Appeal from the Circuit Court of Cook County. Honorable Daniel P. Darcy, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
Social scientists have been conducting research into the ability of one human being to identify another. Whether such an expert should be allowed to testify in a criminal case is a matter of broad discretion for the trial court. In light of the specific circumstances of this case, we hold reversible error was committed when the trial court refused to allow an expert to testify. We reverse the defendant's conviction and remand for a new trial.
This was a jury trial. The defendant, Walter Allen, was convicted of attempt murder, attempt armed robbery, and aggravated battery with a firearm. He was sentenced to a total of 43 years in prison.
In addition to the rejection of his expert witness, defendant raises fourth amendment and due process issues that must be resolved before we reach the matter of the expert witness.
On March 22, 2001, two black males entered Four Star Dry Cleaners, showed a gun, and demanded money. During the robbery, one of the men "pistol whipped" Che Shin, an employee at the cleaners. No money was taken. Defendant was identified as a suspect in the attempt robbery after two witnesses, Phil Jones and Calvin Smith, told police they saw defendant run past them near the cleaners shortly after the robbery occurred. Sometime before April 10, 2001, Shin identified defendant from a photo array as one of the people who robbed him. That is not the case before us, but it plays a role in the case we do decide.
On April 17, 2001, a second attempt armed robbery was committed at the same cleaners. Miye Goodson, an employee at the cleaners, was standing at the counter when two men entered the store. One of the men wore a dark hooded sweatshirt. The other man wore a yellow hooded sweatshirt with the hood up, and he stood and looked out the window. After one of the men approached the counter, Goodson asked if she could help him. The man did not respond. When Goodson asked again, the man reached into his pocket, pulled out a silver handgun, and said: "This is a stick-up. Give money." When Goodson turned around to get money from the cash register, she was shot in the back.
Before trial, defendant filed several pre-trial motions, including a motion to suppress Goodson's identification, a motion to quash defendant's arrest, and a motion to exclude gunshot residue evidence. The State filed a motion in limine to exclude the testimony of Dr. Steven Penrod, an expert in eyewitness identification.
During the December 21, 2004, hearing on defendant's motion to suppress identification, Goodson testified the police visited her in the hospital two days after she was shot and asked her if she was willing to look at photographs. She identified the defendant. Goodson could not recall how many photos the police showed her. Goodson said her husband had told her the police had caught the man who shot her before she identified defendant and signed his photo. Goodson admitted that when Mort Smith, an investigator hired by the defense, asked her how many pictures the police officers showed her, she responded "just the one." At trial she explained what she meant by that. She did not change her testimony. Goodson was not asked to make an in-person identification of the defendant until the preliminary hearing on December 21, 2004, when he was sitting at counsel table in a jail uniform.
Detective John O'Shea testified that on the morning of April 17, 2001, he was scheduled to go to defendant's probation officer's office to arrest defendant for the March 22 attempt robbery. During roll call on that same morning, he learned a woman was shot during a robbery that morning at the cleaners. When defendant arrived at his probation officer's office, Detective O'Shea arrested him for the March 22 attempt robbery. Detective O'Shea did not have an arrest warrant. Shortly after defendant's arrest, Detective O'Shea transported him to the police station and requested an atomic absorption gunshot residue (GSR) test be performed on defendant's hands.
On April 19, 2001, Detective O'Shea went to Mount Sinai Hospital to interview Goodson regarding the second attempt robbery. He generated a black and white photo array on the ICAM system that included a photo of defendant. Detective O'Shea ended up using five photos that he thought were the most similar looking. When Detective O'Shea asked Goodson how she was feeling, she said she was "in pain" and "not feeling the best." Goodson agreed to look at some pictures. After viewing the photo array, Goodson identified defendant as the shooter. Goodson described the shooter to Detective O'Shea as a "male black in his 30s" and "bald, no hair." Detective O'Shea admitted telling Goodson the police had some suspects before showing her the photo array. He did not tell her the suspect was in custody. Detective O'Shea testified substantially the same at the hearing on defendant's motion to quash arrest and suppress evidence.
Following arguments, the trial court denied each of defendant's motions. The court granted the State's motion in limine to exclude the testimony of Dr. Penrod.
At defendant's jury trial, Goodson testified that on April 19, 2001, two detectives visited her at Mount Sinai Hospital. After Goodson said she could identify the shooter, a detective showed her five pictures. She identified defendant as the person who shot her and signed the bottom of his photograph. Goodson also identified defendant in open court.
Goodson admitted that when Mort Smith, a private investigator for the defense, asked her how many photos the police had shown her at the hospital, she answered "just the one." Goodson explained she said "just the one" because she was only shown one picture of the man who shot her and four other pictures. During cross-examination, Goodson said she could not tell in what hand defendant was holding the gun because she panicked when she saw it.
Detective O'Shea testified substantially the same as he had at the suppression hearing.
Officer Rivera, a forensic services unit investigator with the Chicago Police Department, testified that defendant did not want to participate in the GSR test. Several detectives physically restrained defendant and positioned his hands so the test could be administered. The detectives were not wearing gloves, and Officer Rivera admitted he and his partner had handled their guns on the day the test was administered.
Officer Robert Berk of the Illinois State Police Forensic Science Center testified that the GSR test showed elevated levels of barium, antimony, and lead on defendant's left palm. The elements are consistent with having handled, fired, or been in close proximity to a discharged firearm. He conceded, however, that these particles can be transferred from one surface to another. He noted there is only a six hour window of time for the administration of an atomic absorption GSR test after a gun has been fired. He admitted a positive test result does not necessarily prove an individual discharged a firearm. He believed, however, that the sources of lead, barium, and antimony he detected on defendant's hand were from gunshot residue. A "scanning electron microscopy" (SEM) test did not confirm the presence of gunshot residue on defendant's clothing. Officer Berk admitted the SEM test is a more sensitive, selective, and specific test than the atomic absorption test he used.
Dr. Samuel Palenik, a forensic analytical microscopist, testified for the defense. He said the atomic absorption GSR test is an unreliable means of identifying whether GSR is present on a surface. He noted the elements detected by an atomic absorption test are found in the environment and many household items. According to Dr. Palenik, most law enforcement agencies, including the Chicago Police Department, have moved away from the test in light of the significant problems associated with it.
Mort Smith, a private investigator, testified that he visited Goodson at her home on May 8, 2004. Goodson told him the police showed her two or three photographs when they visited the hospital in 2001. On September 22, 2004, Smith visited Goodson at her home and taped the interview. Goodson told Smith the police showed her only one photograph when she was at the hospital.
The jury found defendant guilty of first-degree attempt murder, attempt armed robbery, and aggravated battery with a firearm. Following a sentencing hearing, the trial court sentenced defendant to a 29-year sentence for the Class X felony of attempt first-degree murder. Defendant was also sentenced to a consecutive 14-year sentence for attempt armed robbery. Defendant appeals.
I. Motion to Suppress Evidence
Defendant contends the trial court erred when it denied his motion to suppress evidence obtained in violation of his constitutional rights. Specifically, defendant contends the atomic absorption GSR test administered by the police was non-routine and completely unrelated to the March 22 attempt robbery crime he was lawfully arrested for, thus violating his fourth amendment rights.
When reviewing a trial court's ruling on a motion to suppress evidence, the court's factual findings are reviewed for manifest error while the court's ultimate ruling is reviewed de novo. People v. Steham, 203 Ill. 2d 26, 33 (2002).
Both the United States Constitution and the Illinois Constitution protect against unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. A warrantless search and seizure is per se unreasonable unless it comes within one of a few recognized and limited exceptions. Steham, 203 Ill. 2d at 34. "One such exception, which has been found reasonable under the fourth amendment to the United States Constitution, is a search incident to a lawful arrest." Steham, 203 Ill. 2d at 34, citing United States v. Robinson, 414 U.S. 218, 224-26, 94 S.Ct. 467, 471-73, 38 L.Ed. 2d 427, 434-36 (1973).
Defendant does not contend the police lacked probable cause to arrest him for the March 22 attempt armed robbery. Instead, he contends that because he was neither under arrest for, nor a suspect in, the April 17 attempt robbery, the police had no reasonable basis or justification for performing a GSR test on him. Defendant contends the police must provide a rational justification for conducting a search unrelated to the crime for which a defendant is arrested, which they have failed to do in this case. Since the police were authorized to ...