People v. Neal

2020 IL App (2d) 170356Nos. 2-17-0356 & 2-17-0358 cons.
Opinion filed December 31, 2020
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) Nos. 16-CF-210
) 16-CF-211
)
DAVID A. NEAL, ) Honorable
) Donald J. Tegeler,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶ 1 At the conclusion of a bench trial, the circuit court of Kane County found the defendant, David
Neal, guilty of two counts of retail theft (720 ILCS 5/16-25(a)(1) (West 2014)) and two counts of
burglary (id. § 19-1(a)). The defendant was sentenced to 13 years’ imprisonment. He now appeals,
arguing that the admission, as substantive evidence, of hearsay testimony identifying him as the
perpetrator of the burglaries and thefts was plain error and that his sentence was excessive. We
affirm.
¶2 I. BACKGROUND
2020 IL App (2d) 170356¶ 3 On February 4, 2016, the defendant was arrested after he attempted to leave a Meijer store in
Bloomingdale with packs of men’s underwear that he had not paid for. At the time of his arrest, the
defendant, a white man, was wearing a green jacket and a flat-brimmed baseball-style cap. He
smelled of alcohol. The defendant was ultimately charged with committing retail theft and burglary
by unauthorized entry (entering with intent to commit a theft) on two other dates: December 10,
2015 (No. 16-CF-210), and January 24, 2016 (No. 16-CF-211). He was alleged to have taken items
worth over $300 from the St. Charles Meijer store on each of those occasions. The two cases were
consolidated for trial.
¶4 A. Evidence of the Charged Offenses
¶ 5 At trial, the State produced several witnesses, most of whom were Meijer employees. The first
was Vanessa Holmes, a Meijer loss-prevention officer at the St. Charles Meijer store who noticed
items missing from the cologne and perfume shelves on December 10, 2015. When she reviewed
the store’s surveillance video footage, she saw a white man enter shortly after midnight. He was
wearing an olive green jacket, a baseball-style cap with a flat brim, and sunglasses. The man went
to the cologne and perfume aisles and put several bottles into his cart. He then went to another
aisle and placed the bottles into a Meijer bag. He left the store without paying for the perfume and
cologne; as he did so, the lights on the loss-prevention towers by the door lit up. Holmes created a
merchandise receipt for the items taken, showing that they had a retail value of
$1962.50. She also created a “be on the lookout” (BOLO) bulletin (admitted as State exhibit 18),
using photos of the man taken by a security camera as he left the store. She emailed the BOLO to
other Meijer stores. Excerpts of the surveillance video footage showing the suspect’s progress
through the store were played at trial.
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2020 IL App (2d) 170356¶ 6 On January 24, 2016, St. Charles Meijer store detective intern Antonio Flores noticed high-
end perfumes and colognes missing. In reviewing the store’s surveillance video footage, Flores
saw a man enter the store shortly after midnight, go to the fragrance aisle, and put various items
into a shopping cart. The man left the store without paying for the items, and the towers lit up as
he left. Flores believed that the man shown in the surveillance video footage from January 24,
2016, matched the photo of the suspect in a previous BOLO. Flores created a merchandise receipt
for the items stolen on January 24, 2016, that totaled $1111.78. Another BOLO using photos from
the video footage of this theft was also created (State exhibit 17). The video footage from this date
was also played at trial.
¶7 B. Other-Crimes Evidence
¶ 8 In addition to this testimony about the charged offenses, the State introduced evidence
regarding other crimes to show intent, modus operandi, and identity, among other things.
¶ 9 A Meijer employee at the Bolingbrook store, Neal Anthony Guernsey, was notified of a
possible theft on December 9, 2015. He reviewed the surveillance video footage of the theft. The
suspect wore a green jacket, a baseball-style cap, and sunglasses. The suspect initially took 13
bottles of cologne and left the store without paying. He put the bags of cologne inside a minivan
in the parking lot and drove to a nearby restaurant where he parked. The suspect then came back
into the Meijer store, took two white plastic Meijer bags from a register, and went to the perfume
aisle, where he took 13 bottles of perfume. He again left the store without paying. Guernsey
estimated that the total merchandise stolen during both trips was priced at over $1300.
¶ 10 Matthew Hund, a Meijer detective in the Bloomingdale store, testified that, when he arrived at
the store on January 22, 2016, he noticed that the cologne and perfume shelves were “pretty much
empty,” so he reviewed the surveillance video footage from January 20. He saw a white
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2020 IL App (2d) 170356man wearing a green coat, flat-brimmed baseball cap, and sunglasses enter the store a little after
midnight. The man took handfuls of items off the shelves and put them in a shopping cart. He then
wheeled the cart out of the store without paying for the items. Hund estimated that the stolen items
were worth about $1500.
¶ 11 On January 27, 2016, Hund once again found the store’s cologne and perfume shelves
depleted. When he reviewed the surveillance footage, he again saw a white man wearing the same
green coat and sunglasses take fragrances from the shelves and put them into a shopping cart. The
man also went to the electronics department, where he put other items into his cart. The man then
left the store without paying for any of the items. Hund created a BOLO from surveillance photos.
¶ 12 On February 4, 2016, Cynthia Diliberto was working at the Bloomingdale Meijer store.
Watching the surveillance camera feed, she saw a man she believed to be the suspect from earlier
BOLO alerts in the store. Another employee kept an eye on the man while she went to the parking
lot to get license plate information. The police arrived and stopped the man as he was leaving the
store. He was wearing a green jacket and a flat-brimmed baseball-style cap. He had bought a bottle
of Pepto-Bismol but had not paid for the men’s underwear he had concealed in his jacket. The
underwear packages fell out of his jacket after the police stopped him.
¶ 13 C. Identification Evidence
¶ 14 Other than the testimony of the arresting officer, who identified the defendant at trial as the
man he arrested on February 4, 2016, two witnesses testified regarding identification: Detective
Davie Ketelson of the St. Charles police, and Johnny Pickle, the defendant’s stepfather.
¶ 15 Ketelson testified that he was assigned to investigate the December 10, 2015, and January 24,
2016, thefts. On February 5, 2016, after the defendant’s arrest for stealing men’s underwear,
Ketelson spoke with Holmes, who told him that the suspect arrested the day before appeared to be
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2020 IL App (2d) 170356the same person as the man shown in the surveillance video footage from December 10, 2015. On
February 9, 2016, Ketelson took the Meijer BOLO photos (State exhibits 17 and 18) and went to
the defendant’s last known address, where he spoke with Pickle. He showed Pickle the BOLO
photos and asked if Pickle knew who the person in the pictures was. Pickle made a “positive
identification.”
¶ 16 Pickle then testified. At first, he said he did not know whether Ketelson had shown him
pictures. When he was shown State exhibits 17 and 18, Pickle testified that he could not really see
them because of vision problems and that they were “just blurry.” He then said that he thought that
Ketelson did show him some pictures. Asked if he had identified the person in the pictures as the
defendant, Pickle said, “I might have. I don’t know. I don’t remember.” Pickle testified that he and
the defendant’s mother, Sharon Pickle (Sharon), bought the defendant a coat for his birthday a few
weeks before Ketelson’s visit. He did not recall telling Ketelson that the coat worn by the suspect
in the pictures was the same as the one they had bought. He also did not recall telling Ketelson that
the defendant often wore hats like the one worn by the suspect.
¶ 17 The State then recalled Ketelson to the stand. He testified that, when he showed Pickle the
BOLOs from December 10, 2015, and January 24, 2016, Pickle identified the person in the photos
as the defendant. According to Ketelson, Pickle further told him that Pickle had bought the
defendant the coat in the photos a few weeks before and that the defendant often wore that kind of
hat. Pickle did not say anything about not being able to see well.
¶ 18 The sole defense witness was the defendant’s mother, Sharon. She testified that her husband
had had poor eyesight in one eye since an accident in his youth, had lost some of the sight in his
other eye due to diabetes, and had had cataract surgery on the other eye about a year before trial
(the trial took place in January 2017, so that would have been around January 2016). He
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2020 IL App (2d) 170356stopped driving in late 2016 due to poor eyesight. Her husband could not read or write, and she
handled those kind of things for him. The defendant’s birthday was January 16, and on that day in
2016 the three of them went shopping. They bought a coat for the defendant at an army surplus
store and then went to lunch at the Golden Corral. She identified a credit card statement showing
charges at a surplus store and the Golden Corral on January 16, 2016.
¶ 19 D. The Trial Court’s Findings
¶ 20 The trial court found the defendant guilty on all counts. On the issue of identification, it
found that the State had proved that the defendant had committed the thefts in question:
“I find that based upon all of the photographs in question, the fact that there was
identification by Mr. Pickle, that in fact the person who committed the events in [these two
cases] is one and the same person. That person is Mr. David Neal.
I have looked at the photographs. I have seen Mr. Neal in court, and I have seen the
identification of Mr. Pickle in relation to this case, and I find that the identification has been
met, and that the people involved were, in fact[—]are in fact Mr. Neal.”
The trial court noted that, although there was “no question” that the defendant’s parents had bought
him a jacket on January 16, 2016, which was after the first charged offense had occurred, there
was no evidence that the defendant wore only that jacket or that he could not have been wearing
another jacket during the commission of the offenses. The court also commented on the similarity
in the appearance of and modus operandi of the suspect shown in the videos and described by the
Meijer witnesses, which included the clothing worn by the suspect:
“At all times the person was wearing virtually the same clothing. There was always
a hat involved with a wide brim, although the hats were slightly different. They were
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2020 IL App (2d) 170356identified by Mr. Pickle in the one picture as being that of [sic] Mr. Neal’s possession. The
coat was always the same.”
Regarding the identity of the suspect, the trial court concluded:
“The modus operandi was the same. The intent was the same, and since I have
found that Mr. Neal was the same person as identified by Mr. Pickle, and looking at all the
pictures, I find as the trier of fact, although it is circumstantial evidence, that all of the
pictures involved in this case are in fact Mr. Neal. I find that everything adds up to Mr.
Neal committing these thefts. Under the theft statute, I have to find that the Defendant
knowingly took possession of the merchandise. I find that the Defendant in this case is Mr.
Neal and that he is the person who took merchandise.
***
There is no question, I believe, that he is the person involved in these cases.”
¶ 21 The defendant moved for a new trial, arguing in part that the State had not proven identity.
The trial court denied the motion and ordered a presentence investigation (PSI).
¶ 22 The PSI revealed that the defendant was born in 1968. He reported that he was mentally and
physically abused by his step-father (Pickle) throughout his childhood. However, he currently had
a positive relationship with his family and they supported him, although they were disappointed in
him. He began drinking alcohol at age 11 or 12 and drank excessively since then, never staying
sober for more than four or five months. He was removed from his home at age 15, after he was
charged with juvenile offenses. Since reaching age 21, he had been convicted of 11 felonies, mostly
burglaries or thefts. His most recent conviction before the current charges was for burglary and he
had received an 11-year sentence. He had been homeless for three months after his release from
that term of imprisonment.
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2020 IL App (2d) 170356¶ 23 The defendant ascribed many of his problems to his alcoholism. Although he had never
received an official diagnosis, he felt that he suffered from depression and anxiety, which caused
“self-destructive behavior,” including drinking and committing crimes. He reported that he was
often “excessively drunk” when he committed crimes and did not always remember his actions.
He had never received substance abuse treatment; he had attended Alcoholics Anonymous (as
required by terms of his parole) maybe two times but would just have someone sign his sheet and
then leave. He did not have the financial resources to afford any other kind of treatment.
¶ 24 The defendant addressed the trial court at the sentencing hearing. He acknowledged his
substantial history of thefts. He said that he had “anxiety, deep depression and alcoholism” but did
not have the resources to address these problems, and he argued that another prison sentence would
not help him do so. He also said that his mother was dependent on his stepfather, who was
increasingly ill, and he hoped to be there for her in case something happened.
¶ 25 Defense counsel requested the minimum sentence of six years. Noting that the defendant
qualified for class X sentencing, the State requested a 13-year sentence for the burglaries and
concurrent 10-year sentences for the retail thefts.
¶ 26 The trial court found that the only mitigating factor was that the defendant’s criminal conduct
did not cause or threaten serious harm. It noted his lengthy criminal record. It did not believe that
the defendant’s alcoholism caused that criminal history, saying that no one had “ever forced the
defendant to take a drink of alcohol.” Observing that the defendant had been ordered to attend
Alcoholics Anonymous meetings as a condition of parole but instead had had someone sign him
in without attending, the trial court stated that the defendant was inappropriately blaming others for
his own failings. It then sentenced him to two 13-year terms of imprisonment for the burglary
convictions and two 5-year terms for the retail thefts, all to run concurrently.
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2020 IL App (2d) 170356¶ 27 The defendant moved for reconsideration of his sentence and the trial court denied the motion.
This appeal followed.
¶ 28 II. ANALYSIS
¶ 29 A. Third-Party Testimony About a Prior Identification
¶ 30 On appeal, the defendant first argues that Ketelson’s testimony about Pickle’s identification
of the defendant as the person in the BOLO photos was wrongly admitted as substantive evidence
under section 115-12 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-12 (West
2016)). The defendant concedes that he did not object to the admission of this evidence at trial, but
he maintains that its admission was plain error and that his counsel’s failure to object was
ineffective assistance of counsel.
¶ 31 Although the admission of evidence is ordinarily a matter within a trial court’s discretion, in
this case, the trial court’s decision rested on a matter of statutory interpretation, which is a purely
legal matter. People v. Lewis, 223 Ill. 2d 393, 402 (2006). We therefore review de novo the trial
court’s determination that the requirements of section 115-12 were met, allowing Ketelson’s
testimony about Pickle’s identification of the defendant to be admitted as substantive evidence. Id.¶ 32 Section 115-12 of the Code permits a prior out-of-court identification of a defendant to be
admitted as substantive evidence at trial if the identification was made “after perceiving” the
defendant. Id. at 401; see also Ill. R. Evid. 801(d)(1)(B) (eff. Oct. 15, 2015) (a statement is not
hearsay if, among other requirements, the statement is “one of identification of a person made after
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2020 IL App (2d) 170356perceiving the person”).1 The defendant argues that the phrase “after perceiving him” means “after
perceiving him committing the crime.” Thus, the person making the identification must be a victim
of or an eyewitness to the commission of the crime, not simply someone who has seen the accused
at some point in the past. He argues that the history of the statutory provision, as well as existing
case law, shows that the legislature intended to limit the scope of the provision to such persons.
The State contends that the statute does not explicitly require that the person making an
identification be a victim or an eyewitness and that no such requirement can be read into it. This
issue appears to be one of first impression in Illinois.2
¶ 33 Prior to the enactment of section 115-12, when a declarant testified and was subject to cross-
examination, the declarant’s prior statement identifying someone after seeing him or her (usually
in a lineup or photo array) was admissible to corroborate the declarant’s in-court identification,
but it was not admissible as substantive evidence. People v. Rogers, 81 Ill. 2d 571, 579 (1980). In
response to the supreme court’s decision in Rogers, the General Assembly enacted section 115-12,
which provides:
1 Section 115-12 and Rule 801(d)(1) also require that the declarant testify at trial and be
subject to cross-examination concerning the statement. 725 ILCS 5/115-12 (West 2016); Ill. R.
Evid. 801(d)(1)(B) Oct. 15, 2015. The defendant does not contest that those conditions were met
here.
2
The defendant points out that both when section 115-12 was enacted and now, all of the
case law involving the admission of prior out-of-court identification statements involved
statements made by an eyewitness to, or victim of, the crime. The fact that past cases have all
involved prior identifications by victims or other eyewitnesses is of minimal persuasive force,
however, as none of those cases considered the issue of noneyewitness identifications.
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2020 IL App (2d) 170356“A statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies
at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the
statement, and (c) the statement is one of identification of a person made after perceiving
him.” 725 ILCS 5/115-12 (West 2016).
See Michael H. Graham, Handbook of Illinois Evidence § 801.13, at 968-69 (2020 ed.) (describing
the 1983 enactment of section 115-12); People v. Lewis, 165 Ill. 2d 305, 343 (1995) (noting that
section 115-12 was “born out of” the Rogers decision). Under section 115-12, so long as the
declarant testifies and is subject to cross-examination, the declarant’s prior out-of-court
identification of the defendant is admissible as substantive evidence, regardless of whether it
corroborates the declarant’s in-court identification of the defendant or is instead introduced “as a
substitute for in-court identification or to bolster a weak one.” Graham, supra, § 801.13, at 969.
Several years later, Illinois Rule of Evidence 801(d)(1)(B) was adopted, tracking the language of
section 115-12. Ill. R. Evid. 801(d)(1)(B) (eff. Oct. 15, 2015) (in a criminal case, a statement is
not hearsay if the declarant testifies and is subject to cross-examination concerning the statement,
and the statement is “one of identification of a person made after perceiving the person”).
¶ 34 The floor debates on Public Act 83-367 (eff. Jan. 1, 1984), the bill creating section 115-12,
do not shed much light on what the legislature intended by the phrase “after perceiving him.” The
sole commentary was a brief explanation by the bill’s House sponsor, Representative Johnson, that
the bill “provide[d] standards upon which prior identification of a defendant at a lineup [would be]
rendered admissible in a later trial” and that the bill was necessary because
“oftentimes [a] year or year and a half or even six months after the offense, it’s very
difficult for a person in Court to identify an offending individual. Whereas, at a much closer
time to the incident, as an example, one or two days, or even hours after the rape or
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2020 IL App (2d) 170356armed robbery or murder, the offending individual, the defendant, has been identified
validly at a lineup by an individual[.] [This bill] simply provides that that prior
identification under certain circumstances is rendered admissible in the later trial.” 83d Ill.
Gen. Assem., House Proceedings, May 17, 1983, at 103-04 (statements of Representative
Johnson).
This explanation suggests that, in enacting section 115-12, the legislature was mostly focused on
the admissibility of identification statements made by victims or eyewitnesses shortly after the
offense. Thus, it reflects that section 115-12 was intended to encompass such identifications. What
it does not show, however, is any intent to limit the admission of prior identifications to only those
made by victims and eyewitnesses.
¶ 35 When we construe a statute, our goal is always to determine and give effect to the legislature’s
intent in enacting the statute. Lewis, 223 Ill. 2d at 402. We begin with the plain language of the
statute because ordinarily that is the best indicator of the legislature’s intent. Id. “When statutory
language is plain and unambiguous, we must apply the statute as written without resort to aids of
statutory construction.” Id. (citing People v. Collins, 214 Ill. 2d 206, 214 (2005)). We will not
depart from the plain language of a statute by reading into it exceptions, limitations, or conditions
not expressed by the legislature. Id.¶ 36 Here, the plain language of section 115-12 contains no limitation as to the persons whose
prior identifications of a defendant may be admitted into evidence. We will not depart from that
plain language by reading into it an exception for identifications made by noneyewitnesses. See
id. Our approach is consonant with that of other courts that have considered whether to narrow the
broad phrasing of section 115-12 by limiting its scope in some fashion. See, e.g., id. at 403
(holding that “[t]he statute does not expressly require the declarant to testify on the out-of-court
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2020 IL App (2d) 170356identification before a third party may testify about that identification” and refusing to add such a
requirement to the statute); People v. Thompson, 2016 IL App (1st) 113648, ¶ 41 (ruling that
section 115-12 does not contain any requirement that the identification take place immediately
after the offense and declining to read such a provision into the statute). Thus, the trial court did
not err in permitting Ketelson to testify about Pickle’s prior identification of the defendant,
regardless of whether Pickle “perceived” the defendant during the commission of the crime.
¶ 37 It is, of course, possible that the legislature did not intend to enable the admission, as
substantive evidence, of prior identifications that were made weeks after the crime by someone
who was not present at the scene. However, if the legislature intended to restrict the scope of
section 115-12 in this way, it could have done so. Other state legislatures have restricted their
evidentiary rules about prior identifications to encompass only identifications made by victims or
eyewitnesses. See, e.g., N.Y. Crim. Proc. Law § 60.25 (McKinney 2017) (limiting testimony about
prior identifications to identifications made by witnesses who “observed the person claimed
*** to be the defendant either at the time and place of the commission of the offense or upon some
other occasion relevant to the case”); Cal. Evid. Code § 1238 (West 2019) (making evidence of
prior identifications admissible only when the identification “was made at a time when the crime
or other occurrence was fresh in the witness’ memory”—thus limiting the rule to eyewitnesses—
and once “the witness testifies that he made the identification and that it was a true reflection of
his opinion at that time”). Any such restriction is the province of the legislature or the supreme
court committee on the rules of evidence, however, not this court.
¶ 38 Here, no one appears to have directly witnessed the thefts, and the sole ability to identify the
perpetrator comes from the surveillance video footage and the still photos taken from that footage.
Given the proliferation of surveillance cameras in recent times, this scenario may be
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2020 IL App (2d) 170356increasingly common in the future. We will not interpret the statute to bar evidence of prior
identifications by noneyewitnesses, absent a clear legislative intent to do so.
¶ 39 The defendant argues that we should follow the lead of a sister state and conclude that section
115-12 was intended to allow only prior identifications by victims and eyewitnesses to the crime.
In Ibar v. State, 938 So. 2d 451 (Fla. 2006), the Florida Supreme Court considered this very
question and came to the opposite conclusion from the one we reach today.
¶ 40 The facts of Ibar are similar in certain respects to those here. Two men were captured on a
home surveillance system committing crimes (beating the homeowner and killing him and two
women). Id. at 457-58. The police created a flyer, using frames from the video footage. Ibar was
arrested for an unrelated crime. Believing that he matched the image of one of the perpetrators in
the flyer, the police began investigating. Id. Ibar’s roommate, who viewed the video footage,
identified Ibar and the other perpetrator. Five other people who were shown the flyer (none of
whom were present during the murders) also identified the two men. Id. at 459-60. At Ibar’s trial,
however, the roommate could not remember his earlier identification of Ibar, and the other
witnesses denied making positive identifications, saying that they had merely told the police that
the photos were of Ibar or someone who resembled him. Id. In an effort to show that these
witnesses’ prior identifications had been more definite, the prosecution introduced the testimony
of the investigators regarding the prior identifications. The defense did not object to this testimony,
which was admitted as substantive evidence under section 90.801(2)(c) of the Florida Evidence
Code. Id. (citing Fla. Stat. § 90.801(2)(c) (1999)).
¶ 41 Like section 115-12 in Illinois, Florida’s section 90.801(2)(c) provides that “[a] statement is
not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement and the statement is: *** [o]ne of identification of a person made after
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2020 IL App (2d) 170356perceiving the person.” Fla. Stat. § 90.801(2)(c) (1999). On appeal, Ibar argued that this provision
was intended not to permit third-party testimony about prior identifications by noneyewitnesses
but to permit only prior identifications by victims of or eyewitnesses to the charged offense.
¶ 42 The Florida Supreme Court agreed, holding that “ ‘the phrase “identification of a person made
after perceiving him” refers to the witness seeing a person after the criminal episode and
identifying that person as the offender.’ ” Ibar, 938 So. 2d at 460 (quoting Stanford v. State, 576
So. 2d 737 (Fla. Dist. Ct. App. 1991)). The court offered two explanations for its conclusion. First,
it believed that “[t]o extend the rule that far [to noneyewitnesses] would permit countless
repetitions by a witness to others, regardless of time and place, of the witnesses’ [sic] belief as to
the guilty party, a result we do not believe intended by the drafters of the rule.” Id. Second, it found
that limiting the scope of the rule to eyewitnesses and victims would “better serve the ends of
justice” because “expand[ing] the rule to allow as substantive evidence an out-of-court
identification made by anyone who sees or is shown a picture of the defendant could result in the
defendant being convicted through the testimony of persons who have no relationship or
connection to the criminal offense.” Id.at 462.
¶ 43 Nevertheless, the court ultimately affirmed Ibar’s conviction because the erroneous admission
of the prior-identification evidence did not affect the outcome of the case, due to the substantial
amount of other evidence on the issue of identity, including the video footage that was viewed by
the jury. Id. at 463. The opinion drew a lengthy partial dissent, which agreed that Ibar’s conviction
should be affirmed but disagreed with the majority’s conclusion about the proper scope of the prior-
identification rule. See id. at 476-80 (Wells, J., concurring in part and dissenting in part).
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2020 IL App (2d) 170356¶ 44 While we can sympathize with the reluctance of the Ibar majority to interpret the prior-
identification rule broadly to encompass prior identifications by noneyewitnesses, ultimately we
do not find either of the rationales for its decision persuasive. The first concern over possible
“endless repetitions” of prior identifications is a valid one: if, upon seeing a picture of someone
sought in connection with a crime, X told a room full of people, “that’s the defendant,” it could be
unnecessarily cumulative and unduly prejudicial for a court to allow the prosecution to parade
everyone in that room onto the witness stand to testify to X’s prior identification. Nevertheless,
this concern can be avoided through the application of ordinary evidentiary principles permitting
the trial court to limit such testimony, regardless of whether it qualifies as relevant and admissible
substantive evidence. Ill. R. Evid. 403 (eff. Jan. 1, 2011) (trial court may exclude relevant evidence
if its probative value is substantially outweighed by, among other things, the “needless presentation
of cumulative evidence”). Fears of overly repetitious testimony do not require the complete barring
of such testimony, regardless of whether the person who made the prior identification was an
eyewitness or not.
¶ 45 The second rationale relied upon by the Ibar majority was its concern that a defendant could be
convicted solely on the basis of a prior identification by someone who had no relationship to the
crime. Ibar, 938 So. 2d at 462. However, as pointed out by the partial dissent in Ibar, rules of
evidence already permit this result. Id. at 479 (Wells, J., concurring in part and dissenting in part)
(“Florida case law already allows the conviction of defendants through the testimony of persons
who can identify the defendant but who have no relationship to the crime”).
¶ 46 The same is true in Illinois under Illinois Rule of Evidence 701 (eff. Jan. 1, 2011), which
provides that, in evaluating whether a lay witness may testify to an opinion about the identity of a
perpetrator, the key factors are not whether the lay witness saw the charged offense take place but
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2020 IL App (2d) 170356whether the testimony is rationally based on the witness’s own sensory perceptions and whether it
would be helpful to the finder of fact:
“Lay opinion identification testimony is helpful where there is some basis for concluding
the witness is more likely to correctly identify the defendant from the surveillance
recording than the jury. A showing of sustained contact, intimate familiarity, or special
knowledge of the defendant is not required. Rather, the witness must only have had contact
with the defendant, that the jury would not possess, to achieve a level of familiarity that
renders the opinion helpful.” People v. Thompson, 2016 IL 118667, ¶ 50.
Under Rule 701, a person offering lay testimony need not have been present when the crime
occurred. See People v. Mister, 2016 IL App (4th) 130180-B, ¶ 76 (lay opinion witness testimony
properly admitted to explain the events recorded in video surveillance footage, including the
defendant’s movements). Rule 701 thus permits the introduction of substantive noneyewitness
testimony that may be used to convict an accused.
¶ 47 The defendant argues that Rule 701 does not apply here. That is true: Rule 701 simply permits
a noneyewitness to offer testimony about identification if it would be helpful, which, in practice,
means that the noneyewitness must be willing and able to provide that testimony at trial. Where,
as here, the noneyewitness is either unable or unwilling to testify that he or she identified the
defendant, the State cannot use Rule 701 and instead must rely on Rule 801(d) or section 115- 12
to get the prior identification into evidence through a third-party’s testimony. However, the
implication of this distinction is not obvious and the defendant does not expand upon it.
¶ 48 The defendant also argues that the inherent reliability of an eyewitness’s or victim’s
identification of the defendant as the person who committed the crime is not the same as a
noneyewitness’s lay opinion testimony identifying a person depicted in a photograph or video.
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2020 IL App (2d) 170356The defendant offers no support for this argument, however, and again his conclusion is not
obvious to us. The reliability of testimony by someone like Pickle who has decades-long
familiarity with the person he or she identifies in a photo, could well equal the reliability of an
identification by an eyewitness to a crime whose sensory perceptions may be affected by factors
such as distance, lighting, the duration of the event or the perception, and stress or excitement. Of
course, the circumstances of the identification (such as Sharon’s testimony about her husband’s
vision problems) are still relevant to a factfinder’s assessment of the weight to be given to that
identification.
¶ 49 Rather, if there is a difference in the inherent reliability of lay opinion testimony by a
noneyewitness offered under Rule 701 versus evidence of a prior identification by a noneyewitness
under Rule 801(d) or section 115-12, we believe that it arises because the testimony about the
witness’s prior identification is offered by a third party, rather than by the witness, who is unable
or unwilling to identify the defendant in court. A factfinder thus must determine not onlywhether
the witness’s identification of the defendant has value but also whether the witness actually made
the prior identification that the third-party witness says they did. Such conflicts in the evidence are
an ordinary feature of trials, however, regardless of whether the testimony is direct or offered by
a third party under a hearsay exception, and they are well within the ability of the factfinder to
resolve. See People v. Smith, 185 Ill. 2d 532, 542 (1999) (the weight to be given to the witnesses’
testimony, the determination of their credibility, and the reasonable inferences to be drawn from
the evidence are all matters within the province of the trier of fact); People v. Collins, 106 Ill. 2d
237, 261-62 (1985) (the resolution of any conflicts or inconsistencies in the evidence is within the
province of the fact finder). Thus, we do not view this distinction as a sufficient reason to bar third-
party testimony about noneyewitnesses’ prior identifications.
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2020 IL App (2d) 170356¶ 50 Anticipating that we might find the meaning of “perceive” in section 115-12 and Rule
801(d)(1)(B) to be ambiguous, the parties argue about the significance of the fact that, under a
different provision of Rule 801(d)(1), a prior inconsistent statement can be admitted as substantive
evidence only if it is based on the declarant’s personal knowledge. See Ill. R. Evid. 801(d)(1)(A)(2)
(eff. Oct. 15, 2015); People v. Simpson, 2015 IL 116512, ¶ 32 (the declarant must have personal
knowledge of the event itself, not merely the defendant’s admission regarding the event). However,
the statutory interpretive principle of in pari materia applies only when the meaning of the
statute’s language is ambiguous. As we conclude that the plain language of section 115-12 and Rule
801(d)(1)(B) is clear and contains no express condition that the declarant be an eyewitness or
victim, we do not reach these arguments.
¶ 51 Because we find that the trial court did not err in admitting Ketelson’s testimony about
Pickle’s prior identification of the defendant under section 115-12, we need not address the
defendant’s contentions that any such error amounted to plain error or ineffective assistance.
People v. Eppinger, 2013 IL 114121, ¶ 19 (under the plain-error doctrine, the first step is to
determine whether any error occurred); People v. Perry, 224 Ill. 2d 312, 342 (2007) (to succeed on
a claim of ineffective assistance of counsel, a defendant must show an error by counsel that was
so serious that counsel cannot be said to have been functioning as the counsel guaranteed by the
sixth amendment).
¶ 52 Indeed, even if we had found the admission of Ketelson’s testimony to be error, we would
not find it to be plain error. The plain-error doctrine allows a reviewing court to consider
unpreserved error when
“(1) a clear or obvious error occurred and the evidence is so closely balanced that the error
alone threatened to tip the scales of justice against the defendant, regardless of the
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2020 IL App (2d) 170356seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious
that it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225
Ill. 2d 551, 565 (2007).
Neither prong is met here. On the first prong, like the court in Ibar, we would find that the evidence
was not close, because the factfinder’s ability to view the surveillance video footage and photos
and compare them with the defendant in court provided an ample basis on which to conclude that
the defendant was the perpetrator shown in that footage and those photos. In addition, in this case,
both Holmes and Diliberto testified that they believed that the man in the earlier surveillance
footage and the BOLOs was the defendant. Although the trial court here did refer to the testimony
about Pickle’s prior identification, the record reflects that the trial court relied extensively on its
own observations to resolve the issue of identity.3 The defendant’s minimal arguments on the
second prong of plain error are similarly unpersuasive. However, we reiterate that we find no error
here, plain or otherwise.
¶ 53 B. Excessive Sentence
3 Indeed, it is quite possible that the reason the substantive admissibility of third-party
testimony about prior identifications by nonwitnesses has not been addressed by Illinois courts
before now is that such evidence is not particularly strong. Just as in this case, the ability of
factfinders to judge for themselves whether the person shown in a photo or video is the defendant
is likely to be more compelling than a third party’s testimony that a noneyewitness identified the
defendant as the person in a photo or video, especially where the noneyewitness disputes that
identification.
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2020 IL App (2d) 170356¶ 54 The defendant also asserts in this appeal that his sentence—a total of 13 years’
imprisonment—was excessive and that the trial court erred in how it considered his alcoholism. In
evaluating this assertion, we owe a great deal of deference to the trial court. “[T]he trial court is in
the best position to fashion a sentence that strikes an appropriate balance between the goals of
protecting society and rehabilitating the defendant.” People v. Risley, 359 Ill. App. 3d 918, 920
(2005). Thus, we may not disturb a sentence within the applicable sentencing range unless the trial
court abused its discretion. People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). A sentence is an
abuse of discretion only if it is at great variance with the spirit and purpose of the law or manifestly
disproportionate to the nature of the offense. Id. at 210. We may not substitute our judgment for
that of the trial court merely because we might weigh the pertinent factors differently. Id. at 209.
¶ 55 In determining an appropriate sentence, relevant considerations include the nature of the
crime, the protection of the public, deterrence, and punishment, as well as the defendant’s
rehabilitative prospects. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998). The weight to be attributed
to each factor in aggravation and mitigation depends upon the particular circumstances of the case.
Id. There is a presumption that the trial court considered all relevant factors in determining a
sentence, and that presumption will not be overcome without explicit evidence from the record that
the trial court did not consider mitigating factors or relied on improper aggravating factors. People
v. Payne, 294 Ill. App. 3d 254, 260 (1998).
¶ 56 The defendant acknowledges that his sentence is within the statutory sentencing range, but he
contends that the trial court’s comment that “no one forced” the defendant to drink displays a
misunderstanding of alcoholism as a disease of addiction. He also argues that his history of
multiple convictions of retail theft and increasingly long sentences of imprisonment make it clear
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2020 IL App (2d) 170356that those long sentences were ineffective at preventing him from relapsing when he was released
or deterring him from engaging in criminal conduct. Instead, he argues, he needs treatment in order
to become a productive citizen. He points out that he had worked for a messenger company for
two years before his most recent arrest and his employer stated that she would be willing to hire
him again, so such rehabilitation was not an impossibility. He also argues that the trial court
misunderstood why he had not participated in counseling after his last release, because it did not
realize that he was arrested for the instant charges only a few weeks after that release and remained
in jail thereafter, without access to such counseling. In light of all these facts, he argues, a prison
term of 13 years was unconstitutionally harsh and ignored the possibility of rehabilitation. Instead
of giving him two years longer than his last prison term, as the State requested, the trial court
should have given him a sentence closer to the minimum (six years). He asks that we reduce his
sentence to eight years.
¶ 57 While a sentence of 13 years might be lengthy for the unarmed and nonviolent retail thefts
committed here, we cannot say that it was an abuse of discretion. The trial court appropriately took
into account not only the defendant’s lifelong history of committing retail thefts and burglaries,
but also the fact that the crime spree that resulted in his arrest involved multiple thefts over a period
of several weeks. The trial court’s comment about no one forcing the defendant to drink was a
response to what the trial court viewed as the defendant’s efforts to avoid taking responsibility for
his actions in stealing. As for the defendant’s potential for rehabilitation, the trial court stated that
it had taken that into consideration but simply did not believe that potential to be great. That
conclusion is supported by the record. The defendant’s admission in the PSI that he avoided
participating in Alcoholics Anonymous meetings despite being ordered to attend
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2020 IL App (2d) 170356eloquently contradicted his stated desire to rehabilitate himself. We see no error in the trial court’s
sentence.
¶ 58 III. CONCLUSION
¶ 59 For the reasons stated, the judgment of the circuit court of Kane County is affirmed.
¶ 60 Affirmed.
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2020 IL App (2d) 170356No. 2-17-0356
Cite as: People v. Neal, 2020 IL App (2d) 170356Decision Under Review: Appeal from the Circuit Court of Kane County, Nos. 16-CF-210,
16-CF-211; the Hon. Donald J. Tegeler, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Yasemin Eken, of State
for Appellate Defender’s Office, of Elgin, for appellant.
Appellant:
Attorneys Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick
for Delfino, Edward R. Psenicka, and Steven A. Rodgers, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
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