The opinion
2025 IL App (1st) 241180
FOURTH DIVISION
Opinion filed: March 26, 2026
No. 1-24-1180
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 16534
)
DEMARIUS BRIDGES, ) Honorable
) Maria Kuriakos Ciesil,
Defendant-Appellant. ) Judge, presiding.
JUSTICE QUISH delivered the judgment of the court, with opinion.
Presiding Justice Navarro and Justice Lyle concurred in the judgment and opinion.
OPINION
¶1 Defendant Demarius Bridges appeals the circuit court’s second-stage dismissal of his
petition for postconviction relief filed under the Post-Conviction Hearing Act (“Act”) (725 ILCS
5/122-1 et seq. (West 2020)). He contends that the court erred in determining that his claim that
trial counsel rendered ineffective assistance by failing to retain an expert witness on the reliability
of eyewitness identifications was both forfeited and meritless. Although we find that defendant
did not forfeit his claim by failing to raise it on direct appeal, we affirm the dismissal of defendant’s
petition on the merits.
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¶2 Following a jury trial in June 2015, defendant was convicted of the first degree murder of
Keith Slugg and the attempted first degree murder of Kimberly Harris and sentenced to
consecutive prison terms of 55 years and 35 years, respectively. The evidence at trial showed that,
on August 28, 2011, at approximately 3:55 a.m., Harris and her boyfriend, Slugg, were engaged
in sexual intercourse in the driver’s seat of Slugg’s parked car when shots rang out at a rapid pace.
Slugg was sitting in the driver’s seat and Harris was on his lap facing the rear of the car. Harris
looked up and saw a man she identified as defendant holding a gun near the rear passenger window
of the car. The shooter was not wearing a mask and Harris had a clear and unobstructed view of
his face. Harris attempted to take cover in the front passenger footwell, but her foot became wedged
between Slugg and the steering wheel. After a pause in the shooting, Harris then heard a second
gun begin firing at a slower pace. Slugg was fatally shot 3 times, and Harris was shot 15 times.
When the shooting stopped, Harris used her foot to honk the horn to attract attention.
¶3 When police and paramedics arrived, Harris immediately and repeatedly told them that the
shooter was “Demarius,” whose nickname was “Debo.” When asked if Demarius was from the
ABLA housing complex near the location of the shooting, Harris said “yes.” Harris told one officer
that her view of defendant was “clear and unobstructed” and he was approximately four to five
feet away. Harris subsequently identified defendant as the shooter in a photo array. She told a
detective several days after the shooting that she “immediately” recognized defendant as the
shooter and had known him for 15 years. A week later, Harris recounted her memory of the
shooting in a video recorded statement. She then provided the same information in her testimony
in front of the grand jury that indicted defendant. She testified before the grand jury that she could
see defendant clearly from outside the rear passenger window because of the lights in the parking
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lot. She made nine separate statements to various individuals and consistently identified defendant
as the shooter. Six months later, based on an anonymous tip, police recovered a gun owned by
defendant’s brother, Terry Bridges. Forensic analysis revealed that this gun was one of three guns
used in the shooting of Harris and Slugg.
¶4 Prior to defendant’s trial, Harris was shot and killed. Defendant, his brother Terry, and a
third individual, Terrell Lewis, were charged with her murder. The State alleged that, while in jail,
defendant had arranged for Terry to lure Harris to a meeting with the offer of money in exchange
for not testifying against defendant and that Lewis killed her during that meeting. Although
defendant was acquitted of Harris’ murder in a separate bench trial, the circuit court in the present
case found that, through evidence of Terry’s and Lewis’ visits to defendant in jail, the State had
shown by a preponderance of the evidence that defendant had acted to procure Harris’ absence
from trial. The court further found that Harris’ statements identifying defendant were all
admissible either as dying declarations, excited utterances, statements made in the course of an
ongoing emergency, or under the doctrine of forfeiture by wrongdoing.
¶5 The postconviction claim at issue in this appeal concerns the circumstances affecting
Harris’ identification of defendant and defense counsel’s efforts to challenge that identification.
Relevant to those issues, at trial, Officer Homero Garza testified that the area around the crime
scene “was well lit because there was a light fixture coming from Newberry School. There was
another one just kitty corner from the actual position from the vehicle from a residential [sic], there
was a spotlight, and then there was more lamp posts just to the west.” The State asked Garza
whether he could clearly see shell casings on the ground, and Garza confirmed that he could. On
cross-examination, defense counsel showed Garza photos of the scene and asked him to circle
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particular lights and to approximate their distance from the scene, which Garza estimated to be
“about 300 feet” and about “two car lengths away.” Defense counsel then asked Garza whether
there was light “under where the car was parked,” and Garza responded, “[t]hat I recall, no.”
Counsel showed Garza another photo taken near the time of the shooting and asked Garza to
confirm that “this area is dark where the car is parked,” and Garza agreed that it was. Paramedic
Katrina Basic testified that the lighting at the scene “was dim, but you could see.” She added that
“[i]t was like a gray haze, but you could see clearly.” She also testified that she heard Harris
identify defendant as the shooter several times.
¶6 Defense counsel called defendant’s mother, Sharnetta Dodson, to testify about the
similarity in the appearances of defendant and his brother Terry. Dodson testified that defendant
and his brother were mistaken for one another “all the time.” She explained that Terry was “a little
taller” than defendant, but they both were a similar weight and had similar complexions, similar
facial features, and the same low hairstyle. On cross-examination, the State played a recording of
a phone call between Dodson and defendant that took place while defendant was in jail. Dodson
acknowledged that, during the call, they discussed the fact that Jonell Reed, defendant’s girlfriend
at the time of the shooting, would testify for the defense. Dodson further admitted that, during the
call, she said Reed was “good to go.” Dodson testified that by “good to go,” she meant only that
Reed was “going to be a witness.” She claimed not to know the substance of Reed’s testimony.
¶7 Defendant testified and denied shooting Harris or Slugg. He testified that on the night of
the shooting, he was at his mother’s house from approximately 8:00 p.m. to 11:00 p.m. He then
went home, at which point he got into an argument with Reed, had dinner, and remained home the
rest of the evening. Defendant claimed that he “knew of” Harris and had seen her at parties and
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events, but had never been formally introduced. However, he admitted that he had spoken to her.
He also testified that people called him “Debo” and Harris would have known that nickname. He
likewise stated that he “knew of” Slugg, but also that he did not know him and “[r]arely or never”
saw him around. Defendant also testified that his brother was taller than he was, weighed about 20
to 30 pounds more than he did, and did not look exactly like him.
¶8 Reed testified that on August 28, 2011, she was dating and living with defendant. She
worked in the morning and then spent the afternoon and evening cooking at home. Reed went to
sleep around 9:00 p.m. and woke up around 12:30 a.m. when defendant came home. She made
him a plate of food, they talked, and she fell asleep. On cross-examination, Reed admitted that she
rode to court that day with defendant’s mother and had visited defendant in jail numerous times,
including as recently as a week before trial. She further testified that she did not tell anybody that
defendant was with her at the time of the shooting until she spoke with defendant’s attorney a week
or two prior to trial.
¶9 The jury convicted defendant of first degree murder and attempted first degree murder. On
direct appeal, defendant challenged only the trial court’s rulings regarding the admissibility of
certain testimonial hearsay statements made by Harris and Terry. See People v. Bridges, 2019 IL
App (1st) 152604-U, ¶¶ 57-58. This court rejected his arguments and affirmed his convictions and
sentences. See id. ¶ 104.
¶ 10 In 2021, defendant filed a petition for postconviction relief through counsel in which he
raised multiple claims for relief. He raises only one of those claims in this appeal: that trial counsel
rendered ineffective assistance by failing to retain an expert witness on the unreliability of
eyewitness identifications. For support, defendant attached a report from Dr. Geoffrey R. Loftus,
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Emeritus Professor of Psychology at the University of Washington, whose expertise was in human
perception and memory. Dr. Loftus was hired by defendant’s postconviction counsel, and he
evaluated defendant’s case and prepared his report in 2021, six years after defendant’s trial.
¶ 11 Dr. Loftus stated that if he had been called to testify at defendant’s trial, he would not have
provided an opinion on whether Harris’ identification was correct, but would have testified about
a variety of factors that might affect the reliability of a witness’ identification of a perpetrator,
including that a witness will often erroneously identify a stranger as someone they know, low
lighting inhibits a witness’ ability to detect color and the type of fine detail needed to encode a
person’s appearance, and a witness such as Harris who is under attack often allocates minimal
attention to observing the appearance of her assailant. Further, a witness who is confronted with a
weapon tends to focus on the weapon and devote less attention to other matters. Due to these and
other factors, Dr. Loftus would have explained that, “of the total duration comprising some event,
only a fraction of that duration is available to the witness for memorizing what will later be relevant
(usually the perpetrator’s appearance).” Dr. Loftus also would have explained how seeing pictures
of defendant in photo lineups would have allowed Harris to “solidify her belief” and strengthen
her memory that defendant was the shooter.
¶ 12 When the circuit court failed to rule on defendant’s petition within 90 days, it was advanced
to the second stage. The State filed a motion to dismiss, in which it asserted that defendant had
forfeited his ineffective assistance claim because he could have raised the issue on direct appeal.
In response, defendant submitted an August 25, 2023, affidavit in which he averred, in relevant
part:
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“I approached counsel with the idea of securing the services of an eyewitness expert in aid
of my defense at trial. In response counsel communicated that he would look into the
matter. I made sure to inquire as to the status of counsel’s investigation of that matter every
time I had a court appearance. For several months counsel communicated that he had not
gotten around to exploring the need for an expert on the subject of eyewitness
identification. A few months before trial counsel communicated to me that he would not
be consulting an expert because it was his belief that an expert would be of no use for a
case like mine, where the witness claims to know me. In response I told counsel that the
witness did not know me but rather knew of me which is a distinct difference. After this
back and forth exchange, it was clear to me that he would not be pursuing the matter any
further.”
¶ 13 Following a hearing, the court granted the State’s motion to dismiss defendant’s
postconviction petition, finding that defendant’s claim of ineffective assistance of trial counsel was
meritless because trial counsel made a strategic decision not to call an expert on eyewitness
identifications and that the claim was forfeited because the issue was apparent on the face of the
record and defendant could have raised it on direct appeal. This appeal follows.
¶ 14 Defendant argues that he made a substantial showing that trial counsel’s failure to retain
an expert witness amounted to ineffective assistance of counsel. The State responds that defendant
forfeited this claim because counsel’s ineffectiveness was apparent from the face of the trial record
and he could have raised the issue on direct appeal and, even if not forfeited, the claim fails on its
merits. We first find that defendant did not forfeit his postconviction claim by failing to raise the
issue on direct appeal. However, we conclude that defendant failed to make the necessary showing
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of ineffective assistance to justify a third-stage proceeding and the circuit court properly dismissed
his petition.
¶ 15 The Act provides a three-stage process through which “a defendant may challenge his
conviction or sentence for violations of federal or state constitutional rights.” People v. Pendleton,
223 Ill. 2d 458, 471-72 (2006) (citing People v. Whitfield, 217 Ill. 2d 177, 183 (2005)). When a
petition is not dismissed with 90 days of being filed, it is advanced to the second stage. Id. at 472.
At that point, the State may file a motion to dismiss. Id. At the second stage, “the defendant bears
the burden of making a substantial showing of a constitutional violation.” Id. at 473 (citing People
v. Coleman, 206 Ill. 2d 261, 277 (2002)). “[A]ll well-pleaded facts that are not positively rebutted
by the trial record are to be taken as true, and, in the event the circuit court dismisses the petition
at that stage, we generally review the circuit court’s decision using a de novo standard.” Id. (citing
People v. Childress, 191 Ill. 2d 168, 174 (2000)).
¶ 16 Claims of ineffective assistance of counsel are resolved under the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must show that
counsel’s performance was deficient and that such deficient performance substantially prejudiced
the defendant. Id. at 687. To establish deficiency, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness. Id. at 688. To establish prejudice,
“[t]he defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
¶ 17 We first must determine whether defendant’s failure to raise his ineffective assistance
argument on direct appeal results in forfeiture of the claim. “The purpose of a postconviction
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proceeding is to permit inquiry into constitutional issues involved in the original conviction and
sentence that were not, and could not have been, adjudicated previously on direct appeal.” People
v. English, 2013 IL 112890, ¶ 22 (citing People v. Harris, 206 Ill. 2d 1, 12 (2002)). “[I]ssues that
could have been raised on direct appeal, but were not, are forfeited.” Id. (citing People v. Ligon,
239 Ill. 2d 94, 103 (2010)). However, the forfeiture doctrine is “relaxed where fundamental
fairness so requires, where the forfeiture stems from the ineffective assistance of appellate counsel,
or where the facts relating to the issue do not appear on the face of the original appellate record.”
Id. (citing People v. Williams, 209 Ill. 2d 227, 233 (2004)).
¶ 18 The State argues that the basis for defendant’s ineffective assistance claim was apparent
on the face of the record at the time of his direct appeal and defendant therefore forfeited the claim
by failing to raise it then. Defendant counters that the claim could not have been raised on direct
appeal because it relies on Dr. Loftus’ expert report and scientific studies that were not present in
the record on direct appeal.
¶ 19 The appellate court is split as to whether this type of claim can, and therefore must, be
raised on direct appeal. The cases providing the primary support for the State’s position generally
hold that defendants alleging ineffective assistance concerning the failure to present expert
testimony on eyewitness identifications must raise such a claim on direct appeal because counsel’s
ineffectiveness is typically apparent on the face of the record and this claim has been available
since People v. Enis, 139 Ill. 2d 264, 287-90 (1990). See People v. Navarro, 2021 IL App (1st)
190483, ¶ 13 (“Enis, which was decided in 1990, held that expert testimony on the issue of
eyewitness identification was admissible in certain circumstances. Thus, the claim that the
defendant’s counsel was ineffective for failing to offer expert testimony on the subject of
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eyewitness identification was available to the defendant at the time of direct appeal in 2007, and
he should, and could, have raised the issue in that appeal.”); People v. French, 2022 IL App (1st)
200805-U, ¶¶ 64-65 (citing and agreeing with Navarro); People v. Hernandez, 2021 IL App (1st)
192297-U, ¶ 32 (same); see also People v. Boone, 2023 IL App (1st) 220433-U, ¶ 54; People v.
Riley-Palmer, 2022 IL App (1st) 210454-U, ¶ 34; People v. Burke, 2021 IL App (1st) 200250-U,
¶ 26.
¶ 20 However, noticeably absent from these cases is any consideration of the practical
requirements for raising this type of claim on direct appeal, including the fact that such a claim
usually relies on matters outside the trial record. Indeed, while it is true that Enis provided a basis
for a claim that counsel might perform deficiently by failing to call an expert on eyewitness
identifications, the general availability of such a claim does not equate to defendants having a
practical and meaningful ability to present it on direct appeal.
¶ 21 As a general matter, an “ineffective assistance claim based on what the record discloses
counsel did, in fact, do is subject to the usual procedural default rule.” People v. Tate, 2012 IL
112214, ¶ 14. However, “a default may not preclude an ineffective-assistance claim for what trial
counsel allegedly ought to have done in presenting a defense.” People v. West, 187 Ill. 2d 418, 427
(1999) (holding that defendant’s postconviction claim that counsel rendered ineffective assistance
by not calling a forensic expert was not forfeited because the claim did not concern something that
counsel actually did that was apparent on the face of the record). This is because “a claim based
on what ought to have been done may depend on proof of matters which could not have been
included in the record precisely because of the allegedly deficient representation.” Tate, 2012 IL
112214, ¶ 14 (citing People v. Erickson, 161 Ill. 2d 82, 88 (1994)) (holding that defendant’s
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postconviction claim that counsel rendered ineffective assistance by failing to call four witnesses
could not have been raised on direct appeal because the witnesses’ affidavits were not in the
record). “Procedural default does not *** preclude a defendant from raising an issue on collateral
review that depended upon facts not found in the record.” People v. Veach, 2017 IL 120649, ¶ 47.
¶ 22 The case of People v. Boose, 2021 IL App (2d) 190416-U, demonstrates how the claim that
defendant brings in this case could not have been adequately presented on direct appeal due to the
lack of a sufficient factual record. In Boose, the defendant argued on direct appeal that trial counsel
rendered ineffective assistance by not calling an expert witness on the reliability of eyewitness
testimony. Id. ¶ 21. The State asserted that the issue was not reviewable because the defendant had
not shown “that there is an expert available and exactly what said expert would testify about in the
context of the facts and circumstances in this case.” Id. ¶ 25. The State further argued that “the
record is not developed as to whether or not an expert witness was available to the defense, why
the defense did or did not choose to retain an expert if one was available and what the People might
have offered in response to any proposed expert.” Id. According to the State, the defendant’s claim
was “better suited to postconviction proceedings, where a factual record might be developed.” Id.
¶ 23 This court agreed with the State and explained the numerous reasons why such a claim did
not lend itself to review on direct appeal:
“[T]here is no way for us to evaluate defendant’s contention that his attorneys were
ineffective for failing to present an expert to testify regarding the science of eyewitness
identifications. The record does not contain an offer of proof regarding this science, let
alone a basis for applying it to the facts at bar. We have no information about the identity
of any expert who might have been available to the defense. We likewise have no
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meaningful information about the details of any potential expert’s testimony. Defendant
vaguely asserts that ‘[t]he expert would have provided proof that eyewitnesses can be
unreliable, often misidentify people when under extreme stress and would explain why this
case was ripe for unreliability.’ In his reply brief, defendant insinuates that an expert might
have testified that [two witnesses’] identifications were confabulated. But we have no idea
who this hypothetical expert is, what his or her qualifications are, or why he or she would
opine that [the witnesses’] identifications were problematic.” Id. ¶ 30.
The Boose court concluded that “defendant’s claim of ineffective assistance in connection with the
failure to present an expert is better suited for collateral proceedings, where defendant will have
an opportunity to develop a factual record for his claim.” Id. ¶ 32.
¶ 24 Similar to Boose is People v. Elliott, 2022 IL App (1st) 192294, where the defendant
likewise argued on direct appeal that counsel rendered ineffective assistance by not calling an
expert on eyewitness identifications. In discussing the prejudice prong of the defendant’s claim,
this court explained that, even though the defendant made specific allegations “that an expert
would testify regarding (1) the low correlation between a witnesses’ confidence in an identification
and the accuracy of their identification, (2) the effect of the presence of a weapon, (3) the effect of
a stressful situation, and (4) the weakness of identifying a stranger,” and the defendant cited “cases
that note scientific studies supporting these points,” the defendant’s claim was still “far too
speculative to establish prejudice.” Id. ¶¶ 48-49. This court added that, among other reasons, “such
testimony is necessarily speculative,” in part because “no expert testimony was proffered.” Id.
¶ 49; see also People v. Johnson, 2021 IL 126291, ¶ 58 (noting that prejudice cannot be based on
speculation or conjecture).
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¶ 25 In postconviction proceedings, several other cases have echoed the reasoning of Boose and
Elliott and held that the failure to argue on direct appeal that counsel performed deficiently by not
calling an expert on eyewitness identifications does not result in forfeiture of the issue because the
claim relies on matters outside the trial record that could not have been adequately presented on
direct appeal. For example, in People v. Reynolds, 2024 IL App (1st) 221222-U, ¶ 32, this court
held that the defendant “cannot succeed on this claim without evidence from the expert witness
that he claims his trial counsel should have called.” The Reynolds court observed that a claim of
ineffective assistance for the failure to call a witness generally requires an affidavit from the
proposed witness in order to demonstrate a substantial showing of a constitutional violation, which
“is a matter outside the record on appeal and one which could not be brought on direct appeal.” Id.
¶ 26 This court also reached the same conclusion in People v. Porter, 2024 IL App (1st)
231330-U, ¶ 28, observing that, “[i]f defendant raised this argument on direct appeal, his inability
to establish prejudice would have been virtually assured because the record was devoid of even
potential expert testimony that could have been provided at trial ***.” See also Veach, 2017 IL
120649, ¶ 48 (explaining that reviewing courts “should carefully consider each ineffective
assistance of counsel claim on a case-by-case basis” to determine whether it depends on facts not
found in the record); People v. Pellegrini, 2019 IL App (3d) 170827, ¶¶ 49-50 (holding that
defendant had not forfeited his claim when his “postconviction petition was wholly based on
information absent from the original appellate record” and explaining that, “[f]or a reviewing court
to engage in a meaningful review of whether failing to call an expert witness constituted ineffective
assistance of counsel, the testimony of the expert would undoubtedly prove helpful to the
disposition of the claim”); People v. Saleh, 2020 IL App (1st) 172979, ¶ 43 (finding no forfeiture
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when defendant’s claim relied on documents that were not part of the record on direct appeal);
People v. Talbert, 2023 IL App (1st) 200423-U, ¶ 50 (holding that when the trial record was
“wholly silent as to the topic of any expert on eyewitness testimony *** the rule of forfeiture is
inapplicable”).
¶ 27 We agree with Reynolds, Porter, and Talbert and hold that, for the reasons set forth in
Boose and Elliott, and consistent with Pellegrini, Saleh, and Tate, defendant did not forfeit this
ineffective assistance of counsel claim by not raising it on direct appeal. We find these cases to be
better reasoned and more consistent with Illinois law concerning claims that depend on facts
outside the direct appeal record. We decline to follow Navarro and the cases agreeing with it as
those decisions are not consistent with Veach and Tate and conflict with Illinois law precluding
forfeiture when a claim relies on matters outside the trial record.
¶ 28 In the present case, defendant’s claim relies on an expert witness report and defendant’s
affidavit that were not in the trial record. As discussed above, the absence of that report prevented
defendant from raising the issue on direct appeal, which precludes a finding of forfeiture now. We
will therefore consider the merits of defendant’s claim.
¶ 29 Defendant argues that counsel’s decision not to call an expert on eyewitness identifications
was not reasonable because an expert could have greatly undermined Harris’ identification, which
was the primary evidence against him. Defendant also argues that counsel’s failure to retain an
expert should not be considered a matter of trial strategy because his affidavit shows that counsel
never even investigated the possibility of hiring an expert and, therefore, never made a strategic
decision not to call one to testify. The State contends that defendant’s claim was properly dismissed
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because trial counsel’s decision not to call such an expert was a matter of trial strategy and
therefore entitled to substantial deference. We agree with the State.
¶ 30 “It is well established that decisions concerning which witnesses to call at trial and what
evidence to present on defendant’s behalf ultimately rest with trial counsel.” People v. Madej, 177
Ill. 2d 116, 148 (1997) (citing People v. Ramey, 152 Ill. 2d 41, 53-55 (1992)). “Such decisions
have long been viewed as matters of trial strategy, which are generally immune from claims of
ineffective assistance of counsel.” (Citations omitted.) Id. “This general rule is predicated upon
our recognition that the right to effective assistance of counsel refers to ‘competent, not perfect
representation.’” Id. at 149 (quoting People v. Stewart, 104 Ill. 2d 463, 492 (1984)). “Hence,
‘[m]istakes in trial strategy or tactics or in judgment do not of themselves render the representation
incompetent.’” (Alteration in original.) Id. (quoting People v. Hillenbrand, 121 Ill. 2d 537, 548
(1988)). “The only exception to this rule is when counsel’s chosen trial strategy is so unsound that
‘counsel entirely fails to conduct any meaningful adversarial testing.’” Id. (quoting People v.
Guest, 166 Ill. 2d 381, 394 (1995)). Additionally, “‘strategic decisions may be made only after
there has been a thorough investigation of law and facts relevant to plausible options.’” People v.
Upshaw, 2017 IL App (1st) 151405, ¶ 39 (quoting People v. Gibson, 244 Ill. App. 3d 700, 703-04
(1993)).
¶ 31 Initially, we disagree with defendant’s contention that trial counsel never investigated the
possibility of hiring an expert on eyewitness identifications. In his affidavit, defendant stated that
he talked to his attorney about hiring an eyewitness expert and the attorney said he would look
into the matter. Defendant’s attorney “communicated that he had not gotten around to exploring
the need for an expert on the subject of eyewitness identification,” but, a few months before trial,
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“counsel communicated to [defendant] that he would not be consulting an expert because it was
his belief that an expert would be of no use for a case like [his] where the witness claims to know
[him].” This shows that counsel did consider retaining an expert, but made the conscious choice
not to call such a witness. This was not a failure to investigate, but instead a matter of trial strategy.
¶ 32 Even if we were to find that counsel failed to investigate the possibility of retaining an
expert, we would not find that it was objectively unreasonable to forgo such an investigation and
call such a witness. This court recognized in People v. Almendarez, 2023 IL App (1st) 220314-U,
¶ 79, that the prevailing caselaw at the time of defendant’s trial generally precluded the use of
expert testimony on eyewitness identifications. Consequently, when considering that legal
landscape, we concluded that counsel could not be faulted for not calling such an expert, and his
failure to present such testimony did not fall below an objective standard of reasonableness. Id.;
see also People v. McGhee, 2012 IL App (1st) 093404, ¶ 55 (recognizing that “Illinois continues
to reject, at least in practice, expert testimony on the reliability of eyewitnesses” and concluding
that it was therefore “not unreasonable for defense counsel to decline to present expert testimony
regarding the reliability of eyewitness identification”). As in Almendarez and McGhee, because
such testimony was generally excluded at the time of defendant’s trial in 2015, counsel in this case
did not perform unreasonably or deficiently when he failed to present expert testimony on the
reliability of eyewitness identifications.
¶ 33 Defendant cites People v. Lerma, 2016 IL 118496, where our supreme court held that the
trial court abused its discretion in excluding a defense expert witness on the reliability of
eyewitness identification based on the facts of that case. However, Lerma did not involve an
ineffective assistance of counsel claim and does not establish that defendant’s counsel was
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ineffective for not calling such a witness at defendant’s trial. Indeed, “this court has observed that
Lerma does not support the conclusion that trial counsel is necessarily ineffective for not
presenting eyewitness expert testimony in any case where the State relies on eyewitness
identification of the defendant.” Elliott, 2022 IL App (1st) 192294, ¶ 46 (citing People v. Macklin,
2019 IL App (1st) 161165, ¶ 39). Further, “counsel's failure to call an expert witness is not per se
ineffective assistance, even where doing so may have made the defendant’s case stronger.” Id.
(citing People v. Hamilton, 361 Ill. App. 3d 836, 847 (2005)). “Thus, even in an ‘appropriate’ case
for expert testimony on eyewitness identification, counsel is not necessarily ineffective for
choosing not to present such testimony.” Id. Rather, “this is a matter of trial strategy, and we will
only find counsel ineffective if counsel failed to subject the State’s case to meaningful adversarial
testing.” Id. (citing People v. Peterson, 2017 IL 120331, ¶ 80, and People v. West, 187 Ill. 2d 418,
433 (1999)).
¶ 34 Defendant has not shown how trial counsel’s chosen trial strategy was so unsound that he
failed to conduct any meaningful adversarial testing of the State’s case. To the contrary, counsel
made a noted effort to undermine Harris’ identification and the State’s case from opening
statements through closing arguments. Specifically, counsel cross-examined Officer Garza about
the lighting conditions at the scene of the shooting and was able to establish that, while there lights
nearby, the area where Slugg’s car was parked was dark. Counsel also called defendant’s mother
to testify that defendant and his brother have similar appearances and are often confused for one
another. Further, in his closing argument, counsel emphasized that it was dark at the time of the
shooting, Harris saw the muzzle flash before she saw the shooter, Harris only saw the shooter for
a second or two, and there was no evidence of defendant’s potential motive for shooting Slugg and
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Harris. Thus, our review of the record reveals that counsel’s trial strategy cannot be viewed as so
unsound as to lead us to believe that he did not fulfill his obligation to provide meaningful
adversarial testing of the State’s case. See Madej, 177 Ill. 2d at 149. Thus, defendant has not
demonstrated that his counsel’s performance was deficient.
¶ 35 Additionally, even if we assume that counsel’s failure to present expert testimony on
eyewitness identification amounted to deficient performance, we find that defendant has failed to
demonstrate prejudice to satisfy the second prong of his ineffective assistance of counsel claim.
Under that prong, defendant must show that there is a reasonable probability that the outcome of
the proceeding would have been different (see Strickland, 466 U.S. at 694), and, as we noted
earlier, at the time of defendant’s trial, expert testimony on the reliability of eyewitness
identifications was normally excluded. See McGhee, 2012 IL App (1st) 093404, ¶ 55. Before we
ever consider the effect that such testimony might have had on the jury’s verdict, it is not probable
that such testimony would have even been admitted even if offered. See Elliott, 2022 IL App (1st)
192294, ¶ 39.
¶ 36 Indeed, in Lerma, a decision issued seven months after defendant’s 2015 trial, our supreme
court observed that, since its decision in Enis in which it “expressed skepticism and caution against
the overuse” of expert testimony regarding eyewitness identifications, “the exclusion of such
testimony remains the common practice in Illinois to this day.” Lerma, 2016 IL 118496, ¶ 24.
Other cases have also recognized this reality. See, e.g., McGhee, 2012 IL App (1st) 093404, ¶ 55
(noting that “Illinois continues to reject, at least in practice, expert testimony on the reliability of
eyewitnesses”); Almendarez, 2023 IL App (1st) 220314-U, ¶ 79 (observing that the prevailing case
law at the time of the defendant’s trial in 2010 cautioned against the use of expert testimony on
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eyewitness identifications); Boone, 2023 IL App (1st) 220433-U, ¶ 64 (“Prior to Lerma, Illinois
case law generally precluded expert testimony on the reliability of eyewitness identification.”);
Burke, 2021 IL App (1st) 200250-U, ¶ 34 (“[P]rior to Lerma, it was common practice in Illinois
to exclude expert testimony on the reliability of eyewitness identification.”); People v. Jaimes,
2021 IL App (2d) 190241-U, ¶ 33 (noting that, in 2012, “Illinois case law generally precluded
expert testimony on the reliability of eyewitness identification”). Although Lerma dispelled Enis’s
skepticism and approved of a broader use of such expert testimony, the fact remains that the legal
landscape at the time of defendant’s trial was not supportive of expert testimony on eyewitness
identifications. “Representation based on the law prevailing at the time of trial is adequate, and
counsel is not incompetent for failing to correctly predict that the law will change.” Macklin, 2019
IL App (1st) 161165, ¶ 38. Thus, we find that defendant has not established the prejudice prong of
his ineffective assistance of counsel claim.
¶ 37 Defendant argues that it does not matter that his trial occurred before Lerma because there
was sufficient scientific authority available at the time that counsel could have cited in seeking to
have expert testimony admitted. For support, he cites two cases. The first is People v. Hayes, 2021
IL App (1st) 190881, vacated in part, 187 N.E.3d 725, where this court held that the defendant
sufficiently alleged, at the first stage of postconviction proceedings, that trial counsel was arguably
deficient for failing to investigate the possibility of presenting expert testimony on eyewitness
identifications. In reaching that conclusion, this court observed that, although Lerma had not yet
been decided at the time of the defendant’s trial, “‘ample authority’ existed supporting an argument
for the admission of expert testimony about misidentification.” Id. ¶ 34. Defendant’s second case
is People v. Porter, 2024 IL App (1st) 231330-U, which is similar to Hayes. There, this court relied
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on Hayes to conclude that the defendant had likewise adequately alleged, at the first stage of
postconviction proceedings, that counsel rendered ineffective assistance by failing to call an
eyewitness identification expert based on the unique facts of that case. Id. ¶ 42.
¶ 38 We find Hayes and Porter distinguishable. First, those decisions did not address or discuss
the fact that, at that time, Illinois trial courts generally rejected expert testimony on eyewitness
identifications, and they did not evaluate such an argument’s likelihood of success given that
landscape. Instead, they simply focused on whether counsel could have made an argument in favor
of the admission of expert testimony. Second, those decisions concerned the first stage of
postconviction proceedings, where the court does not yet consider whether counsel’s actions may
have been strategic (see Hayes, 2021 IL App (1st) 190881, ¶ 23; Porter, 2024 IL App (1st) 231330-
U, ¶ 25) and where the defendant is held to a much lower standard of proof and merely needs to
show that his claim is arguable (see Hayes, 2021 IL App (1st) 190881, ¶ 23; see also People v.
Hodges, 234 Ill. 2d 1, 16 (2009) (holding that a petition may only be dismissed at the first stage if
it “has no arguable basis either in law or in fact,” meaning it “is based on an indisputably meritless
legal theory or a fanciful factual allegation”). Hayes and Porter are therefore not instructive here.
¶ 39 Therefore, we conclude that defendant failed to demonstrate either prong of his ineffective
assistance of counsel claim. The dismissal of his postconviction petition was not erroneous and is
affirmed.
¶ 40 Affirmed.
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