In re N.A. ( 2019 )

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Appellate Court Date: 2019.06.03
13:42:15 -05'00'
In re N.A., 2018 IL App (1st) 181332Appellate Court In re N.A., a Minor (The People of the State of Illinois, Petitioner-
Caption Appellee, v. N.A., Respondent-Appellant).
District & No. First District, First Division
Docket No. 1-18-1332
Filed December 24, 2018
Rehearing denied January 28, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 18-JD-00049; the
Review Hon. Stuart F. Lubin, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Jonathan Pilsner, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Veronica Calderon Malavia, and Kathryn A. Schierl, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
Justices Pierce and Walker concurred in the judgment and opinion.
OPINION
¶1 Respondent N.A. was adjudicated delinquent of armed robbery (720 ILCS 5/18-2(a)(2)
(West 2016)) and sentenced to three years’ probation. On appeal, he challenges the
sufficiency of the robbery victim’s eyewitness identification testimony and the effectiveness
of his trial counsel. We affirm.
¶2 BACKGROUND
¶3 On December 9, 2017, at around 8:10 p.m., victim Cynthia Lett backed her car into her
garage. Her nine-year-old daughter, A.Y., 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.
¶4 On January 8, 2018, Chicago police detective Spiro Kaldis 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 gunpoint on the night of December 9, 2017. She did not identify anyone in the second
photo array.
¶5 Two days later, on January 10, 2018, the State filed a petition for adjudication of
wardship against respondent. He was 17 years old when the alleged offense was committed.
The petition charged him with one count of armed robbery (id.), one count of aggravated
robbery (id. § 18-1(b)(1)), one count of robbery (id. § 18-1(a)), and one count of theft (id.
§ 16-1(a)(3)). Respondent did not file a motion to suppress the identification, and his case
proceeded to trial.
¶6 The State called two witnesses at trial. The first witness, victim Cynthia Lett, testified
that she and her daughter attended a birthday party on December 9, 2017, and returned home
around 8:10 p.m. She backed her car into the detached garage behind her house, and as she
opened the driver side door to get out, two men walked into the garage. They took positions
on either side of the car.
¶7 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.”
The victim testified that 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 [her] face.”
¶8 He was African-American and wore a “nondescript,” “dark colored sweatshirt” with the
hood on, but she could see his face and “short hair.” After he demanded “give me
everything” and “don’t move,” the victim surrendered her purse and cell phone. The two men
left. The victim called the police.
¶9 Police arrived at the victim’s house, and she gave them a description of the two men. She
described them as very “nondescript” because of the dark clothing, they appeared to be 20
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years old, and she guessed that their heights were between 5 feet, 10 and 11 inches. A month
later, she met with Detective Kaldis at her house.
¶ 10 The victim testified that, on January 8, 2018, Detective Kaldis showed her two sets of
photographs. 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 on the night of December 8, 2017. She did not identify anyone from the
second set.
¶ 11 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
recross-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.”
¶ 12 The State called Detective Kaldis as its second witness. He testified that he went to the
victim’s house on January 8, 2018, to show her two photo arrays he had prepared. He was an
independent administrator, meaning that he had “no knowledge of the case or who the
suspect may be in the photo array.” The first photo array he showed the victim contained a
photograph of respondent. The victim identified respondent in the first photo array, circled
his photograph, and initialed it. She had no difficulty identifying respondent but could not
identify the other offender from the second photo array.
¶ 13 On cross-examination, Detective Kaldis testified that he did not video or audio record the
victim during the identification procedure. He was not equipped with a body camera when he
went to her house. Detective Kaldis testified that, if the victim consented to a video
recording, he would have taken her to the police station, as he did not have the means record
the victim at her home. The State rested its case.
¶ 14 Respondent called only one witness: arresting officer Sean Markham. Officer Markham
testified that he arrested respondent and, during the process, learned that he was born in
Ghana. When asked whether respondent spoke with an accent, Officer Markham testified,
“he could have an accent, yeah,” “[if] he spoke right now, I could probably hear an accent.”
The defense rested its case.
¶ 15 The record indicates that the victim’s daughter, A.Y., who sat on the passenger side of
the car during the robbery, was shown two photo arrays on the same day her mother
identified respondent. The lineup advisory form signed by A.Y. indicated that she did not
make a positive identification of the armed robber but instead stated that four individuals
looked like or may have been the offender who approached her mother. Respondent’s
counsel did not present A.Y. as a witness or elicit any testimony regarding her
nonidentification at trial.
¶ 16 The trial court found that “based on the victim’s adequate opportunity to observe
[respondent] at the time of the robbery” the State had proven the armed robbery (id.
§ 18-2(a)(2)) beyond a reasonable doubt. The trial court merged the remaining counts,
entered a finding of best interest in wardship, and sentenced respondent to three years’
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probation. He appeals his delinquency adjudication.
¶ 17 ANALYSIS
¶ 18 The issues on appeal are (1) whether the victim’s eyewitness identification testimony was
sufficient to sustain respondent’s delinquency adjudication beyond a reasonable doubt and
(2) whether respondent’s trial counsel was ineffective.
¶ 19 The sum total of the State’s evidence in this case was the victim’s eyewitness
identification. Respondent challenges that identification as unreliable and insufficient to
support his delinquency adjudication beyond a reasonable doubt. In the alternative, he asks
us to grant him a new trial because his counsel’s failure to elicit any testimony about A.Y.’s
nonidentification was objectively unreasonable and prejudicial. We address each argument in
turn.
¶ 20 The reasonable doubt standard applies to delinquency proceedings. In re J.J., 2016 IL
App (1st) 160379, ¶ 20. Therefore, we review the sufficiency of the evidence presented at
respondent’s trial in the light most favorable to the State and answer the question of whether
any rational trier of fact could have found the identity of the perpetrator and the essential
elements of armed robbery beyond a reasonable doubt. In re Christian W., 2017 IL App (1st)
162897, ¶ 24; 720 ILCS 5/18-1, 18-2(a)(2) (West 2016) (a person commits armed robbery
when he knowingly takes property from the person or presence of another by the use of force
or by threatening the imminent use of force and carries on or about his person or is otherwise
armed with a firearm during the robbery).
¶ 21 It is not our function to retry respondent or substitute our judgment for that of the trial
court on questions of witness credibility, the appropriate weight to give the testimony,
reasonable inferences to be drawn from the evidence, or evidentiary inconsistencies. People
v. Wheeler, 226 Ill. 2d 92, 114 (2007); People v. Jackson, 2017 IL App (1st) 142879, ¶ 23;
People v. Ross, 229 Ill. 2d 255, 272 (2008). The trial court’s findings are, however, not
conclusive, and respondent’s delinquency adjudication will not stand if the evidence is so
unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of his guilt.
People v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009).
¶ 22 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. Id. 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, 199-200 (1972).
¶ 23 Respondent argues that the victim’s identification is 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
section 107A-2 of the Criminal Code of 1963 (Lineup Statute) (725 ILCS 5/107A-2 (West
2016)), which governs the procedure by which lineups are conducted. Circling back to his
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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 Detective Kaldis’s noncompliance with the
Lineup Statute further undercuts the reliability of an already unreliable eyewitness
identification.
¶ 24 We start with the Biggers factors, as our precedent clearly requires. See Slim, 127 Ill. 2d
at 307. 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.”
¶ 25 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. See People v. Johnson, 2018 IL App (1st)
150209, ¶ 18 (the trier of fact is best equipped to judge the credibility of witnesses). The trial
court’s determination as to the first Biggers factor stands.
¶ 26 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 redirect 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. See In re
Ronald J., 2017 IL App (4th) 160855, ¶ 22 (delinquency proceedings are not exempt from
the forfeiture doctrine, and an issue not raised in the trial court is deemed forfeited on
appeal). Accordingly, respondent’s arguments based upon those articles are forfeited.
¶ 27 The victim’s prior description of respondent does not undercut the trial court’s finding.
The victim testified at trial that she described respondent to police as a nondescript,
20-year-old who stood between 5 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.
¶ 28 The victim was not required to describe the physical characteristics of the offender to
police with pinpoint accuracy. Slim, 127 Ill. 2d at 308-09 (a witness may give a general
description based on his or her total impression of the suspect’s appearance and is not
expected, or required, to distinguish individual and separate features of the suspect in making
an identification). 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.
¶ 29 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. See id.
at 308 (“[v]ariances between a witness’ trial testimony and pretrial statements raise questions
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of credibility which the trier of fact must assess in making a determination of guilt”). We
defer to the trial court’s decision.
¶ 30 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.” Detective Kaldis testified that the victim had no
problem making the identification. Respondent argues that an eyewitness’s 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. In re
Ronald J., 2017 IL App (4th) 160855, ¶ 22. The argument is forfeited.
¶ 31 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.
¶ 32 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, ¶ 24, and accurately quotes the case to show that the court’s view of expert
testimony on the reliability of eyewitness identifications has changed (“we not only have
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, which held that the trial court erred when it denied the respondent’s request
to present expert testimony on the reliability of eyewitness identifications where the State’s
case hinged on the identification testimony of two eyewitnesses, 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.
¶ 33 Respondent argues that Detective Kaldis violated 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. See 725 ILCS 5/107A-2 (West
2016); see also id. § 107A-0.1 (the term lineup includes a photo array). A video record of all
lineup procedures must be made unless it is not practical or the eyewitness refuses. Id.
§ 107A-2(h). If making a video record is not practical or the eyewitness refuses, an audio
record shall be made, if practical. Id. § 107A-2(h)(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. Id. § 107A-2(j).
¶ 34 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. See 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.
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¶ 35 Detective Kaldis testified that he did not audio or video record the identification
procedure or bring any recording devices to the victim’s house. The only testimony related to
the practicability of recording the identification procedure was Detective Kaldis’s statement
that “if [the victim] wanted to record it, we would have went to Belmont and Western and
done it in the ERI room.” Given technological advancements, the portability of recording
devices, and law enforcement’s use of body cameras, we see no reason why Detective Kaldis
could not have made an audio record as the Lineup Statute requires. But the violation had no
effect on the reliability of the victim’s identification.
¶ 36 Respondent was not tried before a jury, and he failed to file a motion to suppress or bar
the victim’s identification. Accordingly, Detective Kaldis’s noncompliance was
inconsequential. Nevertheless, the trial court was fully informed of the fact that an audio
recording was not made. We presume the trial court considered this fact when it assessed the
credibility of the victim and Detective Kaldis and adjudicated respondent delinquent of
armed robbery (720 ILCS 5/18-2(a)(2) (West 2016)). See People v. Howery, 178 Ill. 2d 1, 32
(1997) (trial court is presumed to know the law and apply it properly when the record
contains no strong affirmative evidence to the contrary).
¶ 37 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. The victim had an
unobstructed view of respondent’s face and his gun from a distance of two feet for a period
of five to seven minutes. She was “certain” respondent was the man who robbed her at
gunpoint and took her purse and cell phone, and she “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.
¶ 38 Respondent’s remaining argument is that his counsel was ineffective. He argues that his
counsel’s failure to elicit any testimony regarding A.Y.’s nonidentification at trial (either
from A.Y. or Detective Kaldis) was objectively unreasonable and caused him to suffer
prejudice.
¶ 39 Section 1-5(1) of the Juvenile Court Act of 1987 grants minors the right to be represented
by counsel in juvenile proceedings. 705 ILCS 405/1-5(1) (West 2016). They also have a
constitutional right to counsel. People v. Austin M., 2012 IL 111194, ¶ 74. Illinois courts
apply the well-known standard outlined in Strickland v. Washington, 466 U.S. 668, 687-88
(1984), to gauge the effectiveness of counsel in juvenile proceedings. In re Alonzo O., 2015
IL App (4th) 150308, ¶ 19. Our duty here is to determine whether trial counsel’s failure to
call A.Y. as a witness at trial or elicit any testimony about her nonidentification fell below
the standard outlined in Strickland.
¶ 40 In order for respondent to receive a new trial on the basis of ineffective assistance of
counsel, he must show that (1) his counsel’s representation fell below an objective standard
of reasonableness and (2) a reasonable probability exists that, but for the error, the result
would have been different. In re Charles W., 2014 IL App (1st) 131281, ¶ 32. To establish
the second prong, respondent must show that his counsel’s deficient performance rendered
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the result of the trial unreliable or the proceeding fundamentally unfair. People v. Evans, 186
Ill. 2d 83, 93 (1999).
¶ 41 We find that respondent has failed to overcome the strong presumption that counsel, as a
matter of sound trial strategy, decided not to present A.Y. as a witness at trial in order to
deprive the State of an opportunity to drive home the fact the victim’s nine-year old daughter
sat next to her as she was robbed at gunpoint. See id. (to satisfy the deficient performance
prong of Strickland, the respondent must overcome the strong presumption that any
challenged action or inaction may have been the product of sound trial strategy and prove
that counsel made errors so serious that he or she was not functioning as the “counsel”
guaranteed by the sixth amendment). Counsel would have also run the risk of an in-court
identification. Accordingly, respondent has not met the high bar that counsel’s performance
was deficient in this respect.
¶ 42 Respondent has also not shown that counsel’s failure to elicit testimony from Detective
Kaldis regarding A.Y.’s nonidentificaton deprived him of a fair trial. See People v. Smith,
195 Ill. 2d 179, 188 (2000) (to satisfy the prejudice prong of Strickland, the respondent must
show that counsel’s deficient performance rendered the result of the trial unreliable or the
proceeding fundamentally unfair). Such testimony, had it been elicited, would have
(1) corroborated the victim’s testimony that her daughter’s “eyes were more so on [the other
offender], and my eyes were on the other guy with the gun” and (2) strengthened a positive
identification by a witness who was “certain” that her armed robber, who stood two feet
away for five to seven minutes, was the same person she picked out of a photo array and
identified in court. See People v. Beals, 162 Ill. 2d 497, 506-07 (1994); People v. Romero,
2018 IL App (1st) 143132, ¶ 130. Given the strength of the victim’s eyewitness identification
testimony and the trial court’s determination that it was credible, respondent has not shown
the prejudice necessary to prevail on his claim of ineffective assistance of counsel.
¶ 43 CONCLUSION
¶ 44 Accordingly, we affirm.
¶ 45 Affirmed.
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