People v. Tomei

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Tomei, 2013 IL App (1st) 112632
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KURT TOMEI, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-11-2632
Filed February 15, 2013
Held Defendant’s convictions for criminal trespass to real property and
(Note: This syllabus criminal damage to property were upheld based on the testimony of a
constitutes no part of witness who viewed a live surveillance video of the offenses as they
the opinion of the court occurred, since the witness’s degree of attention was sufficient to support
but has been prepared a positive identification of defendant, the discrepancies in his testimony
by the Reporter of did not undermine the reliability of the identification, defendant’s
Decisions for the challenge of the certainty of the identification was not persuasive in the
convenience of the absence of expert testimony, and only 15 minutes elapsed between the
reader.)
time the witness saw the surveillance feed and the identification.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-MC-4011789; the
Review Hon. Gregory Robert Ginex, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Shawn O’Toole, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Carol L. Gaines, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Lampkin and Justice Reyes concurred in the judgment.
OPINION
¶1 Following a bench trial, defendant Kurt Tomei was convicted of criminal trespass to real
property and criminal damage to property. After hearing factors in aggravation and
mitigation, defendant was sentenced to 30 days in the Cook County department of
corrections with a 6-day credit for time considered served, 2 years’ conditional discharge,
plus statutory fines and fees. On this appeal, defendant argues the sufficiency of the evidence,
claiming that the State failed to prove him guilty beyond a reasonable doubt because the sole
eyewitness’s identification of defendant as the offender was not reliable enough to support
a conviction. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 The trial court found defendant guilty of criminal trespass to real property and criminal
damage to property. Both offenses resulted from a break-in at approximately 12:30 a.m. on
December 19, 2009, at a Franklin Park business owned by Frank Calistro, the sole witness
to the trespass and damage to the property. Nothing was claimed taken by Calistro. The
State’s evidence established that Franklin Park police pulled over defendant in a motor
vehicle a few blocks from the business and Calistro identified him there as one of the two
men he had observed on his property over a live surveillance video feed, similar to a closed-
circuit television broadcast, in which Calistro was able to observe the crime as it was
happening. The video feed was broadcast online and Calistro accessed it on his laptop
computer, but the video system did not record what he observed. After Calistro identified
defendant in a showup1 identification at the scene, defendant was stopped in his motor
vehicle, the police arrested defendant and then found an open bag of tools, which included
bolt cutters, in the backseat of defendant’s automobile.
1
A “showup” is a procedure where a witness identifies a suspect on site, as opposed to
picking the suspect out of a lineup or a photo array.
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¶4 I. Suppression Hearing
¶5 Prior to trial, defendant filed a motion to quash his arrest and suppress evidence, arguing
that the traffic stop and arrest lacked probable cause. At the suppression hearing the trial
court heard testimony from two witnesses: Franklin Park police officer Yracheta,2 who
responded to the burglary, and Officer Steven Ross, who pulled over defendant in his motor
vehicle five blocks from the scene of the crime.
¶6 A. Officer Yracheta’s Testimony
¶7 Officer Yracheta testified that at 1 a.m. on December 19, 2009, he received a radio
dispatch concerning a burglary in progress at a nearby business on Fullerton Avenue in
Franklin Park. Yracheta was three blocks from the business when he received the call and
it took him less than a minute to drive to the scene. On his way over, a radio dispatcher
described the suspects as “two male whites, dark jacket and dark hats.” Upon his arrival,
Yracheta waited for a few minutes for the owner of the property, Frank Calistro, to arrive.
The property was “basically a storage yard” surrounded by a fence with a number of trailers,
trucks, and other construction equipment inside. Yracheta observed surveillance cameras on
the property positioned between 6 and 10 feet above ground.
¶8 Once Calistro arrived at the scene, Calistro told Yracheta that motion sensors had gone
off and that he had accessed a live video feed on his computer, observing “two male whites
in black clothing, black hats” looking through trucks and trailers stored on the property. At
the time, Calistro indicated that “he could pretty much clearly see who they were.” Calistro
told Yracheta that he had difficulty recording the video feed and Yracheta did not observe
the video feed nor did Calistro show the officer his laptop.
¶9 Yracheta observed a white four-door vehicle driving down an alleyway that leads to the
property while talking to Calistro. The vehicle was 30 feet away, with two white males, both
“wearing black jackets and black hats.” As the vehicle turned east onto Fullerton Avenue and
passed within 10 feet of Yracheta, he used his flashlight and observed defendant driving. He
then radioed in a description of the vehicle, including its license plate number, and asked for
any available officers to pull the vehicle over. There were overhead streetlights on Fullerton
Avenue and Yracheta observed no other vehicles on the street at that time.
¶ 10 When Yracheta went to search the property with Calistro, he observed a hole cut into a
chain-link fence, as well as a broken utility box and damaged trailers. After a few minutes
searching the property, Yracheta received a call that the white vehicle had been pulled over
nearby. Both he and Calistro then drove to that scene in separate vehicles. When Yracheta
arrived, he observed the two white male suspects standing in front of the white vehicle, with
at least four other officers at the location. The defendant was one of the suspects and Calistro
identified him in court, but Yracheta did not observe Calistro identify defendant at the
location of the stop.
2
Officer Yracheta’s first name does not appear in the appellate record.
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¶ 11 B. Officer Steven Ross’s Testimony
¶ 12 Officer Steven Ross testified that on December 16, 2009, he was alone on patrol when
he received a dispatch about a burglary at a nearby business. As he was driving to the
business, he received another dispatch from Yracheta that the burglary suspects were in a
white four-door sedan driving east on Fullerton Avenue. Seconds after receiving the call,
Ross observed a white vehicle crossing the intersection of Oak Street heading east on
Fullerton. He did not observe the vehicle breaking any traffic laws. The description of the
vehicle and its license plates matched the description provided by Yracheta, so he then pulled
the vehicle over and observed two white males, both wearing dark jackets and dark hats. He
asked for and received identification from defendant, who was the driver, and identified
defendant in court. Officer Ross asked both men why they were observed leaving the alley
near Calistro’s business and neither responded to his question.
¶ 13 Another Franklin Park policeman, Officer Glover,3 had arrived at the scene of the stop
and asked the suspects to exit the vehicle. Ross then received defendant’s consent to search
the vehicle and observed a black bag and box on the backseat. The bag was open and bolt
cutters were found inside. In addition, the bag contained screwdrivers, hammers, and other
tools. Defendant told the officers that he was a painter. The two suspects stood in front of the
vehicle and were not handcuffed during the search, and the officers did not draw their
weapons or touch either of the suspects. After the search, two more officers arrived, as well
as Frank Calistro, who identified the suspects as the men he had observed through the video
feed. Calistro stood several feet away from the suspects when he made the identifications and
there were streetlights overhead, and the street was generally well lit. After Calistro’s
identification, the suspects were placed under arrest.
¶ 14 Defendant asked the trial court to quash the arrest on the ground that the police lacked
the reasonable suspicion needed to support the initial Terry stop of defendant. After hearing
the evidence and arguments, the trial court found that the officers had a reasonable,
articulable suspicion to believe that the suspects were the same two men that Calistro had
observed on the video feed, trespassing on his property. The trial court denied defendant’s
motion to quash the arrest and the evidence, finding that the initial stop was proper.
¶ 15 II. Trial
¶ 16 At trial, the State called three witnesses: Stanley Stann, the owner of the property where
the crime took place; Frank Calistro, the owner of the business that was broken into and the
sole witness to the trespass and damage to property, and Franklin Park police officer Steven
Ross, who pulled over defendant’s vehicle near the scene of the crime.
¶ 17 A. Stanley Stann’s Testimony
¶ 18 Stanley Stann testified that he owns the property that was broken into, which is located
on Fullerton Avenue in Franklin Park. He testified that he had leased the property to Calistro
3
Officer Glover’s first name does not appear in the appellate record.
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on a month-to-month lease for eight years, and that Calistro owns and operates a business
on the property. The property is surrounded by a barbed wire fence and there are “no
trespassing” signs posted throughout. Stann did not know who defendant was and he had
never given him permission to be on the property.
¶ 19 B. Frank Calistro’s Testimony
¶ 20 Frank Calistro testified that he owns and operates a brick-laying business located on the
property owned by Stann, and he lives in River Grove, less than half a mile away from his
business. In either June or July of 2009, he installed a security system on the property by
himself. The system includes several motion sensors that trigger a silent alarm if movement
is detected on the property. When the motion sensors are tripped, the security system alerts
him by sending a message to his cellular telephone. The security system also includes three
video cameras, which are viewable online. Calistro described the camera as follows:
“It’s a Panasonic. The word for it would be nonbreakable industrial strength camera so
that they can’t hit it with a baseball bat and break it. And it’s a higher end camera. It’s
about 580 lines of resolution camera in color.”4
Calistro had installed six spotlights on the property, one of which was always on and at least
two of which were activated by the motion sensors to illuminate the cameras’ field of vision.
¶ 21 Calistro testified that at 12:30 a.m. on December 16, 2009, he had just arrived home and
had undressed. At that time, he received an automated message on his cellular telephone that
a motion sensor had been tripped at his business. He then logged onto his laptop to view a
live video feed from the surveillance cameras on the property, and he observed two people
“wearing dark clothing” and “heavy jackets” standing beneath the motion-activated
spotlights and facing the camera from about 10 to 15 feet away. The video camera through
which he observed the suspects was mounted on a trailer about eight feet above the ground,
and the camera was clear enough to observe the suspects’ faces. Defendant was one of the
two men he observed on the video and Calistro identified defendant in court and earlier when
the police stopped the motor vehicle in which they were traveling. In the video, Calistro
observed the shorter of the two men, whom he identified as defendant, holding bolt cutters.
The two men were looking through trucks and trailers but Calistro did not observe defendant
actually use the bolt cutters or damage the property. One of the two men was wearing a hat
but Calistro was not sure which one. He did not remember what color or type of jackets the
suspects were wearing. Calistro did not know who the suspects were prior to that day and he
had not given them permission to be on the property.
¶ 22 Calistro then called the police to report the break-in and told the dispatcher that he
observed “two white males” wearing “a dark cap” and “heavy jackets,” and that there might
have been a third person with them. As he was on the telephone, Calistro was dressing and
viewing the video feed on his laptop. He then left his house and drove to the scene of the
4
”Lines of resolution” refers to the vertical pixilation of a video image. Standard television
is broadcast in 480 pixels, while high definition is typically viewed in either 720 or 1,080 pixels.
-5-
break-in.
¶ 23 It took Calistro a minute to drive there and Officer Yracheta was already at the scene. As
Calistro was pulling up, he observed a white Crown Victoria vehicle exit an alley that runs
along the property. The vehicle crossed in front of him and drove east down Fullerton
Avenue. Calistro exited his vehicle and met with Yracheta. Calistro had forgotten his keys
in his rush to drive to the property, and he and Yracheta had to climb over a barbed wire
fence to enter the yard. After scaling the fence, they then searched the yard for about five
minutes to determine if the suspects were still there. Calistro did not find anyone on the
property, but he did observe that the lock on a utility trailer was broken and that several other
trailers appeared to have been broken into; that a hole had been cut into a fence, allowing
access to one of the trailers; and that a utility box had been broken. However, he did not
notice that anything was missing.
¶ 24 While they were in the yard, Yracheta told him that the white vehicle had been stopped
approximately one block away. He left the yard and was then driven by another officer to the
location of the stop. After he arrived, he observed two men standing in front of the same
white vehicle that he had observed leaving the alley along the property. Calistro then
identified the suspects as the same “two guys on the camera.” The two men were wearing the
same clothes as they had been when he observed them on the video, and he recognized their
faces. Calistro had “no doubt” that defendant was the same person he observed on the video.
¶ 25 The video feed on Calistro’s laptop was designed to record but it did not. Apparently a
person on the property had turned the video recorder off. Sometime after the night of the
break-in, he invited the police into his home to show them his security system but he did not
show them his laptop or the video cameras.
¶ 26 C. Officer Steven Ross’s Testimony
¶ 27 At trial, Officer Steven Ross testified that he responded to a dispatch of an ongoing
burglary at 1 a.m. on December 16, 2009. Before he could arrive at the site of the break-in,
he received a dispatch from Officer Yracheta that a white Ford Crown Victoria was leaving
the scene of the crime and heading east on Fullerton Avenue. Yracheta described the suspects
as “two male whites, [wearing] dark jackets and dark hats.” Officer Ross then observed a
white vehicle drive past him less than a block away.
¶ 28 Ross pulled over the white vehicle and asked the driver for identification. There were two
men in the vehicle, both wearing “dark clothing, dark jackets, and dark hats.” Officer Ross
asked the men why they were leaving the area but neither responded, and he used his
flashlight to look into the vehicle and observed a black bag and box on the backseat. The bag
was open and Ross could observe bolt cutters, screwdrivers, and other tools. Defendant then
gave responding Officer Glover permission to search the vehicle and Ross found paint
spraying equipment in the box also. When Ross asked defendant about the contents of the
box, defendant told him that he was a professional painter.
¶ 29 Ross testified that Frank Calistro then arrived and identified the two men as the same two
men that he had observed on the video feed. Ross heard Calistro say: “Those are the guys
that were in my yard.” In his report, Ross memorialized that Calistro identified the passenger
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but did not indicate whether Calistro had identified defendant.
¶ 30 At the conclusion of the case, the trial court found defendant guilty of criminal trespass
to real property and criminal damage to property. The trial court determined that the fact that
the security video was a live feed that was not recorded went only to the weight of Calistro’s
testimony and not to its admissibility. The trial court also determined that it was not
necessary to show that defendant had personally used the bolt cutters. The trial court
concluded that, “the circumstantial evidence here is extremely more than any coincidence
and well beyond a reasonable doubt.”
¶ 31 ANALYSIS
¶ 32 On this appeal, defendant contests the sufficiency of the evidence and argues that the
State failed to prove him guilty beyond a reasonable doubt because the sole eyewitness’s
identification of defendant was not reliable enough to support a conviction. For the following
reasons, we affirm defendant’s conviction.
¶ 33 I. Standard of Review
¶ 34 When reviewing a claim of insufficient evidence in a criminal case, we must determine
whether, after viewing the evidence in the light most favorable to the State, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). We will not reverse a criminal conviction
“unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of
the defendant’s guilt.” People v. Collins, 106 Ill. 2d 237, 261 (1985). A reviewing court does
not retry the defendant or substitute its judgment for that of the trier of fact with regard to the
credibility of witnesses or the weight to be given to witnesses’ testimony. People v. Jackson,
232 Ill. 2d 246, 281 (2009).
¶ 35 II. Witness Identification
¶ 36 Defendant claims that Frank Calistro’s identification was insufficient to prove defendant
guilty beyond a reasonable doubt. Although the State “has the burden of proving beyond
reasonable doubt the identity of the person who committed the crime” (People v. Slim, 127
Ill. 2d 302, 307 (1989)), “identification of the accused by a single eyewitness is sufficient to
sustain a conviction” (People v. Johnson, 114 Ill. 2d 170, 189 (1986)).
¶ 37 Defendant lists the five factors used by Illinois courts to evaluate the reliability of an
identification: (1) the witness’s opportunity to view the suspect during the offense; (2) the
witness’s degree of attention; (3) the accuracy of any prior descriptions provided; (4) the
witness’s level of certainty at the time of the identification procedure; and (5) the length of
time between the crime and the identification. Slim, 127 Ill. 2d at 307-08 (citing Neil v.
Biggers, 409 U.S. 188, 199 (1980)). These five factors are referred to as the Biggers factors.
People v. Piatkowski, 225 Ill. 2d 551, 567 (2007).
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¶ 38 A. Opportunity to View
¶ 39 With respect to the first Biggers factor, the State claims that the fact that Frank Calistro
observed the crime through a video feed does not damage the reliability of his opportunity
to view the suspect during the offense. Defendant argues that Calistro’s opportunity to view
the suspects was unreliable because the State did not offer evidence of the size, clarity,
resolution, or zoom of the video on his laptop. Defendant claims that the trial court erred in
weighing Calistro’s opportunity to view because it did not consider the less-than-ideal
viewing conditions.
¶ 40 When considering whether a witness had an opportunity to view the offender at the time
of the offense, courts look at “whether the witness was close enough to the accused for a
sufficient period of time under conditions adequate for observation.” People v. Carlton, 78
Ill. App. 3d 1098, 1105 (1979). In the instant case, Calistro testified that he had a sufficient
opportunity to view the suspects when he observed them over a live video feed. The camera
was positioned about eight feet high, and there were spotlights that brightened its field of
vision. Calistro testified that the video feed was clear enough that he recognized defendant’s
face. He later identified defendant as the man he observed on the video feed at the time
defendant was stopped by the police.
¶ 41 A witness may testify to what he or she observed on a video feed as long as he or she
observed the incident at the time it occurred. People v. Tharpe-Williams, 286 Ill. App. 3d
605, 610-11 (1997). A witness’s testimony about what he or she observed on a live video
feed is no different than if he or she “had been 100 yards away from defendant at the time
of the incident but [he or she] needed a telescope to observe what was happening. As long
as the telescope was functioning properly, we see no reason why [he or she] would not be
able to testify as to what [he or she] observed.” Tharpe-Williams, 286 Ill. App. 3d at 611.
¶ 42 Defendant claims that Calistro’s testimony requires foundational proof that the video
camera was “functioning properly.” Tharpe-Williams, 286 Ill. App. 3d at 609. However,
evidentiary flaws in foundation can affect only the weight of the testimony. Village Discount
Outlet v. Illinois Department of Employment Security, 384 Ill. App. 3d 522, 525-26 (2008).
Defendant claims that the camera system malfunctioned because it did not record the video
as it was designed to do. However, Calistro did not testify that the camera system was
broken. Instead, he testified that the record function on his laptop was turned off. There is
no other evidence in the case at bar to suggest that the camera system was malfunctioning.
Viewing the facts in the light most favorable to the prosecution, we conclude there was
sufficient evidence for a rational trier of fact to conclude that the security camera system was
working properly.
¶ 43 Defendant argues that the foundation for the video evidence must be judged against the
factors set forth in People v. Taylor, 2011 IL 110067, ¶ 33. In Taylor, the court found that
the following factors were relevant to determine the adequacy of a video tape offered into
evidence: (1) the device’s capability for recording and its general reliability; (2) the
competency of the operator; (3) the proper operation of the device; (4) the manner in which
the recording was preserved (chain of custody); (5) the identification of the persons, locale,
or objects depicted; and (6) an explanation of any copying or duplication. Taylor, 2011 IL
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110067, ¶ 33. The appellate court held that these factors are used to establish the “accuracy
of *** surveillance camera recordings.” Taylor, 2011 IL 110067, ¶ 33. Defendant argues that
because Calistro’s opportunity to view defendant during his commission of the offense
depends on the accuracy of his video equipment, the Taylor factors provide a framework to
evaluate whether he could sufficiently view the suspects on the property.
¶ 44 However, the Taylor factors are not applicable to the instant case because the appellate
court in Taylor used the factors to determine the admissibility of a videotape used under the
“silent witness” theory. Taylor, 2011 IL 110067, ¶ 22. “[U]nder the ‘silent witness’ theory,
photographic or videotape evidence may be admitted without an eyewitness to establish the
accuracy of the images depicted if there is sufficient proof of the reliability of the process that
produced the photograph or videotape.” Taylor, 2011 IL 110067, ¶ 22. In Taylor, there was
no eyewitness testimony and the court used the factors to consider the admissibility of the
videotape without a witness to authenticate it. In the instant case, the State did not offer a
videotape into evidence at all but instead heard Calistro’s eyewitness testimony about what
he observed on a live video feed.
¶ 45 Illinois courts have found that a witness’s testimony regarding what that witness observed
on a live video feed requires only foundational proof that the video system was functioning
properly at the time that the images were depicted by the witness. Tharpe-Williams, 286 Ill.
App. 3d at 610-11. This foundational consideration is a lower standard than the one used
when admitting videotape under the “silent witness” theory. As we have previously
indicated, there was no evidence that the camera was malfunctioning. Calistro testified that
the camera recorded in 580 pixel color resolution and was mounted eight feet above the
ground and aimed directly at defendant, who was illuminated by a spotlight. The trial court
found that Calistro’s testimony was “credible as to his identification” based on the
“description of the video equipment and the images portrayed and how thorough and precise
the image was captured.” Based on this testimony, a rational trier of fact could find that the
witness had a sufficient opportunity to view defendant during the commission of the crime.
¶ 46 B. Degree of Attention
¶ 47 With respect to the second Biggers factor, the State claims that Calistro paid close
attention to what he observed on the video feed. By contrast, defendant claims that Calistro
was distracted while watching the video on his laptop screen because he was simultaneously
talking to the police dispatcher on his telephone and putting on his clothes. Despite rushing
out the door, Calistro testified that he had viewed the feed for a few minutes and that he had
recognized defendant’s face when he identified him at the showup at the scene of the stop.
Issues of witness reliability are for the finder of fact to determine (People v. Jackson, 232 Ill.
2d 246, 281 (2009)), and the trial court found Calistro’s identification to be credible. A
rational trier of fact could have found Calistro’s degree of attention was sufficient as to make
a positive identification of defendant, and we will not substitute our judgment for that of the
trial court. Jackson, 232 Ill. 2d at 281.
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¶ 48 C. Accuracy of Prior Description
¶ 49 With respect to the third Biggers factor, the State claims that Calistro provided an
accurate description to the police, while defendant claims that the description was inaccurate
because Calistro was inconsistent in identifying the suspects’ hats. Defendant further argues
that Calistro’s description was generic and vague because Calistro focused mainly on the
suspects’ race and clothing.
¶ 50 Calistro told the police that he observed two white males wearing dark jackets and dark
hats on the video feed. Defendant and his passenger are both white males and were observed
wearing dark hats and jackets that evening. Defendant points out that Calistro testified that
he told police that there may have been a third suspect involved and that only one of the
suspects was wearing a hat.5 Officer Ross testified that there were only two men in the
vehicle he stopped and that both were wearing hats. However, “[t]he presence of
discrepancies or omissions in a witness’ description of the accused do not in and of
themselves generate a reasonable doubt as long as a positive identification has been made.”
People v. Magee, 374 Ill. App. 3d 1024, 1032 (2007) (citing People v. Slim, 127 Ill. 2d 302,
309 (1989)). While there may have been minor discrepancies in Calistro’s testimony, his
general description of defendant as one of the offenders was accurate. The trial court, as the
trier of fact, had the opportunity to determine the credibility of the witnesses and the weight
to be given to their testimony (People v. Jackson, 232 Ill. 2d 246, 281 (2009)), and it found
that Calistro was credible as to his identification. We cannot say, when viewed in the light
most favorable to the State, that these discrepancies fatally undermine the reliability of
Calistro’s identification.
¶ 51 Defendant also claims that the accuracy of Calistro’s identification is undermined by the
fact that he described the suspects only by their race and clothing. Defendant cites People v.
Hughes, 59 Ill. App. 3d 860, 863 (1978), People v. Moore, 6 Ill. App. 3d 932, 936 (1972),
and People v. Kincy, 72 Ill. App. 2d 419, 427-28 (1966), as instances where Illinois courts
have reversed convictions based on a witness’s identification of clothing alone. Defendant
argues that Calistro’s generic description weighs against the reliability of his identification
because virtually any white male in the area at the time would have fit the description of
wearing a heavy coat and hat.
¶ 52 However, our supreme court has held that “a witness is not expected or required to
distinguish individual and separate features of a suspect in making an identification. Instead,
a witness’ positive identification can be sufficient even though the witness gives only a
general description based on the total impression the accused’s appearance made.” People
v. Slim, 127 Ill. 2d 302, 308-09 (1989). Unlike the cases cited by defendant, Calistro made
a positive identification of defendant. He testified that he recognized defendant’s face. The
trial court found him to be credible in his identification, and we will not substitute our
judgment for the trial court. People v. Jackson, 232 Ill. 2d 246, 281 (2009).
5
Calistro also testified that the suspects, in the plural, were wearing caps.
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¶ 53 D. Level of Certainty
¶ 54 With respect to the fourth Biggers factor, the State claims that Calistro never wavered
in his degree of certainty when he identified defendant as one of the men he observed on the
video feed. Defendant does not dispute the amount of certainty Calistro expressed, and
instead argues that this factor should be given little weight because there is a low correlation
between a witness’s confidence and the accuracy of his or her identification. People v. Allen,
376 Ill. App. 3d 511, 524 (2007). Defendant argues that courts have found that a “witness’s
faith is equally strong whether or not the identification is correct” (Newsome v. McCabe, 319
F.3d 301, 305 (7th Cir. 2003)), and that “mistaken eyewitness identifications are responsible
for more wrongful convictions than all other causes combined” (internal quotation marks
omitted) (United States v. Brownlee, 454 F.3d 131, 143-44 (3d Cir. 2006)). Defendant also
cites a study by Professor Brandon Garrett of Harvard University, who examined cases of
mistaken identity and found that “almost all of the eyewitness *** expressed complete
confidence at trial that they had identified the attacker.” Brandon L. Garrett, Convincing the
Innocent: Where Criminal Prosecutions Go Wrong 62 (2011).
¶ 55 However, the cases defendant cites are distinguishable from the instant case. In Allen, we
found that the trial court committed reversible error when it refused to allow an expert to
testify to an individual’s ability to identify another individual pursuant to a study. Allen, 376
Ill. App. 3d at 513. Here, defendant did not offer an expert to testify about eyewitness
identification research. Illinois courts have previously found that “a trial court may omit one
of the Biggers factors *** based on the ‘evidence,’ and the ‘evidence’ may include the kind
of social science evidence proposed in Allen. [Citation.] For example, if the defendant in the
case at bar had introduced into evidence the testimony of an expert in eyewitness
identification research, the trial court may have [then] chosen, based on the evidence
presented in the case, to omit one of the listed factors.” People v. Rodriguez, 387 Ill. App.
3d 812, 824 (2008). However, in the instant case, no such evidence was offered at trial.
¶ 56 Newsome and Brownlee are also distinguishable because both of those cases found that
the trial court had improperly excluded witness testimony regarding the ability of individuals
to identify other individuals pursuant to identical studies. Since defendant did not present
expert testimony, we do not find defendant’s argument persuasive that the fourth factor, the
witness’s level of certainty, should be given little weight.
¶ 57 E. Length of Time Elapsed
¶ 58 With respect to the fifth Biggers factor, the State claims that the lapse of time between
the crime and the showup identification was brief and did not influence Calistro’s reliability.
The State argues that defendant’s appearance was still fresh in Calistro’s mind because only
15 minutes elapsed between the time he observed defendant on the video feed and his
subsequent identification. Defendant does not dispute the length of time that elapsed or
whether it was damaging to Calistro’s identification. Instead, defendant argues that the
identification itself is heavily damaged by the fact that it was made during a highly
suggestive and unreliable showup procedure. Defendant, however, does not allege the
showup to be so suggestive as to be inadmissible under the due process clause, but rather that
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the showup was not sufficiently reliable to prove defendant guilty beyond a reasonable doubt.
¶ 59 “Normally, the [trier of fact] decides the weight that an identification deserves; and the
less reliable the [trier of fact] finds the identification to be, the less weight the [trier of fact]
will give it.” Rodriguez, 387 Ill. App. 3d at 829 (citing People v. Ramos, 339 Ill. App. 3d
891, 897 (2003)). Here, the trial court was the trier of fact and had the opportunity to
determine the credibility of the witnesses and the weight to be given to their testimony.
People v. Jackson, 232 Ill. 2d 246, 281 (2008). Defendant did not call an expert to testify to
the prejudicial nature of the showup procedure, nor did he present any evidence that the
procedure was suggestive or unreliable. The trial court weighed the evidence and found that
Calistro’s identification was reliable. We cannot say, when viewed in the light most
favorable to the State, that the showup procedure undermined the reliability of the witness’s
identification. In sum, we will not substitute our judgment for that of the trial court in regard
to the reliability or weight of the witness’s identification.
¶ 60 CONCLUSION
¶ 61 For the foregoing reasons, after viewing the evidence in the light most favorable to the
State, we conclude that a rational trier of fact could have found defendant guilty of criminal
trespass to real property and criminal damage to property beyond a reasonable doubt, and we
affirm defendant’s conviction.
¶ 62 Affirmed.
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