Appeal from the Circuit Court of Cook County. No. 96 CR 22999 The Honorable Stanley Sacks, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
A jury convicted defendant of first degree murder. The State's evidence consisted of four eyewitnesses who identified defendant as the shooter in a drive-by shooting. The trial court sentenced him to 35 years in prison. Defendant now appeals, arguing that the trial court erred in (1) refusing to allow expert testimony regarding eyewitness identification; (2) admitting nonidentification lineup testimony; (3) admitting testimony regarding the identification of his co-defendant; and (4) allowing lineup photographs to go back to the jury. Defendant also argues that he received ineffective assistance of counsel based on his trial counsel's failure to object to the nonidentification testimony and testimony regarding his co-defendant.
On August 19, 1996, three eyewitnesses identified defendant from a lineup as the passenger who shot Julio Lagunas in a September 3, 1995, drive-by shooting. He was arrested and charged with first degree murder. The driver of the car, Mark Robinson, had already been arrested and charged in connection with the crime. *fn1 On September 12, 1997, a fourth eyewitness picked defendant out of a lineup as the shooter. Defendant filed motions in limine to quash his arrest and suppress the lineup identifications. The trial court denied the motions.
Defendant also filed a motion in limine to allow expert testimony on eyewitness identification. Defense counsel asserted that Dr. Elizabeth Loftus would testify regarding the scientific bases for eyewitness identification and identify certain areas where jurors hold misconceptions about the identification process. Defendant's written offer of proof alleged that Dr. Loftus would discuss several factors beyond the knowledge of the average lay person that affect a witness' ability to recall. Specifically, she would have testified about the latest scientific research concerning the passage of time between the incident and the identification; the lack of correlation between the certainty with which a witness makes an identification and the validity of that identification; the effect of stress on a witness; weapon focus; and cross-racial identification. Although the trial court found Dr. Loftus' curriculum vitae to be "extremely impressive," it determined that her testimony would not ordinarily be beyond the normal knowledge of the average person and in this case would be more confusing than it would be helpful; however, it did not deny the motion because such testimony might not, in the appropriate case, be proper. Consequently, the trial court denied the motion.
At trial, the State called Gerardo Quiroz. Gerardo testified that on September 3, 1995, he was standing on the sidewalk outside Clark Mall. His friend Jose Ramos was making a call on a pay phone at the mall entrance. The parking lot was next to the entrance of the mall. Gerardo's brother, Osvaldo, was standing near Jose. Gerardo observed a car heading south on Clark Street. The car was a black IROC Camaro with tinted windows, chrome wheels, and two tailpipes. The side windows of the car were down. The car pulled into the mall entrance and stopped near the phones. The two men inside the car attempted to talk to some girls who were heading toward the mall entrance. After the girls entered the mall, the car drove toward the back of the parking lot, turned right, and came through the middle of the lot. The car stopped on the sidewalk before turning left into Clark Street. At this point, Gerardo was closer to Jose, and the car was approximately 30 to 40 feet from them when Gerardo saw the passenger pull out a gun and point it at them. Gerardo testified that he tried to hide behind a nearby brick pillar but was able to focus on the face of the passenger. Gerardo identified defendant as the passenger.
Gerardo saw Francisco Curonel standing across the street in front of Touhy Park as Gerardo and Jose followed the car on the Touhy Park (east) side of the street. Osvaldo remained on the mall side of the street. Francisco attempted to "hit" the car with something but missed. The passenger took out the gun and pointed it at Francisco, who ducked. The car continued along Clark Street and went through the Jarvis, Clark and Rogers intersection. Osvaldo crossed the street from the mall side. Gerardo saw Julio Lagunas and Ulysses Renteria, who died before the trial started, trying to cross Clark Street from the Touhy Park side of the street. The car stopped, and Gerardo "saw a hand sticking out" from the passenger side of the car. At this point, Gerardo was at the Jarvis intersection north of the mall. There was a gun in the passenger's hand, and it was pointed toward Julio and Ulysses when Gerardo heard a gunshot. The car then sped up and "took off north." Gerardo ran up to Julio and Ulysses. Jose was already there, and Osvaldo arrived immediately thereafter. Osvaldo went home before the police arrived. Gerardo, Jose, Francisco, and Ulysses described the car to the police and were taken to the 24th District police station where they viewed the car.
Gerardo testified that he was then taken to Belmont and Western station to talk to detectives. Gerardo described the passenger as a 23-year-old skinny black male with braided hair and a light complexion. He viewed a lineup but was unable to identify anyone. On August 16, 1996, Gerardo viewed another lineup and recognized the second person from the left as the passenger, whom he identified as the defendant, and he also identified People's exhibit 14 as a picture of the lineup placing an "X" over the passenger's head.
During cross-examination, when defense counsel asked Gerardo if he was initially 30 to 40 feet away from Jose and Osvaldo, he answered "no." Defense counsel attempted to impeach him with testimony he apparently gave during Robinson's trial. Gerardo did not remember testifying that Jose and Osvaldo were 30 to 40 feet away from him. The parties stipulated that on July 10, 1997, Gerardo testified that he was on the sidewalk on the side of the mall and that Osvaldo and Jose were 30 or 40 feet away from him. Gerardo explained that when the car first pulled into the lot, he saw two black males but couldn't tell what they looked like at that point. Gerardo moved over to the phones. The car made its way around the parking lot and stopped before turning onto Clark Street. He saw the passenger pull out the gun. He denied feeling fearful, stressed, or nervous. The car turned left and went north on Clark. Gerardo stated that he "hung back a bit" as he followed the car.
Gerardo admitted that he talked with the others about what they saw when they went to view the first lineup at Belmont and Western. He did not remember talking to Osvaldo and Francisco when he viewed the lineup a year later nor did he remember what the passenger was wearing, but he did remember that the passenger had braids close to his head with beads on the end. He told the police at the scene about the braids.
The State called Osvaldo Quiroz next. Osvaldo testified that he was standing near the pay phones with Jose. Gerardo was standing about 20 feet to the south on the sidewalk. A car came through the driveway of the parking lot and stopped right at the phones. It was a black IROC Camaro with chrome pipes, chrome rims, and tinted windows. The windows were down and he could see two black people inside the car. He saw them talk to "two or three" girls. Osvaldo was about 20 feet from the car and could see inside the vehicle. The driver's side was closest to him. He described the driver as having dark skin, short hair, and a thin mustache. The car drove to the back of the lot, came up through the middle aisle, and stopped. At that point, the passenger's side was closest to Osvaldo, who was standing approximately 40 feet away. He described the passenger as a dark male who had long braided hair with black, white, and blue beads at the end of the hair. The passenger pulled out a gun and pointed it in Osvaldo's direction. The others hid behind a brick pole. The car then turned left out of the lot. Osvaldo identified defendant as the passenger.
Osvaldo saw Francisco standing beside the sidewalk across the street near Touhy Park. Osvaldo testified that he yelled "watch out for the car" to Francisco. Francisco started running north on Clark on the Touhy Park side of the street. Gerardo started running north on Clark on the mall side of the street. The car stopped for "a little while" at the light at Jarvis, then took off. The car stopped again, and he heard a shot. At this point, Osvaldo was about half a block away and crossing from the mall side of the street to the Touhy Park side. The car sped off north on Clark. The following day, Osvaldo saw the shooter in a green Nissan Maxima. The shooter stared at him and then lay back on the seat.
On September 12, 1995, Osvaldo spoke with the police at Belmont and Western and looked at some pictures. He identified the driver from a photograph the police showed him. Osvaldo told them he was "pretty sure that was the guy but he needed to see him in person." Osvaldo went back to the station on September 21, 1995, to view a lineup. Gerardo was there too, but Osvaldo did not talk to Gerardo before viewing the lineup. He identified Robinson as the driver. There was a person in the lineup who had corn rows or braids in his hair, but it was not defendant. On August 16, 1996, Osvaldo saw another lineup. Ulysses, Gerardo, Jose, and Francisco were also there but Osvaldo did not talk with them before viewing the lineup. Osvaldo identified People's exhibit 17 as a picture of the lineup and identified defendant as the person he identified. Osvaldo put an "X" over defendant's head.
During cross-examination, Osvaldo stated that he did not hear what Jose said while he was on the phone. Gerardo was about 20 feet away from him. Defense counsel tried to impeach him with testimony he gave during Robinson's grand jury, but Osvaldo did not remember saying Gerardo was 30 to 40 feet away from him. The parties later stipulated that on August 22, 1996, Osvaldo testified that Gerardo was 30 or 40 feet away from him. Defense counsel then tried to impeach Osvaldo with testimony he gave during defendant's grand jury. When asked if he said the car stopped for about a second by the pay phones, he said that was not correct. He did not remember saying that the car "just pulled off" after the occupants talked to the girls. The parties later stipulated that on July 10, 1997, Osvaldo testified that "the car stopped by the phone for about a second, they talked to some girls, then pulled off." Before the car left, the driver's side was closest to him. The car then pulled around to the back of the lot, turned, and stopped again before turning left onto Clark. He hid when he saw the passenger display a gun. Osvaldo described what the gun looked like.
Osvaldo stayed back at the mall. Gerardo and Jose crossed to the Touhy Park side. Osvaldo saw Francisco running north on the Touhy Park side of the street. The car stopped at the red light at the next intersection, then ran it. Defense counsel attempted to impeach Osvaldo with testimony he gave during Robinson's trial. He recalled being asked if the car went through the red light and answering "yes." Osvaldo stated that he viewed the August 16, 1996, lineup separately from the other witnesses and did not talk about the crime with them on the way to the station. Defense counsel asked Osvaldo if he thought he saw the passenger the next day. Osvaldo answered "I didn't think-I saw him."
The State called Francisco Curonel next, who testified that he was by himself near Touhy Park, which is the on east side of Clark. He saw a dark grey IROC Z car drive slowly down Clark heading south. The car had "nice rims," tinted windows, and chrome pipes. The driver's window was down. The driver was black and had short hair, a bald head, a goatee, and was wearing a black T-shirt. The car turned into Clark Mall, which was approximately 15 feet away from where he was standing. After the car turned into the mall parking lot, he "hear[d] some voices that was saying, 'watch out with the car, they've got a gun.'" He saw Jose, Gerardo, and Osvaldo by the pay phones. The car pulled out from the middle of the parking lot and turned north on Clark. The passenger threw his arm out and pointed a gun at him. Francisco threw a bag at the car and then fell to the ground. The passenger was about 10 or 7 feet away from him. He identified defendant as the passenger. Francisco got up and started running toward Julio and Ulysses, who were approximately 100 feet away. He yelled "watch out with the car, they got a gun." The car stopped at the light for a "couple of seconds," then sped up. The car slowed when the occupants saw Julio and Ulysses. The passenger put his arm out of the window with a gun in his hand. Francisco was about five feet away from the car when the shot went off.
The police took him, Ulysses, Jose, and Gerardo to the 24th District, where he saw the car. The police then took them to Belmont and Western to view a lineup. Francisco was "90 percent sure" he saw the driver. He described the passenger as a black male, about 25 to 28, with a skinny face and braided hair close to his head. Francisco went back to Belmont and Western on August 16, 1996, to view another lineup. He identified People's exhibit 26 as a picture of the lineup. He identified the shooter and put an "X" over the head of that person. Francisco testified that he saw the lineup by himself and did not have a chance to talk with Gerardo or Osvaldo after viewing it.
During cross-examination, Francisco stated that when the car first passed him heading south on Clark Street, the driver's window was down and he could see the driver and the passenger. Defense counsel attempted to impeach him with testimony he gave during Robinson's trial. Although Francisco did not recall being asked if he was able to see the passenger of the car, he did recall answering "not at that time." Francisco explained that he saw two people in the car but that he couldn't see what the passenger looked like at that time.
On redirect, he testified that he saw the face of the person pointing the gun at him and identified defendant as that person. On recross, he stated that the car was driving slowly as it passed him the second time.
The State then called Jose Ramos, who testified that he was on the pay phone. Gerardo and Osvaldo "[were] right next to [him]." A black IROC Camaro stopped right in front of him on the sidewalk. The car had a tinted back window, chrome rims, and two chrome tail pipes. The car was about 5 to 10 feet away from him. The windows were down, and he could see two males. The passenger was smoking marijuana, and there was a gun between the seats. The passenger grabbed the gun and put it between his legs. The passenger had braids. He identified defendant as the passenger. The car "took off," and he hung up the phone. The car went around the lot and came out the middle. Before turning left onto Clark, defendant pointed the gun at him. Jose saw Francisco across the street. Francisco tried to throw something at the car and then hit the ground when defendant pointed the gun at him. Jose ran across the street to Francisco. The car went through a red light. Jose saw Julio trying to cross the street. The car pulled up to the sidewalk right next to Julio. A shot came from the passenger side of the car, after which the car kept going. Jose and Francisco ran up to where Julio was lying. Osvaldo and Gerardo were there too. After giving a description of the car to the police, they were taken to the 24th District. Jose saw the car in the parking lot in back of the station. The police then took them to Belmont and Western. Jose described the passenger as 21 to 25 years old, dark skinned, with braids. He looked at a lineup that night but was unable to identify anyone. On September 12, 1997, Jose saw another lineup and identified defendant as the passenger. Jose identified People's exhibit 30 as a picture of the lineup and put an "X" over the person he identified.
During cross-examination, Jose stated that he saw three girls go into the mall, although he could not remember how many girls he told the police he saw. He saw the gun after the girls had already passed by. Jose turned his back to the car and hung up the phone. The parties later stipulated that on July 11, 1997, Jose was asked if he saw the gun just before the car pulled off and that Jose replied "No. I see the gun. They was talking to the girls." The car went to the back of the lot, made a couple of right turns, and stopped. The passenger pulled out the gun and pointed it at him, Osvaldo, and Gerardo. When he saw the gun, he ran across the street. Gerardo also crossed the street, but he could not remember what Osvaldo did. Jose followed the car but hung back a bit. The car did not stop at the red light, but made a "quick stop" and pulled close to the sidewalk where Julio and Ulysses were. Jose did not see any ornaments or beads in the passenger's braids. He and his friends talked to the police in different rooms at the police station. He acknowledged that when they were not talking to the police, they were together. Jose did not identify anyone in the lineup that night. Jose admitted that he did not identify the driver during Robinson's trial or any other time. On September 12, 1997, he was asked to view another lineup. The room where the lineup took place was not lit up like in the photo. He waited until all eight men stepped forward and turned around before identifying "#4" as the passenger.
Officer Gaskew testified that he obtained a description of the car from the witnesses at the scene. The witnesses told him the passenger was wearing dark clothing and had braids or corn rows in his hair. Their description did not include beads in the passenger's hair.
Officer Floyd Eppling testified that he was driving a squad car when he received a message about a vehicle wanted in connection with a shooting. Officer Eppling saw a car that matched the description. The driver's window was down part way, and he saw two black people in front. The passenger had either braids or waves with multicolored beads. He could not tell if the person was male or female. There was too much traffic to make an immediate U-turn, but he eventually caught up to the car and pulled it over; however, the passenger was no longer in the car. He brought the driver to the 24th District and his partner drove the car to the station. The crime scene was about 2-1/2 miles from where he pulled the car over.
During cross-examination, Officer Eppling stated that he saw the car about five minutes after receiving the message. The passenger's braids were about shoulder length, hanging, with multicolored beads. He could not see the passenger's face. He did not see the passenger leave the car, but stated "[i]t ...