Lead Opinion
delivered the opinion of the court:
A jury convicted defendant of first degree murder. The State’s evidence consisted of four eyewitnesses who identified defendant as the shooter in a drive-by shooting. The trial court sentenced him to 35 years in prison. Defendant now appeals, arguing that the trial court erred in
On August 19, 1996, three eyewitnesses identified defendant from a lineup as the passenger who shot Julio Lagunas in a September 3, 1995, drive-by shooting. He was arrested and charged with first degree murder. The driver of the car, Mark Robinson, had already been arrested and charged in connection with the crime.
Defendant also filed a motion in limine to allow expert testimony on eyewitness identification. Defense counsel asserted that Dr. Elizabeth Loftus would testify regarding the scientific bases for eyewitness identification and identify certain areas where jurors hold misconceptions about the identification process. Defendant’s written offer of proof alleged that Dr. Loftus would discuss several factors beyond the knowledge of the average lay person that affect a witness’ ability to recall. Specifically, she would have testified about the latest scientific research concerning the passage of time between the incident and the identification; the lack of correlation between the certainty with which a witness makes an identification and the validity of that identification; the effect of stress on a witness; weapon focus; and cross-racial identification. Although the trial court found Dr. Loftus’ curriculum vitae to be “extremely impressive,” it determined that her testimony would not ordinarily be beyond the normal knowledge of the average person and in this case would be more confusing than it would be helpful; however, it did not deny the motion because such testimony might not, in the appropriate case, be proper. Consequently, the trial court denied the motion.
At trial, the State called Gerardo Quiroz. Gerardo testified that on September 3, 1995, he was standing on the sidewalk outside Clark Mall. His friend Jose Ramos was making a call on a pay phone at the mall entrance. The parking lot was next to the entrance of the mall. Gerardo’s brother, Osvaldo, was standing near Jose. Gerardo observed a car heading south on Clark Street. The car was a black IROC Cámaro with tinted windows, chrome wheels, and two tailpipes. The side windows of the car were down. The car pulled into the mall entrance and stopped near the phones. The two men inside the car attempted to talk to some girls who were heading toward the mall entrance. After the girls entered the mall, the car drove toward the back of the parking lot, turned right, and came through the middle of the lot. The car stopped on the sidewalk before turning left into Clark Street. At this point, Gerardo was closer to Jose, and the car was approximately 30 to 40 feet from them when Gerardo saw the passenger pull out a gun and point it at them. Gerardo testified that he tried to hide behind a nearby brick pillar but was able to focus on the face of the passenger. Gerardo identified defendant as the passenger.
Gerardo saw Francisco Curonel standing across the street in front of Touhy Park as Gerardo and Jose followed the car on the Touhy Park (east) side of the street. Osvaldo remained on the mall side of the street. Francisco attempted to “hit” the
Gerardo testified that he was then taken to Belmont and Western station to talk to detectives. Gerardo described the passenger as a 23-year-old skinny black male with braided hair and a light complexion. He viewed a lineup but was unable to identify anyone. On August 16, 1996, Gerardo viewed another lineup and recognized the second person from the left as the passenger, whom he identified as the defendant, and he also identified People’s exhibit 14 as a picture of the lineup, placing an “X” over the passenger’s head.
During cross-examination, when defense counsel asked Gerardo if he was initially 30 to 40 feet away from Jose and Osvaldo, he answered “no.” Defense counsel attempted to impeach him with testimony he apparently gave during Robinson’s trial. Gerardo did not remember testifying that Jose and Osvaldo were 30 to 40 feet away from him. The parties stipulated that on July 10, 1997, Gerardo testified that he was on the sidewalk on the side of the mall and that Osvaldo and Jose were 30 or 40 feet away from him. Gerardo explained that when the car first pulled into the lot, he saw two black males but couldn’t tell what they looked like at that point. Gerardo moved over to the phones. The car made its way around the parking lot and stopped before turning onto Clark Street. He saw the passenger pull out the gun. He denied feeling fearful, stressed, or nervous. The car turned left and went north on Clark. Gerardo stated that he “hung back a bit” as he followed the car.
Gerardo admitted that he talked with the others about what they saw when they went to view the first lineup at Belmont and Western. He did not remember talking to Osvaldo and Francisco when he viewed the lineup a year later nor did he remember whát the passenger was wearing, but he did remember that the passenger had braids close to his head with beads on the end. He told the police at the scene about the braids.
The State called Osvaldo Quiroz next. Osvaldo testified that he was standing near the pay phones with Jose. Gerardo was standing about 20 feet to the south on the sidewalk. A car came through the driveway of the parking lot and stopped right at the phones. It was a black IROC Camaro with chrome pipes, chrome rims, and tinted windows. The windows were down and he could see two black people inside the car. He saw them talk to “two or three” girls. Osvaldo was about 20 feet from the car and could see inside the vehicle. The driver’s side was closest to him. He described the driver as having dark skin, short hair, and a thin mustache. The car drove to the back of the lot, came up through the middle aisle, and stopped. At that point, the passenger’s side was closest to Osvaldo, who was standing approximately 40 feet away. He described the passenger as a dark male who had long braided hair with black, white, and blue beads at the end of the hair. The passenger pulled out a gun and pointed it in Osvaldo’s direction. The others hid behind
Osvaldo saw Francisco standing beside the sidewalk across the street near Touhy Park. Osvaldo testified that he yelled “watch out for the car” to Francisco. Francisco started running north on Clark on the Touhy Park side of the street. Gerardo started running north on Clark on the mall side of the street. The car stopped for “a little while” at the light at Jarvis, then took off. The car stopped again, and he heard a shot. At this point, Osvaldo was about half a block away and crossing from the mall side of the street to the Touhy Park side. The car sped off north on Clark. The following day, Osvaldo saw the shooter in a green Nissan Maxima. The shooter stared at him and then lay back on the seat.
On September 12, 1995, Osvaldo spoke with the police at Belmont and Western and looked at some pictures. He identified the driver from a photograph the police showed him. Osvaldo told them he was “pretty sure that was the guy but he needed to see him in person.” Osvaldo went back to the station on September 21, 1995, to view a lineup. Gerardo was there too, but Osvaldo did not talk to Gerardo before viewing the lineup. He identified Robinson as the driver. There was a person in the lineup who had corn rows or braids in his hair, but it was not defendant. On August 16, 1996, Osvaldo saw another lineup. Ulysses, Gerardo, Jose, and Francisco were also there but Osvaldo did not talk with them before viewing the lineup. Osvaldo identified People’s exhibit 17 as a picture of the lineup and identified defendant as the person he identified. Osvaldo put an “X” over defendant’s head.
During cross-examination, Osvaldo stated that he did not hear what Jose said while he was on the phone. Gerardo was about 20 feet away from him. Defense counsel tried to impeach him with testimony he gave during Robinson’s grand jury, but Osvaldo did not remember saying Gerardo was 30 to 40 feet away from him. The parties later stipulated that on August 22, 1996, Osvaldo testified that Gerardo was 30 or 40 feet away from him. Defense counsel then tried to impeach Osvaldo with testimony he gave during defendant’s grand jury. When asked if he said the car stopped for about a second by the pay phones, he said that was not correct. He did not remember saying that the car “just pulled off” after the occupants talked to the girls. The parties later stipulated that on July 10, 1997, Osvaldo testified that “the car stopped by the phone for about a second, they talked to some girls, then pulled off.” Before the car left, the driver’s side was closest to him. The car then pulled around to the back of the lot, turned, and stopped again before turning left onto Clark. He hid when he saw the passenger display a gun. Osvaldo described what the gun looked like.
Osvaldo stayed back at the mall. Gerardo and Jose crossed to the Touhy Park side. Osvaldo saw Francisco running north on the Touhy Park side of the street. The car stopped at the red light at the next intersection, then ran it. Defense counsel attempted to impeach Osvaldo with testimony he gave during Robinson’s trial. He recalled being asked if the car went through the red light and answering “yes.” Osvaldo stated that he viewed the August 16, 1996, lineup separately from the other witnesses and did not talk about the crime with them on the way to the station. Defense counsel asked Osvaldo if he thought he saw the passenger the next day. Osvaldo answered “I didn’t think — I saw him.”
The State called Francisco Curonel next, who testified that he was by himself near Touhy Park, which is the on east side of Clark. He saw a dark grey IROC Z car drive slowly down Clark heading south. The car had “nice rims,” tinted windows, and chrome pipes. The driver’s window was down. The driver was black and had short hair, a bald head, a goatee, and was wearing a black T-shirt. The car turned
The police took him, Ulysses, Jose, and Gerardo to the 24th District, where he saw the car. The police then took them to Belmont and Western to view a lineup. Francisco was “90 percent sure” he saw the driver. He described the passenger as a black male, about 25 to 28, with a skinny face and braided hair close to his head. Francisco went back to Belmont and Western on August 16, 1996, to view another lineup. He identified People’s exhibit 26 as a picture of the lineup. He identified the shooter and put an “X” over the head of that person. Francisco testified that he saw the lineup by himself and did not have a chance to talk with Gerardo or Osvaldo after viewing it.
During cross-examination, Francisco stated that when the car first passed him heading south on Clark Street, the driver’s window was down and he could see the driver and the passenger. Defense counsel attempted to impeach him with testimony he gave during Robinson’s trial. Although Francisco did not recall being asked if he was able to see the passenger of the car, he did recall answering “not at that time.” Francisco explained that he saw two people in the car but that he couldn’t see what the passenger looked like at that time.
On redirect, he testified that he saw the face of the person pointing the gun at him and identified defendant as that person. On recross, he stated that the car was driving slowly as it passed him the second time.
The State then called Jose Ramos, who testified that he was on the pay phone. Gerardo and Osvaldo “[were] right next to [him].” A black IROC Camaro stopped right in front of him on the sidewalk. The car had a tinted back window, chrome rims, and two chrome tailpipes. The car was about 5 to 10 feet away from him. The windows were down, and he could see two males. The passenger was smoking marijuana, and there was a gun between the seats. The passenger grabbed the gun and put it between his legs. The passenger had braids. He identified defendant as the passenger. The car “took off,” and he hung up the phone. The car went around the lot and came out the middle. Before turning left onto Clark, defendant pointed the gun at him. Jose saw Francisco across the street. Francisco tried to throw something at the car and then hit the ground when defendant pointed the gun at him. Jose ran across the street to Francisco. The car went through a red light. Jose saw Julio trying to cross the street. The car pulled up to the sidewalk right next to Julio. A shot came from the passenger side of the car, after which the car kept going. Jose and Francisco ran up to where Julio was lying. Osvaldo and Gerardo were there too. After giving a description of the car to the police, they were taken to the 24th District. Jose saw the car in the parking lot in back of the station. The police then took them to Belmont and Western. Jose described the passenger as 21 to 25 years old, dark skinned, with braids. He looked at a lineup
During cross-examination, Jose stated that he saw three girls go into the mall, although he could not remember how many girls he told the police he saw. He saw the gun after the girls had already passed by. Jose turned his back to the car and hung up the phone. The parties later stipulated that on July 11, 1997, Jose was asked if he saw the gun just before the car pulled off and that Jose replied “No. I see the gun. They was talking to the girls.” The car went to the back of the lot, made a couple of right turns, and stopped. The passenger pulled out the gun and pointed it at him, Osvaldo, and Gerardo. When he saw the gun, he ran across the street. Gerardo also crossed the street, but he could not remember what Osvaldo did. Jose followed the car but hung back a bit. The car did not stop at the red light, but made a “quick stop” and pulled close to the sidewalk where Julio and Ulysses were. Jose did not see any ornaments or beads in the passenger’s braids. He and his friends talked to the police in different rooms at the police station. He acknowledged that when they were not talking to the police, they were together. Jose did not identify anyone in the lineup that night. Jose admitted that he did not identify the driver during Robinson’s trial or any other time. On September 12, 1997, he was asked to view another lineup. The room where the lineup took place was not lit up like in the photo. He waited until all eight men stepped forward and turned around before identifying “#4” as the passenger.
Officer Gaskew testified that he obtained a description of the car from the witnesses at the scene. The witnesses told him the passenger was wearing dark clothing and had braids or corn rows in his hair. Their description did not include beads in the passenger’s hair.
Officer Floyd Eppling testified that he was driving a squad car when he received a message about a vehicle wanted in connection with a shooting. Officer Eppling saw a car that matched the description. The driver’s window was down part way, and he saw two black people in front. The passenger had either braids or waves with multicolored beads. He could not tell if the person was male or female. There was too much traffic to make an immediate U-turn, but he eventually caught up to the car and pulled it over; however, the passenger was no longer in the car. He brought the driver to the 24th District and his partner drove the car to the station. The crime scene was about 2xk miles from where he pulled the car over.
During cross-examination, Officer Eppling stated that he saw the car about five minutes after receiving the message. The passenger’s braids were about shoulder length, hanging, with multicolored beads. He could not see the passenger’s face. He did not see the passenger leave the car, but stated “[i]t had to be on the 5800 block of Sheridan” after the car passed the squad car.
Detective Greg Pattitsis interviewed Francisco at the 24th District. Francisco tentatively identified Robinson as the driver. Francisco said “it looked like the individual that was driving the car, but he wasn’t sure.” Gerardo and Jose did not identify anyone. He also interviewed Osvaldo a few days later. Osvaldo described the passenger as 23 to 28 years old, dark complected, with braided hair and curls or strands in the back with black, white, and blue beads. Osvaldo picked Robinson out of a photo array as the driver but asked to see him in person. Osvaldo picked Robinson out of a lineup as the driver.
On August 16, 1996, defendant was brought to Area 3. Gerardo, Osvaldo, and Francisco came to the station and viewed a lineup. They identified defendant as the passenger. Detective' Pattitsis identified
During cross-examination, defense counsel asked Detective Pattitsis if Osvaldo told him that the passenger had long black hanging braids with white, black, and blue beads on the end. Detective Pattitsis replied “No. Not totally correct.” Defense counsel attempted to impeach him with his handwritten notes from his interview with Osvaldo. When asked if the police report and his notes indicated that Osvaldo gave that description of the passenger, Detective Pattitsis replied “Yes.” Detective Pattitsis admitted that defendant was the only person in the first lineup whose hair was in corn rows or braids close to his head. The photograph of the second lineup defendant participated in was taken outside because the lighting conditions at the county jail were bad.
Officer Robert Labbe testified that he interviewed Jose, who described the passenger as a black male with a dark complexion and black hair with corn rows. Officer Labbe was not present when the September 3, 1995, lineup was conducted. He interviewed Osvaldo on September 12, 1995, and showed him a group of photographs. Osvaldo picked the photograph of Robinson and said he was “pretty sure that was the person that was driving the vehicle at the shooting,” but that he wanted to see him in person. When Osvaldo viewed a lineup on September 21, 1995, he picked Robinson as the driver. During cross-examination, Officer Labbe acknowledged that his police report said nothing about the girls crossing in front of the car.
Detective Stephen Schorsch identified a photograph of defendant taken on August 16, 1996. Defendant’s hair was in braids. Detective Schorsch also identified a photograph of defendant taken on September 12, 1997. His hair was no longer in braids and was short. The light at the viewing window in the September lineup allowed the witness to see the face of each person.
During cross-examination, Detective Schorsch admitted that he had complained about the lighting conditions during the second lineup but was told they could not be improved. On redirect, he testified that he could see the participants before they stepped up to the viewing window.
Defendant’s motion for a directed finding was denied.
The defense first called Patrick Moran, the forensic investigator who lifted fingerprints from the car.
The defense next called Richard McGrath, an expert in latent fingerprint identification. He examined the latent fingerprints recovered from the car. Only two were suitable for comparison with fingerprints in the automated fingerprint identification system. There were no positive comparisons. He was asked to compare the latent prints to fingerprints of Robinson and defendant. Robinson’s matched, but defendant’s did not. On cross-examination, he testified that fingerprints are not necessarily left behind every time a person touches a surface and that it cannot be determined how long a fingerprint has been in a particular place.
The trial court’s instruction to the jury included the following:
“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 or the witness’ degree of attention at the time of the offense; orthe witness’ earlier description of the offender; or the level of certainty shown by the witness when confronting the defendant; or the length of time between the offense and the identification confrontation.”
The trial court allowed the lineup photographs to go back with the jury over defense counsel’s objection.
The jury found defendant guilty of first degree murder.
On November 21, 1997, defendant filed a motion for a new trial or judgment notwithstanding the verdict. At the hearing, defense counsel argued that the defense should have been allowed to present expert testimony concerning eyewitness identification. Before ruling, the trial judge stated that he “would have weighed the evidence differently *** and that he was not personally convinced based on the evidence that defendant was proven guilty beyond a reasonable doubt.” However, the trial court denied the motion, finding that there was a rational basis to find defendant guilty.
The trial court sentenced defendant to 35 years’ imprisonment.
Defendant argues that he is entitled to a new trial because the State impermissibly attempted to bolster its case by having Gerardo, Osvaldo, and Jose testify that, prior to viewing the lineup from which they identified defendant, they viewed another lineup from which they did not identify anyone as being the passenger. Defendant was not in this initial lineup. Defendant concedes that he has waived this issue for review since he did not object to the testimony at trial or in his posttrial motion. See People v. Enoch,
Unless vague or doubtful, eyewitness identification of an accused will sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. People v. Lewis,
In Homes, the defendant was charged with several offenses that arose out of a drive-by shooting. Two eyewitnesses positively identified the defendant as the shooter from a lineup. The first witness testified that he was 30 feet away from the defendant’s car when he saw the defendant point a gun toward some pay phones and fire four shots. The second witness, who was the intended victim, testified that he was speaking on one of the pay phones when he saw a car stop at a nearby corner. He saw the defendant fire two shots, get out of the car and fire two more shots. The trial court found defendant guilty. The appellate court, in affirming, held that the State proved the defendant guilty beyond a reasonable doubt. The court noted that the shooting took place during the daylight; both witnesses knew the defendant;
Unlike Homes, none of the eyewitnesses knew defendant or viewed him for a considerable length of time. There was no physical evidence linking defendant to the crime, and defendant was not arrested near the scene. See People v. Lewis,
The State may not bolster a witness’ identification of a defendant by introducing evidence that the witness failed to identify anyone else during pretrial identification procedures. People v. Hayes,
We agree with defendant that his trial attorney should have objected to the nonidentification testimony and raised the issue in the posttrial motion. However, defendant’s ineffective assistance argument is immaterial, given our consideration of the issue under the plain error doctrine.
In Illinois, expert testimony is generally allowed if (1) the testimony reflects generally accepted scientific or technical principles; (2) the expert’s experience and qualifications afford him knowledge that is not common to lay persons; and (3) the testimony will aid the trier of fact in reaching its conclusion. People v. Enis,
Illinois courts have uniformly upheld a trial court’s refusal to allow such testimony. For example, in People v. Dixon,
Again, we note that the court here has properly weighed the benefits of such testimony and has exercised its discretion in not allowing the expert to testify, rather than ruling outright that such testimony can never be probative.
Other jurisdictions have found that the exclusion of expert testimony regarding eyewitness identification is an abuse of discretion. In State v. Chapple,
Numerous studies in the area of eyewitness psychology indicate that there is significant potential for eyewitness error and that jurors have misconceptions about the abilities of eyewitnesses. See 19 Am. Jur. Proof of Facts 2d Pretrial Identification 435 (1979 & Supp. 2000). There are two types of eyewitness identification expert testimony. The first dispels myths or attacks commonsense misconceptions about eyewitness identifications, such as the effects of stress and weapon focus on the accuracy of identifications. The second provides the jury with useful information about the kinds of mental factors involved in the identification process, such as the effect of time on the reliability of identifications, the forgetting curve, and problems with cross-racial identifications. W Wolfson, “That’s the Man!” Well, Maybe Not: The Case for Eyewitness Identification Expert Testimony, 26 Litig. 5, 6 (2000). Trial courts should carefully scrutinize the proffered testimony to determine its relevance — that is, whether there is a logical connection between the testimony and the facts of the case. Normally, expert testimony that is probative and relevant should be allowed. People v. Sargeant, 292 111. App. 3d 508 (1997). The trial court must also determine whether the proffered testimony would confuse or mislead the jury. We realize that other jurisdictions have formulated guidelines for trial courts to follow when considering whether to allow such testimony. See, e.g., State v. Moon,
Defendant contends that Dr. Loftus’ testimony should have been admitted because it would have aided the jury in reaching a more informed decision as to the credibility of the eyewitness testimony. We find that the trial court properly exercised its discretion under Enis. The record shows that the judge considered the reliability and potential helpfulness of the testimony, balanced the proffered testimony against cases in which this court has upheld the exclusion of such evidence, and found that the testimony would not assist the jury. See Hall,
Under certain circumstances, eyewitness identification expert testimony can assist the jury in reaching a correct decision. This is such a case. The central issue at trial involved the accuracy of the eyewitness identifications. The circumstances surrounding those identifications are questionable. See People v. Brown,
We acknowledge that the use of expert testimony could lead to battles between experts over the value of eyewitness identifications. However, “[gjiven the high stakes in criminal cases and the proven ability of judges to tailor issues and limit witnesses, a little extra time does not seem wasteful even if expert witnesses are competing for the jury’s attention.” W. Wolfson, “That’s the Man!” Well, Maybe Not: The Case for Eyewitness Identification Expert Testimony, 26 Litig. 5, 8 (2000). As the Illinois Supreme Court noted in People v. Gardner,
We decline to address defendant’s remaining arguments.
Reversed and remanded for a new trial.
THEIS, J., concurs.
Notes
The record establishes that Robinson’s trial took place before commencement of defendant’s trial.
Concurrence Opinion
specially concurring:
I agree completely with the holding and the analysis of the majority as to all issues in this case. I write separately to express my strong disagreement with our supreme court’s position that “nonidentification” testimony is inadmissible.
The United States Supreme Court addressed the issue of nonidentification testimony in the landmark case of United States v. Wade,
“Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and thedefendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.” (Emphasis added.) Wade, 388 U.S. at 241 ,18 L. Ed. 2d at 1165 ,87 S. Ct. at 1940 .
In People v. Hayes,
However, the appellate court in the Hayes case did not hold that admitting evidence that the eyewitnesses had looked through many police photo books without identifying the defendant was error. The court merely recited that the defense cited the holding in Trass and then held that the nonidentification testimony was harmless. Hayes,
In Trass, a detective testified that one of the eyewitnesses had toured the area of the crime and picked out two possible suspects. The detective testified that those two persons were put in a lineup. The eyewitness did not identify either of the two suspects he had pointed out earlier but did identify one of the defendant’s codefendants. This court held: “[T]he State argues that evidence of a prior positive identification of the defendant is admissible and thus suggests that a prior consistent nonidentification of another suspect should also be admissible. We do not find the State’s argument to be persuasive. A prior identification of the defendant is admissible because it refutes the possibility that an in-court identification is based solely on the suggestiveness of the trial setting. (People v. Rogers (1980),
There is nothing in the Trass opinion that suggests the prosecutor at trial was offering the detective’s testimony to rebut a defense argument that the in-court identification was suggestive. Indeed, there is nothing in the Trass opinion that the testimony was offered for any purpose. The most reasonable explanation for the State’s action in calling the detective was to “front” the misidentification of the two people on the street. The fact that the witness had misidentified two persons on the street within minutes of the home invasion could certainly have been raised by the defense to attack the witness’ testimony regarding any other identification. Fronting the misidentification would have restricted the amount of damage caused to the State’s case. On appeal, the State posited a reason for the trial prosecutor’s actions that did not appear to have any basis in fact. The appellate court correctly rejected this rationale.
It is obviously true that evidence that a witness previously did not identify someone other than the defendant is not relevant as to the suggestiveness of the in-court identification. However, the fact that a witness looked at dozens or hundreds of photographs or multiple lineups does refute the possibility that the prior identification of the defendant during the investigation was based on the suggestiveness of that pretrial identification procedure. The appellate court in Trass never considered this as a basis for the admissibility of the initial misidentification and subsequent nonidentification.
The significant role pretrial identifications play at trial has been well recognized by our courts. In United States v. Owens,
In People v. Panczko,
Also see State v. Freber,
The significant role that pretrial identifications play at trial requires that the trier of fact be told what safeguards against suggestiveness existed at the time of the pretrial identification. The number of lineups and photos viewed is clearly the most significant safeguard against suggestiveness.
Extensive research into this area has turned up only two state court cases outside Illinois which directly address the issue of whether nonidentification testimony is admissible. In Milholland v. State,
In People v. Bolden,
Similarly, in United States v. Reliford,
Further, witnesses may testify as to conversations which are part of the investigating procedure without violating the hearsay rule. Jones, 153 111. 2d at 159-60. In the case sub judice, our holding will require the State on retrial to confine its evidence on the subject of identification of the defendant to the date of the first identification — one year (or two) after the shooting. What is the jury to make of this delay? The defense will attack the investigation and the State will be precluded from explaining what investigatory steps were taken from the time of the shooting to the first lineup identification.
Evidence of which investigatory identification procedures were employed is especially relevant and should be admissible where those procedures are reliable. As Professor LaFave has said, “[a]s the number of photographs displayed decreases, the suggestivity increases.” W. LaFave, Criminal Procedure § 7.4, at 589 (1984). As a corollary, as the number of photographs displayed increases, the suggestivity decreases. This is even more true when the photos viewed are of persons of the same race, age and have similar facial characteristics. None of the cases criticizing nonidentification testimony addresses this crucial factor. Indeed, none of the cases discuss whether the defendant’s photo was in any of the mug books viewed by the witnesses. If there is no evidence that the defendant’s photo was not in the mug books viewed by the witness, the evidence does not actually “bolster” the identification.
Also, all identifications involve a form of negative identification evidence inasmuch as the selection by the eyewitnesses necessarily meant that the witness did not identify the other participants in the lineup or other photos in the mug book. When this court in People v. Graham,
Finally, the Supreme Court in People v. Rogers,