2012 IL App (1st) 093273
Ill. App. Ct.2012Background
- Faber was convicted by jury of first-degree murder (Wright) and aggravated battery with a firearm (Perez), with a 60-year and a 25-year sentence consecutive.
- Pretrial, Faber moved to suppress two photo arrays and later sought suppression of lineup identifications as unduly suggestive.
- Detective Flaherty conducted separate photo arrays for Christopher and Stallworth; both identified Faber as shooter; arrays were later lost.
- A lineup including Faber and two codefendants led Christopher and Stallworth to identify Faber; others did not identify him.
- At trial, witnesses testified to the shooting and Faber confessed in videotaped statements; there was no recovered weapon; evidence also included a stipulation about Nzau’s tentative identification of Phillips.
- The trial court denied suppression and found Flaherty credible; defense did not obtain relief on suppression or identification issues; verdict and sentences above were affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Nzau’s identification testimony via 115-12 | Faber | Faber | Admissible; harmless error. |
| Ineffective assistance of counsel for preparation | Faber | Faber | No reversible error; no prejudice. |
| Loss of photo arrays; remedy under 107A-5 | Faber | Faber | Directory reading; no suppression required; potential rare remedy consideration. |
| Undue suggestiveness of lineup | Faber | Faber | Lineup not unduly suggestive; identification reliable. |
Key Cases Cited
- People v. Lewis, 223 Ill.2d 393 (2006) (115-12 interpretation; declarant need not testify to out-of-court identification before third-party testimony)
- People v. Williams, 383 Ill. App.3d 596 (2008) (admissibility of testimony under 115-12 when declarant available for cross-examination)
- People v. Johnson, 149 Ill.2d 118 (1992) (admissibility of identification testimony and impact on lineup evidence)
- People v. Purnell, 129 Ill. App.3d 253 (1984) (loss of photographs; inadvertent; identification testimony not automatically excluded)
- People v. Delvillar, 235 Ill.2d 507 (2009) (statutory interpretation of 107A-5; directory vs mandatory)
- People v. Harris, 182 Ill.2d 114 (1998) (due process when evidence lost; inadvertent loss not per se reversible)
- People v. Meredith, 37 Ill. App.3d 895 (1976) (photographic identification procedure; considerations for impermissible suggestiveness)
- People v. Bryant, 391 Ill. App.3d 228 (2009) (opening statements and promised testimony; prejudice analysis)
- People v. Hartzol, 222 Ill. App.3d 631 (1991) (pretrial identifications; lineup suggestiveness standards)
- People v. Gabriel, 398 Ill. App.3d 332 (2010) (lineup comparability and non-identicality fact pattern)
- People v. Barnes, 364 Ill. App.3d 888 (2006) (reliability factors for eyewitness identification)