People v. Allen ( 2007 )

FIRST DIVISION
September 28, 2007
No. 1-06-1943
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
WALTER ALLEN, ) Honorable
) Daniel P. Darcy,
Defendant-Appellant. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
Social scientists have been conducting research into the
ability of one human being to identify another. Whether such an
expert should be allowed to testify in a criminal case is a
matter of broad discretion for the trial court. In light of the
specific circumstances of this case, we hold reversible error was
committed when the trial court refused to allow an expert to
testify. We reverse the defendant’s conviction and remand for a
new trial.
This was a jury trial. The defendant, Walter Allen, was
convicted of attempt murder, attempt armed robbery, and
aggravated battery with a firearm. He was sentenced to a total
of 43 years in prison.
In addition to the rejection of his expert witness,
defendant raises fourth amendment and due process issues that
1-06-1943
must be resolved before we reach the matter of the expert
witness.
FACTS
On March 22, 2001, two black males entered Four Star Dry
Cleaners, showed a gun, and demanded money. During the robbery,
one of the men “pistol whipped” Che Shin, an employee at the
cleaners. No money was taken. Defendant was identified as a
suspect in the attempt robbery after two witnesses, Phil Jones
and Calvin Smith, told police they saw defendant run past them
near the cleaners shortly after the robbery occurred. Sometime
before April 10, 2001, Shin identified defendant from a photo
array as one of the people who robbed him. That is not the case
before us, but it plays a role in the case we do decide.
On April 17, 2001, a second attempt armed robbery was
committed at the same cleaners. Miye Goodson, an employee at the
cleaners, was standing at the counter when two men entered the
store. One of the men wore a dark hooded sweatshirt. The other
man wore a yellow hooded sweatshirt with the hood up, and he
stood and looked out the window. After one of the men approached
the counter, Goodson asked if she could help him. The man did
not respond. When Goodson asked again, the man reached into his
pocket, pulled out a silver handgun, and said: “This is a stick-
up. Give money.” When Goodson turned around to get money from
the cash register, she was shot in the back.
-2-
1-06-1943
Before trial, defendant filed several pre-trial motions,
including a motion to suppress Goodson’s identification, a motion
to quash defendant’s arrest, and a motion to exclude gunshot
residue evidence. The State filed a motion in limine to exclude
the testimony of Dr. Steven Penrod, an expert in eyewitness
identification.
During the December 21, 2004, hearing on defendant’s motion
to suppress identification, Goodson testified the police visited
her in the hospital two days after she was shot and asked her if
she was willing to look at photographs. She identified the
defendant. Goodson could not recall how many photos the police
showed her. Goodson said her husband had told her the police had
caught the man who shot her before she identified defendant and
signed his photo. Goodson admitted that when Mort Smith, an
investigator hired by the defense, asked her how many pictures
the police officers showed her, she responded “just the one.” At
trial she explained what she meant by that. She did not change
her testimony. Goodson was not asked to make an in-person
identification of the defendant until the preliminary hearing on
December 21, 2004, when he was sitting at counsel table in a jail
uniform.
Detective John O’Shea testified that on the morning of April
17, 2001, he was scheduled to go to defendant’s probation
officer’s office to arrest defendant for the March 22 attempt
-3-
1-06-1943
robbery. During roll call on that same morning, he learned a
woman was shot during a robbery that morning at the cleaners.
When defendant arrived at his probation officer’s office,
Detective O’Shea arrested him for the March 22 attempt robbery.
Detective O’Shea did not have an arrest warrant. Shortly after
defendant’s arrest, Detective O’Shea transported him to the
police station and requested an atomic absorption gunshot residue
(GSR) test be performed on defendant’s hands.
On April 19, 2001, Detective O’Shea went to Mount Sinai
Hospital to interview Goodson regarding the second attempt
robbery. He generated a black and white photo array on the ICAM
system that included a photo of defendant. Detective O’Shea
ended up using five photos that he thought were the most similar
looking. When Detective O’Shea asked Goodson how she was
feeling, she said she was “in pain” and “not feeling the best.”
Goodson agreed to look at some pictures. After viewing the photo
array, Goodson identified defendant as the shooter. Goodson
described the shooter to Detective O’Shea as a “male black in his
30s” and “bald, no hair.” Detective O’Shea admitted telling
Goodson the police had some suspects before showing her the photo
array. He did not tell her the suspect was in custody.
Detective O’Shea testified substantially the same at the hearing
on defendant’s motion to quash arrest and suppress evidence.
Following arguments, the trial court denied each of
-4-
1-06-1943
defendant’s motions. The court granted the State’s motion in
limine to exclude the testimony of Dr. Penrod.
At defendant’s jury trial, Goodson testified that on April
19, 2001, two detectives visited her at Mount Sinai Hospital.
After Goodson said she could identify the shooter, a detective
showed her five pictures. She identified defendant as the person
who shot her and signed the bottom of his photograph. Goodson
also identified defendant in open court.
Goodson admitted that when Mort Smith, a private
investigator for the defense, asked her how many photos the
police had shown her at the hospital, she answered “just the
one.” Goodson explained she said “just the one” because she was
only shown one picture of the man who shot her and four other
pictures. During cross-examination, Goodson said she could not
tell in what hand defendant was holding the gun because she
panicked when she saw it.
Detective O’Shea testified substantially the same as he had
at the suppression hearing.
Officer Rivera, a forensic services unit investigator with
the Chicago Police Department, testified that defendant did not
want to participate in the GSR test. Several detectives
physically restrained defendant and positioned his hands so the
test could be administered. The detectives were not wearing
-5-
1-06-1943
gloves, and Officer Rivera admitted he and his partner had
handled their guns on the day the test was administered.
Officer Robert Berk of the Illinois State Police Forensic
Science Center testified that the GSR test showed elevated levels
of barium, antimony, and lead on defendant’s left palm. The
elements are consistent with having handled, fired, or been in
close proximity to a discharged firearm. He conceded, however,
that these particles can be transferred from one surface to
another. He noted there is only a six hour window of time for
the administration of an atomic absorption GSR test after a gun
has been fired. He admitted a positive test result does not
necessarily prove an individual discharged a firearm. He
believed, however, that the sources of lead, barium, and antimony
he detected on defendant’s hand were from gunshot residue. A
“scanning electron microscopy” (SEM) test did not confirm the
presence of gunshot residue on defendant’s clothing. Officer
Berk admitted the SEM test is a more sensitive, selective, and
specific test than the atomic absorption test he used.
Dr. Samuel Palenik, a forensic analytical microscopist,
testified for the defense. He said the atomic absorption GSR
test is an unreliable means of identifying whether GSR is present
on a surface. He noted the elements detected by an atomic
absorption test are found in the environment and many household
items. According to Dr. Palenik, most law enforcement agencies,
-6-
1-06-1943
including the Chicago Police Department, have moved away from the
test in light of the significant problems associated with it.
Mort Smith, a private investigator, testified that he
visited Goodson at her home on May 8, 2004. Goodson told him the
police showed her two or three photographs when they visited the
hospital in 2001. On September 22, 2004, Smith visited Goodson
at her home and taped the interview. Goodson told Smith the
police showed her only one photograph when she was at the
hospital.
The jury found defendant guilty of first-degree attempt
murder, attempt armed robbery, and aggravated battery with a
firearm. Following a sentencing hearing, the trial court
sentenced defendant to a 29-year sentence for the Class X felony
of attempt first-degree murder. Defendant was also sentenced to
a consecutive 14-year sentence for attempt armed robbery.
Defendant appeals.
DECISION
I. Motion to Suppress Evidence
Defendant contends the trial court erred when it denied his
motion to suppress evidence obtained in violation of his
constitutional rights. Specifically, defendant contends the
atomic absorption GSR test administered by the police was non-
routine and completely unrelated to the March 22 attempt robbery
crime he was lawfully arrested for, thus violating his fourth
-7-
1-06-1943
amendment rights.
When reviewing a trial court’s ruling on a motion to
suppress evidence, the court’s factual findings are reviewed for
manifest error while the court’s ultimate ruling is reviewed de
novo. People v. Steham, 203 Ill. 2d 26, 33 (2002).
Both the United States Constitution and the Illinois
Constitution protect against unreasonable searches and seizures.
U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. A
warrantless search and seizure is per se unreasonable unless it
comes within one of a few recognized and limited exceptions.
Steham, 203 Ill. 2d at 34. “One such exception, which has been
found reasonable under the fourth amendment to the United States
Constitution, is a search incident to a lawful arrest.” Steham,
203 Ill. 2d at 34, citing United States v. Robinson, 414 U.S.
218, 224-26, 94 S. Ct. 467, 471-73, 38 L. Ed. 2d 427, 434-36
(1973).
Defendant does not contend the police lacked probable cause
to arrest him for the March 22 attempt armed robbery. Instead,
he contends that because he was neither under arrest for, nor a
suspect in, the April 17 attempt robbery, the police had no
reasonable basis or justification for performing a GSR test on
him. Defendant contends the police must provide a rational
justification for conducting a search unrelated to the crime for
which a defendant is arrested, which they have failed to do in
-8-
1-06-1943
this case. Since the police were authorized to detain defendant,
the question becomes to what extent he could be searched. See
People v. Seymour, 84 Ill. 2d 24, 33, 416 N.E.2d 1070 (1981).
While no Illinois court has specifically addressed this
issue, similar issues have been addressed at length in the
federal courts.
In Schmerber v. State of California, 384 U.S. 757, 86 S. Ct.
1826, 16 L. Ed. 2d 908 (1966), a case cited by defendant, the
Supreme Court was asked to consider whether the police were
justified in requiring petitioner to submit to a blood test after
he was arrested while receiving treatment in a hospital following
a car accident. The Court explained that the fourth amendment’s
proper function is “to constrain, not against all intrusions as
such, but against intrusions which are not justified in the
circumstances, or which are made in an improper manner.”
Schmerber, 384 U.S. at 768, 86 S. Ct. at 1834, 16 L. Ed. 2d at
918.
The court noted that the percentage of alcohol in the blood
begins to diminish shortly after drinking stops. Because the
officer might reasonably have believed he was confronted with an
emergency in which the delay necessary to obtain a warrant
threatened the destruction of the evidence, the court held the
attempt to secure evidence of blood-alcohol content was lawful
under the fourth amendment.
-9-
1-06-1943
In United States v. D’Amico, 408 F.2d 331 (2nd Cir. 1969),
the court was asked whether a defendant’s fourth amendment rights
were violated when a federal agent, without a search warrant or
the defendant’s consent, clipped several strands of hair from the
defendant’s head while he was in custody. The court held the
clipping of the few strands of hair unquestionably constituted a
seizure that might conceivably be subject to the constraints of
the fourth amendment. D’Amico, 408 F.2d at 332.
However, because the clipping by the officer of a few
strands of hair was so minor an imposition that the defendant
suffered no true humiliation or affront to his dignity, the court
held a search warrant was not required to justify the officer’s
act. D’Amico, 408 F.2d at 333. The taking of several strands of
hair while the defendant was in custody was no more prejudicial
than taking his fingerprints or his photograph. D’Amico, 408
F.2d at 333. See also United States v. Richardson, 388 F.2d 842,
845 (6th Cir. 1968) (examination of the defendant’s hands for
evidence of incriminating fluorescein powder held not to be a
search within Schmerber).
Similarly, in United States v. Bridges, 499 F.2d 179 (7th
Cir. 1974), the court was asked to consider whether a hand swab
test conducted on the defendant without his consent during an
interrogation violated his fourth amendment rights. Following
the defendant’s refusal to answer questions concerning his
-10-
1-06-1943
handling of explosives during an interrogation, federal agents
swabbed his hand without his consent. Based on the chemical
analysis of the swabs, the agents obtained a warrant to search
defendant’s car and house. Bridges, 499 F.2d at 184. The court
found the swabbing was not an unreasonable search because it was
“no more offensive to [the defendant’s] person than
fingerprinting or photographing him.” Bridges, 499 F.2d at 184.
Defendant relies on People v. Machroli, 44 Ill. 2d 222, 224,
254 N.E.2d 450 (1970), to support his contention that the GSR
test constituted an unreasonable search and seizure in light of
the facts of this case.
In Machroli, the defendant was arrested by a police officer
who responded to a domestic disturbance call. Prior to the
defendant’s arrest, an officer saw him remove a small white box
from his pant’s pocket and place it on a dresser. After the
defendant left the bedroom, the officer entered, picked up the
box, opened it, and discovered three white tablets. The pills
were identified as an illegal narcotic. In rejecting the State’s
justification for the search, the court held “[a] search incident
to arrest is authorized when it is reasonably necessary to
protect the arresting officer from attack, to prevent escape, or
to discover the fruits of the crime.” Machroli, 44 Ill. 2d at
224-25, citing Chimel v. California, 395 U.S. 752, 89 S. Ct.
2034, 23 L. Ed. 2d 685 (1969). The court noted the box and its
-11-
1-06-1943
contents were in no way related to the offense for which the
defendant was arrested. The court held there was no
justification other than curiosity for the officer’s conduct in
entering the bedroom and taking possession of the box. Machroli,
44 Ill. 2d at 225.
Similarly, in People v. Burnett, 20 Ill. 2d 624, 170 N.E.2d
546 (1960), our supreme court was asked to consider whether the
search of defendant’s apartment was incidental to his arrest.
After defendant was arrested for operating a “lewd and
lascivious” show, the police searched his apartment and found a
locked tin box in the bedroom closet. The police opened the box
and found obscene photographs. The supreme court held there was
nothing in the record to indicate a search of the box was
reasonably necessary to protect the officers or prevent the
defendant’s escape. Burnett, 20 Ill. 2d at 625-26.
Additionally, the police had already gathered all of the evidence
necessary to prove or connect defendant to the crime he was
arrested for. The court held the search of the box was not
incidental to the arrest. The evidence was suppressed. Burnett,
20 Ill. 2d at 626.
In Robinson, however, the Supreme Court noted the search
incident to a lawful arrest exception to the fourth amendment’s
warrant requirement has historically been formulated into two
distinct positions. Robinson, 414 U.S. at 224. “The first is
-12-
1-06-1943
that a search may be made of the person of the arrestee by virtue
of the lawful arrest. The second is that a search may be made of
the area within control of the arrestee.” (Emphasis added.)
Robinson, 414 U.S. at 224, 94 S. Ct. at 471, 38 L. Ed. 2d at 435.
The Court noted that throughout its series of cases discussing
the permissible area beyond the person of an arrestee that may be
searched, “no doubt has been expressed as to the unqualified
authority of the arresting authority to search the person of the
arrestee.” (Emphasis added.) Robinson, 414 U.S. at 225, 94 S.
Ct. at 472, 38 L. Ed. 2d at 436.
The Supreme Court was asked to consider whether a police
officer’s inspection of a crumpled cigarette package found on the
defendant’s person and seizure of heroin capsules found inside
the package without a warrant were permissible after the
defendant was lawfully arrested for operating a motor vehicle
with a revoked license. The Court held a search of a defendant’s
person incident to a lawful arrest required “no additional
justification.” Robinson, 414 U.S. at 235, 94 S. Ct. at 477, 38
L. Ed. 2d at 441. “It is the fact of the lawful arrest which
establishes the authority to search, and we hold that in the case
of a lawful custodial arrest a full search of the person is not
only an exception to the warrant requirement of the Fourth
Amendment, but is also a ‘reasonable’ search under that
Amendment.” Robinson, 414 U.S. at 235, 94 S. Ct. at 477, 38 L.
-13-
1-06-1943
Ed. 2d at 441.
Our supreme court relied on Robinson in People v. Hoskins,
101 Ill. 2d 209, 216, 461 N.E.2d 941 (1984). In Hoskins, the
defendant approached an unmarked police car and offered to
perform a sexual act for money. When she was told she was under
arrest for prostitution, defendant ran from the officers and
dropped her purse. After defendant was caught the police
searched her purse. The officers found a hypodermic needle and a
metal cap with cocaine adhering to it. The State argued the
search was valid as incident to a lawful arrest. The supreme
court held the search was proper under Robinson, which
“authorizes a warrantless search of the defendant’s purse, which
is immediately associated with defendant’s person, simply on the
lawful, custodial arrest.” Hoskins, 101 Ill. 2d at 217. The
court noted the Robinson holding is “ ‘a straight forward rule,
easily applied, and predictably enforced.’ ” Hoskins, 101 Ill. 2d
at 217, quoting New York v. Belton, 453 U.S. 455, 459, 101 S. Ct.
2860, 2863, 69 L. Ed. 2d 768, 774 (1981) (Supreme Court extended
Robinson to all containers within the defendant’s immediate
control).
Because Machroli and Hoskins involved instances where the
police searched the area in the vicinity of the defendant’s
control, not the defendant’s person, we find they are
distinguishable from the present case. See Robinson, 414 U.S. at
-14-
1-06-1943
235, 94 S. Ct. at 477, 38 L. Ed. 2d at 441; Hoskins, 101 Ill. 2d
at 217.
The hand swab performed on the defendant was a minor
intrusion, no more offensive than fingerprinting or
photographing. See Bridges, 499 F.2d at 184. Because the hand
swabbing was so “minor an imposition that the defendant suffered
no true humiliation or affront to his dignity,” we find a search
warrant was not required to justify the GSR test after defendant
was in custody and while the arresting officers were assigned to
investigate the April 17 attempt robbery. See Bridges, 499 F.2d
at 184; D’Amico, 408 F.2d at 333. In light of the circumstances
in this case, we find the hand swabbing was not an unreasonable
search and seizure.
II. Identification Testimony
Defendant contends the trial court’s denial of his motion to
suppress Goodson’s identification was manifestly erroneous.
Specifically, defendant contends the photo array used by the
police was unduly suggestive. Defendant also contends the
admission of Goodson’s in-court identification deprived him of
his right to due process because the identification was not
sufficiently independent from the highly suggestive photo array.
On a motion to suppress identification, the defendant bears
the initial burden of establishing the pretrial identification
was “so unnecessarily suggestive that it gave rise to a
-15-
1-06-1943
substantial likelihood of irreparable mistaken identification.”
People v. Curtis, 262 Ill. App. 3d 876, 882, 635 N.E.2d 860
(1994). A trial court’s ruling on a motion to suppress
identification will not be set aside unless manifestly erroneous.
Curtis, 262 Ill. App. 3d at 882.
Defendant contends the photograph display was impermissibly
suggestive because Goodson’s contradictory testimony indicates
she may have been shown only a single photo of defendant and no
other suspects. We disagree.
Our supreme court has recognized “show-up” identifications,
or identification procedures that include only a single defendant
without any other suspects, carry “a dangerous degree of improper
suggestion” (People v. Blumenshine, 42 Ill. 2d 508, 512, 250
N.E.2d 152 (1969)), but the trial court here found Detective
O’Shea showed Goodson “a number of photographs” in the hospital.
While we recognize Goodson’s testimony at the suppression hearing
and at defendant’s trial wavered regarding exactly how many
pictures she was shown in the hospital, she consistently said she
was shown more than one photo in the array. Detective O’Shea
also testified that he showed Goodson five pictures at the
hospital, which included one picture of the defendant. Those
photos are part of the record.
The issue of witness credibility was for the court to
resolve. See People v. Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d
-16-
1-06-1943
93 (2004) (“This deferential standard of review is grounded in
the reality that the circuit court is in a superior position to
determine and weigh the credibility of the witnesses, observe the
witnesses’ demeanor, and resolve conflicts in their testimony.”)
After reviewing the record, we see no reason to disturb the trial
court’s finding that Goodson was shown multiple photographs.
Alternatively, defendant contends that even if Goodson was
shown a five-photo lineup, the lineup was still
unconstitutionally suggestive due to the differences in
appearance between defendant and the other alleged individuals in
the photo array.
Initially, the State contends defendant waived this issue by
failing to raise it in his motion to suppress. See People v.
McAdrian, 52 Ill. 2d 250, 253, 287 N.E.2d 688 (1972). Waiver
aside, we reject defendant’s contention.
Individuals selected for a photo array lineup need not be
physically identical. People v. Denton, 329 Ill. App. 3d 246,
250, 767 N.E.2d 879 (2002). “Differences in their appearance go
to the weight of the identification, not to its admissibility.”
Denton, 329 Ill. App. 3d at 250.
Based on a careful review of the photographs presented as
part of the record, we find the photo array was not impermissibly
suggestive. All individuals displayed in the photo array had
similar general physical characteristics. While defendant
-17-
1-06-1943
contends he was the only person who was actually bald in the
photo array, we note all of the individuals had very closely
cropped hair in the pictures, which appeared similar to
defendant’s hairstyle in the picture shown to Goodson.
We find the photo array was not unduly suggestive. In light
of our determination, we need not address defendant’s contention
that the suggestive photo array tainted Goodson’s in court
identification.
III. Eyewitness Expert Testimony
Defendant contends the trial court’s exclusion of Dr. Steven
Penrod’s eyewitness identification testimony deprived him of his
right to due process and his right to present a defense.
Generally, an expert will be permitted to testify if his
experience and qualifications afford him knowledge which is not
common to lay persons and where such testimony will aid the trier
of fact in reaching its conclusion. People v. Enis, 139 Ill. 2d
264, 288, 564 N.E.2d 1155 (1990), citing People v. Jordan, 103
Ill. 2d 192, 208, 469 N.E.2d 569 (1984). See also People v.
Sargeant, 292 Ill. App. 3d 508, 685 N.E.2d 956 (1997). Trial
courts are given broad discretion when determining the
admissibility of an expert witness. Enis, 139 Ill. 2d at 290.
The question here is whether the trial court abused its
discretion.
When considering the reliability of expert testimony, the
-18-
1-06-1943
court should balance its probative value against its unfairly
prejudicial effect. Enis, 139 Ill. 2d at 290. “In the exercise
of his discretion, the trial judge should also carefully consider
the necessity and relevance of the expert testimony in light of
the facts in the case before him prior to admitting it for the
jury’s consideration.” Enis, 139 Ill. 2d at 290.
In Enis, our supreme court considered whether the defendant
was entitled to introduce testimony of an expert witness
regarding reliability of eyewitness testimony. The defense, in
an offer of proof, claimed the expert would testify that: the
relationship between confidence and accuracy is insignificant;
the higher the stress level the less accurate the memory; the
identification is usually worse if a weapon is present; and
jurors give too much weight to time estimates.
The supreme court found the expert’s testimony was not
necessary because none of the witnesses was in a high stress
situation, only one witness saw a weapon, and testimony regarding
time estimates was not relevant to the case. Further, the court
found that while the witnesses’ confidence may have been at issue
in the case, that factor alone did not warrant a new trial.
Concluding the expert testimony would not have aided the jury in
reaching its conclusion, the court held the trial court did not
abuse its discretion in denying the testimony. Enis, 139 Ill. 2d
at 289.
-19-
1-06-1943
Other Illinois cases have uniformly upheld a trial court’s
refusal to allow expert eyewitness testimony. See People v.
Tisdel, 338 Ill. App. 3d 465, 788 N.E.2d 1149 (2003) (Tisdel II);
People v. Tisdel, 316 Ill. App. 3d 1143, 1159, 739 N.E.2d 31
(2000), rev’d on other grounds 201 Ill. 2d 597, 775 N.E.2d 921
(2002) (Tisdel I); People v. Perruquet, 118 Ill. App. 3d 339, 454
N.E.2d 1051 (1983) (trial court properly excluded expert
testimony regarding effect of stress upon a victim’s recall of
events where a weapon is used); People v. Brown, 100 Ill. App. 3d
57, 426 N.E.2d 575 (1981) (factors such as stress, opportunity to
observe, distortion of memory, and problems of cross-racial
identification are within realm of common experience and can be
evaluated by jury without expert assistance); People v. Johnson,
97 Ill. App. 3d 1055, 423 N.E.2d 1206 (1981); People v. Dixon, 87
Ill. App. 3d 814, 410 N.E.2d 252 (1980) (trial court properly
excluded expert testimony concerning unreliability of cross-
racial identifications, reasoning trustworthiness of eyewitness
observation is not generally beyond the common knowledge and
experience of average juror). The Seventh Circuit also disfavors
expert testimony on the reliability of eyewitness identification
on the grounds that it does not assist the jury. See, e.g.,
United States v. Hall, 165 F.3d 1095 (7th Cir. 1999).
In Tisdel II, we noted that numerous studies in the area of
eyewitness psychology indicate there is significant potential for
-20-
1-06-1943
eyewitness error, and that jurors have misconceptions about the
abilities of eyewitnesses. Tisdel, 338 Ill. App. 3d at 467. We
held that a trial court should:
“carefully scrutinize the proffered testimony
to determine its relevance-that is, whether
there is a logical connection between the
testimony and the facts of the case.
Normally, expert testimony that is probative
and relevant should be allowed.” Tisdel, 338
Ill. App. 3d at 468, citing People v.
Sargeant, 292 Ill. App. 3d 508, 685 N.E.2d
956 (1997).
The defendant in Tisdel II contended the expert’s testimony
should have been admitted because it would have aided the jury in
reaching a more informed decision as to the credibility of the
eyewitness testimony. Because the record showed the trial judge
considered the reliability and potential helpfulness of the
testimony, balanced the proffered testimony against cases in
which courts have upheld the exclusion of such evidence, and
found the testimony would not assist the jury, we found the trial
court properly exercised its discretion under Enis. Tisdel, 338
Ill. App. 3d at 468. However, we noted the trial court would not
have abused its discretion had it allowed the testimony, given
the facts of the case. Tisdel, 338 Ill. App. 3d at 468.
-21-
1-06-1943
Several other jurisdictions have found the exclusion of
expert testimony regarding eyewitness identification is an abuse
of discretion in certain cases. See People v. LeGrand, 8 N.Y.3d
449, 867 N.E.2d 374 (2007); United States v. Brownlee, 454 F.3d
131 (3rd Cir. 2006); United States v. Smithers, 212 F.3d 306 (6th
Cir. 2000); United States v. Lester, 254 F. Supp. 2d 602 (E.D.
Va. 2003); United States v. Norwood, 939 F. Supp. 1132 (D. N.J.
1996); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983);
People v. Campbell, 847 P.2d 228 (Colo. App. 1992).
In LeGrand, the defendant moved to introduce eyewitness
expert testimony. According to a supporting memorandum of law,
the expert would have testified to research findings regarding
several factors that may influence the perception and memory of a
witness and affect the reliability of eyewitness identifications.
The expert would not, however, opine on the accuracy of any
specific eyewitness identification. After conducting a Frye
hearing, the trial court precluded the testimony on the ground
that the expert’s conclusions were not generally accepted in the
relevant scientific community.
The New York court of appeals held where there was no
corroborating evidence connecting the defendant to the commission
of the crime, and it was clear the case turned solely on the
accuracy of the single witness’ identification, it was an abuse
of discretion for the trial court to prohibit the expert’s
-22-
1-06-1943
testimony. LeGrand, 8 N.Y.3d at 457. The court held the
testimony of the defendant’s expert would have benefitted the
jury in evaluating the accuracy of the eyewitness identification.
A new trial was ordered.
In Brownlee, the court held the primary issue before the
jury was the reliability of the Government’s four eyewitnesses.
The court noted:
“Both [eyewitnesses] expressed high
confidence in their identifications of [the
defendant] as the perpetrator. To rebut the
natural assumption that such a strong
expression of confidence indicates an
unusually reliable identification, [the
defendant] sought to admit [expert] testimony
that there is a low correlation between
confidence and accuracy. We believe that
[the expert’s] proposed testimony ‘is
sufficiently tied to the facts of this case
that it will aid the jury in resolving a
factual dispute.’ ” Brownlee, 454 F.3d at
144, quoting United States v. Downing, 753
F.2d 1224, 1242 (3rd Cir. 1985).
The conviction was reversed and the case sent back for a new
trial.
-23-
1-06-1943
In the case before us, the defense submitted an offer of
proof in the form of a report prepared by Dr. Steven Penrod, an
experienced and highly-credentialed psychologist. We have
examined the report in the context of the factual posture of the
case–-little or no corroboration of the testimony of a single
identification witness who was not asked to identify the
defendant in person until she saw him at counsel table, in jail
uniform, at a hearing conducted 44 months after the attempt
robbery.
Some of the data and conclusions referred to in the report
do not fit the facts of the case. For example, data supporting
the unreliability of cross-racial identifications would not fit
because there is no indication Dr. Penrod considered the Korean
eyewitness had been married to an African-American. Nor do we
see the need in this case for expert testimony concerning the
conduct of the photo array.
Other portions of the report are relevant and refer to
commonly accepted misconceptions. For instance, studies have
shown a witness’s focus on a weapon indicates less attention is
paid to encoding the perpetrator’s characteristics. Other
studies show jurors tend to rely on a witness’s confidence in her
identification as a guide to accuracy, but that there are low
correlations between the witness’s confidence and the accuracy of
her identification.
-24-
1-06-1943
In final argument, the prosecutor presented conclusions that
would have been challenged by Dr. Penrod’s data concerning weapon
focus, stress, and the relationship between witness confidence
and witness accuracy. The State’s comments: “[t]here is no
higher degree of attention than someone pointing a gun at you;”
“[defendant’s] face is burned in her memory forever;” “[t]here is
no doubt she was certain;” and “if she is so certain, there is no
reason and no doubt that you should be certain.”
Neither at trial nor in this appeal does the State challenge
the reliability of the research cited by Dr. Penrod. Nor did the
trial court when it rejected the proposed testimony. The court
merely said it did not believe:
“experts in this particular case will assist
the jury in determining the identification in
this case. I believe it would probably
confuse them more and I believe that the
instruction that’s provided by the Illinois
Pattern Jury Instructions is sufficient.”
Almost always, when a reviewing court upholds the trial
court’s discretion to reject the eyewitness identification
expert’s testimony it does so on the grounds that the testimony
will not assist the jury. That is, jurors can use their own
common sense and experience in life. See Enis, 139 Ill. 2d at
288. Reliability of the studies rarely is questioned. See U.S.
-25-
1-06-1943
v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986) (“This court
accepts the modern conclusion that the admission of expert
testimony regarding eyewitness identification is proper, and we
have no prior contrary authority which binds us. We cannot say
such scientific data is inadequate or contradictory.”) In
Brownlee, the court referred to the research that demonstrates
“the science of eyewitness perception has achieved the level of
exactness, methodology and reliability of any psychological
research.” Brownlee, 454 F.3d at 143.
The research challenges the claim that the jury does not
require expert assistance. As the prosecutor understood,
reasonable people well might believe an eyewitness will be more
accurate when faced with a weapon and when the witness shows
confidence in the accuracy of her identification. The expert
testimony “dispels myths or attacks commonsense misconceptions
about eyewitness identifications, such as the effects of stress
and weapon focus on the accuracy of identifications.” Tisdel,
338 Ill. App. 3d at 467. In Tisdel I we said:
“Numerous studies in the area of eyewitness
psychology indicate there is a significant
potential for eyewitness error and that
jurors have misconceptions about the
abilities of eyewitnesses.” Tisdel, 316 Ill.
App. 3d at 1157.
-26-
1-06-1943
Here, unlike the witnesses in Enis, Goodson was in a high
stress situation, faced with a gun and an obvious threat to her
life. She was the only eyewitness. Her apparent confidence on
the witness stand was reflected in the prosecutor’s rebuttal
argument.
In Tisdel I the trial court considered the reliability and
“potential helpfulness of the testimony,” and “balanced the
proffered testimony against cases in which this court has upheld
the exclusion of such evidence ***.” Tisdel, 316 Ill. App. 3d at
1158.
It is not our purpose to lower the bar for the exercise of
broad discretion trial judges have when it comes to expert
testimony on eyewitness identification. But present here is the
failure to address the obligation we set out in Tisdel II:
“Trial courts should carefully scrutinize the
proffered testimony to determine its
relevance–-that is, whether there is a
logical connection between the testimony and
the facts of the case.” Tisdel, 338 Ill.
App. 3d at 468.
No careful scrutiny took place in this case. Relevance of
the different parts of Dr. Penrod’s proposed testimony was not
seriously considered. Nor their weight. The conclusion that the
proposed testimony would confuse the jury had no considered
-27-
1-06-1943
basis. The balancing test requires a weighing of “probative
value against its prejudicial effect.” Enis, 139 Ill. 2d at 290.
The test cannot be accomplished without an inquiry into the
probative value of the proposed testimony and its relevance to
the issues in the case. It is then that the inquiry shifts to
the risk of unfair prejudice, which includes potential confusion.
Because of the trial court’s failure to conduct a meaningful
inquiry into Dr. Penrod’s proposed testimony, under the specific
circumstances of this case, we reverse the defendant’s
convictions and remand this cause for a new trial. We remand
because we find the evidence sufficient to support a guilty
verdict.
We express no opinion on whether the trial court on remand
should allow any part of Dr. Penrod’s offer of proof to be heard
by the jury. We simply hold the offer of proof must be given
serious consideration. If any of it is admitted, the witness
should not be allowed to directly comment on Goodson’s
credibility or on the weight that should be given to her
testimony. The expert might supply relevant data, but it is for
the jury to decide what weight, if any, to give the research
offered by the expert. See People v. Sargeant, 292 Ill. App. 3d
508, 511, 685 N.E.2d 956 (1997) (the expert must not invade the
province of the factfinder, while aiding the factfinder in
reaching its decision).
-28-
1-06-1943
IV. Other Claimed Errors
Defendant contends the trial court erred when it denied his
motion to exclude the results of the GSR test, refused to permit
counsel to publish the tape of Smith’s interview with Goodson,
and admitted Goodson’s bloody clothing into evidence. In
addition, the defendant contends his trial counsel was
ineffective for failing to argue the photo array used in this
case was highly suggestive. We have examined these issues and
find they have no merit. Defendant also raises issues concerning
his sentencing. We see no need to discuss them.
CONCLUSION
For the reasons stated, we reverse defendant’s convictions
and sentences and remand this cause for a new trial.
Reversed and remanded.
GARCIA, and R. GORDON, JJ., concur.
-29-