People v. Clifton

2019 IL App (1st) 151967No. 1-15-1967
Opinion filed April 16, 2019
Second Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 12 CR 9493
)
CLARENCE CLIFTON, ) Honorable
) Anna Helen Demacopoulos,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court with opinion.
Justice Pucinski concurred in the judgment and opinion.
Justice Lavin concurred in part and dissented in part, with opinion.
OPINION
¶1 Before trial, Clarence Clifton moved to suppress three pretrial identifications on the
ground that the police used unduly suggestive lineup procedures. The trial court denied the
motion and, after a bench trial, convicted Clifton of armed robbery with a firearm. Clifton
received a prison sentence of 35 years—20 years for the underlying offense and a mandatory 15-
year add-on for the firearm. Although Clifton complained about his counsel’s performance, the
trial court proceeded without a preliminary inquiry into his concerns.
No. 1-15-1967
¶2 Clifton now challenges his conviction and sentence on four grounds: (i) the State failed to
prove beyond a reasonable doubt that the object he brandished during the robbery met the
statutory definition of “firearm,” (ii) the trial court erred by denying his motion to suppress
identification, (iii) the trial court improperly failed to conduct a preliminary inquiry into his
posttrial claims of ineffective assistance of counsel as required by People v. Krankel, 102 Ill. 2d
181 (1984), and (iv) his 35-year sentence constitutes an abuse of discretion.
¶3 We find that the State presented sufficient evidence to prove the presence of a “firearm”
beyond a reasonable doubt. We are mindful that the cross-reference in the Criminal Code of
2012 (Criminal Code) (720 ILCS 5/1-1 et seq. (West 2012)) to the hyper technical definitions of
“firearm” in the Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/0.01
et seq. (West 2012)) creates tension with well-established precedent allowing proof of a firearm
on a single lay witness’s testimony. But, this precedent controls given the specificity of the
testimony about the object. We find, however, that the lineup procedures were unduly suggestive
and agree that a remand is necessary to determine whether a sufficiently independent basis exists
for the identifications made by the complainants. Because we vacate the denial of Clifton’s
motion to suppress and remand for further proceedings, we do not address his sentencing
argument. We do, however, find his Krankel claim likely to recur on remand and agree with the
parties that the trial court failed to conduct a proper Krankel hearing.
¶4 BACKGROUND
¶5 About 10:45 on a night in April 2012, two men walked up to Michael Smith, Victoria
Tolbert, Ashley Lee, and Ciara Reed in an alley behind Smith’s home. The two men robbed them
of their belongings and fled.
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¶6 Smith was standing around a car in the alley with Tolbert, Lee, and Reed. Two men
walked past them, turned around and walked up to the group. One of the men said, “you know
what this is, it’s a robbery” and then “pointed a gun at [them].”
¶7 Smith described the gun as a black “revolver.” In response to defense counsel’s questions
on cross-examination, he estimated the revolver to be either .32 or .38 caliber. The gun was not
the first gun, .32-caliber or otherwise, Smith had seen. The man pointed the gun as close as one
inch from Smith’s face. The man took two phones from Smith’s pants pocket. The other man
took items from the women. The men then got into a Jeep and left.
¶8 Officer Matthews soon arrived, Smith’s aunt having called police. Smith described the
armed offender as having “[l]ong dreads *** a blue hoodie, all white low top Nikes, and a black
Jeep.” As to the second man, Smith could not describe him because he “was only focused on the
guy who was in [his] face with the gun.”
¶9 According to Tolbert, the two men walked by and then “walked back and grabbed
[Smith] by the *** collar and put the gun to his head *** and waved the gun back and forth to
him and me and told us that we know what this is approaching us to rob us.” Tolbert described
the gun as black but did not touch the gun or know what it was made of. While the first man held
the gun on the group the whole time, the second man took Tolbert’s cell phone and purse.
Tolbert described the man with the gun to Officer Matthews as having “dreads” and wearing a
blue or black hoodie and white shoes.
¶ 10 When the two men walked up, Lee was inside the car. Lee saw one of the men pointing a
gun at Smith; she knows what a gun looks like, but could not tell what type of gun the man was
holding or what it was made of. The second man told Lee to get out of the car, which she did.
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The man with the gun pointed it at her and told her to take off her jacket. She complied. The
second man reached into the car for Lee’s purse. Lee told Matthews that the man with the gun
wore “[w]hite gym shoes, jogging pants,” and a dark black or blue hoodie. Also, the man “had a
scar or a tattoo” on his face.
¶ 11 Lineup Identifications
¶ 12 Two days later, Smith, Tolbert, and Lee viewed lineups at the Harvey police station.
They each testified at trial, along with Detective Banks, about the lineup procedures.
¶ 13 Banks identified lineup advisory forms signed by Smith and Tolbert. Lee also signed a
form, but it had been lost. Banks identified State’s Exhibit 1 as two photos of the five men in the
lineup ultimately viewed by the witnesses sitting in the booking area where the lineup was
conducted. The order of the lineup participants differed for each witness, but Banks confirmed
that Exhibit 1 “fairly and accurately show[ed] how the people in the lineup appeared at the time
of the lineup.” Smith, Tolbert, and Lee identified Clifton as “the person that actually removed
items from them.”
¶ 14 Banks acknowledged that Clifton was the only person in the lineup whose dreadlocks hit
his shoulders. He also acknowledged that Clifton was the only person with a mark on his face as
he could not find anyone tattooed in that way.
¶ 15 Smith testified that when he viewed the lineup, Tolbert and Lee were present. Referring
to Exhibit 1, he selected the person he identified at the lineup as Clifton and confirmed Clifton
had the gun during the robbery. Regarding Clifton’s appearance, Smith agreed that the only
person in the lineup with long dreadlocks was Clifton and that Clifton was wearing “the same
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hoodie he robbed us in, and the shoes.” Smith also said that he did not take into consideration
Clifton’s clothes; he saw “who [he] knew did it for sure” and recognized his face.
¶ 16 Tolbert also described the lineup procedures. When asked to look at Exhibit 1, she
identified Clifton in the photo as Smith had done and confirmed that Clifton was “[t]he one with
the gun.” Contrary to Smith’s testimony, she had gone to the police station with the other two
women and viewed the lineup alone. Like Smith, Tolbert agreed that of the men in the lineup,
only Clifton had long dreadlocks and a mark on his face. Tolbert testified that the men in Exhibit
1 appeared in a different order during her lineup but that the photo showed the participants “the
way they were in the lineup that [she] saw.”
¶ 17 Lee could not recall whether she had been given any of the admonishments on the form
but said nobody told her one of the robbers was in the lineup or urged her to pick any particular
person. Lee, like Tolbert, testified that she was alone with just one other officer at the time of the
lineup. Lee identified Clifton and, like Smith and Tolbert, said he “robbed [her]” and was “[t]he
person who had the gun.” Lee could not remember if she had seen other people in the lineup with
tattoos but agreed that she could not see any on the other faces in Exhibit 1. Like Tolbert, Lee
testified that the men in the photo in Exhibit 1 appeared in a different order for her lineup but
that the photo showed “the way the lineup looked when [she] saw it.”
¶ 18 Motion to Suppress the Lineups
¶ 19 Before trial, Clifton moved to suppress the lineup identifications as unduly suggestive.
The motion referred specifically to Clifton’s long dreadlocks and tattoo and alleged that, as the
only one with those features, the lineup’s composition was suggestive. The court heard no
testimony at the hearing; instead, the parties stipulated that there had been a prior description
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given of “Suspect Number 1, male black, 5’9’’ in height, dark complexion, long dreadlocks, no
clothing description or age group available, armed with a black handgun.” Counsels’ argument,
like the written motion, focused on Clifton being singled out by virtue of his long dreadlocks and
a face tattoo.
¶ 20 The trial court, after viewing photographs of the lineup participants, found Clifton’s
dreadlocks were “not distinguishably longer than the other two” participants with dreadlocks.
And that all the participants had their dreadlocks pulled back and that everything else, including
height, complexion, and clothing appeared to be similar. The trial court could not see any mark
on Clifton’s face other than in the close-up booking photo. The court concluded that “[t]he police
are not mandated to put people in a lineup that look exactly like the defendant,” and denied the
motion to suppress.
¶ 21 After the close of trial evidence, defense counsel renewed her motion to suppress
identification. She reiterated concerns about Clifton’s hair and tattoo, adding:
“[A]s the testimony went on, it appeared that there were other factors, a dark
hoodie, some white shoes that were supposedly told to the officers, but that even
Miss Tolbert indicated when she looked at the pictures, oh, he has on the same
thing he had on during the ‘robbery.’
And I think, Judge, that now we can also put in the fact that not only was
he the only one that had long dreads and a mark on his face, but he also was the
only one who had a dark hoodie and white shoes in that lineup.
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And we are asking this Court to reconsider the decision made in the initial
motion to suppress the identification testimony, because now new issues have
come to light.”
Defense counsel asked the court to take account of Smith’s testimony that he viewed the lineup
together with two witnesses and find the lineup procedure violated Clifton’s rights.
¶ 22 The State responded that it was not “proper” to ask the court to consider testimony about
the victims’ descriptions of Clifton’s clothes because the issue of Clifton’s appearance had been
litigated. The State dismissed Smith’s testimony about the lineups’ procedure as a “mistake” and
argued that the other witnesses testified that they viewed lineups with only the detective present.
¶ 23 The trial court found nothing suggestive about Clifton’s appearance, noting that in the
lineups “there are similar hairstyles, there are similar heights, there are similar weights, there are
similar clothing [sic].” On the lineup procedures, the trial court viewed each lineup as its own
identification. Viewed that way, the trial court found that Lee and Tolbert’s testimony
established they were alone when they viewed the lineup. The trial court agreed with Clifton and
found Smith’s testimony warranted suppression of his lineup identification, but a sufficiently
independent basis existed for his in-court identification. With the exception of Smith’s lineup
identification, the trial court denied the renewed motion to suppress.
¶ 24 Posttrial Motions and Sentencing
¶ 25 Clifton was found guilty of armed robbery as to Smith, Tolbert, and Lee without any
express factual findings. Defense counsel moved for a new trial disputing the court’s guilty
finding. The written motion omitted mention of counsel’s motion to suppress the lineup
identifications.
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¶ 26 At the sentencing hearing, the judge heard arguments on the motion for a new trial.
Counsel argued that “there were some questions about the black hoodie—black hoodie, long
dreads, blue or black hoodie, white high tops, white shoes” and a problem with the
identifications where Clifton was the only one in the lineup with “long dreads and a mark on his
face.” Counsel asked the court for “some serious reconsideration” in light of the trial testimony
“to reconcile it with what was put forth to the Court in terms of the motion to suppress
identification.” The court denied the motion for a new trial, stating it “made the appropriate
findings of fact in the motion to suppress identification.”
¶ 27 The trial court sentenced Clifton to 35 years in prison, reflecting 20 years for the
underlying offense and 15 years for the mandatory firearm add-on. Clifton’s motion to
reconsider his sentence was denied.
¶ 28 ANALYSIS
¶ 29 Clifton raises four issues: (i) the State failed to prove him guilty beyond a reasonable
doubt because insufficient evidence indicates that the firearm he was accused of possessing met
the statutory definition of a “firearm,” (ii) his clothing and physical features made the lineup
unduly suggestive, (iii) the trial court did not properly inquire when he raised pro se claims of
ineffective assistance of counsel, and (iv) 35 years was excessive given the nature of the offense
and the mitigation evidence.
¶ 30 The State responds that it presented sufficient evidence in the form of witness testimony,
from which a reasonable fact finder could infer that Clinton had a “firearm.” The State also
disputes the suggestiveness of the lineup, as police are not required to find identical lineup
participants and, in regard to Clifton, that would have been impossible. The State agrees with
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Clifton that no inquiry was made into his pro se ineffectiveness claims and concedes the need for
a remand. Finally, given the serious nature of the crime and Clifton’s criminal history, the State
asserts that his sentence amounted to a reasonable exercise of discretion.
¶ 31 Sufficiency of the Evidence
¶ 32 Armed robbery requires taking “property *** from the person or presence of another by
the use of force or by threatening the imminent use of force” and doing so “armed with a
firearm.” 720 ILCS 5/18-1(a) (West 2012) (definition of robbery); 720 ILCS 5/18-2(a)(2) (West
2012) (armed robbery charge against Clifton). A violation of subsection (a)(2) carries a
mandatory 15-year sentencing enhancement. 720 ILCS 5/18-2(b) (West 2012). For the purposes
of the armed robbery statute, we derive the definition of “firearm” from the FOID Card Act. 720
ILCS 5/2-7.5 (West 2012) (referring to 430 ILCS 65/1.1 (West 2012)); see also People v.
Wright, 2017 IL 119561, ¶ 71. The FOID Card Act defines “firearm” as “any device, by
whatever name known, which is designed to expel a projectile or projectiles by the action of an
explosion, expansion of gas or escape of gas” and exempts many types of guns including
pneumatic guns, spring guns, paintball guns, BB guns, signal guns, and antique guns. 430 ILCS
65/1.1 (West 2012).
¶ 33 Proof a brandished object constitutes a firearm can be established by the testimony of a
single eyewitness. Wright, 2017 IL 119561, ¶ 76. When analyzing a witness’s testimony, we
ignore a witness’s subjective beliefs about the nature of the weapon. People v. Ross, 229 Ill. 2d
255, 277 (2008) (“[t]he trial court incorrectly based its ruling on the subjective feelings of the
victim, rather than the objective nature of the gun”). Wright distinguished Ross on its facts
(Wright, 2017 IL 119561, ¶¶ 74-76) without questioning its objective analytical framework. We
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do not find any inconsistency in the propositions from those two cases. We can rely on the
eyewitness testimony of a single witness, but that testimony must provide sufficient facts to
allow one to objectively conclude that the object used in the robbery meets the statutory
definition of a firearm.
¶ 34 Before addressing the facts, we clarify the precedential value of the cases cited and relied
on by the parties. Central to the dispute in addition to Ross and Wright are People v. Washington,
2012 IL 107993 and People v. Malone, 2012 IL App (1st) 110517. The decisions in Washington
and Ross analyze the sufficiency of the evidence to prove armed robbery under the statute before
its amendment in 2000. See Washington, 2012 IL 107993, ¶¶ 5-7; Ross, 229 Ill. 2d at 257(defendant’s offense committed in 1999). Before January 1, 2000, the armed robbery statute had
one requirement: a defendant commits robbery while he or she carried, or was otherwise armed
with, a dangerous weapon. See Pub. Act 91-404, § 5 (eff. Jan. 1, 2000) (amending 720 ILCS
5/18-2). The amendment left the requirement of a dangerous weapon in place but made separate
categories allowing for sentencing enhancements when a defendant possesses or uses a “firearm”
in the course of a robbery. Pub. Act 91-404, § 5 (eff. Jan. 1, 2000); see also 720 ILCS 5/18-
2(a)(1)-(4) (West 2012). The decisions in Wright and Malone analyze the sufficiency of the
evidence to prove armed robbery under the current statute. Wright, 2017 IL 119561, ¶ 71;
Malone, 2012 IL App (1st) 110517, ¶ 40. The courts in Wright and Malone discussed, but did not
decide, the continued relevance of the analysis of the sufficiency in Washington and Ross. See
Wright, 2017 IL 119561, ¶¶ 72-76; Malone, 2012 IL App (1st) 110517, ¶¶ 42-52.
¶ 35 A different panel in this division called Ross into question in People v. Fields, 2017 IL
App (1st) 110311-B, on which the State relies. We respectfully disagree and find that cases
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analyzing the preamendment armed robbery statute remain just as precedential after amendment.
Recently, yet another panel in this division came to a similar conclusion. In People v. Charles,
we noted that our supreme court’s analysis in Wright expressly adopted the analysis of the
preamendment statute in Washington. 2018 IL App (1st) 153625, ¶ 28. We find good reason to
retain a consistent analysis postamendment of the armed robbery statute. In Ross, our supreme
court defined “dangerous weapon” broadly, allowing proof that the weapon used be either (i)
dangerous per se, as is a loaded gun; (ii) not necessarily dangerous but actually used in a
dangerous manner; or (iii) not necessarily dangerous but capable of use in a dangerous manner.
229 Ill. 2d at 275. Under that expansive definition, the State need not prove that a gun was
loaded and operable to be dangerous. Id. at 276. Instead, the State could meet its burden on the
“dangerous weapon” element by showing the gun capable of use as a club or a bludgeon. Id.¶ 36 By amending the armed robbery statute to require the presence of a “firearm,” the
General Assembly narrowed the scope of the offense by virtue of the Criminal Code’s cross-
reference to the FOID Card Act’s stringent definition of firearms. The State needs to rely on
more than the common sense notion that a firearm is dangerous because it is capable of being
used dangerously; the State must prove that the object wielded during a robbery “is designed to
expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas.”
430 ILCS 65/1.1 (West 2012). The legislature then struck the balance by automatically
increasing a defendant’s sentence by 15 years when the State meets its heavy burden of proving
the presence of a “firearm.” 720 ILCS 5/18-2(b) (West 2012).
¶ 37 Ross and Malone, and other cases interpreting the preamendment armed robbery statute,
still apply. In sum, the amendment of the armed robbery statute has made the State’s burden
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more onerous in armed robbery cases alleging the use of a firearm. If the State failed to meet its
burden in Ross, where the statute allowed far more leeway in proving the presence of a
“dangerous weapon,” then Ross’s analysis is even more persuasive in cases with similar facts
because the amended statute increased the specificity of proof required.
¶ 38 That said, we find the situation before us distinguishable from Ross. There, the victim
was only able to describe the gun as black and “small, portable, and concealable.” Ross, 229 Ill.
2d at 258, 276. The officer who recovered the gun expressly testified that it was a pellet gun. Id.
at 276-77. By contrast, Smith gave far more specifics. He testified that the gun was black, a
revolver, and either a .32 or .38 caliber. He had personally observed .32-caliber guns before.
And, Smith testified that the gun was within one inch of his face.
¶ 39 Smith’s testimony has a level of specificity like that in Wright. The witness testified
about the color of the gun and explained that he had experience firing the exact type of gun he
believed was used. Wright, 2017 IL 119561, ¶ 76. Plus, the witness felt the gun and described
“ ‘something sharp’ ” being pressed into his back. Id. All of his observations led him to be
“ ‘100% sure’ ” that the weapon was “an ‘actual firearm.’ ” Id. Smith described the gun by its
color (black), type (revolver), and caliber (.32 or .38). Smith also had experience with the caliber
of gun he believed Clifton possessed. While the witness in Wright testified to being subjectively
100% certain that the item was an actual firearm (id.), we need not rely on a witness’s subjective
belief about the nature of the firearm. Ross, 229 Ill. 2d at 277. Looking at the objective evidence
provided by Smith compared to the testimony of the victim in Wright, we find sufficient
evidence that the nature of the firearm was proven beyond a reasonable doubt.
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¶ 40 Both the majority and concurrence in People v. McLaurin, 2018 IL App (1st) 170258,
provide assistance. In McLaurin, the criminal offense, armed habitual criminal, also requires
proof that the defendant possessed a “firearm” as defined in the FOID Card Act. Id. ¶¶ 1, 20-21.
The court found the evidence insufficient to prove the defendant’s possession of a “firearm”
because the sole witness to see him with the gun, a police officer, testified that she saw what
appeared to be a gun but could only provide details about color because all she observed was the
handle and the barrel. Id. ¶ 26.
¶ 41 The majority in McLaurin distinguished armed robbery cases on the ground that “the
underlying offense is robbery” and, to prove robbery, “there is no requirement to prove that a
firearm was used in the taking.” Id. ¶ 24. The majority, thus, found that use of a firearm during a
robbery to be an “aggravating factor” and, as a result, the State had more leeway to prove the
presence of a firearm by circumstantial evidence. Id. To the extent the McLaurin majority has
implied a different standard of proof applies to a “firearm” in robbery cases as opposed to
possession cases, we disagree. Instead, we adopt the approach of the special concurrence. See id.
¶¶ 33-36 (Mikva, J. specially concurring). The presence of a firearm undoubtedly presents more
than an “aggravating factor” under subsection (a)(2) of the armed robbery statute; indeed, the
State must prove it beyond a reasonable doubt. Id. ¶ 34; see also Wright, 2017 IL 119561 ¶¶ 70-
71. While true that the State may be able to prove a firearm by different types of circumstantial
evidence in an armed robbery case than in a possession case (McLaurin, 2018 IL App (1st)
170258 ¶ 24; see also id. ¶ 34 (Mikva, J. specially concurring)), the same definition of “firearm”
applies in both the robbery and the possession contexts.
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¶ 42 Again, we find Clifton’s case distinguishable from McLaurin. The witness in McLaurin
could only see the color of the gun and saw it from 50 feet away. Id. ¶ 26 (majority opinion).
Smith testified to the color as well as the type of gun and caliber. And, the gun was an inch or so
from Smith’s face, giving him a substantially better opportunity to observe the gun up close than
the officer in McLaurin.
¶ 43 Long-standing precedent allowing proof of a “firearm” based on the testimony of a single
lay witness, coupled with the testimony actually elicited, compel our conclusion. But, we remain
mindful that cross-referencing the Criminal Code and the FOID Card Act creates two particular
evidentiary problems.
¶ 44 First, while the State carries the burden of proof beyond a reasonable doubt, the technical
definition of a firearm in the FOID Card Act has led to decisions impliedly and improperly
shifting the burden so the defense must disprove the presence of a statutorily defined firearm. For
example, in People v. Clark, 2015 IL App (3d) 140036, ¶ 24, the appellate court took the
defendant to task for failing to offer evidence that the gun was fake or some type of air rifle.
And, in People v. Hill, 346 Ill. App. 3d 545, 548 (2004), the appellate court found that the
defendant had forfeited his challenge to the sufficiency of the evidence by failing to present his
own evidence that the gun was inoperable. A defendant can never forfeit his or her challenge to
the sufficiency of the evidence proving an element of a criminal offense (People v. Cregan, 2014
IL 113600, ¶ 16), and it undermines due process by placing on defendants the burden to present
evidence disproving the State’s charge (People v. Jeffries, 164 Ill. 2d 104, 114 (1995) (“A
defendant’s due process rights are violated when the burden shifts to the defendant to disprove
an element of the offense.”)).
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¶ 45 Our recognition of the State’s burden leads to the second concern. Illinois courts hold that
the State need not present physical evidence of a gun to establish the presence or use of a
firearm. People v. Jackson, 2016 IL App (1st) 141448, ¶ 15 (citing Washington, 2012 IL 107993,
¶ 36). Absent some physical evidence, it seems almost impossible to prove that an item alleged
to be a firearm meets the technical statutory definition unless fired. The FOID Card Act’s
definition of “firearm” requires the object to expel a projectile “by the action of an explosion,
expansion of gas or escape of gas.” 430 ILCS 65/1.1 (West 2012). No lay witness would ever be
able to testify to this feature unless the gun was fired or the witness somehow had an opportunity
to examine the gun. As Clifton suggests, the act exempts BB guns and other guns that “expel[ ] a
single globular projectile not exceeding .18 inch in diameter.” Id. Again, no lay witness would be
able to confirm that the object brandished met this definition without examining the ammunition
or seeing the weapon fired.
¶ 46 As the court indicated in McLaurin, and as the facts establish here, armed robberies pose
a pernicious possibility that an offender will use a firearm (or even an object that looks like one)
to force compliance with the robbery. 2018 IL App (1st) 170258 ¶ 24 (describing circumstances
of offenses in Washington and Wright). But, the General Assembly has already accounted for
that possibility with the aggravated robbery statute. Aggravated robbery involves taking property
from the person or presence of another, “while indicating verbally or by his or her actions to the
victim that he or she is presently armed with a firearm ***. This offense shall be applicable even
though it is later determined that he or she had no firearm ***.” 720 ILCS 5/18-1(b)(1) (West
2012). The General Assembly has addressed concerns like those expressed in McLaurin by
creating an offense punishing an offender who attempts to coerce compliance by implying he or
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she has a firearm. While precedent compels us to affirm Clifton’s conviction, it appears the
aggravated robbery statute more aptly describes Clifton’s offense.
¶ 47 The FOID Card Act contains highly technical definitions and exemptions for “firearms.”
Those technical definitions have been imported wholesale into the Criminal Code for any offense
that punishes the use or possession of a “firearm.” It appears the General Assembly has crafted a
careful balance, requiring the State to prove the technical presence of a firearm but allowing a
much greater punishment should they be successful. We are troubled by the cases that allow for
proof of a firearm with testimony that does not come close to describing the technical features of
a firearm outlined in the FOID Card Act, but our supreme court has expressly approved of that
type of testimony. Indeed, our supreme court has condoned convictions for armed robbery with
far less specific testimony than is present here. So we affirm defendant’s conviction.
¶ 48 Suppression of Identification
¶ 49 Clifton argues that the trial court erred in denying his motion to suppress identification.
He contends that the procedures used by the Chicago Police Department were unduly suggestive
because Clifton was the only participant in the lineup wearing a dark sweatshirt and white shoes,
which the witnesses described the offender as wearing. Clifton also refers to Smith’s testimony
indicating that Smith viewed the lineup at the same time as other witnesses. Finally, Clifton
argues the witnesses’ identifications were too unreliable to salvage any suggestiveness in the
lineup procedures, although he conceded at oral argument that a remand for a hearing on whether
there is an independent basis for the identifications would be appropriate if we find the record
unclear or underdeveloped on this point.
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¶ 50 The State preliminarily responds that Clifton forfeited his claim of suggestiveness of the
lineup on account of dress. Alternatively, the State argues “no one person glaringly stood out
from anyone else in the lineups,” despite only Clifton wearing a dark sweatshirt and white gym
shoes. As to Smith’s identification, the State responds that the trial court suppressed his pretrial
identification and that, even if Smith viewed the lineup with the others, the record shows no
impact on their independent identifications. Finally, the State contends the witnesses’ ability to
identify Clifton was independently reliable even if the lineup was suggestive and also proposes
the alternative remedy of a remand for a fuller exploration.
¶ 51 As we will explain, we partially agree with Clifton. After reviewing the lineup
photographs and the testimony regarding the lineup procedures, we find the lineup was unduly
suggestive. We do not agree, however, that the record is sufficiently developed to review the
question of whether the identifications are sufficiently independent to be admissible. Critically, a
finding that the lineups are suggestive shifts the burden to the State, but because the trial court
did not find the lineup suggestive in the first instance, the State had no opportunity to attempt to
satisfy its burden. Therefore, we vacate the trial court’s judgment and remand for a hearing on
the independent reliability of the identifications.
¶ 52 Forfeiture
¶ 53 The State initially argues that Clifton has forfeited his claim. We disagree. To preserve an
issue for review, a defendant must object to the alleged error when it occurs and raise the issue in
a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). The forfeiture rule protects (i)
respect for the trial court as the tribunal with the primary responsibility to make findings of fact
and render initial judgments, (ii) time and judicial resources by heading off appeals of
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nonmeritorious claims, and (iii) against unfair surprise to the State who may otherwise hear of an
issue for the first time on appeal. See id. at 188 (citing People v. Irwin, 32 Ill. 2d 441, 443-44
(1965)). An oral motion protects the interests served by a written motion as long as the State
waives the requirement of a written motion by not objecting or arguing the motion anyway.
People v. Edwards, 241 Ill. App. 3d 839, 843 (1993) (citing Enoch, 122 Ill. 2d at 188); People v.
Todd, 249 Ill. App. 3d 835, 840-41 (1993).
¶ 54 The State’s forfeiture argument is twofold. The State asserts that Clifton did not
“properly or fully” litigate the suppression issue in the trial court because he only asserted a
problem with the lineup based on a “tattoo and dreadlocks.” Alternatively, the State argues that
Clifton did not include his suppression claim in his written posttrial motion. The State
acknowledges that Clifton orally argued the suppression issue during the hearing on the motion
for a new trial but repeats its argument that the hearing focused on the tattoo and dreadlocks. We
find both arguments unsupported by the record.
¶ 55 The State correctly notes that the original motion to suppress identification did not raise a
specific claim about the victims’ description of the offender’s clothing. But, the first argument
about the motion to suppress reveals the reason. At the time of the filing and argument on the
original motion, defense counsel relied on information in the police reports, which described the
offender with the gun as: “Suspect Number 1, male black, 5’ 9’’ in height, dark complexion, long
dreadlocks, no clothing description or age group available, armed with a black handgun.” So, at
the time the initial motion, no facts available to defense counsel supported an argument about
Clifton’s clothing during the lineup.
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No. 1-15-1967
¶ 56 Then, at trial, all three witnesses testified about the offender’s clothing. At the close of
evidence, defense counsel argued that new information had come forward “that not only was
[Clifton] the only one that had long dreads and a mark on his face, but he also was the only one
who had a dark hoodie and white shoes in that lineup.” While the State characterized the
argument based on this additional information as “improper,” the trial court did consider the
additional information when it denied counsel’s renewed motion to suppress. In ruling, the trial
court referred to “Mr. Clifton’s physical appearance” generally and found that all of the
participants in the lineup had similar hairstyles, similar height and weight, and similar clothing.
The trial court’s ruling on the renewed motion to suppress considered and incorporated counsel’s
arguments based on the additional information about Clifton’s clothes.
¶ 57 Turning to the posttrial litigation about the motion to suppress, again, the State correctly
states that trial counsel’s written motion contains no mention of Clifton’s suppression claim.
That said, the parties amply litigated the claim at the hearing on the posttrial motion. As part of
counsel’s argument about identification, she said, “there were some questions about the black
hoodie *** long dreads, blue or black hoodie, white high tops” and “each and every of these
three witnesses told this Court *** that the defendant was the only person—the only person in
those lineups that had long dreads and a mark on his face.” The State responded, “we believe that
the Court’s ruling of the pretrial motion on the lineup was appropriate.” Defense counsel tried to
reply, but the court interjected, “I don’t need to rehear what you’ve already reargued five times,
[counsel].” The trial court then allowed counsel to adopt the arguments she made at the motion
hearing at the close of the State’s evidence. Ultimately, the court denied the motion for a new
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No. 1-15-1967
trial, stating, “I do believe the Court made the appropriate findings of fact in the motion to
suppress identification ***.”
¶ 58 The State’s insistence that the issue has been forfeited would require us to adopt an
unreasonably strained reading of the record. The litigation of the motion to suppress
identification gave the trial court the opportunity to make both factual and legal rulings, gave the
State an opportunity to respond, and refined the scope of the issue for our review. See Enoch,
122 Ill. 2d at 188. The application of forfeiture would be particularly unfair given the State’s
participation on the issue of suppression at every stage of the proceedings in which the issue
arose. Clifton has sufficiently preserved this claim.
¶ 59 Merits of the Motion to Suppress
¶ 60 Identifications made at a lineup always present “the possibility of unfairness to the
accused in the way a lineup is conducted.” Foster v. California, 394 U.S. 440, 442 (1969). So, a
two-part framework has been developed. First, the defendant bears the burden to show the
pretrial lineup as “impermissibly suggestive.” People v. McTush, 81 Ill. 2d 513, 520 (1980). If
the defendant successfully makes the showing, the burden shifts to the State to present clear and
convincing evidence that “the witness is identifying the defendant solely on the basis of his
memory of events at the time of the crime.” (Internal quotation marks omitted.) Id. We review
the totality of the circumstances surrounding the identification (People v. Lawson, 2015 IL App
(1st) 120751, ¶ 39) and may look to facts adduced at both the suppression hearing and trial
(People v. Gill, 2018 IL App (3d) 150594, ¶ 76 (citing People v. Brooks, 187 Ill. 2d 91, 127-28
(1999) (where defendant seeks reconsideration of suppression rulings posttrial, appellate court
may consider both hearing and trial testimony)).
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No. 1-15-1967
¶ 61 We employ a two-part standard of review. We adopt the trial court’s factual findings
unless they are against the manifest weight of the evidence and review the ultimate legal
question of whether suppression is warranted de novo. Lawson, 2015 IL App (1st) 120751 ¶ 39.
¶ 62 Clifton’s primary argument contends that the lineup was unduly suggestive because only
Clifton appeared in the lineup with dreadlocks, a dark hoodie, and white shoes, the description
given by the victims of the offender with the gun. At first blush, the weight of authority in
Illinois appears to reject this argument—a substantial body of case law upholds a lineup when a
suspect wears clothing described to police by the victims. People v. Peterson, 311 Ill. App. 3d
38, 49-50 (1999) (collecting seven cases holding similarly). But, Clifton’s identification is
unique relative to this body of case law. We are not presented with a situation where a defendant,
described only as wearing one particular item or having one particular physical feature, appears
in a lineup with the piece of clothing or physical attribute. Instead, both the lineup photograph
presented at the suppression hearing and the hearing testimony itself confirms that Clifton was
described, and later presented, as the only participant in the lineup with three particular articles
of clothing, a unique hairstyle, and a facial feature matching the description of the offender. On
these facts, we find the lineup was unduly suggestive.
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No. 1-15-1967
Exhibit 1, which the State showed to all three witnesses at trial.
¶ 63 While the law “does not require that lineups and photographic arrays *** include near
identical or look alikes of the witnesses’ descriptions,” if the defendant is the only one in the
lineup required to wear the clothing that the suspect reportedly wore the lineup may be unduly
suggestive. People v. Johnson, 149 Ill. 2d 118, 147 (1992) (citing United States v. Wade, 388
U.S. 218, 233 (1967)). We view the suggestiveness of the lineup in light of the totality of the
circumstances, with our focus on “the strength of [the] suggestion made to the witness.” Id. In
his brief and at oral argument, Clifton emphasized the multiple similarities between his prior
description and his appearance in the lineup arguing that they made the lineup strongly
suggestive. We agree.
¶ 64 The State argues that lineup participants need not be “physically identical” for a lineup to
be fair. In support, the State cites People v. Simpson, 172 Ill. 2d 117 (1996), Peterson, 311 Ill.
App. 3d 38, People v. Johnson, 222 Ill. App. 3d 1 (1991), and People v. Coleman, 203 Ill. App.
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No. 1-15-1967
3d 83 (1990). We find the simplest way to explain our conclusion is to distinguish the cases on
which the State relies.
¶ 65 In Simpson, the complaining witness described the suspect as having curly hair. 172 Ill.
2d at 139. The defendant was one of five black males to be included in a lineup in which every
participant “had similar skin tone, had moustaches, fairly short hair and wore casual clothing.”
Id. Each participant was between 5 feet, 9 inches, tall and 6 feet, 1 inch, tall and between 144 and
210 pounds; the defendant was 5 feet, 11 inches, tall and weighed 179 pounds. Id. The defendant
was, however, the only participant with curly hair. Id. The supreme court found the lineup to be
proper because the defendant’s hairstyle was not “so distinctive as to render the lineup
suggestive.” Id. at 140.
¶ 66 In Peterson, the suspect was described as having pink rollers in his hair and the
defendant, though he had long hair, had it “covered by [a] baseball cap.” 311 Ill. App. 3d at 49.
The defendant was not wearing pink rollers in the lineup. Id. at 47. The defendant was also the
only participant to appear in the lineup in an “unremarkable gray sweatshirt” after the suspect
had been described as wearing one. Id. at 47, 49. We found the sweatshirt, given the totality of
the circumstances, was not sufficient to render the lineup suggestive. Id. at 49-50.
¶ 67 In Johnson, the defendant was arrested in red pants and placed in the lineup while
wearing those pants. 222 Ill. App. 3d at 7-8. The complaining witness had previously said the
suspect wore red pants. Id. at 7. The defendant, who was black, was in the lineup with several
other men who were black and every person in the lineup wore “causal or informal clothing.” Id.
This court found the lineup was not suggestive because everyone in the lineup was “basically
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No. 1-15-1967
similar in appearance” and the police were not obligated to provide the defendant clothing other
than what he was arrested in. Id. at 8.
¶ 68 Finally, in Coleman, the defendant was the only person in the lineup wearing a dark shirt
where the complaining witness “had told the police that the [suspect] was wearing a dark shirt at
the time of the offense.” (Emphasis in original.) 203 Ill. App. 3d at 91. This court found that the
mere fact that the defendant was wearing a black shirt while the suspect had been described as
wearing a dark shirt did not render the lineup suggestive. Id. at 91-92.
¶ 69 The critical theme running through these cases is that one distinct feature, standing alone,
is not sufficient to render a lineup suggestive where the participants in the lineup otherwise have
substantially similar appearances. In stark contrast to these earlier decisions, Clifton is the only
person present in the lineup that has the precise combination of several features described by the
witnesses.
¶ 70 The witnesses consistently described Clifton as having dreadlocks, a dark (black or blue)
hoodie, and white gym shoes. Lee also described Clifton’s pants as “jogging pants.” There are
multiple men in the lineup photo that have dreadlocks, but of them only Clifton has dreadlocks
and hoodie. There are multiple men that have “jogging” pants or sweatpants, but Clifton is the
only one of them also wearing white shoes. There is one other man in a dark colored hoodie, but
of the two, only Clifton has dreadlocks and white shoes. Indeed, no other lineup fillers had white
shoes. It is not simply that Clifton was wearing clothing described by the witnesses—he was the
only one in the lineup that appeared consistent with every feature that the witnesses had provided
in their descriptions of the suspect.
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No. 1-15-1967
¶ 71 Given the sheer number of characteristics that Clifton matched exactly, we find his
reliance on People v. Maloney, 201 Ill. App. 3d 599 (1990), persuasive. There, the defendant
appeared in a lineup with four other men. Id. at 606. Three men wore pressed white shirts,
pressed grey slacks, socks and shoes, and wristwatches. Id. The fourth man wore a pressed
pullover shirt, pressed jeans, socks and shoes, and a wristwatch. Id. at 606-07. The defendant,
however, wore a brown or extremely dirty shirt, wrinkled blue slacks, shoes with no socks, and
no wristwatch. Id. at 607. The defendant, overall, appeared unkempt compared to the well-
dressed and well-groomed men who accompanied him at the lineup. Id. Along with the stark
contrast in dress, a “difference in physical size” existed among the lineup participants. Id. This
court found that the lineup procedure “all but hung a sign saying ‘pick me’ around defendant’s
neck.” Id.
¶ 72 We find similar spotlighting here. The defendant in Maloney stuck out because he was
dressed in a completely unique manner from the other lineup participants; in Clifton’s case,
while his clothes may fit in with the general style worn by the other participants, only Clifton’s
appearance matches precisely the descriptions given by the witnesses as to several articles of
clothing and at least two aspects of his physical appearance. Clifton argues in his brief, “If one
hundred people were asked to view the lineup and choose which participant was not like the
others, there is no question that all one hundred would choose Clifton.” In most cases, we might
be inclined to disagree with such a broad statement, but on the facts only a minor modification
makes it accurate: if one hundred people, who knew of Clifton’s earlier description, were asked
to view a lineup and choose which participant was not like the others, we find it highly probable
that they would pick Clifton.
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No. 1-15-1967
¶ 73 The dissent asserts that
“[i]f one is looking to identify somebody in [Exhibit 1] who is unlike the others, one need
only look next to [Clifton], where a young man with a short-cropped haircut sits, wearing
an unzipped hoodie that pointedly reveals his bare chest. One might say he looks
different, but even he is approximately the same age, height, and weight as the others.”
Infra ¶ 100.
But Smith, Tolbert, and Lee did not describe their assailant as having “a short-cropped haircut”
or wearing an “unzipped hoodie” with no shirt underneath. This young man may be the stand-out
participant for an observer unimpeded by a prior description they gave, but here Clifton stands
out because he matches previous descriptions in several unique ways. The question is not who
among the participants is least like the others; the question is who among the participants is most
like the previous descriptions. And the answer is Clifton.
¶ 74 The dissent’s only answer is to juxtapose Exhibit 1 with photos that were not introduced
at trial or ever shown to any witnesses. Infra ¶ 100. This is critical because every witness who
testified explained that Clifton appeared in the lineup as he appeared in Exhibit 1. So, Clifton
may have appeared differently at some point while he was in police custody, but that simply does
not matter for our purposes because we know that when the witnesses viewed their lineups,
Clifton appeared as he did in the only photo admitted at trial, which does not show an unzipped
hoodie.
¶ 75 For similar reasons, we distinguish the cases the State relies on to argue, “differences in
physical characteristics have likewise been held not enough to render a lineup or photo array
suggestive.” People v. Daniel, 2014 IL App (1st) 121171, ¶ 15 (finding none of defendant’s
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No. 1-15-1967
claims about suggestiveness persuasive where “all [of the subjects]—including defendant—
match [the victim’s] general description”); People v. Allen, 376 Ill. App. 3d 511, 521 (2007)
(defendant was only person in lineup who was bald, but hair was only unique characteristic and
other participants had closely cropped hair anyway); People v. Johnson, 104 Ill. App. 3d 572,
578-79 (1982) (only noticeably unique aspect of defendant’s appearance was that he was
balding, an attribute not visible to witness at lineup because defendant was wearing bandana).
Again, even though other participants in Clifton’s lineup had dreadlocks or braided hair, none of
the others had hoodies or white shoes and it appears only one of them may have been wearing
“jogging pants” or sweatpants. It is the fact that Clifton is the only person matching every aspect
of the previous description that renders his lineup unduly suggestive.
¶ 76 On a more pragmatic level, the State argues that we should not find the lineup suggestive
because Clifton simply wore the clothes in which he was arrested and the officers “did not tell
[him] what to wear.” In support, the State cites People v. Faber, 2012 IL App (1st) 093273, ¶ 57,
where we found no suggestiveness in a lineup even though the defendant was the only person
wearing a sleeveless white T-shirt as the victim had described. But, the sleeveless white T-shirt
was the only purportedly unique feature about the defendant matching his previous description
and other participants in the lineup were wearing short sleeved white T-shirts. Id. Clifton’s case
of course, differs—his appearance matched the previous description in many particulars. We find
this case surpasses the limits of police taking suspects as they find them.
¶ 77 At oral argument, Clifton’s counsel clarified that there was little that officers could have
done about the tattoo on his face. Our review of the photos suggests that Clifton’s tattoo may not
even have been visible from the distance at which the witnesses were viewing the lineup. Indeed,
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No. 1-15-1967
the tattoo appears faintly visible in Clifton’s close-up booking photo. Clifton’s counsel also
agreed that his tattoo is not a major factor in the analysis. Given the suggestiveness present in the
remainder of Clifton’s appearance, we agree.
¶ 78 The suggestiveness of Clifton’s lineups was substantial; the necessary fixes were
relatively easy. Clifton’s tattoo aside, the officers need not have gone to extraordinary measures
to prevent suggesting Clifton as the offender. They certainly need not have, as the dissent
suggests, taken a “shopping trip to Target.” Infra ¶ 102. Tucking in Clifton’s hood, taking all of
the participants’ shoes off, and providing hats to Clifton and the fillers would have sufficed.
Indeed, it appears that police stations in Chicago follow these types of procedures as a matter of
routine practice. See People v. Brown, 2017 IL App (1st) 143719-U, ¶ 6 (“police gave all lineup
participants hats to disguise their hairstyles” where offender was described as having braided
hair); People v. Smith, 2016 IL App (1st) 133811-U, ¶ 6 (“due to defendant’s braided hair and
the large tattoos on his face, in order to make the lineup fair and not suggestive, all of the
participants had bandages on their faces and wore baseball hats”). We do not cite these decisions
for their precedential value, because of course they have none (see Ill. S. Ct. R. 23(e) (eff. July 1,
2011)), only as examples to dispel the practical concern the dissent has that it would be onerous
for police to remedy the obvious differences in Clifton’s appearance. See People v. Carr, 2013
IL App (3d) 110894, ¶ 29 n.2 (Schmidt, J. specially concurring) (citing Rule 23 order as an
example, not as authority).
¶ 79 Again, the dissent responds to this point by referring to photos that were not introduced at
trial. Infra ¶ 102. The witnesses confirmed that Exhibit 1 shows Clifton as he appeared during
their lineups. Detective Banks, looking at Exhibit 1, agreed that Clifton was one of two people in
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No. 1-15-1967
a dark hoodie. Importantly, Clifton did not supplement his claim about the suggestiveness of his
lineup with arguments about his clothing until after the witnesses confirmed that he appeared as
he did in Exhibit 1. Any suggestion that Clifton’s hood may have been tucked-in in other photos
is irrelevant where no witness testified that Clifton appeared as he did in the other photos at the
time of the lineups. Cf. People v. Thomas, 199 Ill. App. 3d 79, 88 (1990) (error for trier of fact to
consider exhibits not introduced into evidence).
¶ 80 While not dispositive, we also find it illuminating the Chicago Police Department
expressly instructs its officers that “[s]uspects in a lineup should not appear to be substantially
different from fillers based on the eyewitness’s previous description of the perpetrator or based
on other factors that would draw attention to the suspect. For example, fillers should be the same
race, sex, approximate height, weight, age, and physical appearance and be similarly clothed.”
(Emphases added.) Chicago Police Department, Special Order S06-02 § 2(F)(3) (eff. Jan. 1,
2016) (http://directives.chicagopolice.org/directives/data/a7a57be2-12be97cf-78912-be98-
99723f421ce10458.html?hl=true) [https://perma.cc/3AU9-EUKU]. (We acknowledge that the
effective date of this special order comes after the time at which Clifton’s lineup was
administered. But, according to the notations about amendments in the order, it appears this
language existed in earlier versions.)
¶ 81 Of primary importance, it appears that Chicago police officers are aware that they are to
carefully ensure, when constructing a lineup, that any difference between an offender and a filler
is not related to the descriptions given by witnesses. Here, the State does not dispute that the
officers were aware of the description that Smith, Tolbert, and Lee had given and that no
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No. 1-15-1967
remedial steps were taken to ensure that Clifton’s appearance did not set him apart based on
those descriptions.
¶ 82 We reiterate that under Illinois law, the mere fact that a suspect appears in the lineup with
one article of clothing or distinctive feature that matched his or her description does not render a
lineup suggestive. Our conclusion is limited to its facts—the sheer number of Clifton’s features
matching the witnesses’ descriptions compels our result.
¶ 83 Turning to remedy, as we have said the parties now agree that a remand is appropriate to
allow the trial court to evaluate the independence of the witnesses’ identifications in the first
instance. We agree. As we have set out, a defendant bears the initial burden to establish that the
identification procedures are suggestive. McTush, 81 Ill. 2d at 520. Once he or she does that, the
State must prove “by a clear and convincing showing, based on the totality of the surrounding
evidence, that the witness is identifying the defendant solely on the basis of his [or her] memory
at the time of the crime.” (Internal quotation marks omitted.) Id. Here, the trial court did not find
the identification procedures suggestive in the first instance, and so the burden never shifted to
the State. As a result, the State did not have the opportunity to provide evidence to meet its
burden to show an independent basis for the identifications. As we are a court of review, not first
view, we find a remand appropriate.
¶ 84 The dissent is “puzzled” that we would choose to remand to afford the State an
opportunity to meet its burden and allow the trial court to make findings of fact in the first
instance. But, as the dissent points out, we may consider the independence of witness
identifications for the first time on appeal if the record is sufficiently developed. See Brooks, 187
Ill. 2d at 129. What we may do, however, is not always what we should do. Here we see no
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No. 1-15-1967
judicial economy rationale for doing so ourselves. We are remanding—as the dissent agrees we
should—for a preliminary Krankel hearing. So, this case will already be before the trial court
once again.
¶ 85 We vacate the trial court’s denial of Clifton’s motion to suppress identification. In
accordance with our review of the record and the parties’ agreement as to remedy, we remand for
the trial court to conduct a hearing to determine whether there is a sufficiently independent basis
on which to find the complainants’ identifications of Clifton reliable.
¶ 86 Krankel
¶ 87 Given our resolution of Clifton’s suppression claim, we might ordinarily put off deciding
his Krankel claim. But, as we will discuss, the ineffectiveness that formed the basis of Clifton’s
pro se claims stemmed from counsel’s purported failure to interview witnesses and discuss the
case with Clifton. While the trial court’s disposition of the suppression motion on remand might
alter the contours of any claim of ineffectiveness, we find the claims that Clifton has already
presented are likely to recur on remand and likely to be the same regardless of the outcome of the
suppression motion. As a result, we address his Krankel argument now.
¶ 88 Clifton argues that the trial court erred by failing to conduct the preliminary inquiry set
out in Krankel, 102 Ill. 2d 181. The State argues, “[t]his record does not necessarily reflect an
express claim of ineffective assistance of counsel,” but ultimately concedes that the trial court
failed to flesh out the facts underlying Clifton’s ineffectiveness claims. We agree with the parties
that no proper Krankel hearing took place and find that the record unambiguously compels that
conclusion.
- 31 -
No. 1-15-1967
¶ 89 Following Krankel, when a defendant brings his or her pro se claims of ineffective
assistance to the trial court’s attention, the court must make a preliminary inquiry into the claim’s
factual bases. People v. Ayres, 2017 IL 120071, ¶ 11. The trial court may rely on its own
knowledge of trial counsel’s performance and, if necessary, ask questions of trial counsel and the
defendant. Id. ¶ 12. If the trial court determines that the claims lack merit, it may deny the
defendant’s motion. Id. ¶ 11. But, if the trial court finds possible neglect, the court may appoint
new counsel to represent the defendant while further litigation about counsel’s alleged
ineffectiveness takes place. Id. We review questions of the trial court’s compliance with Krankel
procedures de novo. People v. Jolly, 2014 IL 117142, ¶ 28.
¶ 90 Here, Clifton made specific allegations of ineffectiveness claiming his counsel failed to
investigate witnesses and did not come to see him to discuss the case. The trial court did not
attempt to uncover the factual bases of those claims, declining to appoint new counsel and
describing Clifton’s lawyer as “a very capable public defender.” We find Clifton’s dialogue with
the court satisfies the requirements to trigger a preliminary Krankel inquiry. See People v.
Lobdell, 2017 IL App (3d) 150074, ¶ 37 (requiring defendant to use magic words—“ineffective
assistance of counsel”—would elevate form over substance). The parties agree, as do we, that no
preliminary Krankel inquiry took place.
¶ 91 Affirmed in part and vacated in part.
¶ 92 Cause remanded.
¶ 93 JUSTICE LAVIN, concurring in part and dissenting in part:
¶ 94 The majority has held that the lineup in which defendant was identified was “unduly
suggestive,” resulting in a remand for a “hearing to determine whether there is a sufficiently
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No. 1-15-1967
independent basis on which to find the complainants’ identifications of Clifton reliable.” I
disagree and respectfully dissent, as I find that the trial court correctly found the police lineup
evidence was fair to defendant.
¶ 95 At trial, the victims testified that they were confronted by a gun-wielding young man who
took their possessions on April 17, 2012, shortly before midnight. That evening, three of them
gave investigating Officer Matthews of the Harvey Police Department detailed descriptions of
the perpetrator of this crime, including his approximate age, his race, a facial scar or tattoo, his
hairstyle, and what he was wearing. The following morning, three of the victims discussed the
encounter again with police. At that point, police decided to contact the cell phone provider for
Smith’s phone to see if it could employ technology to identify the phone’s current whereabouts.
Police quickly learned that the phone was in use on the south side of Chicago, and they went to
an address on Carpenter Street, where they found defendant in possession of the cell phone in
question. As fate would have it, defendant was apparently dressed in the same clothes that he
wore the previous evening when the robbery occurred. Police kept defendant in custody and
arranged lineups for the following day.
¶ 96 The trial court found nothing inherently suggestive about defendant’s appearance, finding
similarities in hairstyles, height, weight, and clothing. Smith testified that he was with Lee and
Tolbert when he viewed the lineup, but the trial court found that Lee and Tolbert’s testimony
established they were each alone when they viewed the lineup. The trial court agreed with
defendant and suppressed Smith’s statement of his lineup identification, but a sufficiently
independent foundational basis permitted his in-court identification. With the exception of
Smith’s lineup identification, the trial court denied the renewed motion to suppress.
- 33 -
No. 1-15-1967
¶ 97 After reviewing the lineup photos and the related testimony regarding the lineup
procedures from the suppression hearing and the trial, the trial court’s factual findings were not
against the manifest weight of the evidence. The defendant clearly did not satisfy his burden of
showing that the lineup identifications were unduly suggestive. The trial court specifically noted
that the participants in the lineup shared a number of similar characteristics, giving confidence
that the identifications depended upon the memory of the witnesses and not the composition of
the lineup. Identifications made at a lineup always present “the possibility of unfairness to the
accused in the way a lineup is conducted.” Foster v. California, 394 U.S. 440, 442 (1969). As a
result, a two-part framework has been developed. First, the defendant bears the burden to show
that the pretrial lineup was “impermissibly suggestive.” People v. McTush, 81 Ill. 2d 513, 520
(1980). If the defendant successfully makes the showing, the burden then shifts to the State to
present clear and convincing evidence that “the witness is identifying the defendant solely on the
basis of his memory of events at the time of the crime.” (Internal quotation marks omitted.) Id.Our analysis reviews the totality of the circumstances surrounding the identification. People v.
Lawson, 2015 IL App (1st) 120751, ¶ 39. And we may look to facts adduced at both the
suppression hearing and trial. People v. Gill, 2018 IL App (3d) 150594, ¶ 76 (citing People v.
Brooks, 187 Ill. 2d 91, 127-28 (1999) (where the defendant seeks reconsideration of suppression
rulings posttrial, we may consider both hearing and trial testimony)).
¶ 98 A two-part standard of review is utilized where we would disturb the trial court’s factual
findings only when they are against the manifest weight of the evidence, and we review the
ultimate legal question de novo. Lawson, 2015 IL App (1st) 120751, ¶ 39.
- 34 -
No. 1-15-1967
¶ 99 Defendant contends, in the main, that the lineup was unduly suggestive because only he
appeared in the lineup with dreadlocks, a dark hoodie, and white shoes, which is how the victims
described the offender with the gun. The weight of authority in Illinois would clearly reject this
argument. A substantial body of case law upholds the admissibility of lineup identification
evidence when a suspect wears clothing described to police by the victims. People v. Peterson,
311 Ill. App. 3d 38, 49-50 (1999) (collecting seven cases holding similarly). Having reviewed
the lineup photos presented at the suppression hearing and at trial, I agree with the trial court’s
determination that defendant’s clothing did not single him out to a degree to make the lineup
suggestive.
Exhibit 1, which the State used at trial.
A careful analysis of the lineup photograph used at trial reveals five African American men who
look to be around the same age. Defendant is seated at the left (next to the desk) in this particular
exhibit. All five are dressed in casual clothing. Three of the five (including defendant) have
dreadlocks or braided hair. Four of the five (including defendant) have facial hair. No facial scars
- 35 -
No. 1-15-1967
or tattoos are discernible in the photograph, but there was testimony that only defendant had a
tattoo on his left cheek. Two of the men (including defendant) are wearing dark hoodies and
while it is not observable in the photograph, testimony at trial established that defendant was the
only person in the lineup wearing white sneakers. Defendant’s argument that these factors
resulted in an unduly suggestive lineup is quintessentially specious.
¶ 100 Defendant complains that “[i]f one hundred people were asked to view the lineup and
choose which participant was not like the others, there is no question that all one hundred would
choose [him].” This is patently absurd. If one is looking to identify somebody in this photograph
who is unlike the others, one need only to look next to defendant, where a young man with a
short-cropped haircut sits, wearing an unzipped hoodie that pointedly reveals his bare chest. One
might say he looks different, but even he is approximately the same age, height, and weight as
the others. The majority takes issue with this, stating, “[t]he question is not who among the
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No. 1-15-1967
participants is least like the others; the question is who among the participants is most like the
previous descriptions” and asserts that the complainants’ never described their assailant as
“wearing an ‘unzipped hoodie.’ ” Yet, in several of the lineup photos presented at the
suppression hearing, defendant is wearing an unzipped hoodie. Thus, defendant is neither “least
like the others” nor “most like the previous descriptions.” Undaunted, defendant cites (and the
majority relies upon) People v. Maloney, 201 Ill. App. 3d 599, 607 (1990), and argues that his
lineup appearance “all but hung a sign saying ‘pick me’ around [his] neck,” as the Maloney court
found. This ill-considered and hyperbolic gambit is easily debunked by even a cursory
comparison to Maloney, which at the admitted risk of considerable judicial understatement, is
distinguishable.
¶ 101 In Maloney, the defendant appeared in a lineup with four other men. Id. at 606. Those
four happened to be detectives, as the investigating officers were said to be “unsuccessful” in
their attempts to locate similar-looking arrestees from nearby police stations. Id. at 605. Three
wore pressed white shirts, pressed grey slacks, socks and shoes, and wristwatches. Id. at 606.
The fourth wore a pressed pullover shirt, pressed jeans, socks and shoes, and a wristwatch. Id.
606-07. By contrast, the defendant had an undeniably disheveled appearance, wearing a brown
(or extremely dirty) shirt, wrinkled blue slacks, shoes sans socks, and no wristwatch. Id. at 607.
The defendant, overall, appeared unkempt compared to the well-dressed and well-groomed law
enforcement professionals who sat with him at the lineup. Id. Along with the stark contrast in
dress, a “difference in physical size” existed among the lineup participants, with the defendant
possessing a Lilliputian body habitus as compared to the others. Id.
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¶ 102 Suffice it to say, the composition of this lineup is wholly dissimilar to that in Maloney.
Here, all participants were dressed casually, two with dark hoodies and three had hair styled with
dreadlocks or braids. All five men are similar in height, weight, and complexion. Far from being
suggestive, this lineup is a veritable paragon of propriety that could only have been surpassed by
a police shopping trip to Target in order to dress defendant so he wasn’t wearing the clothes he
had on when he was arrested. Bluntly put, there is no duty for police to change a suspect’s
clothing or to dress other members of a lineup in the same manner as the suspect. The majority
proposes the police in this case could have mitigated the suggestiveness of the lineup by, among
other things, “[t]ucking in Clifton’s hood.” Supra ¶ 78. Looking at the following lineup photos
presented at the suppression hearing, however, it appears they did just that. A careful review of
the two photos reveals that defendant is wearing a zipped hoodie with a logo in one, but not in
the other. Thus, either defendant’s hood was tucked in or he was wearing a different sweatshirt.
¶ 103 Since the offender was described as wearing a blue or black hoodie and white shoes,
defendant contends that that the lineup was unduly suggestive because only he wore a dark
hoodie and white shoes and because he is the only one with dreadlocks and a facial tattoo. These
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sorts of situations are not uncommon, however, and as the trial court here stated, “defendant
made the decision to make himself very unique looking and that is what he has to live with.”
¶ 104 In People v. Lopez, 93 Ill. App. 3d 152, 160 (1981), the defendants asserted that a lineup
was unduly suggestive because they were wearing the same clothing as that said to have been
worn by the perpetrators. The court noted that “[a]pparently, defendants were arrested with these
clothes, and there is no evidence that the police forced them to wear this clothing.” Id. As a
result, the court found that “there can be no claim of impermissible suggestiveness.” Id.¶ 105 Similarly, in People v. Woods, 114 Ill. App. 2d 348, 356 (1969), the defendant in the
lineup was wearing the same clothing that he wore upon his arrest. Although the victim stated
that the jacket and trousers worn by the defendant during the lineup were the same as those worn
during the crime, this did not render the lineup unduly suggestive. Id.; see also People v. Hughes,
259 Ill. App. 3d 172, 174-75, 177 (1994) (upholding a one-person show-up identification where
the defendant wore the same clothing he wore during the robbery).
¶ 106 Moreover, in People v. Bragg, 277 Ill. App. 3d 468, 474 (1995), the reviewing court
rejected the defendant’s claim that a lineup was unduly suggestive because the clothing he wore
in the lineup matched the witnesses’ descriptions. The court also stated that “there is no
requirement that police find matching clothes for everyone in the lineup.” In People v. Faber,
2012 IL App (1st) 093273, this court held that a lineup was not unduly suggestive even though
the defendant was “the only person wearing a sleeveless T-shirt” when the victim described the
offender as wearing a “Dago-T.” Id. ¶ 57 (citing People v. Johnson, 222 Ill. App. 3d 1, 8 (1991)
(where the court held that a lineup was not suggestive despite that the defendant was the only
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one wearing red trousers in an investigation where the offender was described as wearing red
trousers)).
¶ 107 Even though defendant in this case was wearing the same clothing in the lineup that he
apparently wore during the robbery and when he was arrested, defendant has been fairly
identified, in part, as a result of his wardrobe faux pas. One could call that situation unlucky for
the defendant or serendipitous for the prosecution, but it clearly is not a basis for retrial. I would
affirm defendant’s convictions on the merits and remand only for a Krankel hearing.
¶ 108 On the subject of the relief granted, I must say that I am puzzled that my colleagues are
remanding for a hearing where the trial court is to determine whether an independent basis exists
upon which the identifications of the victims should be admissible. The trial court has already
conducted such a hearing and has made the determination that the lineups were not unduly
suggestive and that the identifications of the two witnesses in question were sufficiently
independent to be admissible. Defendant and the majority have manifestly failed in proving that
the lineups were unduly suggestive and have also failed in establishing that the trial court
findings in this regard were against the manifest weight of the evidence, which is the appropriate
standard of review here.
¶ 109 Finally, even if one were to assume that the lineup procedures were unduly suggestive,
the testimony at the suppression hearing and at trial sufficiently showed that the in-court
identifications of defendant had an origin independent from the lineup identifications. See
People v. Brooks, 187 Ill. 2d 91, 129 (1986) (finding that the testimony at the pretrial hearing
and at trial provided a sufficient account of events to determine whether the identification had an
independent basis, rendering it unnecessary to remand for further proceedings). The witnesses
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here identified defendant shortly after the offense occurred. They had the opportunity to view
their assailant, paid a great deal of attention to his appearance, provided an incredibly accurate
description of the offender, and demonstrated the identification with absolute certainty. See
Brooks, 187 Ill. 2d at 129-30. Any further proceedings would be futile.
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