In re Christian W., 2017 IL App (1st) 162897 (August) Episode 392 (Duration 22:36)

Unreliable eyewitness is established when defense establishes that the police fed information to the witness.

Gist Of The Case

Victim shot in the head then he was fed facts by the detectives about the identify of the person who shot him. The victim and his brother are shot in the head but survive.

One of the victim’s has different versions of who shot them. He implicates the accused minor and another kid from the neighborhood. However, the victim gave several conflicting accounts about the number of shooters and how they looked.

Police Fed Him Info

He admitted on the stand that he incorporated information he received from the police into his own uncertain recollections. Evidence in Illinois must be reliable before it can be admitted.

He said the originally thought one of the shooters had short hair but the Detective responded that the “other people interviewed” all said “the [second] shooter had dreads.” After his interview with the Detective the victim nonetheless “went with * * * the dreads.”

He explained, “I was never one hundred percent sure about the guy had dreads,” but “I did tell the State I thought the guy had dreadlocks because that’s what [Detective Galliardo] * * * was telling me,” and “I kind of got confused by the officer coming to tell me what other people were saying.”

Then Pleads The Fifth

At one point in the trial the victim refused to answer questions about his own drug dealing and possible motives others had to shoot him. Instead he invoked his privilege against self-incrimination and declined to answer any further questions about his alleged drug dealing. The trial court said it would consider the assertion of the privilege when weighing his testimony.

Trial Court

In the end the trial court found the victim’s identification of Christian was positive and reliable.

In reaching this conclusion, the trial court conducted its analysis entirely within the framework of Neil v. Biggers, 409 U.S. 188 (1972), and People v. Slim, 127 Ill. 2d 302 (1989).

The trial court found that all five of the Slim/Biggers factors supported Michael’s identification. The trial court paid special attention to one factor—the accuracy of the witness’s prior description—and used it as an analytical framework for addressing Christian’s challenges to the victim’s credibility.

It Should Be Noted

The co-accused minor was acquitted of all charges.

Issue On Appeal

The State’s case against Christian comprised a single eyewitness identification, with no other occurrence witnesses, no physical evidence, no confession, and no evidence of motive. Because Christian’s adjudications are based entirely on one victim’s identification testimony, the question we must confront is whether a trier of fact could rationally believe that testimony, on its own, was sufficiently trustworthy to prove Christian guilty beyond a reasonable doubt.

Initial Statement

In his initial statement to the police only hours after the shooting, while he was still at the hospital.

He did not say that Christian was involved in the shooting, even though he had known Christian for several years and claimed to have recognized him immediately during the shooting.

The victim’s narrative account of the incident included a fine-grained description of a lone shooter:

That description bears little resemblance to Christian or to the description of Christian that the victim gave in later police interviews and at trial.

Christian was far younger (14 years old), and though the victim did not know his precise age, he “knew he was young.” Christian was two inches taller and twenty pounds heavier.

Christian was always (later) described by the victim as wearing, at the time of the shooting:

And that is to say nothing of the two features that he continually cited as most distinguishing Christian: his hair (“curly straight almost like Hispanic”) and his eyes (“darkened eyes,” “like raccoon-ish eyes”).

What About The Second Shooter?

The notion that the victim had been describing the supposed second shooter—the one who shot him, not his brother—holds no water.

He only described one shooter to Rios, and that description bore no resemblance to either Christian or the second shooter tentatively identified later, as “Munchie.”

But Victim’s Are Often Scared To Cooperate…

It’s true that sometimes a victim has a knee-jerk instinct not to cooperate with law enforcement.

Sometimes a victim may want to seek retribution of his own, outside the justice system, and identifying Christian would interfere with that plan. He may have been fond of Christian and was reluctant, at least initially, to turn him in. Or he may have been scared, thinking that if Christian was acting at the direction of someone else (perhaps “Little Dave”), identifying Christian to the police could endanger his own life.

It would not be the first time that a witness declined to cooperate with law enforcement in the apprehension or prosecution of a suspect.

This Victim’s Reasons Remain Unknown

But this victim gave none of those reasons at the adjudicatory hearing.

As described earlier, he testified that he did not appreciate the detective’s attitude, and that “[i]t just didn’t seem right at the time” to give Christian’s name.

And even if one or more of the excuses we have posited above were the real reason for the victim not identifying Christian, those excuses would still not explain why the victim, rather than remain mum, gave a wholly inaccurate description of the shooter.

Bottom Line On Initial Statement

This was the reviewing court’s concern with the victim’s credibility is his account of the events at the hospital to Detective Rios: He did not identify Christian by name. He did not describe Christian by appearance. He never mentioned a second shooter. And the description that he did provide did not even resemble that of the second shooter he later tentatively identified.

Also troubling was the fact that the trial court did not reconcile the victim’s testimony at trial with the statement he gave the detective.

At trial the victim said he did identify a second shooter and described Christian to the detective, but the detective at at trial adamantly denied this.

It would be one thing had the trial court found Detective Rios incredible for whatever reason—dishonesty, incompetence, or that he was merely confused—and determined that the victim was more credible. But there was no such finding by the court, nor does the State contend as much.

And the explanations we have been given for the inconsistencies are unsatisfactory.

Wait There’s More…

And if this was not enough to find the victim’s statement suspect there was the second interview with Detective Galliardo.

This testimony casts serious doubt, by itself, on his credibility.

First, if we are to believe him here, the victim admittedly was willing to change his story and falsely identify a different individual as the second shooter based on what a police detective told him.

To be fair, he did not positively identify that second shooter, but he identified him no less. He told prosecutors that Davon and Donovan were different people, though he did not believe that to be true.

Why He Lied About The Second Shooter

He told them the second shooter had dreadlocks, though he did not believe that to be true.

His stated reasons why he lied do more harm than good to his credibility. First, he claimed confusion. He said he mixed up the similar names “Davon” and “Donovan.” And this Davon/Donovan individual—“Munchie”—used to have dreadlocks before apparently getting a haircut.

In other words, the victim claimed at trial that there was only one “Munchie,” but the names and former-versus-current hairstyles of that individual threw him off during the meeting with prosecutors a month before trial.

The trial court accepted that explanation.

The reviewing court could not.

Now He Remembers Dread-Locks?

And while it might be understandable that the victim might have confused the similar names “Davon” and “Donovan,” no amount of confusion could explain why he now remembered the second shooter as having dreadlocks, not short, inch-high hair.

His attempt to explain away that discrepancy by suggesting that “Munchie” used to have dreadlocks, then got a haircut, does nothing to help him. Whatever hairstyles the second shooter once wore, the victim saw short, inch high hair on the day of the shooting, yet he told the prosecutors a month before trial that the second shooter wore dreadlocks.

The trial court did not mention the hairstyle discrepancy in attributing his see-sawing account to “confusion.”

Detective Fed Him Facts

And then, of course, there is Michael’s claim at trial that he was fed facts by the detectives.

The State, interestingly, does not disavow this portion (or any portion) of the testimony, either. In fact, the State embraces it, calling him “honest and forthcoming” about it.

We will say this much for this apparent concession by the State:

the victim’s claim of being fed such facts as the dreadlocks by the police was certainly unrebutted in the record—unrebutted, that is, because the State apparently saw no reason to call either the detective accused of fact feeding—Detective Galliardo—or Galliardo’s unnamed partner.

Of course, the State is not required to call any particular witness, but we do find it troubling that the State remained mute in the face of that serious accusation by a witness for the State—a witness on whose credibility the entire case turned.

So the trial court seemed to believe that the police fed the victim facts at the interview, and the State accepts it as fact. And both the court and the State embraced it as an excuse for the victim’s confusion.

If the victim was being “honest and forthcoming” at trial about police fact-feeding, then he was admitting to tailoring his testimony away from his memory and belief based on what the police had told him, and thereby accusing someone falsely of attempted murder.

Defendant Asked The Trial Court To Drive A Truck Through It

Christian invited the reviewing court to take it all the way.

He says that if police suggestiveness regarding “Munchie,” existed it follows that the identification of Christian is tainted, too.

It is impossible to believe, that the same detective who fed the victim facts about one shooter “scrupulously avoided contaminating him” with facts about the other shooter, especially when his description of the events and shooter(s) changed so dramatically upon meeting with that very officer.

It would be tempting, as Christian argues, to paint that entire interview with a broad brush of taint and infer that the police may have given the victim Christian’s name and description, too. But the trial court obviously did not see things that way; though the court barely mentioned the rather disturbing (and conspicuously unrebutted) allegation of police fact-feeding, the trial court clearly accepted the victim’s identification of Christian, the only person on trial.

Since Trial Court Bought It Appellate Court Must Accept It

So the reviewing court did not agree to go as far as Christian would have liked.

Suffice it to say, however, that

(1) the victim admitted to lying to sworn law enforcement officers a month before trial about the identity of an attempted-murder suspect, and
(2) either he was willing to bend his testimony at the suggestion of police detectives, or he is lying about that reason, neither of which inspires any confidence in his overall credibility.

Witness Is Still Unreliable

There is no outcome on this police-fact-feeding question that favors the victim’s testimony.

In the end, police fact-feeding or not, it is still undisputed that the victim gave prosecutors a different story about the second shooter than he gave to detectives eleven months earlier.

Fact feeding or not, it is undisputed that he lied more than once to law enforcement regarding the second shooter.

The trial court finally said that it afforded the State every reasonable inference in an attempt to untangle the victim’s testimony and parse together a plausible argument for upholding this conviction. But in the end, we can only conclude that he was not a credible witness.

His testimony was subject to considerable doubt at every turn.

Our concerns are too many and run too deep for us to have any confidence in his testimony. And yet the State’s case rested entirely on that testimony.

The State did not produce any other eyewitnesses or any physical evidence—no weapon, fingerprints, DNA, gunshot residue, or the like.

Christian did not make any inculpatory statements.

There was no evidence of motive.

Holding

We hold that the State’s evidence was so unsatisfactory as to justify a reasonable doubt of Christian’s guilt.

As in those cases, without explicitly detailing the Slim factors, we have found that the significant discrepancies and inconsistencies in Michael’s testimony have so compromised his credibility that, absent any corroborating evidence whatsoever, a reasonable doubt of Christian’s guilt remains.

We thus reverse Christian’s adjudications of delinquency.