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
The facts of this case have been set forth in detail by our appellate court opinion, People v. Tisdel, 316 Ill. App. 3d 1143 (2000), and the supreme court's decision People v. Tisdel, 201 Ill. 2d 210 (2002).
Following a jury trial defendant, Melvin Tisdel, was convicted of first-degree murder and sentenced to 35 years in prison. We reversed defendant's conviction on the ground that the trial court should not have allowed the State's witnesses to testify concerning nonidentification lineups. We believed that this error was not harmless and could have had a significant impact on the jury's consideration.
Thereafter the supreme court reversed our decision and determined that the fact some of the eyewitnesses had viewed prior lineups which did not include the defendant and failed to identify anyone as the perpetrator was relevant in demonstrating the reliability of their subsequent identifications. Tisdel, 201 Ill. 2d at 220-21.
The supreme court also entered a supervisory order directing us to consider those issues raised by defendant but not reached in the appellate court's earlier opinion.
In the initial appeal, defendant raised issues that we did not address relating to (1) the prejudice resulting from the State's continued reference to defendant's co-defendant (although the co-defendant was not tried in the same case and no objections were made); (2) allowing pictures of lineups identifying the defendant to go to the jury during deliberation; and (3) a challenge to the effectiveness of trial counsel pursuant to Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
Additionally, defendant raised the issue of the trial court's exercise of its discretion in not allowing an expert witness to testify as to the latest scientific research regarding eyewitness testimony.
In that regard, we observed in our earlier opinion that numerous studies in the area of eyewitness psychology indicate that there is significant potential for eyewitness error and that jurors have misconceptions about the abilities of eyewitnesses. See 19 Am. Jur. Proof of Facts 2d Pretrial Identification 435 (1979 & Supp. 2000). There are two types of eyewitness identification expert testimony. The first dispels myths or attacks commonsense misconceptions about eyewitness identifications, such as the effects of stress and weapon focus on the accuracy of identifications. The second provides the jury with useful information about the kinds of mental factors involved in the identification process, such as the effect of time on the reliability of identifications, the forgetting curve, and problems with cross-racial identifications. W. Wolfson, "That's the Man!" Well, Maybe Not: The Case for Eyewitness Identification Expert Testimony, 26 Litig. 5, 6 (2000). Trial courts should carefully scrutinize the proffered testimony to determine its relevance--that is, whether there is a logical connection between the testimony and the facts of the case. Normally, expert testimony that is probative and relevant should be allowed. People v. Sargeant, 292 Ill. App. 3d 508 (1997). The trial court must also determine whether the proffered testimony would confuse or mislead the jury. We realize that other jurisdictions have formulated guidelines for trial courts to follow when considering whether to allow such testimony. See, e.g., State v. Moon, 45 Wash. App. 692, 726 P.2d 1263 (1986) (listing as factors the identification of the defendant is the principal issue at trial, the presentation of an alibi defense and little or no other evidence linking the defendant to the crime). However, a trial court's decision to allow or exclude eyewitness identification expert testimony must be made on a case- by-case basis. Even where cross-examination of an eyewitness and an instruction are sufficient, allowing expert testimony may still be helpful to the trier of fact.
Defendant contends that Dr. Loftus's testimony should have been admitted because it would have aided the jury in reaching a more informed decision as to the credibility of the eyewitness testimony. We find that the trial court properly exercised its discretion under People v. Enis, 139 Ill. 2d 264 (1990). The record shows that the judge considered the reliability and potential helpfulness of the testimony, balanced the proffered testimony against cases in which this court has upheld the exclusion of such evidence, and found that the testimony would not assist the jury. See United States v. Hall, 165 F.3d 1095, 1106 (7th Cir. 1999). Additionally, the record establishes that defense counsel thoroughly cross-examined all of the eyewitnesses and that the trial court instructed the jury on the reliability of eyewitness identification. However, the trial court would not have abused its discretion had it allowed the testimony, given the facts of this case.
Next the defendant suggests that reference by the prosecution to Mark Robinson, the driver of the motor vehicle in which defendant was a passenger, "was irrelevant and directed the jury's attention away from a proper investigation of Mr. Tisdel's guilt."
We should first note that this issue has been waived by defendant's failure to object at trial or set out the alleged error in his posttrial motion. People v. Enoch, 122 Ill. 2d 176 (1988). It is difficult to imagine that such a reference seduced the jury from its proper obligations. It is also difficult to argue that this, if an error, rises to the level of plain error. Usually plain error is employed where there is a breakdown of the adversarial process and the evidence is closely balanced, or where the rights of a defendant have been affected. People v. Keene, 169 Ill. 2d 1 (1995).
Plain error is a limited and narrow exception to the waiver rule which may be invoked only where the evidence is so closely balanced that it might be said that the jury's verdict may have resulted from the error, or the error is so substantial that it deprived the defendant of a fair trial. People v. Coffee, No. 86975, October 18, 2001, 2001 WL 1243638; citing People v. Herrett, 137 Ill. 2d 195, 209-10 (1990). People v. Carlson, 79 Ill. 2d 564, 576-77 (1980).
The State argues that the evidence here is not closely balanced and that the testimony of four eyewitnesses established defendant as the individual with a handgun and as ...