Court of Appeals of Illinois, First District, Fifth Division
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
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.
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
3 For the reasons that follow, we affirm the judgment of the
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
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
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