People v. Macklin, 2019 IL App (1st) 161165 (March). Episode 604 (Duration 9:02)

Was defense counsel ineffective for not calling an eyewitness expert witness?

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Issue

Macklin argues that his trial counsel rendered ineffective assistance by not presenting an expert witness to support his defense that the eyewitness identifications were unreliable.

Charges

Macklin was charged with six counts of attempt first degree murder, five counts of armed robbery, one count of aggravated battery, one count of armed habitual criminal, two counts of aggravated discharge of a firearm, and four counts of aggravated unlawful restraint, all arising out of an incident involving two victims.

Facts

All three men wore dark sweatshirts and baseball caps with the hoods pulled up over the caps. Their faces were not covered. The man in the middle of the three men, later identified as Macklin, was taller than the others, and the victims were able to see his face.

When he was about 12 feet away, defendant pulled out a gun and said, “your money or you die” and fired a single shot toward them. The gunshot struck one of the victim’s in the right hand and he fell to the ground facedown. The other two men took over $150 in cash and identification cards from their pockets, as Macklin pointed the gun at them.

They also took the other victim’s wallet.

The three men fled on foot.

Injuries

The victim’s right hand was bleeding from a through and through gunshot wound.

He recovered but loss feeling in one of his fingers.

The Lineup

Defendant got arrested on another matter.

The victims separately viewed the lineup and both identified defendant as the person who had robbed them and shot him. Macklin sat in a different position in each lineup.

One victim was “70 percent sure” of his identification. The second victim then viewed the lineup, and identified Macklin. This witness was “100 percent sure” of his identification. The witnessess did not talk. The victim said he recognized Macklin from the incident. While only Macklin wore braids in the lineup, that did not affect the identification because it was based on “[h]is eyes and mouth,” which the victim recognized.

Convicted

Macklin elected not to testify and did not present any evidence.

Following closing arguments, the court found Macklin guilty of all charges but attempted first degree murder. Since it was undisputed that a man had been shot, the court found that the only issue was the reliability of the victims’ identification of Macklin. The court found the victim’s credible, consistent, and unimpeached.

The court stated that while there was evidence that one victim had been only 70% certain in his identification, the other victim was “100 percent sure. He never wavered.” In other words, they “were both sure of one thing, that [Macklin] was the guy that shot” Garcia.

The court sentenced Macklin to 40 years’ imprisonment for the armed robbery involving the personal discharge of a firearm proximately causing great bodily harm. The convictions on all other counts merged into the armed robbery conviction.

Unreliable Eyewitness Identification

Context is critical when referencing authorities referring to the identification of strangers as “ ‘proverbially untrustworthy.’ ” United States v. Wade, 388 U.S. 218, 228 (1967) (quoting Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen 30 (1927)). Many courts questioning the reliability of eyewitness identifications have done so in cases where the identifications were made under suggestive conditions.

For example, State v. Lawson, 291 P.3d 673 (Or. 2012), and State v. Henderson, 27 A.3d 872 (N.J. 2011) are not wholesale indictments of the reliability of eyewitness identifications. Rather, both Lawson and Henderson dealt with suggestive identification and lineup procedures and the effect such suggestiveness has on a witness’s identification of the defendant.

See Lawson, 291 P.3d at 679- 80 (victim was unable to pick defendant out of photo array at hospital shortly after she was shot and again one month later, but despite her lack of recollection of the hospital interview, five weeks after the incident she believed defendant was the assailant; victim later shown newspaper reports of the crime with photographs of the defendant as well as other photographs of the defendant and was taken to court before trial so she could observe him in person).

See also Henderson, 27 A.3d at 879-81 (when interviewed by police immediately after murder, eyewitness told police a false story and later changed his story when confronted by police; in viewing photo array, witness did not initially pick out defendant’s photograph, claiming to be unsure, but when shown the photo array again after police told him not to be afraid and that they would take care of him, selected defendant’s photo).

This Lineup

Here, Defendant’s lineup was not suggestive, and he does not pursue his contention on appeal that it was.

Leaving aside whether a Spanish-speaking officer translated the advisory form for one of the victims or whether that officer should have been present in the room when the victim viewed the lineup, the record does not reveal that suggestive procedures contributed to this identification.

And there is absolutely no basis to contend that there was anything suggestive about the other victim’s identification. As recognized in Lawson, “the scientific research is ‘probabilistic’—meaning that it cannot demonstrate that any specific witness is right or wrong, reliable or unreliable, in his or her identification.” 291 P.3d at 685.

Single Witness Rule Still Applies

While we respect our dissenting colleague’s views, we do not share his approach to evaluating the eyewitness testimony in this case. It is well-settled that a valid conviction may be based on a positive identification by a single eyewitness who had ample opportunity to observe. In re M.W., 232 Ill. 2d 408, 435 (2009).

The Biggers Factors

A trier of fact assesses the reliability of identification testimony in light of all the facts and circumstances including

(1) the witness’s opportunity to view the offender at the time of the offense
(2) the witness’s degree of attention at the time of the offense
(3) the accuracy of any previous description of the offender by the witness
(4) the degree of certainty shown by the witness in identifying the defendant and
(5) the length of time between the offense and the identification.

These are often referred to as the Biggers factors. Joiner, 2018 IL App (1st) 150343, ¶ 47 (citing Neil v. Biggers, 409 U.S. 188 (1972)). No single Biggers factor by itself conclusively establishes the reliability of identification testimony; instead, the trier of fact must consider all the factors.

The Witnesses Were Consistent

The testimony of both Gomez and Garcia was largely consistent.

Although Macklin points to certain discrepancies between their accounts of the robbery (one victime testified that the two other men took his money and identification, while the other victim said Macklin did; he estimated that he was able to see Macklin for “three to five minutes” while the man who was shot estimated he saw him for “three seconds” and while he was facedown on the ground), both consistently testified that the area was well lit, they were able to see Macklin, whose face was not covered, as he approached them, and that Macklin shot the victim in the hand from about 12 feet away.

A witness’ positive identification can be sufficient even though the witness gives only a general description based on the total impression the accused’s appearance made.” People v. Slim, 127 Ill. 2d 302, 308-09 (1989); see also Lawson, 291 P.3d at 687-88 (recognizing, based on eyewitness identification research, that “[c]ontrary to a common misconception, there is little correlation between a witness’s ability to describe a person and the witness’s ability to later identify that person”).

Remarkable Coincidence

Indeed, if all they “really” saw was three men in dark hoodies and baseball caps, it is a remarkable coincidence that they both separately picked Macklin out of lineups in which he sat in different positions.

The lineups were promptly conducted 10 days after the robbery.

100% Certainty Is Not Possible

The dissent dismisses the shot victim’s certainty in his identification of Macklin as this factor has been “roundly criticized,” citing another opinion this writer authored. Infra ¶ 77; see People v. Starks, 2014 IL App (1st) 121169, ¶ 72.

But, of course, context is everything.

Starks involved a jury trial and a defendant’s claim that the trial court erroneously refused to permit him to present expert testimony on the issue of the reliability of eyewitness identification. Given the developing body of law regarding the fallibility of eyewitness testimony and the recognition that, in appropriate cases, expert testimony may assist a jury in evaluating such testimony, we found that the trial court abused its discretion in dismissing out of hand defendant’s proffered eyewitness expert.

We neither directed the trial court to admit expert testimony nor did we reject a witness’s expression of certainty as an appropriate factor in the reliability analysis. The cited comments in Starks have no application here in a case involving a bench trial and where no expert witness testimony was proffered.

Moreover, the dissent conflates an eyewitness’s degree of certainty at the time of initial identification with certainty at the time of trial, disregarding any distinction. Here, Macklin’s trial took place four years after the robbery, so it stands to reason that the victims’ in-court identification of Macklin at trial is correspondingly less relevant.

Accordingly, there is no basis to dismiss out of hand the witness’s 100% certainty in identifying Macklin.

See id. at 13 (noting that most wrongfully convicted defendants exonerated by DNA who were misidentified by an eyewitness were, at the outset of the investigation, identified with low confidence (citing Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011))).

Lerma Shermerma

Sure there were minor discrepancies in the testimony but they were merely collateral and not fatal to the reliability of their identifications of Macklin. We acknowledge studies and decisions cited by Macklin that have called into question the reliability of eyewitness identifications. See, e.g., People v. Lerma, 2016 IL 118496, ¶ 24. That said, each case must be judged on its own facts, and nothing in this case compels us to reject the identifications that formed the basis of Macklin’s conviction.

We note first that Lerma had not been decided at the time of Macklin’s trial; it was decided shortly after the trial concluded.

No Expert Called In This Case

The Lerma court acknowledged that expert witnesses on the reliability of eyewitness testimony were being routinely excluded at the time, at least partly due to skepticism expressed by the supreme court and repudiated in Lerma itself. Id. ¶ 24 (citing People v. Enis, 139 Ill. 2d 264, 286-87, 289 (1990)).

Lerma recognized “the dramatic shift in the legal landscape concerning the use of identification expert testimony.” (Emphasis added.) People v. Ortiz, 2017 IL App (1st) 142559, ¶ 42. Representation based on the law prevailing at the time of trial is adequate, and counsel is not incompetent for failing to correctly predict that the law will change. People v. English, 2013 IL 112890, ¶ 34.

The finding that “research concerning eyewitness identification*** is well settled, well supported, and in appropriate cases a perfectly proper subject for expert testimony” (Lerma, 2016 IL 118496, ¶ 24) does not, standing alone, support the conclusion that trial counsel here was per se ineffective for not presenting such expert testimony or that expert testimony is required in every case.

Trial Strategy Not To Call The Witness

For example, counsel is entitled to consider as a matter of trial strategy that the designation of an eyewitness expert by the defense will likely be met with a counterdesignation by the State, which would highlight and bolster the accuracy of the eyewitness identification.

In any event, the argument that trial counsel failed to conduct meaningful adversarial testing of the State’s case is refuted by counsel’s pretrial motion to suppress identification testimony and extensive cross-examination and argument at trial.

Finally, Lerma involved a jury trial while Macklin elected a bench trial.

As the Lerma court stated, “expert testimony is only necessary when the subject is both particularly within the witness’s experience and qualifications and beyond that of the average juror’s, and when it will aid the jury in reaching its conclusion.” (Emphases added.) Id. ¶ 23.

Accordingly, the judgment of the circuit court is affirmed.

Strong Dissent

See the dissent which said the majority looks to the lineup and trial identifications and assures itself that any infirmities in those identifications have been ameliorated.

I look to the fleeting nature of the offense coupled with the inherent distraction caused by being shot and witnessing a relative being shot and find no assurances about the reliability of the identifications. I remain faithful, as I must, to the standard of review and reach a different conclusion—that Macklin’s conviction, based exclusively on problematic eyewitness testimony, is unreasonable.

The victims had a few seconds to view the men who robbed them.

In that instant, one of the men pulled a gun and shot one of them. At the end of it all, the only description they could give police was of three black men wearing black hoodies and baseball caps. Given this cursory and generic description, the fleeting nature of the offense, and the inherent distraction caused by the firing of a weapon, one might ask: How then can we rely solely on the victim’s assurance that they were certain, by the time of trial, of Macklin as the shooter?

I am unwilling to place substantial reliance on inherently malleable testimony. See People v. Fountain, 2016 IL App (1st) 131474, ¶ 159 (Hyman, J., dissenting).

Whenever I am called on to review the issue of reasonable doubt, I take heed of the cautionary words of U.S. Supreme Court Justice John Marshall Harlan, II:

“I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).

This case presents just the sort of situation that Harlan’s admonition evokes. We need a continued conversation, from the bench and elsewhere, to explore the utility of the Biggers factors as our understanding about eyewitness identifications continues to evolve. But, I must emphasize again that my disagreement with the majority is primarily connected to the facts here, not academic disagreements about Biggers.

A reviewing court may use common sense and engage in a searching evaluation of the record. Cunningham, 212 Ill. 2d at 280. The two witnesses viewed their attackers for mere seconds: traumatic and tense seconds. One of the offenders pulled a gun and shot one of the victims.

Immediately after the offense, the only description the two victims could offer was of three men in black hoodies and baseball caps. Ten days later, relying on fleeting glimpses of the offenders, the victims identified Macklin in a lineup muddled by cross language confusion.

The court must consider all of the Biggers factors together along with the surrounding circumstances. Simmons, 2016 IL App (1st) 131300, ¶ 89.