People v. Thomason , 2020 IL App (2d) 170890-U ( 2020 )

2020 IL App (2d) 170890-UNo. 2-17-0890
Order filed May 27, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 16-CM-3619
)
ASHLEY R. THOMASON, ) Honorable
) Helen S. Rozenberg,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Justices McLaren and Zenoff concurred in the judgment.
ORDER
¶1 Held: Defendant was not denied a fair trial by the State’s failure to introduce lineup
evidence as promised in its opening statement: the trial court initially conditioned
admission of the evidence on the State’s compliance with the statute governing how
lineups are prepared and administered, but those requirements do not govern
admissibility and, under the circumstances, there was no reasonable probability that
presenting the evidence would have produced a different result, as the jury was
instructed to disregard any statement not based on the evidence.
¶2 Following a jury trial, defendant, Ashley R. Thomason, was convicted of criminal damage
to property (720 ILCS 5/21-1(a)(1) (West 2016)), and she was sentenced to 12 months of
conditional discharge and ordered to pay restitution. She timely appeals, arguing that she was
2020 IL App (2d) 170890-Udenied a fair trial when the State, who told the jury that it would hear testimony about a photo
lineup, failed to call to testify the officer who prepared the lineup. We affirm.
¶3 I. BACKGROUND
¶4 Before her trial began, defendant filed a motion in limine, asking that the State “be barred
from referencing or eliciting any results of a photo line up [sic] unless and until the foundational
requirements of [section 107A-2 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/107A-2 (West 2016))] are met prior to any witness testifying to the results.” The State did not
object.
¶5 At trial, the State told the jury during its opening statement that it would hear testimony
from Officer Jeremiah Scheithe, who presented the lineup to the victim, Juan Perez. The State
asserted that Scheithe, who had “no involvement other than to administer this photo lineup,”
showed Perez the lineup, and Perez “quickly identified—.” At this point, defendant objected,
noting that this “is the source of [her] motion in limine.” Defendant continued that she did not
“believe the State is going to be able to lay a sufficient foundation with just the one officer that
they have with a photo lineup based on the requirements of the statute controlling photo lineup
foundation.” The trial court overruled the objection, noting that, if the State failed to present a
sufficient foundation, “[defendant will] want to say something in closing about how [the State]
presented that evidence.”
¶6 Perez was the only witness to testify at trial. He stated that, on the afternoon of September
10, 2016, he was driving home after getting his car washed when he saw a woman in a black Jeep
driving erratically. Perez saw the woman, who appeared very angry, in his rearview mirror. She
was honking her horn, saying things Perez could not hear, and waving her middle finger at him.
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2020 IL App (2d) 170890-UAlthough Perez described the woman as light skinned, he testified that he was unsure about her
hair color.
¶7 The woman, who had the Jeep’s windows down, eventually passed Perez. When she did,
Perez, who also had his windows down, got a better look at her.
¶8 As Perez got closer to his home, he saw the woman in the black Jeep parked on a median.
Perez looked over at the Jeep and slowly drove by. The woman again said things to Perez that he
could not hear, and she threw a container that dented the driver’s door of his car. A liquid came
out of the container, the liquid hit Perez in the face, and Perez lost control of his car. He swerved
into a ditch and turned off his car.
¶9 Perez saw the Jeep turn into a neighborhood and up to a house. He phoned the police. The
police prepared a report and gave it to Perez.
¶ 10 Later that night, Scheithe came to Perez’s home with a photo lineup. Before the State
elicited any further testimony about the lineup, the following exchange was had:
“Q. [ASSISTANT STATE’S ATTORNEY WANZENBERG]: Okay. Before we
get into the photo lineup, do you see the driver of the black Jeep in court today?
A. Yes.
Q. Could you describe them with an article of clothing or where their location is?
A. Location to my left in front of me. She’s a female driver—or a female, blonde
hair now. At the time I remember seeing her with a different color hair. To me it looked
as if it was red or a different shade of brown, but not what I see today.
Q. Okay. And can you point to the person that you see?
A. (Indicating.)
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2020 IL App (2d) 170890-UQ. MS. WANZENBERG: Let the record reflect that the witness is pointing to the
defendant.
THE COURT: So noted.”
The State then continued to question Perez about the lineup. After presenting the lineup to Perez,
Perez testified that he circled the photo of the offender. Defendant objected. In a sidebar, the
following exchange was had:
“MS. LEIMBACK [(ASSISTANT PUBLIC DEFENDER)]: Your Honor, the
proper foundation for the photo lineup has not been raised. Under 725 ILCS 5/1[0]7[A]-
2. Part of the foundation they have not covered is the foundation requirements for how the
photo lineup has been put together, where the pictures came from and who in fact was the
subject in the photo.
MS. WANZENBERG: Your Honor, I would ask—I am still in the process of laying
the foundation. The witness is testifying to what was presented to him and what he did
with that material.
THE COURT: That is correct. If the State doesn’t have testimony to support the
foundation, it is inappropriate to pursue this particular line. I would assume by your
response that you intend to present a full foundation.
MS. WANZENBERG: Your Honor, the officer who administered the photo
lineup[, Scheithe,] is here as well.
THE COURT: That is neither here nor there. The objection is that the full
foundation will be presented. I take it from what you are saying is that this officer is the
one who put the [lineup] together?
MS. WANZENBERG: Right.
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2020 IL App (2d) 170890-UMS. LEIMBACK: No, he’s not.
MR. LENZINI [(ASSISTANT STATE’S ATTORNEY)]: He was an independent
administrator.
THE COURT: Well, it sounds like Miss Leimback’s objection is well taken.”
¶ 11 The trial court sustained defendant’s objection. The trial court did not advise the jury to
disregard the testimony about the lineup, and defendant never asked the court to do so.
¶ 12 The trial court admitted photographs of Perez’s car. They showed only a residue on the
windshield and little, if any, damage to the driver’s door.
¶ 13 At some later date, Perez took his car to a body shop for an estimate to repair the damage.
Although Perez asked for an estimate just to repair the door, the body shop also gave him an
estimate to repair the bumper and the cover of a fog lamp. Perez gave that estimate to the State.
¶ 14 Defendant moved for a directed finding, noting that “[t]he only identification in court is
the one that was just made.” The trial court denied the motion.
¶ 15 During closing arguments, the State noted that Perez identified defendant in court. The
State emphasized Perez’s testimony that he saw defendant throw the container at his car, he clearly
remembered that the offender was a woman, and he remembered her so well that he was able to
testify that she changed her hair color.
¶ 16 Defendant argued that the jury should find her not guilty because the State’s case suffered
from four problems, one of which was identifying defendant as the offender. In highlighting this
problem, defendant asserted:
“One year later[, Perez] comes in and he points the finger at [defendant]. You heard a
bunch of talk and the State told you in its opening that there was a photo lineup, but we
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2020 IL App (2d) 170890-Udon’t know what the results were of that; we weren’t presented with anything. One
identification just now a year later.
And if you think about it, listen to what Mr. Perez told you when he was testifying
about what he saw. *** [Perez did not testify about any] specific identifications, no
identifying marks, he didn’t give you a license plate number, you didn’t hear anything
about who owned the car, you didn’t hear anything about who lived at that address where
the [Jeep] was located, if anybody was arrested at that address. Nothing. You have an
identification for a year later, that’s it. That’s a big hole. There’s a lot missing there. That
is not proof beyond a reasonable doubt.”
¶ 17 While administering the jury instructions, the trial court advised the jury that it should
disregard any opening statements or closing arguments that were not based on the evidence. The
court also admonished the jury that it should disregard any evidence to which an objection was
sustained.
¶ 18 During deliberations, the jury asked for a clear definition of reasonable doubt. The trial
court, with the parties’ agreement, told the jury that it had to determine reasonable doubt. Later,
the jury advised the trial court that it could not reach a unanimous verdict. The court gave the jury
an instruction pursuant to People v. Prim, 53 Ill. 2d 62 (1972).
¶ 19 The jury found defendant guilty. She filed a posttrial motion, arguing that she was denied
a fair trial because the State violated the trial court’s order granting her motion in limine.
Specifically, defendant claimed that the State violated the order by referencing the lineup in its
opening statement and while questioning Perez, knowing that it could not establish a proper
foundation. Defendant claimed that references to the lineup prejudiced her, because the jury could
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2020 IL App (2d) 170890-Uinfer that Perez identified her soon after the incident, rather than just in court, and that defendant
was hiding that result from the jury.
¶ 20 Defendant emphasized that Perez was not credible because he attempted to obtain
restitution for damages not caused by defendant, the jury asked for a definition of reasonable doubt,
and the jury could not initially reach a unanimous verdict. Thus, he concluded, the evidence of
guilt was closely balanced and supported his contention that the State’s violation of the order
in limine caused the jury to convict her.
¶ 21 The trial court denied defendant’s posttrial motion, finding that compliance with section
107A-2 of the Code (725 ILCS 5/107A-2 (West 2016)) is not foundational. Rather, the court found
that this section concerned the weight given to lineup evidence. Given that, the trial court noted
that it should not have granted defendant’s motion in limine or the objection to Perez’s testimony
about the lineup. Moreover, the court observed that defendant actually benefited from the jury not
hearing evidence of the lineup. Defendant timely appealed.
¶ 22 II. ANALYSIS
¶ 23 At issue in this appeal is whether defendant was denied a fair trial when the State failed to
lay a foundation for the admission of the photo lineup. In addressing that issue, we first consider
whether, as defendant contends, section 107A-2 of the Code (725 ILCS 5/107A-2 (West 2016))
delineates the foundational requirements for admitting photo lineup evidence. As this issue
requires us to examine the statute, our review is de novo. People v. Clark, 2019 IL 122891, ¶ 17.
Section 107A-2 of the Code is divided into 11 subsections. Section 107A-2(a) of the Code
provides that “[a]ll lineups shall be conducted using one of the following methods.” 725 ILCS
5/107(a) (West 2016). This section then delineates how lineups can be presented to eyewitnesses.
Id. Section 107A-2(b) of the Code mandates that law enforcement agencies adopt guidelines for
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2020 IL App (2d) 170890-Uwhen, if at all, simultaneous and sequential lineups will be used. Id. § 107A-2(b). Under section
107A-2(c) of the Code, the legislature indicated that, in the absence of contrary authority, there is
no preference between a live and a photo lineup. Id. § 107A-2(c). Section 107A-2(d) of the Code
sets out how sequential lineups should be conducted. Id. § 107A-2(d). Section 107A-2(e)(1) of
the Code outlines what instructions the administrator of the lineup shall give the eyewitness before
conducting the lineup. Id. § 107A-2(e)(1). That section then provides that the eyewitness shall
acknowledge in writing receipt of the instructions, and a notation shall be made regarding whether
the eyewitness agreed to be recorded making an identification. Id. § 107A-2(e)(2). Section 107A-
2(f) of the Code dictates what the administrator shall do in conducting the lineup. Id. § 107A-2(f).
Under section 107A-2(g) of the Code, the lineup administrator is instructed to make an official
report of all lineups, and that section then delineates what the official report shall contain. Id.
§ 107A-2(g). Section 107A-2(h) of the Code directs that a video of all lineup procedures shall be
made unless impractical or the witness refuses. Id. § 107A-2(h). That section then directs what
the administrator shall do if no recording was made. Id. Section 107A-2(i) of the Code provides
that materials related to the lineup shall be disclosed to defense counsel and that steps shall be
taken to protect the identity of any people in the lineup who are not the defendant. Id. § 107A-
2(i). Section 107A-2(j) of the Code indicates that “[a]ll of the following shall be available as
consequences of compliance or noncompliance with the requirements of this Section.” Id. § 107A-
2(j). This includes granting a motion to bar identification evidence or instructing the jury that it
may consider all the facts and circumstances related to compliance with this section in assessing
the weight of a witness’s identification testimony. Id. Last, section 107A-2(k) of the Code simply
directs that any electronic recording made pursuant to this section shall not be copied, shown, or
transmitted to any unauthorized person. Id. § 107A-2(k).
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2020 IL App (2d) 170890-U¶ 24 In interpreting section 107A-2 of the Code, we are guided by the well-settled rules of
statutory construction. “The primary objective of statutory construction is to ascertain and give
effect to the true intent of the legislature.” Clark, 2019 IL 122891, ¶ 18. “All other canons and
rules of statutory construction are subordinate to this cardinal principle.” Id.¶ 25 “The most reliable indicator of legislative intent is the language of the statute, given its
plain and ordinary meaning.” Id. ¶ 20. “In determining the plain meaning of statutory terms, a
court should consider the statute in its entirety and keep in mind the subject the statute addresses
and the apparent intent of the legislature in enacting the statute.” In re L.W., 2018 IL App (3d)
170405, ¶ 15. “If the statutory language is clear and unambiguous, it must be applied as written,
without resorting to further aids of statutory construction.” Id. “A court may not depart from the
plain language of the statute and read into it exceptions, limitations, or conditions that are not
consistent with the express legislative intent.” Id.¶ 26 With these principles in mind, we conclude that the plain language of section 107A-2 of
the Code does not address the foundational requirements for admitting photo lineup evidence at
trial. Rather, the statute governs how lineups are prepared and administered. As the trial court
held, we determine that the failure to comply with section 107A-2 of the Code goes to the weight,
not the admissibility, of lineup evidence. Because nothing in section 107A-2 of the Code concerns
the foundational requirements for admitting photo lineups, we, like the trial court, determine that
defendant’s motion in limine and her objection to Perez’s testimony about the lineup should have
been denied. Thus, we conclude that defendant was not denied a fair trial.
¶ 27 Even if section 107A-2 of the Code prescribed the foundational requirements for admitting
lineup evidence at trial, the State’s failure to lay a foundation by calling the officer who prepared
the photo lineup did not prejudice defendant or deny her a fair trial. First, “there is no requirement
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2020 IL App (2d) 170890-Uthat a witness to a crime make a pretrial identification of the accused.” In re Johnson, 43 Ill. App.
3d 549, 551 (1976). Thus, the State’s failure to present the lineup evidence did not itself deny
defendant a fair trial. Second, when an eyewitness positively identifies the defendant in court as
the perpetrator, the defendant is not prejudiced by the State’s failure to lay the foundation for the
admission of pretrial identification evidence. See People v. Bell, 217 Ill. App. 3d 985, 999 (1991)
(the defendant was not prejudiced when the trial court, and not the State, laid the foundation for
admission of photo lineup evidence because, even in the absence of such evidence, the young
witness identified the defendant in court and in the police station a day after the incident). Here,
Perez positively identified defendant in court as the woman who threw a container at his car, and
he did so before the State asked him any questions about the photo lineup. Third, the jury was
admonished to disregard any part of the State’s opening statement that was not based on the
evidence and any testimony to which an objection was sustained. Because nothing in the record
indicates that the jury did not follow those admonishments, we must conclude that defendant was
not prejudiced by the State’s failure to present the photo lineup, after alluding to it. See People v.
Johnson, 208 Ill. 2d 53, 116 (2003). And, even if the jury was tempted to consider the absence of
any photo lineup evidence in finding defendant guilty, defendant effectively highlighted in her
closing why it should not, arguing specifically that the conditions and results of that lineup were
unknown.
¶ 28 Last, and most importantly, any error the State made in not presenting the photo lineup
evidence was harmless. “A trial error normally may be deemed harmless, and therefore not
sufficient to trigger reversal, where there is no reasonable probability that the jury would have
acquitted the defendant absent the error.” People v. Blan, 392 Ill. App. 3d 453, 459 (2009). Here,
although the evidence against defendant was not overwhelming, as the jury asked for a definition
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2020 IL App (2d) 170890-Uof reasonable doubt and initially could not reach a verdict, there is no reasonable probability that,
if the photo lineup evidence was admitted, defendant would have been acquitted. Indeed, such
evidence may have strengthened the State’s case and further convinced the jury of defendant’s
guilt.
¶ 29 III. CONCLUSION
¶ 30 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 31 Affirmed.
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