 802 N.E.2d 236, 241 (2003).

Section 115-12 of the Code of Criminal Procedure of

1963 (Code), entitled "Substantive Admissibility of Prior Identi-

fication," provides as follows:

"A statement is not rendered inadmissi-

ble 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 state-

ment is one of the identification of a person

made after perceiving him." 725 ILCS 5/115-

12 (West 2004).

Here, conditions (a) and (b) were clearly met. Flaherty testi-

fied at trial and was subject to cross-examination. The question

here is whether Flaherty's statement to Miller was "one of

identification of a person made after perceiving him."

In People v. Williams, 263 Ill. App. 3d 1098, 638

N.E.2d 207 (1994), the First District answered the identical

question in the affirmative. In Williams, a police officer

testified about what one of the victims told her "regarding the

offender and his clothing, as well as the type and color of his

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car." Williams, 263 Ill. App. 3d at 1111, 638 N.E.2d at 216.

The appellate court held that section 115-12 of the Code, a

statutory exception to the hearsay rule, permitted such testi-

mony. Williams, 263 Ill. App. 3d at 1111, 638 N.E.2d at 217.

This court agrees with the holding in Williams.

Further support for this result can be found in deci-

sions by the Illinois Supreme Court. Section 115-12 was born out

of the supreme court's decision in People v. Rogers, 81 Ill. 2d

571, 411 N.E.2d 223 (1980), superseded by statute as stated in

People v. Lewis, 361 Ill. App. 3d 1006, 838 N.E.2d 996 (2005)

(explaining that the requirement stated in Rogers that the

declarant must testify about the identification before the third-

party statement may be admitted was not required by section 115-

12 of the Code). See People v. Lewis, 165 Ill. 2d 305, 342-43,

651 N.E.2d 72, 90 (1995) (noting section 115-12 of the Code was

born out of the Rogers decision). Interestingly, Rogers involved

a physical description similar to the description at issue

herein.

In Rogers, a detective testified that the witness

described the robber's age, height, weight, and hair color, and

said that the robber wore glasses and had a mustache. Rogers, 81

Ill. 2d at 574, 411 N.E.2d at 225. The detective testified he

made a composite sketch based on that description. Rogers, 81

Ill. 2d at 574, 411 N.E.2d at 225. The Rogers court noted that

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"the composite and testimony concerning the production thereof

constituted extrajudicial statements of identification." (Empha-

sis added.) Rogers, 81 Ill. 2d at 580, 411 N.E.2d at 228. The

Rogers court found, however, that the trial court did not err by

admitting into evidence the composite sketch where the witness

testified under oath and was subject to cross-examination, and

the evidence was admitted as prior identification evidence to

corroborate the prosecuting witness's in-court identification of

the defendant. Rogers, 81 Ill. 2d at 580-81, 411 N.E.2d at 228.

The court held "the trial court correctly admitted the composite

sketch and [the witness's] description in evidence as corrobora-

tion of his in-court identification of the defendant." Rogers,

81 Ill. 2d at 582, 411 N.E.2d at 229. Thus, it appears that

prior to the legislature's enactment of section 115-12 of the

Code, the supreme court considered an extrajudicial physical

description--such as height and hair color--as "identification

evidence."

More recently, the supreme court has indicated that

"statements of identification" have been too narrowly construed.

In People v. Tisdel, 201 Ill. 2d 210, 218, 775 N.E.2d 921, 926

(2002), the supreme court held that its decision in People v.

Hayes, 139 Ill. 2d 89, 138, 564 N.E.2d 803, 824 (1990) (holding

that statements that a witness did not identify the defendant

from photo books and arrays were not statements of identifica-

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tion), too narrowly construed the term "statements of identifica-

tion." In overruling Hayes, the Tisdel court stated:

"[T]he Hayes court erred in limiting

'statements of identification' to a

witness'[s] actual identification of a defen-

dant. This interpretation mistakenly focuses

on the result rather than the process. As a

consequence, the trier of fact may be de-

prived of information necessary to an in-

formed decision concerning a witness'[s]

reliability. In contrast, construing 'state-

ments of identification' to include the en-

tire identification process would ensure that

a trier of fact is fully informed concerning

the reliability of a witness'[s] identifica-

tion, as well as the suggestiveness or lack

thereof in that identification." (Emphasis

added.) Tisdel, 201 Ill. 2d at 219, 775

N.E.2d at 926-27.

Here, Officer Miller testified to Flaherty's description of

defendant. This was the first step in the "entire identification

process." Therefore, the statement was properly admitted.

Justice Cook posits in his special concurrence that

"[t]he majority's interpretation of section 115-12 would broaden

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it to allow the substantive admission of any discussion of a

crime between a victim and a police officer." Slip op. at 15.

That is not the case. Section 115-12 by its very terms applies

only to statements of identification, and the supreme court has

construed statements of identification to include the entire

identification process. See Tisdel, 201 Ill. 2d at 219, 775

N.E.2d at 926-27. Our interpretation would not allow the admis-

sion of every discussion between a crime victim and a police

officer, only those pertaining to identification of a person made

after perceiving him.

However, even if the trial court had erred by allowing

the statement, any error was harmless. An error is harmless

where it appears beyond a reasonable doubt that the error did not

contribute to the verdict obtained. People v. Patterson, 217

Ill. 2d 407, 428, 841 N.E.2d 889, 901 (2005). Additionally, an

error may be considered harmless where properly admitted evidence

overwhelmingly favors a conviction or where the improperly

admitted evidence is merely cumulative or duplicates properly

admitted evidence. Patterson, 217 Ill. 2d at 428, 841 N.E.2d at

901. Here, the evidence against the defendant was overwhelming.

Flaherty testified in court that she was 100% certain that

defendant was the man who had robbed her. Police testified that

they removed Flaherty's stolen credit cards from defendant's

person. Accordingly, we affirm defendant's robbery conviction.

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 B. Excessive Sentence

Defendant next argues that his maximum-term, 30-year

sentence was excessive. Typically, robbery is a Class 2 felony,

carrying a prison term of three to seven years. 730 ILCS 5/5-8-

1(a)(5) (West 2004) (prison term for a Class 2 felony). However,

defendant was eligible to be sentenced under a Class X sentencing

scheme of 6 to 30 years' because this was his third Class 2

felony. 730 ILCS 5/5-8-1(a)(3) (West 2004) (prison term for a

Class X felony).

In sentencing defendant, the trial court noted defen-

dant's lengthy criminal history, which included one theft convic-

tion, two burglary convictions, two aggravated-battery convic-

tions, one domestic-battery conviction, one conviction for

possession of a stolen vehicle, as well as numerous traffic

offenses. The court noted that defendant had been sentenced to

numerous probationary periods wherein he failed to rehabilitate

himself. Further, defendant had been incarcerated in the Depart-

ment of Corrections (DOC) on at least five prior occasions. The

court concluded that this was the type of offense that could be

deterred, especially considering that defendant's accomplice was

still "out and about."

Defendant's specific argument on appeal is that the

trial judge erred in failing to consider three factors in mitiga-

tion: (1) that defendant's conduct neither caused nor threatened

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serious harm to another (730 ILCS 5/5-5-3.1(a)(1) (West 2004));

(2) that defendant has struggled with drugs and alcohol; and (3)

that defendant admitted fault and expressed remorse for his

actions. This court will not disturb a sentence absent an abuse

of discretion. People v. Illgen, 145 Ill. 2d 353, 379, 583

N.E.2d 515, 526 (1991).

In considering defendant's argument, this court notes

that drug addiction is not necessarily a mitigating factor

(People v. Whealon, 185 Ill. App. 3d 570, 574, 541 N.E.2d 865,

867 (1989)), and the trial court was free to find defendant's

remorse to be incredible. See generally People v. Fern, 189 Ill.

2d 48, 55-56, 723 N.E.2d 207, 211 (1999) (the trial court ob-

serves the defendant and the proceedings and is therefore in a

far better position than a court of review to consider the

relevant factors).

Defendant's remaining argument is that the trial court

failed to consider altogether whether defendant's conduct neither

caused nor threatened serious harm to another. 730 ILCS 5/5-5-

3.1(a)(1) (West 2004). Defendant's attorney did present evidence

that no one was seriously harmed, and the evidence presented at

trial indicated that defendant did not use a weapon in the

instant offense. Where a defendant presents evidence in mitiga-

tion, it is presumed that the trial court considered said evi-

dence. People v. Pippen, 324 Ill. App. 3d 649, 653, 756 N.E.2d

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474, 478 (2001). Defendant contends that the trial court's

statement that "there really aren't any [statutory factors in

mitigation] that apply to this defendant to this type of case" is

sufficient to rebut the presumption that the trial court consid-

ered evidence that defendant's conduct neither threatened nor

caused serious harm.

However, stating that no statutory factors in mitiga-

tion apply is different than stating that the trial court did not

consider a mitigating factor. Here, the State presented evidence

that defendant stole a purse from Flaherty's person and that

Flaherty was shoved to the ground in the course of the robbery.

The trial court was free to infer that defendant's conduct

threatened serious harm; Flaherty might have reacted unpredict-

ably or Flaherty might have injured her head against the concrete

in the fall.

Therefore, the trial court did not abuse its discretion

in sentencing defendant to the maximum term.

C. Sentencing Credit

Finally, defendant argues that he is entitled to one

additional day of credit for time spent in custody. Typically, a

defendant is entitled to credit for any part of any day spent in

custody. People v. Johns, 130 Ill. App. 3d 548, 548-49, 474

N.E.2d 739, 740 (1984). Defendant was placed in custody for the

instant offense on November 9, 2004. Defendant remained in

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custody until he was sentenced on October 3, 2005, and was then

immediately remanded to DOC. Defendant received credit for 328

days served. Under the general rule in Johns, this period of

time spans 329 days.

However, the general rule in Johns of allowing credit

for any part of a day in custody does not apply to the day of

sentencing if the defendant remains in continuous custody and is

remanded to DOC. People v. Foreman, 361 Ill. App. 3d 136, 157,

836 N.E.2d 750, 768 (2005). This is exactly what happened in the

instant case. Accordingly, the trial court properly gave defen-

dant 328 days of credit.

III. CONCLUSION

For the aforementioned reasons, we affirm the trial

court's judgment. As part of our judgment, we grant the State's

request that defendant be assessed $50 as costs for this appeal.

TURNER, J., concurs.

COOK, J., specially concurring.

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 JUSTICE COOK, specially concurring:

After the incident, Officer Miller questioned Flaherty

at Flaherty's apartment for 15 to 20 minutes. Flaherty was able

to provide a description of the perpetrator, but she was unable

to identify him. Flaherty did not know the perpetrator, and she

did not have the opportunity at that time to pick him out from a

lineup or photo array. Nevertheless, Officer Miller was allowed

to testify to the content of her 15- to 20-minute interview. The

trial court later expressed concern that the testimony should not

have been admitted but that any error was harmless. I agree with

the trial court.

A witness's prior inconsistent statement has always

been allowed into evidence to impeach the witness. Section 115-

12 of the Code, however, allows the substantive admission of a

prior "identification of a person made after perceiving him,"

when the declarant (Flaherty in this case) testifies and is

subject to cross-examination. 725 ILCS 5/115-12 (West 2004).

Section 115-12 is useful in the situation where a witness identi-

fies a defendant but pressure is brought on the witness and at

trial he recants his identification. People v. Miller, 363 Ill.

App. 3d 67, 74, 842 N.E.2d 290, 297 (2005). The majority's

interpretation of section 115-12 would broaden it to allow the

substantive admission of any discussion of a crime between a

victim and a police officer. That is improper. An identifica-

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tion may be admitted substantively, but other inconsistent

statements may be used only for impeachment, i.e., only for the

purpose of deciding the witness's credibility. Miller, 363 Ill.

App. 3d at 79, 842 N.E.2d at 300. A witness's prior consistent

statement is generally inadmissible. Miller, 363 Ill. App. 3d at

80, 842 N.E.2d at 301.

The Williams case, relied on by the majority, has been

criticized:

"A prior statement of identification must

follow the perception of the perpetrator again

at a time following the incident. Under the

[Williams] court's view, any time a victim

identifies an assailant, the statement of identifica-

tion will be admissible provided

the declarant is subject to cross-examination

at trial. Thus, if a rape victim five days

later told her mother it was Bob Smith who

raped her, the statement would be admissible.

The purpose of the rule permitting introduc-

tion of a prior statement of identification

is to permit evidence of an identification

made after recognizing the assailant on sub-

sequent observation prior to trial; it is

not intended to permit introduction of hearsay state-

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 ments of the victim ***." M. Graham,

Cleary & Graham's Handbook of Illinois Evi-

dence §611.16, at 469 (8th ed. 2004).

Professor Graham apparently did not have the situation

in mind where the victim knew her assailant. That was the

situation in Miller, where the eyewitness knew the shooter before

the incident and recognized him at the time of the incident

without any subsequent observation. In that situation, the

eyewitness's statement of identification, subsequently recanted,

was admitted under section 115-12 of the Code. Miller, 363 Ill.

App. 3d at 71, 842 N.E.2d at 294.

In the present case, Flaherty did not identify defen-

dant during her conversation with Officer Miller. Because

Flaherty did not know her assailant, she could not identify him

without a subsequent observation, such as a photo array or

physical lineup. Miller should not have been allowed to testify

to the conversation.

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