In re N.A., 2018 IL App (1st) 181332 (December). Episode 578 (Duration 7:08)
It it still appropriate to allow a conviction based on the word of one eyewitness?
An Armed Robbery
Around 8:10 p.m., victim backed her car into her garage.
Her nine year old daughter sat next to her. As the victim opened her car door, two men walked into the garage and positioned themselves on either side of her car. Still seated, she looked up and saw the man’s face. He pointed a gun at her and demanded her to “hand over everything.” She gave the man her purse and cell phone. The two men left and the victim called the police.
The Identification
The victim looked up at the man from her seated position.
He stood two feet away on the other side of her car door. Because the door was ajar, the car’s dome light activated. A “dim” garage light had turned on and there was some additional “ambient lighting from the alley.” She “immediately” saw the man had a gun. It was a “small pistol-type gun,” dark in color and he held it “close to his body.” From her vantage point, the gun was pointed “pretty much to my face.”
He was African-American and wore a “nondescript,” “dark colored sweatshirt” with the hood on, but she could see his face and “short hair.” They appeared to be 20 years old and she guessed that their heights were between five feet, 10 and 11 inches.
After he demanded, “give me everything” and “don’t move,” the victim surrendered her purse and cell phone. The two men left.
The Photo ID
Detective showed her two sets of photographs. This Detective was an independent administrator, meaning that he had “no knowledge of the case or who the suspect may be in the photo array.”
Before viewing the photographs, she signed a photo lineup advisory form indicating that she did not want to be audio or video recorded. The victim understood she did not have to identify anyone. She identified respondent in the first set of photographs as the man who robbed her. She did not identify anyone from the second set.
About a month later, Chicago police detective went to the victim’s home and showed her two photo arrays. She signed a photo advisory form indicating that that she did not want to be audio or video recorded and understood she had no obligation to identify anyone. The victim identified respondent N.A. in the first photo array as the man who robbed her at gun point.
She did not identify anyone in the second photo array.
She Was Certain
On cross-examination, the victim testified that her focus during the robbery was directed at respondent’s gun. She indicated that the alleged robbery lasted five to seven minutes and that respondent did not speak with an accent when he voiced his demands. On re-cross examination, the victim testified that she had “no problem at all” seeing respondent’s face or identifying him in court.
She testified, “I was able to get a really good look at the guy when it was happening because his face was so close to me. So then, when I saw the photo lineup, you know, I knew the photos that were absolutely not the person. And so, you know, when I identified that person, I was certain.”
Issue
The issue on appeal is whether the victim’s eyewitness identification testimony was sufficient to sustain respondent’s delinquency adjudication beyond a reasonable doubt.
Respondent challenges that identification as unreliable and insufficient to support his delinquency adjudication beyond a reasonable doubt.
Single Eyewitness Sufficient To Convict
A single eyewitness identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. People v. Davis, 2018 IL App (1st) 152413, ¶ 55.
A vague or doubtful identification will not suffice. Illinois courts look at the totality of the circumstances and consider the following factors to determine whether an eyewitness identification is reliable:
(1) the witness’s opportunity to view the suspect during the commission of the offense
(2) the witness’s degree of attention
(3) the accuracy of any prior descriptions provided
(4) the witness’s level of certainty at the time of the identification procedure and
(5) the length of time between the crime and the identification.
People v. Slim, 127 Ill. 2d 302, 307–08 (1989); Neil v. Biggers, 409 U.S. 188, 199 (1972). Respondent argues that the victim’s identification is unreliable.
They Are All Unreliable
In his brief, however, respondent goes further and takes aim at all eyewitness identifications.
He suggests that the Illinois supreme court has “cast doubt” on the reliability of eyewitness identifications and contends that the legislature shares a similar “skepticism” evidenced by its enactment of the section 107A-2 of the Criminal Code of 1963 (725 ILCS 5/107A-2 ) (the Lineup Statute), which governs the procedure by which lineups are conducted.
Circling back to his case, respondent argues that the Biggers factors are no longer the “end-all-be-all of assessing identification testimony” and urges us to find that the Detective’s noncompliance with the Lineup Statute further undercuts the reliability of an already unreliable eyewitness identification.
Analysis
The victim’s testimony showed that she had an ample opportunity to view respondent during the commission of the offense. She had “no problem at all” seeing his face from where she sat in her car and got a “really good look at the guy when it was happening because his face was so close to me.” Respondent stood two feet away from the victim. The encounter lasted “five to seven minutes.”
Respondent contends that the lighting conditions were inadequate because the garage light was “dim.” But there is simply no evidence that the lighting conditions (or respondent’s hooded sweatshirt) obstructed the victim’s view or prevented her from seeing respondent’s face. All the testimony is, frankly, to the contrary. The victim was not impeached and the trial court found her testimony to be credible.
The victim’s degree of attention during the robbery was not “particularly weak,” as respondent contends. To be sure, the victim did testify that her “focus” during the robbery was on respondent’s gun, but on re-direct examination she clarified her testimony and indicated she was able to see respondent’s face while focusing on his gun.
We cannot consider respondent’s scholarly article on “weapon focus” (or his reference to an article on the unreliability of “cross-racial” identifications) as the trial court was not afforded the opportunity to consider that information and heard no argument based upon it.
The victim was not required to describe the physical characteristics of the offender to police with pinpoint accuracy. Our review of the record indicates that the victim’s use of the word “nondescript” was a reference to respondent’s dark clothing, not his facial or other physical features.
Did The Description Match?
The victim testified at trial that she described respondent to police as a nondescript, 20 year old who stood between five feet, 10 to 11 inches in height. Respondent argues that this description was inaccurate and unacceptable given respondent’s age of 17 at the time of the offense and height of five feet, seven inches. He places particular emphasis on the victim’s use of the word “nondescript” and her failure to include respondent’s short hair and lack of facial hair in her initial description of respondent.
Furthermore, the trial court was aware that the victim ventured a guess as to respondent’s exact height and failed to provide an initial description of his hairstyle to police. The trial court addressed these issues within its province and resolved them against respondent. We defer to the trial court’s decision.
Level Of Certainty
As for the victim’s level of certainty at the time she viewed the photo arrays and identified respondent, she testified to being “certain” of her identification and “knew the photos that were absolutely not the person.” The victim had no problem making the identification.
Respondent argues that an eyewitness’ confidence when identifying an offender is not conclusive of accuracy. But whether or not his argument rings true is immaterial as respondent failed to present this argument to the trial court.
Took Her A Month
As respondent requests, we do not “easily brush off” the fact that a month lapsed between the identification and the armed robbery. However, we have upheld positive identifications involving considerably longer lapses in time. See People v. Malone, 2012 IL App (1st) 110517, ¶ 36 (identification was reliable despite lapse in time between crime and identification of one year and four months).
We therefore see no reason to upend the trial court’s determination as a result of the lapse in time here.
Lerma Not An End All
Respondent urges this court to look beyond the Biggers factors and recognize that our supreme court has moved away from them. He supports his argument with People v. Lerma, 2016 IL 118496 and accurately quotes the case to show that the court’s view of expert testimony on the reliability of eyewitness identifications has changed.
We have not only seen that eyewitness identifications are not always as reliable as they appear, but we have also learned, from a scientific standpoint, why this is often the case.
However, we do not see how Lerma, applies to his case. Respondent did not call, or attempt to call, an expert witness at trial. Accordingly, if Lerma changed the legal framework of eyewitness identification, respondent made no attempt to benefit from it at trial.
The Photo Lineup Was Not Recorded
Did Detective violate the Lineup Statute and, as a result, the victim’s identification is entitled to “less weight?”
The Lineup Statute governs the manner and means by which law enforcement conducts lineups. 725 ILCS 5/107A-2, 107A-0.1 A video record of all lineup procedures must be made unless it is not practical or the eyewitness refuses. § 107A-2(h). If making a video record is not practical or the eyewitness refuses, an audio record shall be made, if practical. §§ 107A2(h)(1), 107A-2(1)(B).
The Lineup Statute identifies the following as “consequences” of noncompliance:
(1) the trial court can consider noncompliance as a factor in adjudicating a motion to suppress an eyewitness identification or any other motion to bar an eyewitness identification; and
(2) when warranted by the evidence at trial, the trial court must instruct the jury that it may consider noncompliance to assist in its weighing of the identification testimony of the eyewitness.
§ 107A-2(j)(1)-(2).
The State argues that the lineup form signed by the victim indicated her unwillingness to be video or audio recorded and therefore, this is a nonissue. But, as respondent points out, the Lineup Statute contains no language that would allow an eyewitness to refuse an audio recording. Id. § 107A-2(h)(1)(B).
The State’s argument is therefore misplaced and, absent any argument as to why an audio recording of the photo array procedure was not practical under the circumstances, we are left with sheer noncompliance.
Given technological advancements, the portability of recording devices and law enforcement’s use of body cameras, we see no reason why Detective could not have made an audio record as the Lineup Statute requires.
But the violation had no affect on the reliability of the victim’s identification.
Respondent was not tried before a jury and he failed to file a motion to suppress or bar the victim’s identification. Accordingly, this noncompliance was inconsequential.
Holding
We hold that the totality of the circumstances and Biggers factors favor the State and support the trial court’s finding that the victim’s identification was reliable. Viewed in the light most favorable to the State, the victim’s testimony was sufficient to support respondent’s delinquency adjudication beyond a reasonable doubt. She was “certain” respondent was the man who robbed her at gun point and took her purse and cell phone, and “had no problem at all” picking respondent out of the photo array or identifying him in court.
Despite respondent’s arguments to the contrary, the basic legal principle that a single eyewitness identification of the accused under circumstances permitting a positive identification is sufficient to convict remains fully intact. In re M.W., 232 Ill. 2d 408, 435 (2009). We have one such identification here.
Samuel Partida, Jr. is now prosecuting criminal law cases in an Illinois county near you. He is, therefore, unavailable to answer questions on this site. Always remember, there is no substitute for steady, persistent attention to the cases.