People v. Tisdel , 201 Ill. 2d 210 ( 2002 )

JUSTICE THOMAS

delivered the opinion of the court:

Following a jury trial, defendant, Melvin Tisdel, was convicted of the first degree murder of Julio Lagunas. Defendant was sentenced to 35 years’ imprisonment. The appellate court reversed defendant’s conviction on the ground that the trial court should not have allowed the State’s witnesses to testify concerning a nonidentification lineup. 316 Ill. App. 3d 1143. The appellate court concluded that the error was not harmless, because the evidence was closely balanced and it was possible that the jury would have reached a different verdict had the nonidentification testimony been excluded. This court thereafter granted the State’s petition for leave to appeal. 177 Ill. 2d R. 315.

BACKGROUND

Defendant’s conviction was based upon the drive-by shooting of Julio Lagunas on September 3, 1995. The facts detailing the crime and the investigation leading to defendant’s arrest are set out in the appellate court’s opinion (316 Ill. App. 3d 1143), and will be recited here only as necessary to an understanding of the issue before this court.

On September 3, 1995, around 5:50 p.m., 18-year-old Julio Lagunas was shot to death as he stood on the corner of Clark Street and Jarvis Avenue in Chicago. Lagunas was shot by the passenger in a passing black IROC Chevrolet Camaro. Although the driver of the Camaro was identified and arrested shortly after the shooting, defendant was not identified until almost one year later, in lineups conducted on August 16, 1996, and September 12, 1997. Ultimately there were four eyewitnesses that identified defendant as the shooter. Those eyewitnesses included Gerardo Quiroz (Gerardo), Osvaldo Quiroz (Osvaldo), Francisco Curonel (Francisco) and Jose Ramos (Jose).

Gerardo testified at trial that on September 3, 1995, he, Osvaldo and Jose were standing on the sidewalk outside the Clark Mall in Chicago when he saw a black IROC Camaro with tinted windows, chrome wheels and two tailpipes pull into the entrance to the mall parking lot. The two men inside the car tried to talk to some girls going into the mall, then drove toward the back of the mall parking lot, turned right, and came through the middle of the lot. The Camaro then stopped on the sidewalk before turning left onto Clark Street. The passenger side of the car was facing Gerardo and the others, and the window was down. At that point, the passenger pulled out a gun and pointed it at Gerardo, Osvaldo and Jose. The car then drove north onto Clark Street.

As the car drove along Clark Street, Gerardo saw Francisco across the street from the Clark Mall, in Touhy Park. Gerardo saw the passenger take out his gun and point it at Francisco. Francisco tried to hit the car with something, then ducked. The car kept driving north on Clark Street, then stopped as Julio Lagunas and Ulysses Renteria were trying to cross Clark Street at the intersection of Jarvis and Rogers Avenue. Gerardo again saw a hand holding a gun sticking out of the passenger side window pointing at Julio and Ulysses. Gerardo heard a gunshot as the car sped up and “took off.” Gerardo ran toward Julio, who was lying on the ground bleeding. Osvaldo went home before the police arrived.

Gerardo described the passenger to the police as a skinny 23-year-old black male with a light complexion and braided hair with beads on the ends. The police took Gerardo, Jose, Francisco and Ulysses (who was deceased at the time of trial) to the police station. At the station, Gerardo recognized the black Camaro involved in the shooting. Gerardo also looked at a lineup that day but did not identify anyone. Approximately one week later, Gerardo told the officers that his brother Osvaldo also had witnessed the shooting. Almost one year later, on August 16, 1996, Gerardo, Osvaldo and Francisco separately viewed a lineup at the police station. Gerardo identified defendant in the lineup as the passenger in the Camaro. Gerardo identified defendant in court as the person he recognized as the shooter in the August 16, 1996, lineup. A photo of the August 16, 1996, lineup reveals that defendant had a braided hairstyle at the time of the lineup.

Osvaldo’s testimony concerning the events leading to the shooting was similar to Gerardo’s testimony. Osvaldo described the passenger as a dark male who had long braided hair with black, white and blue beads at the ends. Osvaldo testified that he did not talk to the police on the day of the shooting because his mother came to the scene and told him to go home because he was too young to get involved. The next day, Osvaldo and his mother were walking on Ashland Avenue in Chicago when Osvaldo saw a green Nissan Maxima drive past. Osvaldo recognized defendant as a passenger in the Maxima. Defendant stared at Osvaldo for awhile and Osvaldo stared back.

On September 12, 1995, Osvaldo spoke with police officers for the first time. On that date, Osvaldo viewed five photographs at the police station and identified the driver of the car in one of the photographs. Osvaldo told the officers he was pretty certain the person in the picture was the driver, but said he would have to see him in person. On September 21, 1995, Osvaldo went back to the police station to view a lineup. Osvaldo identified the driver of the car in the lineup. Although another individual in the lineup had his hair in braids, Osvaldo did not identify him as the shooter. On August 16, 1996, Osvaldo viewed a lineup and identified defendant as the shooter. Osvaldo also identified defendant in court as the shooter.

Francisco also testified at trial that he saw the car turn into the Clark Mall, then later pull out from the middle of the parking lot and turn north on Clark Street. Francisco heard someone yell “watch out with the car, they’ve got a gun.” The passenger in the car threw his arm out and pointed a gun at Francisco. Francisco then threw a bag at the car then fell to the ground. Francisco started running toward Julio and Ulysses. The car slowed down when the occupants saw Julio and Ulysses. The passenger put his arm out the window with the gun in his hand. Francisco heard a shot and the car sped off. When Francisco reached Julio, Julio was lying on the ground bleeding.

That same day, Francisco went to the police station and identified a car as the Camaro involved in the shooting. Francisco also viewed a lineup around 1 a.m. and identified the driver of the car. Francisco described the passenger as a black male, 25 to 28 years old, with a skinny face and braided hair close to his head. On August 16, 1996, Francisco viewed another lineup and identified defendant as the shooter. Francisco identified defendant in court as the person he picked out of the lineup as the shooter.

Jose testified that he was on a pay phone in front of the Clark Mall with Gerardo and Osvaldo standing nearby when a black IROC Camaro stopped in front of him on the sidewalk. The windows of the Camaro were down, so that Jose could see two males in the car. The passenger was smoking marijuana and there was a gun on the seat between the driver and passenger. The passenger grabbed the gun and put it between his legs. Jose identified defendant in court as the passenger. The car went around the mall parking lot, then came out the middle. Before the car turned left onto Clark Street, the passenger pointed a gun at Jose, Gerardo and Osvaldo. Jose described the passenger as 21 to 25 years old, dark skinned, with braids.

Jose’s description of the events leading to the shooting paralleled that of Gerardo, Osvaldo and Francisco. Jose also went to the police station immediately after the shooting and identified the Camaro used in the shooting. Jose viewed a lineup that night, but did not identify anyone in the lineup. Jose viewed a second lineup on September 12, 1997, approximately one month prior to trial. Jose identified defendant in the lineup as the shooter. A photo of this lineup reveals that defendant had a different hairstyle at this lineup, with his hair short and not braided. On cross-examination, Jose testified that he did not see any beads in the shooter’s hair on September 3, 1995.

As noted, following his conviction for first degree murder, defendant appealed his conviction to the appellate court claiming, inter alia, that he was deprived of a fair trial when the State’s witnesses testified that they had viewed lineups containing persons other than defendant and had made no identification. Defendant claimed that the State was attempting to bolster its case with the nonidentification testimony. Defendant conceded that he had not objected to the testimony at trial or in his post-trial motion, but asked the court to apply the plain error rule.

The appellate court agreed that the issue should be considered under the plain error rule. 316 Ill. App. 3d at 1154. Citing this court’s opinion in People v. Hayes, 139 Ill. 2d 89 (1990), the appellate court noted that a witness’ identification of a defendant may not be bolstered by introducing evidence that the witness failed to identify anyone else during pretrial identification procedures. 316 Ill. App. 3d at 1154. The appellate court held that the nonidentification testimony should not have been allowed because it was presented simply to corroborate the witnesses’ subsequent identification of defendant. 316 Ill. App. 3d at 1154. The appellate court also held that because it was possible that the jury might have returned a different verdict had the nonidentification testimony been excluded, the error in admitting the testimony required reversal of defendant’s conviction. 316 Ill. App. 3d at 1154-55. One justice wrote a special concurrence to express his “strong disagreement” with this court’s position that nonidentification testimony is inadmissible. 316 Ill. App. 3d at 1158-59 (Quinn, EJ., specially concurring). This court thereafter granted the State’s petition for leave to appeal that decision. 177 Ill. 2d R. 315.

ANALYSIS

In People v. Hayes, 139 Ill. 2d 89, 138 (1990), this court found error in the admission of witness testimony stating that the witnesses had viewed pictures of persons other than defendant and had made no identification. This court held that the testimony violated the general rule that a witness may not testify in court as to statements made out of court for the purpose of corroborating his trial testimony concerning the same subject. Hayes, 139 Ill. 2d at 138. '

We recognized, however, that there were two exceptions to the general rule. Hayes, 139 Ill. 2d at 138. One exception is where a prior consistent statement is introduced to rebut a charge or an inference that the witness is motivated to testify falsely or that his in-court testimony is of recent fabrication. Hayes, 139 Ill. 2d at 138. That exception did not apply in Hayes because the defendant had not expressly or impliedly charged that the State’s witnesses were motivated to falsely identify him, but instead simply attempted to show that the witnesses may have been mistaken in their identification of him. Hayes, 139 Ill. 2d at 138.

The second exception to the general rule is where the out-of-court statement is one of identification. Hayes, 139 Ill. 2d at 138. That exception did not apply because the witnesses’ out-of-court statements were not statements of identification. Hayes, 139 Ill. 2d at 138. Rather, the statements were that the witnesses did not identify the defendant from police photo books and photo arrays. Hayes, 139 Ill. 2d at 138. In fact, the State introduced the out-of-court statements to bolster the reliability of the witnesses’ subsequent lineup and in-court identifications of the defendant. Hayes, 139 Ill. 2d at 138-39. This court concluded that such evidence was improperly introduced, although the evidence was not so prejudicial as to deprive defendant of a fair trial. Hayes, 139 Ill. 2d at 139.

In this case, the State asks this court to depart from the precedent set forth in Hayes. The State argues that negative identification testimony is both relevant and admissible. The State observes that in Hayes, this court was not presented with evidence that a witness had viewed photographs or multiple lineups containing individuals similar in appearance to the defendant. Thus, the court did not consider that a witness’ failure to identify individuals similar to the defendant demonstrates the witness’ reliability and also refutes the possibility that the prior pretrial identification was based upon the suggestiveness of the identification procedure.

Defendant responds that Hayes is controlling authority concerning the use of pretrial nonidentification evidence. Defendant further contends that neither of the exceptions to the prior consistent statement rule apply, because there was no charge that the witnesses in this case were fabricating their testimony, nor were the statements of the witnesses statements of identification. Defendant therefore maintains that this court must affirm the decision of the appellate court.

Upon review, we find this court’s determination in Hayes concerning nonidentification testimony to be flawed. The Hayes court acknowledged that there was an exception to the general rule where an out-of-court statement is one of identification. Hayes, 139 Ill. 2d at 138. The court then held that the nonidentification testimony was not admissible under this exception because the statements were not statements of identification. Hayes, 139 Ill. 2d at 138. We believe the Hayes court construed the term “statements of identification” too narrowly.

At the outset we note that nonidentification evidence is inherent in most “statements of identification.” As Justice Quinn observed in his special concurrence to the appellate court opinion in this case, when identifying a defendant from a lineup or photo array, a witness necessarily does not identify the remaining individuals in the lineup or photo array. See 316 Ill. App. 3d at 1163 (Quinn, EJ., specially concurring). This type of nonidentification is crucial to the accuracy of the witness’ identification because, in the typical case, a witness is shown a group of similar looking individuals and asked to pick out only the one who committed the crime. Consequently, the fact that the witness did not pick the other individuals in the lineup becomes as important as the fact that the witness did pick the defendant. Given the crucial role that non-identification plays with regard to a lineup or photo array where a defendant is positively identified, it follows that the same considerations apply with regard to those lineups or photo arrays where a defendant is not identified. Indeed, it is logical to presume that the more lineups and photo arrays a witness views, the more likely that witness’ identification is reliable and is not based upon suggestiveness.

With the foregoing in mind, we find that the Hayes court erred in limiting “statements of identification” to a witness’ actual identification of a defendant. This interpretation mistakenly focuses on the result rather than the process. As a consequence, a trier of fact may be deprived of information necessary to an informed decision concerning a witness’ reliability. In contrast, construing “statements of identification” to include the entire identification process would ensure that a trier of fact is fully informed concerning the reliability of a witness’ identification, as well as the suggestiveness or lack thereof in that identification.

Justice Quinn, in his special concurrence, pointed out this potential problem with limiting “statements of identification” to only positive identifications. Justice Quinn noted that the court’s holding would:

“require the State on retrial to confine its evidence on the subject of identification of the defendant to the date of the first identification — one year (or two) after the shooting. What is the jury to make of this delay? The defense will attack the investigation and the State will be precluded from explaining what investigatory steps were taken from the time of the shooting to the first lineup identification.” 316 Ill. App. 3d at 1162 (Quinn, EJ., specially concurring).

That the entire identification process includes both identification and nonidentification evidence has been given tacit approval by the United States Supreme Court. In Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), the Court held that although a showup procedure was unnecessarily suggestive, there was no substantial likelihood of misidentification requiring evidence of the identification to be excluded. The Court noted various factors weighing in favor of the admission of the identification. Among those factors was that the victim had looked at numerous photographs, lineups and showups in the seven-month time period between the crime and her identification of the defendant as the perpetrator. Biggers, 409 U.S. at 201, 34 L. Ed. 2d at 412, 93 S. Ct. at 383. Specifically, the Court stated that:

“There was, to be sure, a lapse of seven months between the rape and the confrontation. This would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings. Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup.” (Emphasis added.) Biggers, 409 U.S. at 201, 34 L. Ed. 2d at 412, 93 S. Ct. at 383.

Obviously, the admissibility of nonidentification evidence is limited by considerations of relevance. If non-identification evidence is not relevant, it should be excluded from evidence. For example, evidence that a witness viewed a lineup containing red-haired, blue-eyed men would not be relevant or admissible if the witness described the perpetrator as a blond-haired, brown-eyed man. However, evidence that a witness viewed a lineup containing individuals similar in appearance to the defendant but did not identify anyone would be relevant to the identification process. ,

In this case, the trial court properly allowed the witnesses to testify concerning the nonidentification lineups. As in Biggers, there was a significant lapse of time between the shooting of Julio and the witnesses’ identification of defendant. Consequently, the fact that some of the witnesses had viewed prior lineups and did not identify anyone was relevant in demonstrating the reliability of the subsequent identifications. This is especially trae with regard to the lineup viewed by Osvaldo, which contained not only the driver of the Camaro, but also an individual similar in appearance to defendant, including defendant’s distinctive hairstyle — braids or cornrows.

We further note that the gravamen of the defense was that the witnesses were mistaken in their identification of defendant as the shooter. Defense counsel extensively cross-examined the witnesses concerning their ability to observe the shooter, their level of attention to the occupants in the Camaro, and the almost one-year length of time between the shooting and the lineup identification of defendant. Under the circumstances, the process leading to the lineup identification, including nonidentification lineups, was relevant to the witnesses’ ultimate identification of defendant as the shooter.

Because we find that this court in Hayes erred in finding that nonidentification evidence was not admissible under the “statement of identification” exception to the general rule, and therefore depart from that holding, it follows that the appellate court in this case erred in reversing defendant’s conviction based upon our holding in Hayes. We therefore reverse the decision of the appellate court and affirm defendant’s conviction and sentence.

For the foregoing reasons, the judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court judgment reversed; circuit court judgment affirmed.