specially concurring in part and dissenting in part:
I concur with the majority decision to reverse the jury’s verdict in this case; however, I would remand this case for a new trial for the reasons that follow.
Initially, I agree with my colleagues that the defendant has not established he received ineffective assistance of counsel for the reasons set forth in the majority opinion. I do not agree with the majority’s conclusion that the prosecution failed to prove defendant guilty beyond a reasonable doubt. Therefore, in my opinion, the defendant’s conviction should not be reversed outright. However, because a number of prejudicial errors occurred during defendant’s trial, I believe a new trial is warranted.
The specific errors I will address include: (1) the admission into evidence of an informant’s out-of-court statements implicating the defendant; (2) the introduction of hearsay testimony from one of the detectives used to improperly bolster a prior description of the offender made by Andrew Bolton, the only eyewitness to the offense; and (3) improper comments made by the prosecution in closing argument.
The portions of Detective Halvorsen’s testimony defendant claims were erroneously allowed at his trial have been set out in the majority opinion and that testimony will not be repeated here. The rule generally prohibiting the use of prior consistent statements has also been set out in the body of the opinion and does not bear repeating. Further, the majority correctly notes that generally this rule does not apply to statements of identification. People v. Beals, 162 Ill. 2d 497, 507-OS, 512 N.E.2d 1183 (1994). However, I take issue with the majority’s apparent extension of the rule in this case which allows the introduction of hearsay testimony about a description of the offender from an unknown source on the basis that it relates to the identification of the accused. Further, I believe it was error to allow a police witness to compare that hearsay description of the offender with a prior out-of-court description of the offender that came from the only eyewitness. Additionally, it was error to allow that police officer to testify that the defendant was named as a suspect in this offense when there was no opportunity to cross-examine the source of the hearsay information. This is precisely what occurred at defendant’s trial.
In the instant case, Andrew Bolton identified the defendant in open court and he also testified to viewing a photo array and a lineup wherein he identified the defendant. Subsequently, Detectives Halvorsen and Woodhall each testified, respectively, to the fact that Bolton identified the defendant from a photo spread and a lineup. This type of identification testimony is permissible under Beals and also the relevant statute. Beals, 162 Ill. 2d at 508; 725 ILCS 5\115 — 12 (West 1998). However, before testifying about Bolton’s identification from the photo array, Halvorsen was allowed to testify that he received information that the name of a possible suspect for this offense was Angel Rodriguez. After securing a photograph of defendant, Halvorsen testified that he “checked” the physical description and the age of Angel Rodriguez. Halvorsen never actually said where he got the photo from or where the information regarding the defendant’s description came from. Halvorsen noted, however, that the physical description and age he received from the undisclosed source were very similar to the physical description and age that Andrew Bolton previously provided to the police. This type of testimony, which was introduced over defendant’s objection, is not permitted by the Beals decision. As the majority pointed out, the reasoning behind allowing certain statements of identification is the following:
“If a witness testifies that he previously identified an offender and the witness’ veracity has been tested on cross-examination, a third person may then testify that he heard or saw the witness previously identify the offender. The third person’s corroborative testimony is considered reliable, and therefore admissible, because both the witness and the third person are subject to cross-examination ***.” Beals, 162 Ill. 2d at 508.
In my opinion, the testimony of Halvorsen went well beyond the boundaries of Beals because there was no opportunity to cross-examine the source of the hearsay information. Halvorsen also testified that, armed with this information, the physical description and age of the suspect Angel Rodriguez, he went out and observed defendant on the street. Halvorsen then told the jury that defendant matched “the height, weight and description Andrew Bolton had given on the day of the murder.” This, in my opinion, was improper not only because of the hearsay information contained in Halvorsen’s statements but because it improperly bolstered the credibility of a crucial state witness.
The State argues and the majority points out that the source of Halvorsen’s information was somewhat vague and says “Halvorsen never testified to the substance of the conversation with the informant.” 312 Ill. App. 3d at 929. Although I agree that the source of Halvorsen’s information was vague, (i.e., did it come from an informant, did it come from a previous arrest report, or did it come from some other unidentified source), in my opinion the detective did testify to the substance of some conversation. Again, this is demonstrated by Halvorsen’s testimony that Rodriguez was named a suspect in this shooting. Halvorsen was also permitted to testify that the physical description and age of the suspect Rodriguez were very similar to the physical description and age of the offender that Andrew Bolton previously described to the police. Thus, the substance of some hearsay conversation, the name of the suspect, the physical description and age were unquestionably revealed by his testimony. The jury could also infer that this same information, the other description (not Bolton’s), was then used by Halvorsen to compare it with Bolton’s initial description of the offender. Not only was this comparison of the descriptions an improper bolstering of Bolton’s prior description of defendant, there was no opportunity to cross-examine the reliability or the source of the hearsay information provided to Halvorsen.
The majority seems to suggest that since this testimony was offered, not for the truth of the matter asserted, but for the limited purpose of explaining the reason the police conducted their investigation, the testimony was therefore not objectionable. People v. Sanders, 80 Ill. App. 3d 809, 400 N.E.2d 468 (1980); People v. Sims, 285 Ill. App. 3d 598, 673 N.E.2d 1119 (1996). Again, I respectfully disagree. Although, it would have been permissible to allow Halvorsen to say he had a conversation with someone and that as a result of that conversation he secured a photograph of Rodriguez. This would explain the course of his investigation leading up to the photo identification and would contain information based upon Halvorsen’s personal knowledge. It was error to allow the introduction of testimony regarding the substance of that conversation and that is what I believe occurred here.
Sanders, cited by the majority, is distinguishable for several reasons. First, in Sanders the court concluded that the issue of hearsay was waived because of the defendant’s failure to object. Second, in that case, the complained-of statements were given to the detective by the victim; however, the detective and victim both testified at trial and were subject to cross-examination. Third, the Sanders court found the statements were not offered to show the truth of the matter asserted in the statements. It should also be pointed out that Sanders does not fully state the rule regarding the police investigatory exception. Sanders, 80 Ill. App. 3d at 814.
Sims, on the other hand, sets out the rule, which provides that in order to establish a course of conduct, a police officer may testify that he had a conversation with an individual and that he subsequently acted on the information received. “The officer cannot, however, testify as to the substance of the conversation with the individual because that would be inadmissible hearsay.” Sims, 285 Ill. App. 3d at 608; People v. Gacho, 122 Ill. 2d 221, 248, 522 N.E.2d 1146 (1988).
In my opinion, it was error to permit Halvorsen to testify that he received information naming Angel Rodriguez as a suspect in the shooting. It was also error to allow Halvorsen to testify that he “checked” the physical description and age of the suspect, Angel Rodriguez, which clearly came from some undisclosed source. Then, over the defendant’s renewed objection, the detective testified that the information about Rodriguez’ physical description and age, which came from an undisclosed source, matched the physical description and age Bolton had given to police on an earlier date.
I believe the testimony of Halvorsen amounted to an out-of-court identification of defendant, albeit from an unknown source. An out-of-court identification of the accused by people who cannot be cross-examined is error and the prejudice is palpable. People v. Rivera, 277 Ill. App. 3d 811, 819, 661 N.E.2d 429 (1996); see also People v. Singletary, 273 Ill. App. 3d 1076, 652 N.E.2d 1333 (1995) (undisclosed confidential informant gave police defendant’s first name and address); People v. Johnson, 202 Ill. App. 3d 417, 559 N.E.2d 1041 (1990) (unknown men identified defendant as someone who ran from the scene of a burglary).
Even though Halvorsen never specifically identified the source of his information, he was allowed to tell the jury that information he received named defendant as a suspect for this offense. “Hearsay testimony identifying the defendant as the one who committed the crime cannot be explained away as ‘police procedure,’ even where the trial judge limits the evidence to a nonhearsay purpose.” Rivera, 277 Ill. App. 3d at 820. In this case there was a defense objection to Halvorsen’s testimony but those objections were overruled. Moreover, no limiting instruction was given. Instead the jury heard the hearsay testimony without any limitation.
Additionally, I do not agree that the testimony offered by the State through the detective was offered to show the course of the police investigation. In my opinion, it was used to prove that Angel Rodriguez was the offender and it was used to bolster the previous description of defendant by Andrew Bolton, the only eyewitness to the shooting. The purpose of using this information was further demonstrated by the following comments made by the assistant State’s Attorney in his closing argument:
“[T]hey [the police] don’t know who the offender is, but, in March of ’97 they get a break, they get some information about who the offender is and Detective Halvorsen orders a photo of the Defendant **'*. He’s placed into a lineup and Andrew Bolton comes down and identifies the Defendant again in the lineup ***.”
These comments are a direct reference to the hearsay information Halvorsen received from an undisclosed source that identified defendant as a suspect for this offense. Again, as previously pointed out, the exception that allows a police officer to testify about steps taken in an investigation does not allow for the introduction of otherwise hearsay conversations with those who cannot be cross-examined. Sims, 285 Ill. App. 3d at 608.
Citing People v. Montgomery, 254 Ill. App. 3d 782, 626 N.E.2d 1254 (1993), the State argues the testimony regarding Bolton’s previous description of the offender was proper because of the defense suggestion of recent fabrication. Alternatively, the State suggests that the prior consistent statements of the witness could be introduced because of the defense claim that the offer of a $5,000 reward provided Bolton with a motive to testify falsely. Montgomery allows for the use of a prior consistent statement on the subject matter at issue where there is a suggestion of recent fabrication by the witness or a motive to testify falsely has been demonstrated. Although Montgomery is accurately cited for this general proposition, I cannot see how that rule would permit Halvorsen to testify about the information he received from an unknown source who was not subject to cross-examination. Montgomery, 254 Ill. App. 3d at 792.
What was improper about Halvorsen’s testimony was not the introduction of Bolton’s previous out-of-court description of the offender but using it with other hearsay information from this unknown source to bolster the testimony of the only eyewitness to the shooting. This other description provided by someone who did not testify and who could not be cross-examined is not permissible under the Montgomery case. Similarly, the naming of Angel Rodriguez as a suspect in this shooting by someone who did not testify and who could not be cross-examined is not permissible under Montgomery either, regardless of a claim of recent fabrication or an established motive to testify falsely. Therefore it was error to allow any of the testimony that came from the unknown source.
The remaining question is whether the introduction of this testimony was reversible error.
The defendant claims the introduction of the hearsay testimony, coupled with additional errors, the use of the mug shot, the mention of defendant’s arrest on an unrelated warrant, and improper use of the hearsay testimony in closing arguments, requires the reversal of defendant’s conviction. The State responds that, if the introduction of the testimony was error, it was harmless because the defendant would have been found guilty without the evidence. The State’s analysis of this error does not go far enough, for evidentiary errors can be considered harmless only if the properly admitted evidence is so overwhelming that no fair-minded jury could reasonably have voted to acquit the defendant. Singletary, 273 Ill. App. 3d at 1086.
Additionally, the admission of hearsay identification testimony is reversible error when it is used as a substitute for courtroom identification or is introduced to strengthen or corroborate a weak identification. On the other hand, if the testimony is merely cumulative or supported by a positive identification and other corroborative circumstances it is considered harmless. People v. Johnson, 68 Ill. App. 3d 836, 842, 386 N.E.2d 642 (1979); People v. Johnson, 202 Ill. App. 3d 417, 426, 559 N.E.2d 1041 (1990).
Although it is my opinion that the evidence was sufficient to establish the defendant’s guilt beyond a reasonable doubt, I cannot say the evidence was so overwhelming that no fair-minded jury could have voted to acquit defendant. To reach this conclusion, I adopt the majority’s discussion of the testimony presented at defendant’s trial for the sole purpose of demonstrating that the evidence was not overwhelming and indeed closely balanced.
Because the evidence was closely balanced, and because the introduction of a hearsay identification and a hearsay description were improperly used by the State in both the presentation of its case and in closing argument, it is my opinion that the defendant was denied a fair trial. Johnson, 68 Ill. App. 3d at 843.
Furthermore, in my opinion, Halvorsen’s testimony regarding the naming of Rodriguez as a suspect, the hearsay description of defendant from an unknown source and the comparison of this description with Bolton’s previous description were not only substitutes for a courtroom identification but were also used to strengthen Bolton’s identification. Moreover, this hearsay testimony went to the very heart of the dispute, whether the defendant was the person who committed the crime. Accordingly, I would reverse defendant’s conviction and remand this matter for a new trial.
Finally, I respectfully dissent from that portion of the opinion reversing defendant’s conviction based upon the majority’s conclusion that the State failed to prove defendant guilty beyond a reasonable doubt. I do so, because I believe that the majority has reweighed the evidence. In my opinion, after viewing all of the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young, 128 Ill. 2d 1, 48-49, 538 N.E.2d 461 (1989); see also People v. Barre, 155 Ill. 2d 392, 397-98, 614 N.E.2d 1235 (1993) (holding a court of review may not reverse a jury’s guilty verdict unless the evidence, viewed in the light most favorable to the State, was so palpably contrary to the verdict, so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the defendant’s guilt).
I concur with the majority opinion in all other respects regarding other errors raised by defendant except those I have specifically detailed in this dissent.