*1 petition I would for grant rehearing. District’s in this join JUSTICES FITZGERALD GASMAN dissent.
(No. 90480. ILLINOIS, THE OF THE STATE OF Appel- PEOPLE TISDEL, lant, v. MELVIN Appellee. Rehearing
Opinion March denied 2002 . filed August *2 Ryan, General, Attorney Springfield, James E. of and (William Devine, Attorney, Richard A. State’s of Chicago Browers, General, L. Chicago, Assistant of and Attorney Goldfarb, Renee Kenneth McCurry, O’Neill, T. Eileen M. Theodore Collins, Fotios Burtzos and Annette Assistant Attorneys, counsel), State’s for People. (Ira Fry, Defender,
Rita A. Public of Chicago S. Shef- fey, Defender, counsel), Assistant Public for appellee.
JUSTICE THOMAS delivered the opinion court: trial,
Following jury defendant, Tisdel, Melvin was convicted of the degree Lagunas. first murder of Julio Defendant years’ was sentenced to imprisonment. appellate court reversed defendant’s on conviction ground that the trial court should not have allowed the State’s witnesses to testify nonidentifica concerning tion lineup. App. Ill. 3d 1143. The appellate court harmless, concluded that the error was not because the closely evidence was and possible balanced it was the jury would have reached a different verdict had the testimony been excluded. This court granted thereafter for petition State’s leave to ap 2d peal. 177 Ill. R. 315.
BACKGROUND Defendant’s upon conviction was based the drive-by shooting of Lagunas September 3, Julio on 1995. The detailing facts the crime investigation leading and the appellate arrest are out in the court’s defendant’s set (316 1143), will be here 3d and recited opinion App. only necessary understanding as an issue before this court. 1995, around 3, p.m., 18-year-old
On 5:50 September to death he stood on the corner Lagunas Julio was shot Chicago. Lagunas Clark Avenue Street Jarvis in a Chev- passing black IROC passenger was shot rolet the driver of the Camaro Although Camaro. shooting, shortly and arrested after identified later, not until almost one year defendant was identified 16, 1996, and August September conducted on lineups eyewitnesses were four Ultimately there eyewitnesses Those identified defendant as the shooter. (Os- Quiroz (Gerardo), Quiroz included Osvaldo Gerardo (Francisco) valdo), Ramos Francisco Curonel Jose (Jose). September trial that on
Gerardo testified at he, standing on the sidewalk and Jose were Osvaldo he a black Mall in when saw Chicago outside the Clark *3 and windows, with tinted chrome wheels IROC Camaro the entrance to the mall pull parking two into tailpipes girls car to talk lot. men inside the tried to some The two the of the mall, then drove toward back going into the lot, through came the right, mall turned and parking the lot. on stopped middle of the The Camaro then pas- Street. The turning left onto Clark sidewalk before others, and facing the car Gerardo senger was side passenger At that point, and the was down. window Gerardo, and and Osvaldo pulled gun pointed out a north Clark Street. then drove onto Jose. The car Street, Gerardo saw along As car Clark drove Touhy Mall, in from the Clark Francisco across street out and gun take his passenger Park. saw the Gerardo to hit the car with Francisco tried it at Francisco. point on driving The car north kept then ducked. something, Street, Lagunas Ulysses Clark Julio and stopped then Renteria Street at the intersec- trying were cross Clark and a Rogers again tion of Avenue. Gerardo saw Jarvis gun hand a out of the side holding sticking passenger Ulysses. at Julio heard a pointing window and Gerardo gunshot car “took ran sped up as the and off.” Gerardo Julio, toward lying ground bleeding. who was on Os- valdo went home before the arrived. police police
Gerardo described the to the as a passenger skinny 23-year-old light complexion black male with a and braided police hair with beads on ends. The took (who Gerardo, Jose, Ulysses Francisco and deceased trial) at the station, time of station. At the police recognized Gerardo the black Camaro in the involved at a shooting. day Gerardo also looked but lineup did not anyone. later, one week Approximately Gerardo told the his officers that brother Osvaldo also had later, witnessed the shooting. year Almost one on 16, 1996, August Gerardo, Osvaldo and Francisco separately police viewed at the lineup station. Gerardo identified defendant in the as the passenger Camaro. Gerardo identified defendant in court as the person recognized August 16, he as the in the shooter A photo August 16, lineup. hairstyle reveals that defendant had braided at the lineup. time of the testimony concerning leading
Osvaldo’s the events the shooting testimony. was similar to Osvaldo Gerardo’s passenger long described the as a dark male had who black, braided hair and with white blue beads at ends. Osvaldo testified that he did not tаlk to on the police day shooting mother because his came to scene go told him to home he was young get because too involved. next day, his mother were Osvaldo *4 on in walking Chicago Ashland Avenue when Osvaldo green saw a Nissan drive past. recog- Maxima Osvaldo nized defendant a in passenger the Maxima. Defendant at stared Osvaldo for awhile Osvaldo stared back. September 12, On Osvaldo with of- spoke police date, ficers for the time. On that first Osvaldo viewed at the and identified photographs police five station the car driver of the in one of the Osvaldo told photographs. he certain in pretty person the officers the driver, he picture was but said would have to see him 21, 1995, On Osvaldo went back to person. September a identified police lineup. station to view Osvaldo lineup. Although driver of the car in the another braids, in the had his hair in lineup individual Osvaldo 16, 1996, August did not him as the shooter. On Osvaldo viewed a and identified defendant as the lineup Osvaldo identified defendant in court as the shooter. also shooter. trial
Francisco also testified at that he saw car Mall, from into the Clark then later out pull turn parking middle of the lot and turn north on Clark Street. car, heard “watch yell Francisco someone out with a car threw they’ve got gun.” passenger The his a at Francisco then pointed gun arm out and Francisco. bag a car then fell Francisco ground. threw running Julio and The car slowed Ulysses. started toward Ulysses. when the saw Julio and occupants down gun arm out the with the put his window passenger a the car off. sped his hand. Francisco heard shot and Julio, on the lying Francisco reached Julio was When bleeding. ground station police Francisco went day,
That same in the the Camaro shoot- and identified car as involved 1 a.m. and Francisco around ing. also viewed car. described the Francisco identified driver old, male, with a years as a black passenger August hair head. On face and braided close his skinny another and identified Francisco viewed *5 defendant as the shooter. Francisco identified defendant person picked lineup in court as the he out of the as the shooter. pay phone
Jose testified that he was on a in front of standing the Clark Mall with Gerardo and Osvaldo nearby stopped when a black IROC Camaro in front of him on the sidewalk. The windows of the Camaro were down, so that Jose could see two males in the car. The passenger smoking marijuana gun and there was a passenger. pas- on the seat between the driver and The senger grabbed gun put legs. it between his Jose passenger. identified in defendant court as the The car parking went around the lot, mall then came out the middle. Before the car turned left onto Clark Street, the passengеr pointed gun Jose, at Gerardo and Osvaldo. passenger years Jose described the as 21 to 25 old, dark skinned, with braids. description leading
Jose’s of the events to the shoot- ing paralleled that Gerardo, Osvaldo and Francisco. police immediately Jose also went to the station after the shooting shooting. and identified the Camaro used lineup night, identify Jose viewed a that but did not anyone lineup. lineup in the Jose viewed a second on September approximately 12, 1997, one month trial. Jose identified defendant in the as photo shooter. A of this reveals that defendant hairstyle lineup, had a different at this with his hair short and not braided. On cross-examination, Jose testi- any fied that he did not see beads in the shooter’s hair September on 3, 1995. following degree noted,
As his conviction for first appealed appel- murder, defendant his conviction to the claiming, deprived late court alia, intеr that he was of a they fair trial when the State’s witnesses testified that lineups containing persons had viewed other than defendant and had made no identification. Defendant to bolster its case attempting the State was
claimed conceded testimony. Defendant with the nonidentification trial objected that he had not motion, apply but asked the court post-trial his rule. error plain the issue should be agreed appellate error rule. 316 Ill. 3d at plain App. under the
considered Hayes, People Citing opinion this court’s (1990), court noted that wit appellate Ill. 2d 89 may a defendant not be bolstered ness’ identification of failed to introducing evidence that witness anyone during pretrial procedures. else *6 held that The court App. appellate Ill. 3d at 1154. allowed testimony should not have been to corroborate wit simply it was presented because defendant. 316 Ill. subsequent nesses’ court also held appellate at 1154. The App. 3d returned jury might that the have possible it was because testimony had the nonidentification a different verdict testimony excluded, admitting the error been Ill. App. 316 of defendant’s conviction. required reversal concurrence to special One wrote a justice 3d at 1154-55. posi this court’s disagreement” with “strong his express inadmissible. 316 testimony is tion that nonidentification EJ., concurring). (Quinn, specially 3d at 1158-59 App. for granted petition the State’s thereafter This Ill. 2d R. 315. that decision. 177 appeal leave to
ANALYSIS
(1990),
2d
Hayes,
139 Ill.
People
testimony
of witness
in the admission
court found error
of persons
pictures
the witnesses had viewed
stating that
made no identification.
and had
than defendant
other
general
testimony violated
held that
This court
as to state
in court
may
testify
not
rule that a witness
corroborating
purpose
for the
ments made out of court
Hayes,
subject.
same
concerning testimony
trial
his
'
Ill. 2d at 138.
excep
recognized, however, that there were two
We
Hayes,
general
2d at 138. One
rule.
139 Ill.
tions
exception
statement
is where a
consistent
charge
that the
introduced to rebut a
or an inference
testify falsely
in-court
is motivated to
or that his
witness
Hayes,
is of recent fabrication.
139 Ill. 2d
exception
apply Hayes
because the
138. That
did not
expressly
impliedly charged that
defendant had not
identify
falsely
motivated to
State’s witnesses were
simply attempted
him,
that the wit
but instead
show
may have been mistaken in their identification of
nesses
Hayes,
him.
out-of-court statement is one of identification.
apply
Ill. 2d at 138. That
did not
because
witnesses’ out-of-court statements were not statements
Hayes,
Rather,
identification.
In this the State asks this court from precedent Hayes. argues set forth in The State negative testimony is both relevant and Hayes, admissible. The State observes that in court this presented was not with evidence that a witness had photographs multiple lineups containing viewed or appearance Thus, individuals similar in to the defendant. the court did not a consider that witness’ failure to identify individuals similar to the defendant demon- reliability pos-
strates sibility witness’ also refutes the prior pretrial that the identification was based upon suggestiveness procedure. of the identification controlling responds
Defendant аuthor- Hayes ity concerning pretrial the use of nonidentification evidence. Defendant further contends that neither of the exceptions apply,
to the consistent statement rule charge because there was no that the in witnesses this fabricating testimony, case were their nor were the state- ments of the witnesses of identification. statements Defendant therefore maintains that this court must af- appellate firm the decision of the court.
Upon review, we find
in
this court’s determination
concerning
testimony
to be
Hayes
acknowledged
an
flawed. The
exception
court
that there was
Hayes
general
an
to the
rule where
out-of-court state
one
With we find that court erred in “statements of identification” to a limiting actual a witness’ identification defendant. This interpretation mistakenly focuses on the result rather than the a trier fact process. consequence, may As be deprived of information to an deci- necessary informed concerning reliability. contrast, sion a witness’ In construing “statements of identification” include the entire identification process would ensure that a trier of fact is informed fully concerning reliability of a wit- identification, ness’ suggestiveness as well as the or lack thereof in that identification. Quinn, concurrence,
Justice in his special pointed out this potential problem with limiting “statements identification” only positive identifications. Justice Quinn noted that the holding court’s would:
“require the State on retrial to confine its evidence on the subject of identification of the defendant date of the (or two) year shooting. first identification —one after the jury delay? What is the to make of this The defense at will investigation tack the precluded the State will be from explaining investigatory steps what were taken from the shooting time of to the first identification.” 316 (Quinn, EJ., App. specially 3d at concurring). That the entire process includes both identification and nonidentification evidence has been given tacit approval by the United States Court. Supreme Biggers, Neil v. 34 L. Ed. 2d U.S. 93 S. (1972),
Ct. 375
the Court held that
although
showup
procedure
unnecessarily
there
suggestive,
was no
substantial
likelihood
of misidentification
requiring
evidence of the identification to be еxcluded. The Court
*9
noted
in
weighing
various factors
favor of the admission
of the identification. Among those factors was that
the
had
victim
looked at numerous
photographs,
lineups
showups
in the seven-month
time period between the
crime and her
identification
of the defendant
as the
412,
409 U.S. at
Ed. 2d
perpetrator. Biggers,
34 L.
at
“There
to be
a
months
seven
between
rape
the
seriously
the confrontation. This would be a
Here, however,
negative
factor in most cases.
the
undisputed
previous
that the victim made no
identifica-
any
showups, lineups,
photographic
tion
of the
show-
one,
ings.
reliability
good
Her record
was thus a
as she
for
previously
suggestiveness
had
resisted whatever
in
inheres
added.)
showup.” (Emphasis
Biggers,
atU.S.
L. Ed. 2d at
Obviously, admissibility of nonidentification If by evidence is limited considerations of relevance. non- relevant, evidence is not be should excluded from For that a example, evidence. evidence red-haired, lineup containing blue-eyed witness viewed a men not be relevant or if the would admissible witness blond-haired, brown-eyed described the as a perpetrator However, man. that a a lineup evidence witness viewed in to the containing appearance individuals similar did identify anyone defendant but not would be relevant to the identification process. , case, properly this trial court allowed wit- to the nonidentification testify concerning lineups. nesses in there of time Biggers, significant lapse As was and the identifi- shooting between Julio witnesses’ fact that Consequently, cation of defendant. some and did not lineups the witnesses had viewed reli- demonstrating relevant in identify anyone was especially This is identifications. subsequent of the ability Osvaldo, which lineup to the viewed regard trae with Camaro, also an but only not the driver contained defendant, including appearance similar individual or cornrows. hairstyle defendant’s distinctive —braids of the defense gravamen note that further We in their identifica- mistaken that the witnesses were counsel Defense defendant shooter. tion of concerning extensively cross-examined witnesses shooter, their level of atten- ability their observe Camaro, and the almost one- in the occupants tion to the and the shooting time between the year length circumstances, Under the identification of defendant. identification, including process leading to the witnesses’ lineups, was relevant the shooter. ultimate identification of defendant as erred Because we find that was not admis- finding that nonidentification evidence the “statement of identification” sible under *10 rule, holding, from that general depart therefore erred in court in this case appellate follows our upon holding dеfendant’s conviction based reversing appel- in therefore reverse the decision of the Hayes. We affirm conviction and sentence. late court and defendant’s reasons, judgment appel- of the foregoing For the the circuit reversed, judgment and the late court is court is affirmed. reversed; court
Appellate
judgment
judgment
circuit court
affirmed.
McMORROW, dissenting:
JUSTICE
the trial court erred
appeal
At
in this
is whether
issue
prosecu
the State in a murder
allowing
in
witnesses for
lineup.
a nonidentification
testify concerning
tion to
majority
answering
negative,
in the
question
deci
nor
citation to this court’s
neither discusses
makes
(1992),
2d
a unani-
Jones,
v.
153 Ill.
People
sion
mous ruling
years
less than 10
old which addresses the
precise
bar,
issue at
and which compels a result opposite
majority’s
ruling. The majority
overrules,
also
cogent reason,
without
this court’s
People
decision
(1990).
Hayes,
This appeal
genesis
has its
in the conviction
defendant,
aby
jury, of the
degree
first
murder of Julio
Lagunas, who was killed in a drive-by shooting
on
September 3,
During
trial,
defendant’s
the State
called four eyewitnesses who identified defendant as the
passenger who
Lagunas.
shot
Three
eyewit-
of the four
they
nesses stated that
identified defendant
the gun-
man from a lineup
conducted on August
1996, and
eyewitness
the fourth
stated that he had picked defendant
out of a lineup
September 12,
on
1997. The State elicited
from all four
that,
witnesses
prior to
viewing
from
they
which
identified
defendant,
they viewed
(which
defendant)
another
did not include
from
they
which
did not identify anyone as being
gunman.
On appeal, defendant
argued the trial court
erred in allowing the State to impermissibly bolster
its
case
introducing
witnesses’
testimony. According
defendant,
the State improperly
relied
upon
nonidentifications
to show how careful
the witnesses were in their ultimate
defendant. A majority of the appellate
panel agreed
with the defendant’s
Relying
contentions.
upon this
Hayes,
court’s 1990 decision in
2d
major
139 Ill.
ity
panel concluded that
may
State
not bolster
*11
a witness’
identification
of
defendant by introducing
evidence that
the witness failed to identify anyone else
during pretrial
procedures.
The appellate
court determined
that
the
testimony
presented
“it was
allowed because
not have been
should
identifi
subsequent
the
to corroborate
witnesses’
simply
at 1154. Further
Ill.
3d
App.
defendant.” 316
cation of
not
this error could
be
determined that
more,
panel
in the case was
harmless,
the evidence
since
considered
noted that
majority
court
appellate
The
closely balanced.
him
or viewed
knew defendant
eyewitnesses
“nonе of the
“no
time,” that
there was
length
for a
considerable
crime,”
linking defendant
physical evidence
scene,” and that
not arrested near the
“defendant was
Ill.
3d at 1153-
App.
did not confess.” 316
“[defendant
majority observed that
Further,
appellate
court
between
elapsed
[had]
amount of time
“substantial
identifications,”
with three of
offense and the
almost a
after
year
defendant
identifying
witnesses
identifying defendant
two
shooting, and another witness
The ap
316 Ill.
3d at 1154.
years
shooting.
App.
after the
facts,
that, under these
majority
concluded
pellate
jury
that the
would have returned
“quite possible
it was
a different verdict had the nonidentification
at 1154.
App.
been excluded.” 316
3d
judgment
ap-
now reverses the
majority
in its
court, and holds that
this court “erred”
pellate
below, I
fully
For the reasons
set forth
Hayes decision.
majority’s
conclusion.
disagree with
(1990),
evidence that the witnesses did not view the defendant at an athletic event or shopping mall.” Hayes, 139 Ill. 2d at 137. This court unanimously agreed with the defen dant’s assertion that the nonidentification testimony should not have been admitted, holding that it “violated the general witness, rule that a although present in court subject cross-examination, may not testify as to statements he made out of court for the purposе of cor roborating his testimony given at trial relative to the Hayes, 139 Ill. 2d subject.” same Indeed, at 138. general rule of evidence cited in Hayes barring, as hearsay, the admission of prior out-of-court statements to bolster in-court testimony on the same subject has long been a part of this e.g., jurisprudence. See, court’s People Clark, v. 52 Ill. 2d 374, People v. Wes (1972); 389 ley, 138, 18 Ill. 2d Lyon Oliver, v. (1959); 153-54 316 Ill. Fox, 292, People v. (1925); 303 300, 269 (1915); Ill. 323 (1853). People, Gates v. 14 Ill. Hayes, however, 438 was the first case in which this court applied this well- settled rule of evidence to bar a witness’ nonidentifica tion testimony.
As is noted in Hayes, this court has traditionally recognized two exceptions general rule that a wit may ness not testify as to out-of-court statements for the purpose of bolstering in-court testimony relative to the same subject. First, is well settled that a prior consistent statement rule, is not barred the hearsay admissible, is therefore if the statement is offered to rеbut a charge or inference that the witness is motivated to testify falsely or that the witness’ in-court is of recent Hayes, fabrication. 139 2d citing Clark, 52 Ill. 2d at 388-90; see also Lyon, 303; 316 Ill. at Gates, 14 Ill. at The Hayes court determined that did not apply facts before it because the defendant had simply attempted to show that witnesses may mistakenly him, have identified and did wit the State’s allege impliedly expressly not Hayes, him. falsely motivated nesses were Ill. 2d at 138. clear, it is well settled made
Further,
out-
prior
where
apply
does not
hearsay
against
the bar
Accordingly,
one of identification.
statement
of-court
identification of
to a
respect
with
statements
138, citing
Ill. 2d at
Hayes,
defendant are admissible.
(1980); see also
Ill. 2d
578-79
Rogers,
People
2000).
(West
in Hayes
The court
725 ILCS 5/115 —12
*13
in
wherein
Rogers,
decision
prior
relied
this court’s
upon
the
“[B]y
explained:
for this
exception
the rationale
mind has become so conditioned
trial,
time
the witness’
that he would not
that
there
little likelihood
is
*** ‘*** therefore,
court
person [defendant]
***
time,
former
when
to
that at a
entirely
prove
proper
to
could not have intervened
of others
suggestions
mind, he
in the witness’
recognition
create a fancied
and declared the
accused
be
recognized
present
”
omitted.)
Ill. 2d at 578-
Rogers, 81
person.’
(Emphasis
(Chad
§
quoting Wigmore,
J.
Evidence
1972).
that
ed.
court determined
Hayes
bourn rev.
they
photographs
that
viewed
the witnesses’ statements
and made no
other
than the defendant
persons
the “identifica
identification were inadmissible under
held that
hearsay
to the
bar. The court
exception
tion”
not statements of
the statements at issue were
identifica
noraidentification.
tion-, rather,
they were statements of
Accordingly, general either did not fall within Hayes statements, consistent barring prior rule admission of introduced “improperly held that the State this court reliability statements to bolster these consistent prior in-court identifi subsequent of the witnesses’ Ill. 2d at 138-39. Hayes, defendant.” cations of the However, although the Hayes court determined that nonidentification evidence was improperly admitted, that, concluded under it, facts before evidence was not prejudicial so that it deprived the defendant trial, fair as there was overwhelming evidence of the guilt. defendant’s Hayes, 139 Ill. 2d at
According to the majority opinion in the matter at
bar,
the “State
asks this court
depart
from the
***
precedent
set forth in in Hayes,
[because]
court was
presented
not
with evidence that a witness
had viewed photographs
or multiple lineups containing
individuals
similar in appearance to the defendant.” 201
Ill. 2d at 217. The State
asserts,
therefore
major
and the
ity agrees,
this court has not previously been af
forded the opportunity
to consider whether
a witness’
failure
to identify
individuals
similar
to defendant
demonstrates
the witness’
reliability, and whether
such
refutes
the possibility
pretrial
identification was premised upon the suggestive
ness
procedure.
Contrary to the argument
by
advanced
the State and
accepted by the majority,
has,
fact,
this court
previ
ously considered and rejected an argument
identical
that raised
State at bar.
years
Two
after this court
*14
Hayes,
decided
the
Hayes were unanimously
of
principles
Jones,
in
People v.
reaffirmed
153 Ill. 2d
(1992),
decision which is conspicuously absent
from the majori
Jones,
ty’s opinion.
the defendant was found
guilty
armed robbery and aggravated unlawful
restraint. On
appeal,
the defendant
argued that
the trial court erred
it
when
allowed the victim of the crime to testify concern
her
ing
nonidentification
of the defendant. Specifically,
the victim stated that prior
identifying
to
the defendant
(which
in a
had
lineup, she
viеwed
another
did
defendant)
not include the
and failed
identify anyone.
to
Hayes,
Relyingupon
this
determined
in
court
the decision
allowing
in
the State
the
court erred
in
that
trial
Jones
to
the
failure
to
evidence of
victim’s
introduce
explicitly
prior lineup. The
in a
Jones court
defendant
the
rejected
by
argument
the
that
advanced
the State
the
testimony
necessary to
“was
victim’s nonidentification
allegation
was
the
the defense’s
counter
overly suggestive
there
the identification was
and that
Signifi
trustworthy.” Jones,
make to Hayes and authority subsequent citation to Jones which would warrant or this court compel stray stare from the of decisis principles and reevaluate well-settled evidentiary rules set forth in those decisions.
The doctrine of stare decisis “proceeds from the first principle that, of justice, countervailing absent powerful considerations, like cases be ought decided 5 alike.” Review Am. Appellate (1995); § Jur. 2d 599 see also Neff (stare v. George, (1936) 306, 364 Ill. decisis 308-09 requires this court to follow and its own apply precedent law). and not disturb points settled The doctrine of stare decisis “is the means by which courts ensure that the law merely change will not erratically, but will *** develop principled and intelligible fashion [apart Chicago Bar Ass’n from] the proclivities individuals.” v. Illinois Board Elections, State 502, 161 Ill. 2d 510 (1994) Indeed, . majority’s opinion bar, law in this area had fact been in a developing “prin cipled fashion,” and intelligible by as evidenced our reaf Jones, Hayes firmation of as well as our appellate court’s of application principles consistent and Jones in determining presentation the State’s of negative identification improperly evidence bolsters witness’ subsequent a defendant Jones, constitutes inadmissible hearsay. See, e.g., People v. Davis, (1997); 293 Ill. People v. 3d 119 App. App. 285 Ill. v. People Biggers, 273 Ill. (1996); 3d 1039 3d 116 App. (1995) ; Berry, People v. (1994); 264 773 People Ill. 3d App. (1993). Berry, v. 241 3d App.
It is well settled that should prior precedent be (Heim good overturned on the “only showing of cause” gaertner Benjamin Manufacturing Co., v. Electric 6 Ill. “ 152, (1955)), 2d there only where ‘special ” the departure (Chicago Ass’n, Bar justification’ for Rumsey, Arizona v. 203, Ill. 2d at quoting 467 U.S. 164, 172, (1984)), 81 L. Ed. 2d 104 S. Ct. 23Í1 “compel departure only are for reasons where (1999)). 461, 463-64 ling” (People 2d Robinson, 187 Ill. *16 recognized not it will Accordingly, that court has “ ‘merely precedent court is of depart because from ques might opinion were decide otherwise it that ” quoting Ill. 2d at Robinson, 187 tion a new one.’ (1968); Prall see also 193, 196-97 Frelk, 40 Ill. 2d Maki v. (1921) (it “indispensable is 41 Burckhartt, 299 v. by especially justice, a court of the due administration to deliberately question examined resort, once that of last to and closed settled decided should be considered and argument, to interfere are slow the courts further may by principle decision and announced with the though they upheld otherwise were decide would be even one”). “[i]f question Indeed, the law were a new makeup change court, change of the in the with each government concept of law that ours is a then the pious nothing cliche.” more than men be not of would (1981) (Ryan, People J., Lewis, Ill. 2d 167 concurring). principled majority basis, let has advanced no
The “special “compelling “good reason,” or cause,” alone holding Hayes departing justification,” from the for do not of nonidentification and Jones that statеments allowing hearsay exception the admission fall within the majority, track of identification. statements special analysis ing concurrence Quinn’s Justice by excluding below, concludes of identification” the “statements from construing by Hayes hearsay exception, erred court Specifically, narrowly.” Ill. 2d at 218. “too that term majority erred that the decision holds “limiting to a witness’ of identification’ ‘statements defendant,” because, in the identification of a actual “mistakenly interpretation majority’s focuses view, this result,” i.e., the ultimate on the preceded process” defendant, rather on than “the which According majority, identification. “the process” viewing any of identification includes the prior lineups photo arrays where no identification and/or suspect major of a at was made. Ill. 2d 219. It is the ity, attempting however, which has erred in unreason ably scope exception stretch the of the identification not beyond only beyond plain language, its but also its purpose. intended
Generally, against hearsay the bar admission of prevents testifying evidence a witness from to statements purpose he or she made out ing for the of corroborat- testimony given witness’ trial relative to the subject. general same An to this rule of inadmissibility extrajudicial made, however, when pretrial statements concern the witness’ identification of the defendant. It is self-evidentthat a witness’ statement *17 identify suspect that he or she to a was unable is not a holding hearsay “statement of identification.” In that the exception applies only not to actual statements of “process” identification, to but also the of identification encompassing lineups photo arrays and the where wit- majority identification, ness is unable to make an the has performed judicial sleight majority a of hand. The has a trаnsformed witness’ statement that he or did not she identify during suspect prior lineups photo a ar- and/or rays into “statement of identification.” unduly stretching hearsay excep-
In addition to
the
beyond
plain
tion for evidence of identification
its
mean-
majority
scope
exception
ing,
expands
the
of
also
beyond
Rog-
purpose.
stated,
its intended
As
this court
may
general
ers held that the
testify
rule that
not
witness
he
made
court
as
statements
or she
out of
for
purpose
corroborating
of
relative
in-court
subject
apply
to the same
does not
to statements of
Rogers
explained that
identification. The
court
a witness’
for
that evidence of
justification
holding
constitute
a defendant does not
identification of
pretrial
on the notion
hearsay
premised
is
impermissible
“
***
time,
that at a former
entirely proper
prove
‘it
is
could not have intervened
suggestions of others
when thе
mind, he
in the
recognition
a fancied
witness’
to create
to be
present
and declared the
accused
recognized
”
omitted.)
Ill. 2d at
person.’
(Emphasis
Rogers, 81
(Chad
§
Wigmore,
4 J.
at 277
Evidence
quoting
1972).
court ob
Indeed,
Rogers
ed.
bourn rev.
trial,
mind
served,
“by
time of
the witness’
because
likelihood
there
little
has become so conditioned
is
not
person [defendant]
that he would
court,”
entirely
to admit evidence
appropriate
out of
identification of the defendant
witness’
Rog
in-court
identification.
to corroborate
witness’
ers,
admitting
2d at
81 Ill.
578-79.1
rationale for
identification
has no
to the
pretrial
application
evidence
Accord
admission
statements of nonidentification.
Jones,
this court’s decisions in
and
exercis
ingly,
holding
logic,
were correct in
ing
reasoning
sound
did
that evidence
not fall within
hearsay exception.
“statements
identification”
Advancing
language
past
plain
purрose
rule,
hearsay
the identification
majority
pretrial
concludes that a witness’
as a
rather
“process”
of a defendant should be viewed
response
Rogers,
the Illinois
1In
this court’s decision
(Pub.
Assembly
Public Act 83—367
Act
General
enacted
83—
1, 1984),
January
the Code of
eff.
which added section 115—12 to
2000)).
(725
(West
Criminal Procedure of 1963
ILCS 5/115 —12
*18
ruling
Rogers by creating
a statu-
Section 115—12 codified our
admissibility
tory exception
hearsay
that allows
rule
for
that
prior
identification
The statute’s mandate
evidence.
person
be
made after
statement must
“one of identification
a
him,”
argument
perceiving
supports the
that evidence
further
hearsay exception.
nonidentification does not fall within this
than as a “result.” According
to the majority,
identification exception to the hearsay rule should allow
the admission of statements
that
the witness
failed make an identification
from a lineup or photo array,
if
those stаtements
are relevant
to the ultimate out-of-court
identification
made
the witness. This result
is desir
able,
the majority reasons, because allowing evidence
with respect to a witness’ nonidentification of a defendant
would ensure
that a trier of fact
only
is not
“fully
informed concerning the reliability” of the witness’ out-
of-court
identification,
but
is also fully informed with
respect
to the fact of “the suggestiveness or lack thereof
in that
identification.”
First,
the majority notes that “when identifying a
defendant
from a lineup or photo array, a witness neces
sarily
identify
does not
remaining
individuals in the
photo array.” 201 Ill. 2d at 218. The majority
finds that
this nonidentification
is “crucial
to the ac
curacy of the witness’
identification”
because the fact
the witness did not select other
individuals
in a
lineup becomes as important as the fact that
the witness
did select the defendant.
I disagree. Evidence that a failed witness a suspect to the of the defendant nonprobative hearsay. When assessing the reliability an identification made during or after viewing
233
question
array,
photo
the witness
is whether
the crucial
perpetrator
accurately
of
as the
the defendant
identified
viewed several
fact that
the witness
crime. The
arrays
lineups
photo
did not
in
the witness
which
accuracy
says nothing
about the
the defendant
addition,
occurred
what
at issue.
of the identification
procedures
during
pretrial
no
reveals
identification
other
may
respect
the influences which
information with
present
actual
the time of the
the witness at
on
have been
example, the non-
For
of the defendant.
respect
information with
offers no
identification evidence
identification of
actual
to whether
witness’
by suggestive practices on the
animated
defendant was
part
police,
identification was
the witness’
whether
against
defendant, or whether
malice
motivated
fatigue
simple
identification.
into the witness’
factored
Finally,
in
evidence
admission of nonidentification
problem circular
in
the State’s case
reasoning,
chief creates
accuracy
only
means to measure the
as the
the identification
is
the witness’ “nonidentification”
very
in the case.
itself, the
fact at issue
Although majority
suggests that the introduc-
also
in
will assist the State
tion of nonidentification evidence
delays
explaining
identification, the nonidentification
in
specific
mitigate
amount
the fact that a
evidence does not
elapsed
after the witness observed
of time has
perpetrator
the identifi-
of the crime and the time when
ultimately
Admission of
made.
cation of a defendant is
any,
may
little, if
effect
have
evidence
countering
logical
that an identification
inference
years
a crime is
the commissionof
or two
after
made one
degree
skepticism.
to be viewed with
by majority
authority
only
made
citation to
overruling
support
opinion
is
and Jones
in its
Supreme Court
United States
decision of the
to the 1972
Biggers,
401,
S.
188,
L. Ed. 2d
93
409 U.S.
in Neil v.
(1972).
Ct. 375
However,
High
Court’s decision in
Biggers
inapposite
to the matter
at bar. At
issue
Biggers was whether
the procedure
leading “
pretrial
victim’s
identification of the defendant was
‘so
unnecessarily
suggestive
to irreрarable
conducive
”
mistaken identification’
it violated the defendant’s
right to due process, and thereby rendered the identifica-
tion inadmissible. Biggers,
Applying
likeli-
there was no substantial
found that because
Court
defendant, had misidentified the
that the victim
hood
admitted.
properly
identification was
pretrial
victim’s
the Justices observed
analysis,
of their
the course
crime and
between the
lapse
there
a seven-month
of time “would be
passage
and that
showup,
Court,
cases.” The
seriously negative fаctor
most
the circum-
however,
totality
that under the
noted
identification,”
stances,
previous
the victim made “no
previously
suggestive-
that “she had
resisted whatever
and that her “record for reli-
showup,”
inheres in a
ness
409 U.S. at
ability
good
Biggers,
was thus a
one.”
L. Ed. 2d at
Perhaps recognizing Biggers inap us, acknowledges the matter posite majority before (201 “tacit” Ill. 2d Biggers provides only approval 219) for the that nonidentifica majority’s conclusion identification excep tion evidence is admissible under the stated, ad hearsay question tion to the rule. As in Biggers dressed was whether the pretrial identification suggestive of the defendant was so as to increase the likelihood of misidentification a level that such *21 right would violate to due process defendant’s thereby question be inadmissible. of the admissibil ity Big of nonidentification evidence was not raised in and no mention of “nonidentification” made gers, when the Court sеt forth the factors to be specific admissibility pretrial considered in evaluating sum, suggests identification. In neither holds nor Biggers that nonidentification is admissible under the evidence hearsay identification” “statements of final I note that point, Biggers rule. As a further almost two decades decision had been established law for the time this court decided 1990. sum, no basis majority principled has advanced for overruling this court’s unanimous and well-reasoned Jones, decisions a ruling which the majority neither cites nor and in Hayes. In an ef- opinion, discusses its fort to result, achieve a desired majority has unrea- sonably stretched the identification exception to the hearsay bar to hold that statements also constitute “statements of identification.” The excep- tion for “statements of identification” just means that— the plain language and purpose of the exception requires the statement of “identification,” be and not the op- posite. I Accordingly, respectfully dissent.
JUSTICES FREEMAN and join KILBRIDE in this dissent.
(No. 90539. (The In re et al., J.J. Minors of the State of Il- People linois, Appellant, Phyllis J., Appellee).
Opinion Rehearing August June denied filed 2002 .