The opinion of the court was delivered by: Justice Wolfson
Appeal from the Circuit Court of Cook County.
Honorable George M. Morrissey, Judge Presiding.
This was, as the trial judge said, "*** a one-witness shooting in the streets of Dixmoor." The court believed the witness' identification testimony and convicted David Hernandez (Hernandez) of first degree murder. On appeal Hernandez contends the prosecution's identification evidence was insufficient to support his conviction. We agree with Hernandez. We reverse his conviction.
In the afternoon of April 24, 1997, Andrew Grant (Grant) was shot and killed in Dixmoor, Illinois. On the night of the shooting and again, on May 13, 1997, in the course of their investigation, Illinois State Police officers spoke with the lone eyewitness to the shooting, Jerry Phillips (Phillips). On May 29 and June 26, 1997, the police showed Phillips photos of Hernandez, and on July 24, 1997, the police arrested Hernandez for Grant's murder. Phillips identified Hernandez as the gunman in a July 25, 1997, lineup. Hernandez was charged with first degree murder.
Hernandez filed a motion to suppress Phillips' eyewitness testimony. After Hernandez waived a jury trial, the court said it would conduct a hearing on the motion to suppress along with a bench trial.
At trial, Phillips testified:
Around 3 p.m. on April 24, 1997, Phillips, a school bus driver, was sitting in the driver's seat of his bus, waiting to pick up a child. Phillips noticed two vans four to five car lengths, or 90 feet, away from his bus. Two men--"two young men around the ages of nineteen, twenty years old"--stood between the vans, and one man stood in front of it, Grant. Phillips identified Hernandez as one of the two young men standing between the vans.
According to Phillips, Hernandez was arguing with Grant when Hernandez suddenly pulled out a gun and began shooting Grant. Grant fell to the ground and struggled to his feet. Hernandez shot Grant again, and Grant scrambled to escape across the street. Phillips saw Hernandez shoot Grant four times and shoot into Grant's van once. After the shooting, Hernandez and the other young man jumped into their van and sped away. Phillips reported the shooting to "base" and waited in his bus until he could speak to the police.
Phillips said the police contacted him on May 29, 1997, to view a photo array. He was shown two separate folders, each containing six photos. From one of the folders, Phillips identified a photo of the young man who was with the shooter. From the other folder, Phillips pointed to photos of men wearing braided hairstyles like those of the shooter. But he did not identify the defendant as the shooter. The defendant's photo was in that folder.
Phillips said he viewed another photo array on June 26, 1997, and identified Hernandez. According to Phillips, he told the police "*** there's your one you're looking for right there." He explained, "*** that's the profile that I seen when the guy turned his head toward me." Phillips said he told the police, "That the profile of the- of his- of that photograph is the perfect form of the shooter, without the hair." On July 25, 1997, Phillips positively identified the defendant in a lineup.
On cross-examination, Hernandez' attorney asked Phillips for a physical description of the two young men between the vans. Phillips said they were both "about the same height" and "[a]bout the same weight," though he added, "*** I wasn't paying too much attention to how big they was. Neither one of 'em was fat."
Phillips said he gave the police a written statement on the night of the shooting. This statement contained little description of the two young men--"one light skinned and one dark skinned"--between the vans. Phillips acknowledged he spoke with the police on May 13, 1997 and provided a physical description of the two young men. Hernandez' attorney and Phillips engaged in this exchange:
"Q: One of the individuals you described as a dark male Black, approximately five foot ten, one hundred and ...