delivered the opinion of the court:
Defendant Daniel Rodriguez was convicted by a jury on September 21, 2005, of the first-degree murder of 18-year-old Ricardo Vasquez. In addition, the jury found that defendant personally discharged the firearm that proximately caused Vasquez’s death. The murder was the result of a gang-related, drive-by shooting on April 1, 2000, at approximately 9:30 p.m., in the vicinity of 8707 South Escanaba Street in Chicago. Defendant was sentenced to 45 years of incarceration, which was the minimum available sentence and which included a 25-year enhancement for discharging the firearm that proximately caused the victim’s death. On appeal, defendant makes two claims. First, defendant claims that the trial court abused its discretion by giving a portion of Illinois Pattern Jury Instructions, Criminal, No. 3.15 (4th ed. 2000) (IPI Criminal 4th). Defendant claims that social science evidence indicates that part of the instruction is based on a mistaken assumption, namely, that an identification is more credible if the witness is more certain. Second, defendant claims that his trial counsel was ineffective for failing to file a motion to suppress a showup identification of defendant by two witnesses an hour after the murder.
For the following reasons, we affirm the conviction.
BACKGROUND
Defendant’s trial began on September 19, 2005. At trial, eight witnesses testified; and all eight were called by the State. Of the eight, four were witnesses to the shooting: (1) Carlos Luna; (2) Camelia Prado; (3) Joseph Gonzalez; and (4) Antoine Lacy. Francisco Ortiz, an acquaintance of defendant, testified that, on the morning of the shooting, defendant stated that he had “some business” with members of a rival gang because they had damaged his vehicle the night before. The remaining three witnesses were law enforcement personnel: (1) Officer Edward Maras, an officer with the Chicago police department, who detained defendant after the shooting; (2) Scott Rochowicz, a forensic scientist with the Illinois State Police, who tested gunshot residue recovered from defendant’s hands; and (3) Adrienne Segovia, a deputy medical examiner with Cook County, who performed an autopsy on the shooting victim.
Of the four event witnesses, two were able to identify defendant as the shooter: (1) Antoine Lacy; and (2) Joseph Gonzalez. Lacy and Gonzalez identified defendant during a showup procedure shortly after the shooting. Prado, who was also present at the showup, was unable to identify defendant.
Carlos Luna testified that he was 25 years old and that, in 2000, he was a member of a gang called the Latin Dragons. On April 1, 2000, he was standing with a few friends in front of a house located at 8707 South Escanaba Avenue. There were approximately 10 people standing in front of the house, and approximately 6 were gang members. The streetlights were on, as well as a porch light. Luna observed a four-door grey Cadillac Seville come from east 87th Street and head west on Escanaba Avenue. Luna approached the vehicle, arriving within 15 feet of it, and the vehicle was traveling slowly. Luna testified that “[t]he driver threw his head back and the passenger opened fire.” Luna was unable to observe the passenger’s face “[bjecause of the gun flash.” Later that night, when Luna was shown an array of photographs at a police station, he was unable to identify either the driver or the passenger of the vehicle.
Luna further testified that he heard four shots fired. When he heard the first shot, he fell to the ground. Luna identified photographs of: Ricardo Vasquez, the shooting victim; the shooter’s vehicle; and the house in front of which Luna was standing. When Luna stood up after the shooting, he saw that Vazquez had been shot.
Camelia Prado testified that she was 29 years old and that in 2000, her aunt lived at 8707 South Escanaba Avenue. At 9:20 p.m., Prado was outside that address with her cousins Anna Rosa and Alberto Campos, as well as Carlos Luna, Joseph Gonzalez, Antonio Lacy, Ricardo Vasquez and “other friends.” At that time, Prado was a member of the Latin Dragons. Prado was on the porch with her cousin Anna and another cousin and “the kids,” while Joseph Gonzalez and Alberto Campos were on the steps. The porch and streetlights were on, but the streetlights were “like orange” and “dim.”
Prado testified that at about 9:20 p.m., a four-door “short-bodied” Cadillac “came off of East 87th Street” on to Escanaba Avenue and “slowed up in front of [her] aunt’s house.” Prado watched this vehicle “[b]ecause it’s a hot block.” Prado explained that when she used the term “hot block,” she meant “because of the gangs and stuff like that it was always shooting, drive-bys and stuff like that.” Prado observed two occupants in the vehicle, a driver and a passenger, and that the driver’s window was down.
Prado testified that when the vehicle slowed down, Luna approached it and then “[t]he guy on the passenger side started shooting.” The passenger “kind of leaned toward the driver, and we just starting seeing like the fire in front of the driver’s face, and the driver threw himself back.” Prado heard three or four shots, and “the car kept driving and it crashed into a van that was parked.” When the first shots were fired, everyone scattered and Prado hid behind a column on the porch. The victim, Vasquez, “started running towards the corner away from the car” when he was shot. After the vehicle crashed into the van, “[i]t kept going straight up the block to 91st Street and made a left.”
Prado testified that she called the police. When the police arrived, she provided a description of the shooter’s vehicle. Approximately an hour later, the police returned and asked her to look at a vehicle to “see if it’s the car you just saw.” Prado went with Antoine Lacy and Joseph Gonzalez to view the vehicle. Prado was able to identify the vehicle as the shooter’s vehicle, but she was not able to identify the shooter. On the witness stand, Prado identified photographs of Ricardo Vasquez, her aunt’s building and the shooter’s vehicle.
On cross-examination, Prado denied having told the 911 operator that there were four people in the vehicle. The defense played the 911 tape. On redirect examination, Prado explained that, while she was on the telephone with the 911 operator, someone said to her that there had been four people in the vehicle. Prado repeated that as a question to the person who had stated it. When the 911 operator repeated that statement, Prado first responded “yes” and then responded “no.”
Joseph Gonzalez testified that he was a convicted felon, for possession of a handgun. On April 1, 2000, he was “[a]bout 18 maybe.” At 9:20 p.m., he was “hanging out” at 8707 South Escanaba Avenue, with a few friends, including Ricardo Vasquez, Camelia Prado, Carlos Luna and Antoine Lacy. Gonzalez was on the first or second step from the bottom, in front of the porch, when he observed a vehicle come “down east 87th,” turn left on to Escanaba Avenue, and slow down. The vehicle “came to like almost a complete stop” in front of the house. Due to the streetlights, “east 87th [was] all lit up.” The vehicle was a blue, “short-body,” four-door vehicle. Gonzalez observed two occupants in the vehicle, a driver and a passenger.
Gonzalez testified that he was watching the vehicle “[b]ecause right where we live at it’s a real dangerous block, so any car that comes through you have to pay attention to *** it’s a high gang activity area right there.” At that time, Gonzalez was a member of the Latin Dragons. Gonzalez tried to look into the vehicle to see “like who the h — , who is that.” Gonzalez testified that he could not see the driver, but he could see the passenger, whom he identified in court as defendant. Gonzalez then observed that the passenger “upped a pistol and started shooting,” and the driver “leaned back, dude shot right in front of his face pow, pow like that.” The passenger fired four or five shots into the crowd in front of and on the porch. After the shots stopped, the vehicle “took off toward the way it was coming, down towards like 91st” and “sideswiped maybe 2 or 3 cars and then it just kept going.”
Gonzalez testified that after the vehicle departed, he noticed that “Ricardo [Vasquez] didn’t get up.” Vasquez was “on the ground shaking” and bleeding. After the police and the ambulance arrived, Gonzalez provided a description of both the shooter and his vehicle. Gonzalez testified that he informed the police that the shooter was “[H]ispanic, about my complexion, shaved on the side with longer hair on top.” Approximately 10 or 20 minutes later, the police asked him to travel to another location, where he identified both the shooter and his vehicle. The police shined a light on the suspect so that Gonzalez could see the suspect, but the suspect could not see him. Gonzalez testified that defendant’s hair was “[s]haved on one side and longer on top.” Gonzalez testified that “I think it was 3 of us there in the back of the car” during the identification and that he was certain Camelia Prado was there. At trial, Gonzalez identified photographs of the shooter’s vehicle and the scene of the shooting.
On cross-examination, Gonzalez testified that the streetlight, located in front of the house, shone straight down, over the street. Gonzalez admitted that he lied when he testified in front of the grand jury that he was not a member of a gang. On redirect examination, Gonzalez explained that the light from the streetlight “fans out.” When the vehicle approached, and Gonzalez was on the step, he bent down to see inside the vehicle. Gonzalez testified:
“Right there when [the vehicle] stopped, you have the [streetlight] pole right there and it lit up. The lights from the other side light up this other half and he was right there, and I bent down and I saw his face dead in my face right there, and he upped that pistol at me.”
Antoine Lacy testified that he was also known as Adam Torres; that he was currently incarcerated due to felony convictions for aggravated assault and weapon possession by a felon; that, in 2000, he was a member of the Latin Dragons and he resided at 8707 South Escanaba in Chicago; and that the rivals of the Latin Dragons in 2000 were the Latin Kings. On April 1, 2000, at approximately 9 p.m., he was “hanging out” in front of 8707 South Escanaba, with a group that included Carlos Luna, Anna Campos, Camelia Prado, “Beto,” Joseph Gonzalez and Ricardo Vasquez. Lacy testified that the victim, Vasquez, was “[o]ne of my gang-affiliated friends.” On April 1, Lacy testified that he (Lacy) was either 17 or 18 years old.
Lacy testified that at approximately 9:20 p.m., he was standing on the sidewalk and that it was dark, but the porch light and the streetlights were on. Lacy observed “[a] blue short body vehicle, maybe a Buick or Cadillac model coming from eastbound going west, make a left on Escanaba.” The vehicle was “traveling 5 or 10 miles” per hour, and then it stopped, and “everybody [says] who is that.” The vehicle contained two occupants, a driver and a passenger. Lacy estimated that he was standing 12 to 13 feet away from the vehicle when he looked into it. Carlos Luna “ran up to the car”; “he said who is that” and “they started firing shots.”
Lacy testified that, prior to the shots, he had recognized the passenger in the vehicle. Lacy testified, “I seen him in the mall before.” The mall was the River Oaks Mall. After Lacy recognized the passenger, the passenger started firing. Lacy identified defendant in court as the passenger. Lacy testified that when defendant started firing, the driver moved back, and that defendant was firing toward Carlos Luna. The gun was “[m]aybe like in front of the driver’s face,” and the driver’s window was down. Lacy testified that while Luna “fell back,” he (Lacy) “was in shock” and he kept looking at defendant. Lacy testified that he was located behind Luna and that the vehicle was right in front of him. Lacy testified that he did not recall how many shot were fired, and that there were “maybe like 5 or 6.”
Lacy testified that after the shooting ceased, the vehicle “sideswiped a green van.” Vasquez had been hit and was “trying to catch his breath.” At some point, the police “said that they had caught the shooter and they took us where they caught him at,” which was East 97th Street and Ewing. Lacy traveled with Camelia Prado and Joseph Gonzalez to this location. First Lacy identified a vehicle as the shooter’s vehicle and then identified defendant as the shooter. During the identification process, the police “put the shooter in front of the car,” and “they turned on the high beams, and they asked us if it was him.” At trial, Lacy identified photographs of the crime scene and the shooter’s vehicle.
On cross-examination, Lacy testified that he had previously provided a description of the shooter to the police, in which he stated that the shooter was between 18 and 25 years old. He did not recall whether he told the police that the shooter’s complexion was “unknown.” He did not tell the police at the crime scene that he recognized the shooter from the mall, because he answered only the questions posed to him. Lacy testified that during the shooting, he saw the flashes from the gun.
Officer Edward Maras of the Chicago police department testified that on April 1, 2000, he was working in plain clothes and in an unmarked vehicle, when he received information over the radio from his sergeant that a man had been shot near 8707 South Escanaba and the suspects were “two youthful Hispanics in a 4 door light gray or light blue Cadillac” with “some damage to the passenger’s side of the vehicle.” At approximately 10:20 p.m., Officer Maras was in the vicinity of 3650 East 97th Street when he observed defendant “pulling up” alone in a vehicle that matched the description of the shooter’s vehicle. Officer Maras and his two partners approached defendant, and then Officer Maras called on the radio to the detectives in the case, to ask them to bring the witnesses to defendant’s location. After the detectives transported the witnesses, the witnesses identified the vehicle and the defendant in “a street showup.” Officer Maras explained: “We placed the subject Rodriguez out in the open, illuminated him with the lights and flashlight so he could be identified [and] so he wouldn’t be able to see the witnesses through the glare ***.” Officer Maras testified that 3650 East 97th Street is approximately “a mile, maybe a little more” from 8707 South Escanaba. Officer Maras identified photographs of the vehicle which depicted damage to the passenger side.
Prior to the testimony of Francisco Ortiz, the defense moved in limine to bar the State from asking Ortiz whether defendant was a member of the Latin Kings. The trial court ruled that if the defense “open[ed] the door,” then the court would permit the question about defendant’s gang membership.
Ortiz testified that he was currently incarcerated; that he had four felony convictions; and that in April 2000, he was 15 years old and he had then known defendant for about a year. On April 1, 2000, at approximately 10 a.m. or noon, defendant came to Ortiz’s home and asked if Ortiz “wanted to go out” and if Ortiz had a gun. Ortiz testified that defendant stated he wanted a gun because “he wanted to take care of some business, something about his car happening over some Dragons.” Ortiz testified that defendant stated that some Latin Dragons had hit his vehicle the night before and dented the passenger side. Ortiz testified that defendant drove a “bluish gray, bluish green” Buick or Cadillac, and Ortiz observed the damage. At trial, Ortiz identified photographs of defendant and his vehicle.
On cross-examination, Ortiz denied having told the police that, on April 1, 2000, he left his home at 10:30 p.m. and that he observed defendant being stopped by the police. At trial, Ortiz testified that he remained at home the entire evening.
Scott Rochowicz, a forensic scientist with the Illinois State Police, testified that he had tested the gunshot residue recovered from defendant’s hands on April 1, 2000. He testified that his opinion, to a reasonable degree of scientific certainty, was that the level of residue found on defendant’s hands was “consistent with” defendant “discharging a firearm, handling a firearm, or being in close proximity to a firearm when it was discharged.” On cross-examination, Rochowicz testified that it was “possible” that if a gun was fired close to a steering wheel, residue could be deposited on the wheel, and if someone touched the wheel, the residue could be transferred to the person’s hands. On redirect, he testified that “the probabilities are very slim” of receiving residue from a steering wheel. Considering the results that he received in this particular case, he testified “it would be an unlikely scenario.”
Before the last witness, the trial court held the jury instruction conference, where the court asked counsel to state their objections, if any, to the proposed instructions. Defense counsel objected to two instructions which the trial court then withdrew. With respect to the instruction concerning eyewitness identification that is at issue on this appeal, the trial court and counsel had the following colloquy:
“THE COURT: People’s number 13 is IPI criminal 3.15.
MR. MAYFIELD (defense counsel): No objection.
THE COURT: Given.”
Adrienne Segovia, a pathologist and deputy medical examiner with Cook County, testified that she performed an autopsy on Ricardo Vasquez on April 2, 2000, and concluded that he died from a bullet that pierced his arm, lungs and heart. She recovered the bullet from the body.
The jury also received several stipulations. First, the parties stipulated that defendant was arraigned on May 19, 2000, for the murder of Ricardo Vasquez, that defendant was released on bond on June 4, 2001, that he failed to appear for his next scheduled court date, and that defendant was apprehended on February 19, 2004. Second, the parties stipulated that a gunshot residue kit was administered to defendant’s hands on April 1, 2000, at 11:40 p.m., and that there was a proper chain of custody maintained over the kit at all times. Third, the parties stipulated that, if Officer Gina Pelkey of the Chicago police department were called to testify, she would state that she interviewed State witness Joseph Gonzalez and that her report described the shooter’s complexion as unknown, his hair as short, dark and shaved, and his age as between 18 and 25 years old. Fourth, the parties also stipulated that, if Officer Angelo Pesavento of the Chicago police department were called to testify, he would state that “he wrote in his supplemental report that Francisco Ortiz and his brother Gabrielle Jalomos went outside on April 1, 2000, at 2230 hours and saw Daniel Rodriguez stopped by the police.”
On September 21, 2005, the jury returned a verdict and found defendant guilty of the first-degree murder of Ricardo Vasquez. The jury also found that defendant personally discharged the firearm that proximately caused Vasquez’s death.
On November 1, 2005, defendant filed two motions for a new trial. One motion sought a new trial on the basis that State witness Francisco Ortiz had signed a statement in which he recanted his trial testimony. The second motion made general allegations that the State’s witnesses were impeached, that the State failed to prove guilt beyond a reasonable doubt and that defendant was denied due process of law. The trial court denied the motions for a new trial, finding that Ortiz’s testimony in support of the motion was not credible.
On December 28, 2006, the trial court sentenced defendant to 45 years of incarceration, which was the minimum available sentence. The sentence included a 25-year enhancement for discharging the firearm that proximately caused the victim’s death. The 45-year sentence runs consecutively to another 20-year sentence, for an unrelated conviction for attempted first-degree murder. This appeal followed.
ANALYSIS
On appeal, defendant claims, first, that the trial court abused its discretion by using a certain portion of an Illinois pattern jury instruction; and second, that trial counsel was ineffective for not moving to suppress showup identifications of defendant. Defendant claims that social science evidence indicates that part of Illinois Pattern Jury Instructions, Criminal, No. 3.15 (4th ed. 2000) is based on a mistaken assumption, namely, that an identification is more credible if the witness is more certain. For the following reasons, we find that the trial court did not abuse its discretion and that trial counsel was not ineffective.
(1) Jury Instruction Regarding Eyewitness Identification
Defendant’s first claim on appeal is that the trial court abused its discretion by using a portion of IPI Criminal 4th No. 3.15, because it was allegedly outdated based on recent social science research.
(a) Standard of Review
Before examining the substantive issue, we must ascertain the correct standard of review. Defendant concedes in his appellate brief that he waived this issue for review, because his trial counsel did not object to this instruction either at trial or in his posttrial motion. The Illinois Supreme Court has held that a “defendant must both specifically object at trial and raise the specific issue again in a posttrial motion to preserve any alleged error for review.” People v. Woods,
When a defendant has failed to preserve an error for review, we may still review for plain error. Piatkowski,
We apply this plain-error review to an issue that already carries an abuse-of-discretion standard of review. On appeal, a reviewing court will reverse a trial court’s determination about what instructions to give only if the trial court abused its discretion. Schultz v. Northeast Illinois Regional Commuter R.R. Corp.,
Ordinarily, a reviewing court will not reverse a trial court, even if the trial court gave faulty instructions, unless the instructions clearly misled the jury and resulted in prejudice to the appellant. Schultz,
(b) Validity of Instruction
Having established the correct standard of review, we can now proceed to examine the substantive question, whether the trial court erred by using a portion of IPI Criminal 4th No. 3.15.
The version of IPI Criminal No. 3.15 that was in effect in 2005, at the time of defendant’s trial, 1 stated:
“When you weigh the identification testimony of a witness, you should consider all the facts and circumstances in evidence, including, but not limited to, the following:
The opportunity the witness had to view the offender at the time of the offense.
The witness’s degree of attention at the time of the offense.
The witness’s earlier description of the offender.
The level of certainty shown by the witness when confronting the defendant.
The length of time between the offense and the identification confrontation.” IPI Criminal 4th No. 3.15 (Supp. 2003). 2
On appeal, defendant objects to the trial court’s decision to give the fourth factor: the certainty shown by the witness.
Supreme court rules require trial courts to use those Illinois Pattern Jury Instructions that are both (1) applicable to the facts and law of the case; and (2) correct statements of law. Supreme Court Rule 451(a) states unequivocally that a trial court “shall” use “the Illinois Pattern Jury Instructions, Criminal (4th ed. 2000)” when it is “applicable in a criminal case, giving due consideration to the facts and the governing law *** unless the court determines that it does not accurately state the law.” 210 Ill. 2d R. 451(a); Piatkowski,
Defendant does not argue either that IPI Criminal 4th No. 3.15 was inapplicable or that it misstated Illinois law — nor could he. As for applicability, the IPI committee instructs trial courts to “[gjive this instruction when identification is an issue.” IPI Criminal 4th No. 3.15, Committee Note, at 107. There is no dispute that identification was an issue.
As for legality, our supreme court has held that the five factors listed in the instruction are an accurate statement of the law “for assessing the reliability of identification testimony.” Piatkowski,
Instead of trying to argue illegality or inapplicability, defendant argues that the fourth factor listed in IPI Criminal 4th No. 3.15 is simply out of date, in light of recent social science research. This instruction was created just eight years ago for the purpose of “help-ting] jurors negotiate the hidden complexities of identification testimony.” Herron,
In support of his claim, defendant cites this court’s recent decision in People v. Allen,
Attempting to build on Allen, the defendant in the case at bar is trying to knock out this Biggers factor, not just for his case but for all time. Here is the legal problem in a nutshell. On the one hand, there is Allen, which says that a defendant can try to knock out this Biggers factor with social science research, in his particular case. Allen,
There is an easy way to reconcile Allen with the prior line of cases. Allen,
Thus, a trial court may omit one of the Biggers factors listed in IPI Criminal 4th No. 3.15 based on the “evidence,” and the “evidence” may include the kind of social science evidence proposed in Allen. Allen,
On appeal, defendant argues that the trial court, without any contrary evidence before it, should have acted on its own initiative to omit the fourth factor. The irony, of course, is that if the trial court had done just that, defendant could have filed an appeal claiming that the spontaneous omission of the fourth factor prejudiced him. People v. Houston,
There is also an argument to be made that the fourth factor of IPI Criminal 4th No. 3.15 concerns only the witness’s level of certainty at the initial identification, and that the social science research targets primarily the witness’s level of certainty while testifying at trial, and thus the latter cannot be used to disparage the former. People v. Smith,
On appeal, defendant claims, not that the fourth factor is against the law, but that it is against “the wide body of social research and developing law around the country.” See Smith v. Marvin,
In Illinois, the job of drafting pattern jury instructions was not given to the trial courts or the appellate courts. IPI Civil (2006) at XXIV-XXV Our supreme court gave that job to the Illinois Supreme Court Committee on Pattern Jury Instructions, and required its lower courts to use the pattern instructions, unless the committee failed to state “the law” accurately. 210 Ill. 2d R. 451(a); IPI Civil (2006), at XIX. Even if Illinois judges believe they could do a better job than the committee, they should still use the pattern instruction, unless it is not an accurate statement of the law in Illinois. 210 Ill. 2d R. 451(a); Torres v. Irving Press, Inc.,
The state appellate defender, who represents defendant in this appeal, is trying to eliminate this Biggers factor from IPI Criminal 4th No. 3.15 for all time. This factor does not always favor the prosecution (or the defense, for that matter). Compare Houston,
Whether this factor favors one side or the other turns on the individual facts of the case. In the next case, the defense may very well need this factor to challenge an identification. McGee,
In sum, we cannot find that the trial court abused its discretion when, without any conflicting evidence, it chose to use all the factors listed in IPI Criminal 4th No. 3.15. Enis,
(2) Ineffective Assistance of Counsel Claim
Defendant’s second claim on appeal is that his trial counsel was ineffective for failing to file a motion to suppress two showup identifications. In his reply brief, defendant added that counsel was also ineffective for failing to object to the use of the fourth factor in IPI Criminal 4th No. 3.15.
The contested showup identifications occurred at the location where Officer Maras first observed defendant, approximately a mile from the shooting, and at approximately 10:20 p.m., an hour after the shooting. 7 Three eyewitnesses sat in the back of a police vehicle, while defendant stood in the street illuminated by a flashlight and vehicle lights. Two of the witnesses identified defendant as the shooter, while one could not make an identification.
The Illinois Supreme Court has held that, to determine whether a defendant was denied his or her right to effective assistance of counsel, an appellate court must apply the two-prong test set forth in Strickland v. Washington,
Under the first prong of the Strickland test, the defendant must prove that his counsel’s performance fell below an objective standard of reasonableness “under prevailing professional norms.” Colon,
Under the second prong, the defendant must show that, “but for” counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Colon,
First, defense counsel’s alleged failure to object to the fourth factor in IPI Criminal 4th No. 3.15 did not cause his performance to fall below “prevailing professional norms.” Colon,
Failure to request a particular jury instruction may be grounds for finding ineffective assistance of counsel only if the instruction was so “critical” to the defense that its omission “den[ied] the right of the accused to a fair trial.” People v. Pegram,
Second, even if defense counsel had moved to suppress the showup identifications, it is not reasonably probable that the motion would have been granted. “In order to establish prejudice resulting from failure to file a motion to suppress, a defendant must show a reasonable probability that: (1) the motion would have been granted, and (2) the outcome of the trial would have been different had the evidence been suppressed.” People v. Bew,
The showup identifications would not have been suppressed, because they were not unnecessarily suggestive. Normally, the jury decides the weight that an identification deserves, and the less reliable the jury finds the identification to be, the less weight the jury will give it. People v. Ramos,
When ruling on a motion to suppress a showup under the due process clause, a trial court conducts a two-part inquiry. Ramos,
To satisfy his burden, defendant claims on appeal that the showup procedure was unnecessary, because the police could have conducted a lineup instead. By placing ourselves in the shoes of the reasonable police officer, we can see that a showup was not “unnecessary.” What options did Officer Maras have open to him, when he spotted a vehicle that matched the description of the shooter’s vehicle, as relayed over the police radio?
8
At that moment, Officer Maras had the reasonable suspicion required for a brief investigative detention, commonly known as a Terry stop. People v. Lippert,
Balancing the dictates of the fourth amendment against the need for reliable identifications, the Illinois Supreme Court has held that “prompt showups near the scene of the crime” can be proper police procedure, under certain circumstances. Lippert,
Defendant claims that neither of these justifications for a showup applied in his case because (1) the police would not have released him, even if the witnesses had cleared him, because he was guilty of driving a motor vehicle as a 15-year-old; and (2) the driver of the shooter’s vehicle was still at large, thus requiring the search to continue.
As to his first contention, the trial court ruled that no evidence had been introduced to establish defendant’s age. When defense counsel tried to argue in closing that defendant was only 15 years old, the trial court sustained the State’s objection stating that “[tjhere is no evidence in this record of the age of the defendant at the time of this offense.” The record on appeal contains an arrest report with defendant’s birth date. However, defendant does not point to any evidence in the record showing that, prior to the showup, the police knew defendant’s age.
As to his second contention, although the driver of the shooter’s vehicle was still at large, the police may have chosen, in their discretion and considering limited law enforcement resources, to suspend the search for a less culpable accomplice, once the murderer had been identified by eyewitnesses.
Defendant also claims that the procedure was unnecessarily suggestive because (1) the police told the witnesses, prior to the identification, that the shooter had been found; 10 (2) the police shined a light on defendant during the identification; and (3) the police did not separate the witnesses.
First, if a showup could be invalidated on the ground that the police indicated that they had found a suspect, then no showup could pass muster; and our supreme court has already held that a showup can be a proper police procedure. Lippert,
In Lee, the second case cited by defendant, our supreme court held that a showup was unnecessarily suggestive, where the defendant had already been in police custody for over a month and where the witnesses viewed the defendant while he was handcuffed to a person whom these same witnesses had previously identified in a lineup as a perpetrator of the crime. Lee,
Defendant also claims that the lighting and the simultaneous viewing by the eyewitnesses invalidated the showup. In support of these two claims, defendant cites only a trial-court opinion from New York. Jones v. West,
In the case at bar, the lighting was a necessary part of the procedure to ensure that the eyewitnesses had adequate lighting to make a reliable identification at night and to ensure that the suspect would not be able to see the witnesses through the glare. Officer Maras testified that the police “had illuminated [defendant] with the lights and the flashlight so he could be identified [and] so he wouldn’t be able to see the witnesses through the glare.” In Ramos, where police shined the lights of their vehicle on the suspect, this court noted approvingly that the police had ensured that the identification was made “in adequate lighting.” Ramos,
While a separate viewing would have been the better practice, the simultaneous viewing, by itself, was not enough, on the particular facts of this case, to find that this particular showup was unnecessarily suggestive. Three witnesses went to the location where defendant was originally stopped by Officer Maras. They were Camelia Prado, Joseph Gonzalez and Antoine Lacy. Prado testified that she was not able to identify defendant as the shooter, while Gonzalez and Lacy testified that they could identify defendant. If defendant’s argument is that one of the identifying witnesses might have felt pressured to identify because another witness was also identifying defendant, then he would have felt equally pressured not to identify, because one of the witnesses also chose not to identify. Since any alleged pressure cut both ways, it drops out as an issue on the facts of this case.
Since defendant has failed to show that the showup was “unnecessarily suggestive,” we do not need to proceed to the second step of the due process analysis. We cannot find that counsel’s performance was deficient due to the absence of a motion to suppress, when the motion would have failed on the first step.
CONCLUSION
For the foregoing reasons, we affirm defendant’s conviction. First, the trial court did not abuse its discretion by choosing to use all five factors listed in IPI Criminal 4th No. 3.15. Second, the absence of a motion to suppress two showup identifications and the absence of an objection to the fourth factor of IPI Criminal 4th No. 3.15 did not cause defense counsel’s trial performance to sink to the level of constitutional ineffectiveness.
Affirmed.
WOLFSON and HALL, JJ., concur.
Notes
In 2003, two years prior to defendant’s trial, the IPI committee changed this instruction to remove the bracketed “ors” between the factors. Piatkowski,
The trial court provided this instruction, without the bracketed numbers, to the jury in both its written and oral jury instructions. In the written instructions, it is labeled as “People’s Instruction No. 13.”
Although these factors are called “commonly accepted” by some, they were listed in the instruction because the IPI committee thought just the opposite — that the average juror might not be aware of these “hidden complexities of identification testimony.” Herron,
instruction No. 3.15 was added in 2000 by the fourth edition of the pattern instructions. IPI Criminal 4th No. 3.15, Committee Note, at 2 (Supp. 2006) (noting that this instruction was added in the fourth edition).
Any proposed expert testimony would be subject to the normal “scrutiny” of reliability, relevance and whether it assisted the jury. Allen,
The trial judge in the case at bar, the Honorable Bertina E. Lampkin, would have been particularly well-suited to hear this argument, since she was on the IPI committee in 2000 when the committee adopted this instruction, and she subsequently became chairperson of the committee. IPI Criminal 4th, at v (2000 & Supp. 2006).
Officer Maras testified that he first observed defendant at approximately 10:20 p.m.
Officer Maras testified that he received information “on the radio from [his] sergeant” that there had been a shooting nearby involving “two male Hispanics in a 4 door light gray or light blue Cadillac” with “some damage to the passenger side of the vehicle.”
“Probable cause for arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.” Lippert,
Antoine Lacy, one of the eyewitnesses who identified defendant during the showup, testified that “[t]hey said that they had caught the shooter and they took us where they had caught him at.”