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People v. Ortiz

Court of Appeals of Illinois, First District, Fifth Division

February 24, 2017

BERNARDO ORTIZ, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 12-CR-7794; the Hon. Erica L. Reddick, Judge, presiding.

          Michael J. Pelletier, Patricia Mysza, and Peter Sgro, of State Appellate Defender's Office, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Hareena Meghani-Wakely, Assistant State's Attorneys, of counsel), for the People.

          Panel JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion. Presiding Justice Gordon specially concurred, with opinion.



         ¶ 1 Defendant Bernardo Ortiz was convicted by a jury of attempted first degree murder, armed robbery, and aggravated vehicular hijacking. He was sentenced to natural life in prison as a habitual offender.

         ¶ 2 On appeal, he challenges the trial court's rulings that (1) denied his motion to suppress the victim's lineup and in-court identifications as unduly suggestive, (2) denied his motion to allow expert witness testimony on the issue of the reliability of eyewitness identifications, and (3) denied a defense jury instruction regarding eyewitness identifications.

         ¶ 3 For the reasons that follow, we affirm the judgment of the circuit court.

         ¶ 4 I. BACKGROUND

         ¶ 5 Defendant was arrested in 2012, after his DNA sample matched DNA recovered from the vehicle of the victim, Dr. Timothy Bollinger, who was stabbed and robbed in his garage on October 3, 2010. At the time of his arrest, defendant was described as a 38-year-old white Hispanic male, 5 feet 11 inches tall, and weighing 180 pounds. Defendant was charged with attempted first degree murder, armed robbery, aggravated vehicular hijacking, burglary, and aggravated battery.

         ¶ 6 At the April 2014 jury trial, the State's evidence showed that on the evening of the offense, Bollinger left work in Lake Geneva, Wisconsin, and drove to his home on West Iowa Street in Chicago. Around midnight, he stopped at the stop sign at the intersection by his home and saw a man standing there with a dog. Bollinger waited to ensure the man was not trying to cross the street and then drove through the intersection and turned into the alley behind his house. He parked his SUV in his garage, exited the SUV, and threw some trash in a bin. He walked around the SUV and pressed a button to close the garage door. He heard a noise in the alley, so he stood and waited to ensure the door would close. He saw someone's foot move under the garage door, which activated the sensor and caused the garage door to open. The man with the dog was standing at the garage door. Bollinger could see because the garage was illuminated by the light of the overhead garage door motor box.

         ¶ 7 The man entered and asked if Bollinger could help him. Bollinger told the man to leave, swore, and called to his wife, who was inside the house. The man told Bollinger not to yell, rushed at him with an 8- to 10-inch knife, and stabbed him. Bollinger fell to the ground and was stabbed in his abdomen, thigh, and elbow a total of seven times. The man kneeled beside Bollinger and placed the knife to his throat. While Bollinger looked at the man's face, the man said it was Bollinger's lucky day because the man was not going to kill him. The man demanded Bollinger's wallet, money, and keys, and Bollinger reached into the pocket of his jeans and surrendered those items. Bollinger remained on the ground, lying on his left side in a bent position to put pressure on his wounds and slow his blood loss. From this position, Bollinger was facing the man and had a full view of the entire garage. He watched the man the entire time he was in the garage. The man had trouble using the remote to unlock the doors of the SUV, so Bollinger had to tell him which button to push. The man put the dog in the SUV and then entered the vehicle himself. As the man left, he told Bollinger he would leave the SUV near a hospital and to wait 10 minutes before getting up.

         ¶ 8 As soon as the man drove off, Bollinger got up, went inside his house, and called to his wife to telephone 911. Mrs. Bollinger and her brother followed Bollinger's first aid instructions while they waited for the paramedics and police.

         ¶ 9 While Bollinger was in the ambulance being treated by the paramedics, they asked for his license plate number, and Bollinger provided that information. Officer Noel Lopez arrived at the scene and obtained information concerning the attack. At the trial Lopez could not recall whether he actually spoke at the scene with Bollinger, who had sustained serious injuries and was transported to the hospital for emergency surgery. Lopez testified he obtained a description from either Bollinger or his wife, either at the scene or the hospital, that the offender was a medium-complexioned black male, 160 pounds, about 5 feet, 10 inches tall, between 25 to 30 years old, and wore a pantyhose-like material on his face. At trial, Bollinger testified that he did not recall talking to any police officers on the date of the attack and denied giving a description on the date of the attack that the offender either was a medium-complexioned black man or wore a pantyhose-like material over his face. Bollinger explained that the attacker's hair was covered by a black nylon material. The attacker pulled that hair covering down over his face either when he stabbed Bollinger or hovered over him and held the knife to his throat.

         ¶ 10 The day after the attack, the police found Bollinger's SUV less than a mile from his home and three blocks from Norwegian American Hospital. The location of the SUV also was only two blocks from defendant's home. The SUV was parked with the front tire turned in against the curb and the back end of the vehicle sticking out into the street. The SUV was locked, and the police went to the hospital and obtained keys from Mrs. Bollinger to open it. Evidence technicians processed the SUV for DNA and fingerprints. The SUV had blood-like stains on the exterior driver's side door handle, the driver's side armrest, the front middle armrest, the gearshift lever, the steering wheel, and the exterior passenger's side door handle. No latent fingerprints were recovered, and the swabs were not tested for DNA until September 2011 because many other cases were pending and cases treated as property crimes received a lower priority for testing.

         ¶ 11 On October 8, 2010, Bollinger was released from the hospital and recuperating from his injuries at home. The next day, Detective Catherine Rolewicz came to his home and talked to him. At that time, Bollinger described his attacker, inter alia, as a "light-skinned black." Moreover, the attacker wore a pantyhose-like material on his head and/or over his face so Bollinger could not see his hair.

         ¶ 12 In October 2011, the police were informed that a match had been found between defendant's DNA and the DNA evidence recovered in Bollinger's SUV. Detective Rolewicz prepared a photo array of six photos that were black and white and printed on paper. The array included defendant's photo. Because defendant was identified as Hispanic, Detective Rolewicz chose photographs of Hispanic or Latino men who, like defendant, had facial and head hair. The photo of defendant showed him having longer hair than the other men in the array.

         ¶ 13 Detective Rolewicz went to Bollinger's home on January 22, 2012, and handed him the stack of photos. Each photo was given a number, one through six, and defendant's photo was marked as number one and was the first photo in the stack. Detective Rolewicz did not tell Bollinger there was a DNA match from the evidence recovered from his SUV. Bollinger spread the photos out on his kitchen table. He quickly eliminated four of the photos as suspects. Defendant's photo was one of the two remaining photos. Bollinger thought defendant's photo looked like the attacker based on his facial features. Concerning the other remaining photo, Bollinger selected it only because the man's skin tone seemed a little darker than defendant's skin tone in the photo, but the skin tones were hard to discern from those printed black and white photos. Bollinger did not make a positive identification from the photo array and thought the police would conduct a lineup. Bollinger told Detective Rolewicz he thought the offender was a light-complexioned black man but could have been Hispanic.

         ¶ 14 In March 2012, Bollinger viewed a lineup at the police station of five males, including defendant. The other four participants in the lineup were Hispanic males with similar characteristics to defendant. All the lineup participants wore a black knit cap to cover their various hair styles and cause Bollinger to concentrate on their facial features. Bollinger positively identified defendant in the lineup as his attacker. At trial, Bollinger testified that, at the lineup, he recognized a deformity on defendant's nose, which Bollinger had noticed at the time of the attack; however, Bollinger acknowledged that he did not mention that deformity before the trial.

         ¶ 15 The DNA analysis established that the mixture of DNA found on the driver's side door handle could have been blood mixed with any other biological source, like skin or saliva cells. Two DNA profiles were identified from the swabs of the driver's side door handle and steering wheel. Bollinger was assumed to be the source of one of the profiles based on the case information, and the other profile matched defendant's profile, which one could expect to find in 1 in 11 quintillion blacks, 1 in 19 quintillion whites, and 1 in 124 quadrillion Hispanics. A partial DNA profile was identified from the swab of the gearshift lever, and defendant could not be excluded from that partial profile, which one could expect to find in 1 in 13 blacks, 1 in 27 whites, and 1 in 5 Hispanics.

         ¶ 16 The jury found defendant guilty of attempted murder, aggravated vehicular hijacking, and armed robbery. He was sentenced ...

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