People v. Neal

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Appellate Court Date: 2022.01.04
11:40:40 -06'00'
People v. Neal, 2020 IL App (2d) 170356Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DAVID A. NEAL, Defendant-Appellant.
District & No. Second District
Nos. 2-17-0356, 2-17-0358 cons.
Filed December 31, 2020
Decision Under Appeal from the Circuit Court of Kane County, Nos. 16-CF-210, 16-
Review CF-211; the Hon. Donald J. Tegeler, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Thomas A. Lilien, and Yasemin Eken, of State
Appeal Appellate Defender’s Office, of Elgin, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick Delfino,
Edward R. Psenicka, and Steven A. Rodgers, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel 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
¶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.
¶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.
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¶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
man 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 the 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
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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 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 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
stopped 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:
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“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
identified 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 stepfather (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.
¶ 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
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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
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.
¶ 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 perceiving 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
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) (eff. 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 non-eyewitness identifications.
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¶ 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:
“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,
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 armed 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,
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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 non-
eyewitnesses. 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 identification 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
increasingly common in the future. We will not interpret the statute to bar evidence of prior
identifications by non-eyewitnesses, 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-
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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 perceiving 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 non-
eyewitnesses 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 non-eyewitnesses] 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).
¶ 44 While we can sympathize with the reluctance of the Ibar majority to interpret the prior-
identification rule broadly to encompass prior identifications by non-eyewitnesses, 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
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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 whether 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
non-eyewitness 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 non-eyewitness to offer testimony about identification if it would be helpful, which,
in practice, means that the non-eyewitness must be willing and able to provide that testimony
at trial. Where, as here, the non-eyewitness 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 non-
eyewitness’s lay opinion testimony identifying a person depicted in a photograph or video. The
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.
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¶ 49 Rather, if there is a difference in the inherent reliability of lay opinion testimony by a non-
eyewitness offered under Rule 701 versus evidence of a prior identification by a non-
eyewitness 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 only whether 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 factfinder). Thus, we
do not view this distinction as a sufficient reason to bar third-party testimony about non-
eyewitnesses’ prior identifications.
¶ 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
seriousness 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
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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
¶ 53 B. Excessive Sentence
¶ 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 that 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
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 non-eyewitness identified the defendant as the person
in a photo or video, especially where the non-eyewitness disputes that identification.
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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 eloquently 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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