People v. White, 2017 IL App (1st) 142358 (March). Episode 341 (Duration 11:27)

In this bench trial the judge gets annoyed with defendant who wants to show him his tattoos.

Facts

A drug detective said he bought drugs off the defendant.

He identifies the defendant from a photo array. Defendant is arrested days later.

Tattoos

The dealer had a white sleeveless t-shirt and the detective did not notice any tattoos.

A surveillance officer also noted the white sleeveless shirt and wrote that the offender “did not have any tattoos.”

Counsel stated for the record that defendant had a tattoo of his name, “Derrick,” and that it ran from his elbow to his wrist, and the court added it was located on the underside of his arm.

Defense counsel further attempted to note that defendant had another tattoo on his left arm, but the court found that tattoo “irrelevant.” The court stated: “The only thing relevant is the right arm that did the transaction.”

Bench Trial

At the bench trial the judge got annoyed with defendant and defense counsel when they wanted to show him that he had tattoos.

The judge refused to get down off the bench and made a big deal about the fact that the drug dealers palm’s were down during the transaction. The judge finished the demonstration by telling the defendant to sit down then stated,

“The record can reflect that he has a tattoo on his forearm with his palm facing up, but the record will reflect that you never specified in your cross-examination of the officer how he viewed the arm. He may have seen it with the palm up. He may have seen it with the palm down. You never did that with your direct examination. As a result, it is not in the record. What is in the record is that he didn’t notice any tattoos. That is his testimony.”

Counsel noted that the person who sold drugs to the undercover that day was wearing a tank top—that he had no sleeves on either arm—and that the officer had testified that, had he seen the tattoos, he would have put them in the report. 

Choir Boy

The judge obviously found defendant guilty saying the officer was unimpeached and basically was a choir boy and the court noted that the demonstration defense counsel requested was “inappropriate and improper criminal procedure,” and could have been accomplished in other ways, including through defendant testifying.

The trial court later sentenced defendant to 10 years’ imprisonment.

Misidentification

Defendant argues on appeal that he was misidentified as the offender, as demonstrated by the fact that he has a dark scar on his nose, a large tattoo on his right forearm, and other tattoos on his left arm, yet neither officer observed a tattoo on the offender, and the detective did not recall the offender having any scars.

Holding

The reviewing court agreed that the trial judge acted inappropriately.

Defendant’s best evidence was that neither police officer had described the drug dealer as having tattoos when they observed him during the drug transaction, when in fact defendant had tattoos on both arms. In more than one way, the trial court prevented defendant from presenting this defense.

Right To Present Evidence

First, the trial court did not allow defendant to demonstrate that, from the detective’s viewpoint at the time of the alleged drug sale, defendant’s tattoos would have been visible to the officer.

An in-court demonstration should be probative of facts in issue and conducted under substantially similar conditions and circumstances as those which surrounded the original occurrence. Evidence that defendant’s tattoos would have been visible to the undercover at the time of the drug transaction was unquestionably probative and relevant to the credibility of the officers’ identifications of defendant as the drug dealer in question.

And by having the officer demonstrate exactly his positioning vis-à-vis defendant during the events in question, the demonstration would have been conducted under substantially similar conditions.

Instead, the trial court decided that its own view of defendant’s right forearm, when turned palm down, from its vantage point on the bench “about two feet above” defendant, was all the court needed to know—that when defendant’s palm was turned down, the tattoo on the right forearm was not visible. The officer, when recalled by defendant, hedged in his testimony on exactly how defendant’s arm was positioned.

Trial Court Erred

The court erred in substituting its own view of defendant’s right arm, under not substantially similar conditions, in lieu of this relevant testimony.

The court also erred by not allowing defense counsel to introduce any evidence whatsoever regarding the tattoo on defendant’s other arm (left arm). The court deemed it irrelevant, reasoning that the man who handed the officer the drugs did so with his right hand, not his left.

The flaw in this reasoning is that the detective did not limit his testimony to only seeing defendant’s right arm; he said that he first saw defendant emerging from a garage into the alley and then walking up to him.

In other words, he saw more than just defendant’s right arm. He had a clear view, on a sunny day, of defendant as he approached him head-on and then stopped just short of him, face-to-face.

Confrontation Right

Defendant was entitled to challenge the testimony of the officers, that the drug dealer did not have any tattoos, by showing that he had one on his left arm every bit as much as he had the right to show that he had one on his right arm.

In this case, by not permitting any evidence of defendant’s left-arm tattoo, by not permitting defendant, via a demonstration, to have the detective testify as to whether he could see either tattoo on defendant, and by making a finding of fact that the right-forearm tattoo would not have been visible to the officers based only on its own dissimilar view of defendant from the bench, the trial court denied defendant a meaningful opportunity to present his defense and confront the witnesses against him.

See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8.

Analysis

Clearly, the two officers did not observe any tattoos on the dealer’s body, and their reports stated that the dealer did not have any tattoos.

But defendant has a large wrist-to-elbow tattoo on his right arm and one on his left arm as well.

Thus, the trial court’s erroneous rulings that prevented relevant tattoo evidence from being presented or considered “might have contributed to the conviction” of defendant.

…And Bad Photo Array

Additionally, there were serious problems with the photo array used in this case. Defendant was identified from the array 2 hours after the deal. But the photo array arguably emphasized and highlighted defendant’s photograph.

Four of the photos are grouped together in a square on the left side of the array. But defendant’s photograph is isolated on the right side. The other four persons all have round heads and faces. Defendant is the only person with a long, narrow head and face.

Each of the heads of the other four persons is facing forward; defendant’s head is turned.

All four of the other individuals have mustaches; defendant does not. The other four individuals have neutral expressions while defendant is sucking his lips in what he describes as a strange expression.

The other four individuals’ clothes are visible; defendant’s clothes are not visible.

The picture of defendant shows his head framed on all sides by a white border and background, whereas all of the other four individuals are standing in front of what appears to be the same gray wall.

Conviction was vacated and remanded for a new trial.