People v. Lerma

2016 IL 118496

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 118496)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

EDUARDO LERMA, Appellee.

Opinion filed January 22, 2016.

JUSTICE THOMAS delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and

Theis concurred in the judgment and opinion.

OPINION

¶1 The issue is whether, in light of the specific facts and circumstances of this

case, the circuit court of Cook County abused its discretion when it denied

defendant’s motion to allow expert testimony concerning the reliability of

eyewitness identifications. For the reasons that follow, we hold that it did.

¶2 BACKGROUND

¶3 This case arises from the murder of Jason Gill, who in May 2008 was shot to

death while sitting on the front steps of his Chicago home. The history of this case

is set forth fully in the appellate court’s opinion below, and we need not repeat the

entirety of that history here. Instead, we will set forth only those facts pertinent to

the issue presently before the court.

¶4 The Eyewitness Identifications

¶5 The evidence of defendant’s guilt consists solely of two eyewitness

identifications. The first eyewitness identification was made by the victim, Jason

Gill, and was admitted into evidence under the excited utterance exception to the

hearsay rule. 1 The evidence at trial established that, on the night of the shooting,

Gill was sitting on the front steps of his home with a friend, Lydia Clark. At

approximately 11:20 p.m., a gunman approached the porch and opened fire at Gill

and Clark. Gill was struck several times, and Clark dragged Gill into the house.

Inside the house, Gill’s father, Bill Johnson, asked Gill who had shot him. Both

Clark and Johnson testified that Gill responded that “Lucky” had shot him.

Multiple witnesses, including both Clark and Gill’s mother, testified that

defendant, who lived across the street from Gill, was commonly known by the

nickname “Lucky.” In addition, Gill’s mother testified that Gill and defendant had

been friends for several years, that defendant often spent time in Gill’s home, and

that defendant recently had been fighting with a member of Gill’s family.

¶6 The other eyewitness identification was made by Clark. Clark testified that, on

the evening of the shooting, she was with Gill on the unlit front steps of Gill’s

Chicago home. At approximately 11:20 p.m., a man dressed all in black

approached Gill’s house, pulled a gun, and began shooting at Gill and Clark.

Though the man was wearing a hooded sweatshirt, Clark testified that the hood was

down at the time of the shooting. 2 Gill covered Clark’s body with his, and the two

of them fell to the ground together. When the shooting stopped, Clark saw that Gill

had been shot several times. Clark dragged Gill into the house, where she called

911. By this point, Bill Johnson had come downstairs and was asking Gill what had

1

The excited utterance exception allows the substantive admission of an otherwise inadmissible

hearsay statement where the proponent of that statement is able to demonstrate (1) the occurrence of

an event or condition sufficiently startling to produce a spontaneous and unreflecting statement; (2)

absence of time to fabricate; and (3) a statement relating to the circumstances of the occurrence.

People v. Smith, 152 Ill. 2d 229, 258 (1992). Statements admitted under this exception are admitted

because such statements “tend to be reliable.” People v. Nevitt, 135 Ill. 2d 423, 442 (1990).

2

Detective Michael Hughes, who interviewed Clark after the shooting, testified that Clark

reported on the night of the shooting that the assailant’s hood was up.

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happened. Clark heard Gill say, “Lucky shot me.” When the police arrived at the

scene, Clark told them that “Lucky” had shot Gill. The next morning, at 1:25 a.m.,

Clark went to the police station, where she was shown a photo lineup of six

Hispanic males, one of whom was defendant. From the photographs, Clark

identified defendant as the shooter. One day later, in a one-person show-up, Clark

again identified defendant as the shooter. In open court, and no less than five times,

Clark pointed to and specifically identified defendant as the man who shot Gill.

Clark testified that she knew defendant only by his nickname, “Lucky.” On direct

examination, Clark testified that, in the six months to a year before the shooting,

she had seen defendant on the porch across the street from Gill’s house

approximately ten times. On cross-examination, however, Clark admitted that, in

her grand jury testimony, she testified that she had seen defendant only “[l]ike once

or twice” before the shooting. Either way, Clark had never talked to or had a

conversation with defendant, and she had never been in the same room or the same

house with defendant. When asked directly how long she had known defendant

prior to the shooting, Clark responded, “I did not know him.”

¶7 Defendant’s Motion in Limine

¶8 In anticipation of these eyewitness identifications, defendant filed a pretrial

motion in limine to allow Dr. Solomon Fulero, an attorney and licensed

psychologist, to testify as an expert on the topic of memory and eyewitness

identification. Defendant argued that Dr. Fulero’s testimony would aid the jury by

identifying and explaining several “common misperceptions” that exist concerning

the accuracy and reliability of eyewitness identifications. According to defendant’s

motion, which included a report authored by Dr. Fulero, Dr. Fulero’s testimony

would include the following scientifically documented findings, all of which are

beyond the common knowledge of the average layperson: that the witness’s level

of confidence does not necessarily correlate to the accuracy of the identification;

that numerous factors can undermine the accuracy of an eyewitness’s

identification, including the stress of the event itself, the presence of a weapon, the

passage of time, the “forgetting curve,” the wearing of partial disguises such as

hoods, exposure to postevent information, nighttime viewing, and suggestive

police identification procedures; that eyewitnesses tend to overestimate time

frames; and that cross-racial identifications tend to be less reliable than same-race

identifications.

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¶9 The State opposed defendant’s motion on three principle grounds. First, citing

this court’s decision in People v. Enis, 139 Ill. 2d 264 (1990) and the First District’s

decision in People v. Tisdel, 316 Ill. App. 3d 1143 (2000), the State argued that

“Illinois courts have consistently upheld a trial court’s decision to bar expert

testimony regarding witness identification.” Second, the State argued that the

matters about which Dr. Fulero intended to testify are well within the common

knowledge of the average layperson and therefore could be addressed adequately

through cross-examination, closing arguments, and jury instructions. Third, the

State argued that the data and conclusions contained in Dr. Fulero’s report “do not

fit the facts of this case” because they deal solely with stranger identifications,

whereas in this case both Gill and Clark knew defendant prior to the crime. To

bolster this point, the State presented the trial court with an unpublished decision

from the Ohio Court of Appeals containing a summary description of Dr. Fulero’s

testimony from a 1999 murder trial. See State v. Nickleberry, No. 77516, 2000 WL

1738356, at *3 (Ohio Ct. App. Nov. 22, 2000). According to that summary, while

Dr. Fulero “testified that eyewitness identification may be unreliable because of a

variety of factors,” he also “admitted *** that these factors are considered

applicable where the eyewitness is viewing a stranger and not someone he or she

has met before.” Id. In addition, the State presented the trial court with an article

that it “pulled off the internet yesterday,” in which a “Mr. Mark Green who has a

Ph.D. in psychology” wrote that “[t]here are some situations where identification is

more likely accurate *** [f]or example, if the suspect is someone previously known

to the victim, then high accuracy is more probable.”

¶ 10 Following oral arguments, the trial court denied defendant’s motion to allow

Dr. Fulero’s expert witness testimony on the reliability of eyewitness

identifications. In so ruling, the trial court emphasized that the one fact that

distinguishes this case from other identification cases is that the eyewitnesses here

knew defendant prior to the shooting. According to the trial court:

“[I]t is not a circumstance that requires the testimony of an expert to establish

what pretty much everybody knows, which *** it is a fact that persons *** are

less likely to misidentify someone they have met or know or seen before than a

stranger. That’s not a function of psychology or expert opinion testimony. It is a

function of human nature, and it is not something that would require the

application of expert opinion testimony because it is not beyond the ken of an

ordinary juror.”

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In addition, the trial court reasoned that, because the eyewitnesses in this case knew

defendant prior to the crime, “the claims Dr. Fulero speaks to regarding cross-racial

difficulties, certainty or confidence, stress, weapons focus, multiple witness

identifications, suggestibility, they are necessarily made less relevant than they

would be if these persons had never seen the shooter before the night in question.”

The trial court then explained that this decrease in relevance “leads to a

concomitant increase of potential prejudice at least in the relative sense.” More

specifically, the trial court explained that, given its relative lack of relevance, Dr.

Fulero’s testimony ran the risk of both “generat[ing] *** a referendum on the

efficacy of identification testimony generally” and “operating as his opinion on the

credibility” of the eyewitnesses.

¶ 11 Defendant’s First Motion to Reconsider

¶ 12 One month later, and before his trial began, defendant filed a brief motion to

reconsider the denial of his motion in limine. In support, defendant cited and

attached the New Jersey Supreme Court’s then-recent decision in State v.

Henderson, 27 A.3d 872 (N.J. 2011), which comprehensively reviewed the current

state of scientific research concerning the reliability of eyewitness identifications.

In addition, at the hearing on the motion to reconsider, defense counsel informed

the trial court that, if the motion was allowed, Dr. Fulero would “testify that

misidentifications have occurred with people who the witness knew beforehand.”

At the conclusion of the hearing, the trial court denied defendant’s motion to

reconsider. In doing so, the trial court began by observing that “in the years that I

have been doing this in one capacity or another there is always an issue or two

du jour” and that “this seems to be one that is coming on strong.” From there, the

trial court explained that it was denying the motion to reconsider “for the reasons

previously expressed at some considerable length,” the “glaring one” of which is

that “the persons who identify Mr. Lerma *** all claim to have known him.”

According to the trial court, “[t]hat factor makes this [case] sufficiently distinct

from those cases where identification procedures are of special moment and subject

to the dangers which arise when strangers are called upon to identify persons [who

are] also strangers.” The trial court then pointed out that its decision was

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“supported by the defense’s own witness, Dr. Fulero,” who is reported to have

offered a similar opinion in Nickleberry. 3

¶ 13 Defendant’s Second Motion to Reconsider

¶ 14 Midway through trial, and after the State had presented the eyewitness

testimony set forth above, defense counsel renewed defendant’s motion to call an

eyewitness identification expert. Because Dr. Fulero had since passed away,

defense counsel this time tendered to the trial court a report authored by Dr.

Geoffrey Loftus, a professor of psychology at the University of Washington and

widely-published and globally-recognized expert in the field of human perception

and memory. The data and conclusions contained in Dr. Loftus’s report largely

tracked with the contents of Dr. Fulero’s report, with two significant exceptions.

First, Dr. Loftus’s report stressed that he would not “issue judgments about whether

a particular witness’s memory and assertions *** are correct or incorrect” and that

“any testimony on [his] part which implies unreliability on the part of

eyewitness(es) who identify a defendant should not, ipso facto, be taken to imply

that the defendant is innocent—it implies only that the eyewitness evidence should

be viewed with appropriate caution.” Second, and more importantly, unlike Dr.

Fulero’s report, which was silent on the subject of acquaintance identifications, Dr.

Loftus’s report specifically stated that “[i]t would seem intuitive to a jury that if a

witness identifies a suspect with whom he or she is acquainted, the witness’s

identification would likely be accurate. However, this is not necessarily true.”

Rather, the report explained, “if circumstances are poor for a witness’s ability to

perceive a person,” and “the situation fosters a witness’s expectations that he or she

will see a particular acquaintance[,] *** then the witness will tend to perceive the

person as the expected acquaintance even if the person is in fact someone else.”

According to Dr. Loftus’s report, such poor circumstances include low lighting;

viewing longer distances in the dark; divided attention of the witness, including a

focus on a weapon; time duration, with less time leading to less available

information, and a witness’s tendency to overestimate time durations; cross-racial

3

In making this observation, the trial court acknowledged that Dr. Fulero in fact disputed the

accuracy of Nickleberry’s description of his testimony in that case. Nevertheless, the trial court

stated that “when an appellate court justice acting on the record in an Ohio appeals court case claims

that [Dr. Fulero] did in fact [state that opinion], I am not going any further down that road.”

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identification; stress; and a partially obscured face. Dr. Loftus stated such situations

may lead to misidentification because:

“In such circumstances, the witness’s acquaintance with the expected—and

hence perceived—person works against accurate identification for two reasons:

First, it would be natural and easy for the witness to subsequently pick the

acquaintance in an identification procedure *** (because the witness already

knows whom she is seeking in a lineup procedure, she could immediately rule

out all the fillers, and zero in on the acquaintance/suspect). Second, the witness

could use his or her prior knowledge of the acquaintance’s appearance to

reconstruct his or her memory of the original events—the crime—such that the

in fact poor original memory of the actual criminal is replaced with a stronger

and more confidence-evoking memory of the acquaintance ***.”

¶ 15 In response to defendant’s renewed motion, the State argued simply that

“[n]othing has changed from the previous situation when you heard these motions.”

Rather, the State argued:

“[Clark] still knows the defendant, still always maintained she knew him, and

as we discussed before these studies and these issues and expert testimony on

identification issue has primarily focused on individuals who did not know the

person that they were identifying prior to the incident that occurred. Nothing

with regard to that has changed.”

¶ 16 After hearing from both sides, the trial court stated that it was denying

defendant’s motion to present Dr. Loftus’s testimony “consistent with the reasons

[the court] set forth in detail when [the court] made the ruling on your similar

motion with respect to Dr. Fulero.”

¶ 17 Conviction and Sentence

¶ 18 In the end, the jury convicted defendant of first degree murder, personally

discharging the firearm that caused Jason Gill’s death, and aggravated discharge of

a weapon. The trial court sentenced defendant to 45 years in prison.

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¶ 19 Defendant’s Appeal

¶ 20 Defendant appealed, and the appellate court reversed and remanded. 2014 IL

App (1st) 121880. In doing so, the appellate court reasoned that, under this court’s

decision in People v. Enis, 139 Ill. 2d 264 (1990), when deciding whether to admit

expert testimony on the subject of eyewitness identification, a trial court is required

to “carefully consider the necessity and relevance of the expert testimony in light of

the facts in the case before him.” Id. at 290; see also People v. Tisdel, 338 Ill. App.

3d 465, 468 (2003) (holding that “[t]rial 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”). According to the

appellate court, the trial court here clearly failed to do this, as the reasons the trial

court gave for denying the admission of Dr. Fulero’s testimony (i.e., that “it is a

fact” that acquaintance identifications are reliable and that expert testimony in this

case would be “operating as *** opinion on the credibility” of the eyewitnesses)

could not possibly serve as a basis for denying the admission of Dr. Loftus’s

testimony, as Dr. Loftus’s report directly refutes both of these points. 2014 IL App

(1st) 121880, ¶¶ 36, 38. Nevertheless, in denying the admission of Dr. Loftus’s

testimony, the trial court stated that its ruling was for reasons “consistent with the

reasons” it gave for denying the admission of Dr. Fulero’s testimony. According to

the appellate court, this demonstrates that “the trial court *** did not carefully

consider or scrutinize Dr. Loftus’s report where [that] report directly contradicted

the court’s prior finding that it is common knowledge that an eyewitness is less

likely to misidentify an acquaintance.” Id. ¶ 36. Moreover, the appellate court

explained, the trial court’s initial ruling denying the admission of Dr. Fulero’s

testimony was itself an abuse of discretion because the reasons the trial court gave

for that ruling amounted to “little more than a series of conclusions based on its

personal belief” that acquaintance identifications are accurate and therefore not a

proper subject for expert testimony. Id. ¶ 38. Thus, when it later invoked those

same reasons as the basis for its decision denying the admission of Dr. Loftus’s

testimony, the trial court was not only invoking reasons that were now factually

inapposite but also reasserting its own “subjective value judgments” as the basis for

rejecting the considered opinion of a qualified expert. Id. Accordingly, the

appellate court reversed the trial court’s ruling denying the admission of Dr.

Loftus’s testimony and remanded the cause for a new trial that includes the

admission of expert testimony on the matter of eyewitness identification. Id. ¶ 40.

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¶ 21 The State appealed to this court, and we allowed its petition for leave to appeal.

Ill. S. Ct. R. 315 (eff. July 1, 2013).

¶ 22 ANALYSIS

¶ 23 A criminal defendant’s right to due process and a fundamentally fair trial

includes the right to present witnesses on his or her own behalf. People v. Wheeler,

151 Ill. 2d 298, 305 (1992). “In Illinois, generally, an individual will be permitted

to testify as an expert if his experience and qualifications afford him knowledge

which is not common to lay persons and where such testimony will aid the trier of

fact in reaching its conclusion.” Enis, 139 Ill. 2d at 288. In addressing the

admission of expert testimony, the trial court should balance the probative value of

the evidence against its prejudicial effect to determine the reliability of the

testimony. Id. at 290. In addition, in the exercise of its discretion, the trial court

should carefully consider the necessity and relevance of the expert testimony in

light of the particular facts of the case before admitting that testimony for the jury’s

consideration. Id. This court has held that expert testimony is only necessary when

the subject is both particularly within the witness’s experience and qualifications

and beyond that of the average juror’s, and when it will aid the jury in reaching its

conclusion. People v. Cloutier, 156 Ill. 2d 483, 501 (1993). Expert testimony

addressing matters of common knowledge is not admissible “unless the subject is

difficult to understand and explain.” People v. Becker, 239 Ill. 2d 215, 235 (2010).

When determining the reliability of an expert witness, a trial court is given broad

discretion. Enis, 139 Ill. 2d at 290. Therefore, we review the trial court’s decision to

admit evidence, including expert witness testimony, for an abuse of that discretion.

Becker, 239 Ill. 2d at 234. An abuse of discretion occurs only where the trial court’s

decision is “arbitrary, fanciful, or unreasonable to the degree that no reasonable

person would agree with it.” People v. Rivera, 2013 IL 112467, ¶ 37.

¶ 24 The issue in this case is whether the trial court abused its discretion in denying

defendant’s request to allow Dr. Loftus’s expert testimony on the reliability of

eyewitness identifications. Before addressing that question directly, we would like

briefly to comment on the current state of jurisprudence concerning the admission

of eyewitness expert testimony, which contrary to the trial court’s belief, cannot

possibly be dismissed as a mere “issue du jour.” The last time this court addressed

the admission of such testimony was in Enis, which was decided more than 25

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years ago when the relevant research was in its relative infancy. Even then, this

court recognized that “in the past decade a number of courts have held that expert

testimony concerning eyewitness identification should be admissible in certain

circumstances.” Enis, 139 Ill. 2d at 286-87 (collecting cases). Nevertheless, this

court also expressed skepticism and caution against the overuse of such testimony

(id. at 289), such that the exclusion of such testimony remains the common practice

in Illinois to this day. See, e.g., People v. McGhee, 2012 IL App (1st) 093404, ¶ 55

(observing that “Illinois continues to reject, at least in practice, expert testimony on

the reliability of eyewitnesses”). The decades since Enis, however, have seen a

dramatic shift in the legal landscape, as expert testimony concerning the reliability

of eyewitness testimony has moved from novel and uncertain to settled and widely

accepted. Indeed, as the Supreme Court of Pennsylvania recently noted, there is

now “a clear trend among state and federal courts permitting the admission of

eyewitness expert testimony, at the discretion of the trial court, for the purpose of

aiding the trier of fact in understanding the characteristics of eyewitness

identification.” Commonwealth v. Walker, 92 A.3d 766, 782-83 (Pa. 2014)

(collecting demonstrative cases from 44 states, the District of Columbia, and 10

federal circuit courts). The reason for this trend is that, although findings of the sort

described in Dr. Fulero’s and Dr. Loftus’s reports are now “widely accepted by

scientists,” those same findings “are largely unfamiliar to the average person, and,

in fact, many of the findings are counterintuitive.” State v. Guilbert, 49 A.3d 705,

723-24 (Conn. 2012) (collecting cases and studies demonstrating this point). At the

same time, advances in DNA testing have confirmed that “eyewitness

misidentification is now the single greatest source of wrongful convictions in the

United States, and responsible for more wrongful convictions than all other causes

combined.” State v. Dubose, 699 N.W.2d 582, 591-92 (Wis. 2005) (collecting

relevant studies). In other words, in the 25 years since Enis, we not only have seen

that eyewitness identifications are not always as reliable as they appear, but we also

have learned, from a scientific standpoint, why this is often the case. Accordingly,

whereas Enis allowed for but expressed caution toward the developing research

concerning eyewitness identifications, today we are able to recognize that such

research is well settled, well supported, and in appropriate cases a perfectly proper

subject for expert testimony.

¶ 25 With that in mind, we now turn to the issue before us: whether, given the

specific facts presented, the trial court abused its discretion in denying defendant’s

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request to allow Dr. Loftus’s expert testimony in this case. For the following

reasons, we hold that it did.

¶ 26 To begin with, there is no question that this is the type of case for which expert

eyewitness testimony is both relevant and appropriate. The only evidence of

defendant’s guilt in this case is the eyewitness identifications made by Clark and

Gill. There is no physical evidence tying defendant to the crime, and defendant

neither confessed nor made any other type of incriminating statement. In other

words, the State’s case against defendant hangs 100% on the reliability of its

eyewitness identifications. In addition, of the several factors that both Dr. Fulero

and Dr. Loftus identified as potentially contributing to the unreliability of

eyewitness testimony, most are either present or possibly present in this case. These

include the stress of the event itself, the use and presence of a weapon, the wearing

of a partial disguise, exposure to postevent information, nighttime viewing, and

cross-racial identification. 4 Next, of the State’s two eyewitness identifications,

only one was subject to adversarial testing and cross-examination at trial, as Gill’s

identification was admitted through the testimony of other witnesses under the

excited utterance exception to the hearsay rule. And finally, while both the trial

court and the State insist that both Gill and Clark “knew” defendant prior to the

crime and that their identifications of defendant therefore are presumptively

reliable, the record is far from clear on this point as it relates to Clark. Indeed, while

Clark testified at trial that she had seen defendant from across the street

approximately ten times in the six months to a year prior to the shooting, she

testified before the grand jury that she had seen him only “[l]ike once or twice”

before the shooting. Either way, Clark had only ever seen him standing on a porch

from across the street. She expressly testified that she had never spoken with him

before, had never been in the same room with him, and had never even been in the

same house as him before. And when asked directly how long she had known

defendant prior to the shooting, Clark’s response was, “I did not know him.” Even

construed in the State’s favor, this degree of “knowledge” is limited at best and

nothing like the State’s representation to the trial court that Clark “knows the

defendant” and “always maintained she knew him.” Again, Clark expressly denied

knowing him. Taken together, these considerations convince us that this is exactly

the type of case in which expert eyewitness testimony would be both probative and

admissible.

4

The record shows that Clark is African-American, whereas defendant is Hispanic.

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¶ 27 The next question, therefore, is whether the trial court abused its discretion in

denying defendant’s request to admit Dr. Loftus’s expert testimony in this case. We

hold that it did. The trial court denied defendant’s request for reasons “consistent

with the reasons [it] set forth in detail when [it] made the ruling on [defendant’s]

similar motion with respect to Dr. Fulero.” As discussed above, those reasons

consisted primarily of the trial court’s personal conviction that “it is a fact that

persons *** are less likely to misidentify someone they have met or know or seen

before than a stranger,” as well as the trial court’s belief that expert testimony of

this sort would both “generate *** a referendum on the efficacy of identification

testimony generally” and “operat[e] as [an] opinion on the credibility” of the

eyewitnesses themselves. As to the first of those points, the trial court emphasized

at the hearing on defendant’s first motion to reconsider that its reasoning was

“supported by the defense’s own witness, Dr. Fulero,” who is reported to have

offered the same opinion in Nickleberry.

¶ 28 The problem with the trial court’s reasoning is that, even if it is defensible as to

Dr. Fulero’s expected testimony, it is not defensible as to Dr. Loftus’s expected

testimony. To be sure, Dr. Fulero’s report did not specifically address

identifications made by witnesses who were acquainted with the accused prior to

the crime. Neither did Dr. Fulero’s report specifically address the scope of his

testimony and whether he would comment or offer an opinion on the credibility of

Clark’s identification in this case. But Dr. Loftus’s report did address both of these

matters directly, and it contradicted both of the trial court’s previous assumptions

about what Dr. Fulero would say on these points. Again, after reading Dr. Fulero’s

report, the trial court concluded that expert eyewitness testimony was unnecessary

in this case both because “everyone knows” that acquaintance identifications are

reliable and because Dr. Fulero’s testimony would likely “operat[e] as [an] opinion

on the credibility” of the eyewitnesses themselves. Dr. Loftus’s report, however,

directly addressed both of these points and stated the very opposite of what the trial

court had previously assumed. According to Dr. Loftus’s report, the factors

impacting the reliability of eyewitness identifications can operate even when the

witness is previously acquainted with the accused, and Dr. Loftus’s testimony

would not include any opinion as to the credibility of any specific witness or any

specific identification. Nevertheless, in denying defendant’s request to allow Dr.

Loftus’s testimony, the trial court simply invoked the reasons it gave for denying

the admission of Dr. Fulero’s testimony, neither of which had any continued

relevance in light of Dr. Loftus’s report. Indeed, Dr. Loftus’s report flatly

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contradicted the trial court’s understanding. At this point, it is important to reiterate

that, even in Enis, this court recognized that eyewitness identification is an

appropriate subject for expert testimony. As importantly, both the State and the trial

court in this case concede that Dr. Loftus is a qualified and highly respected expert

in this field. Thus, in relying on its own personal beliefs about how eyewitness

identifications function as the primary basis for denying the admission of Dr.

Loftus’s testimony, the trial court in this case not only ignored the explicit contents

of Dr. Loftus’s report but also effectively substituted its own opinion on a matter of

uncommon knowledge for that of a respected and qualified expert.

¶ 29 At the same time, the trial court’s repeated insistence that the eyewitnesses in

this case both “knew” defendant prior to the shooting is not nearly as certain and

settled a fact as the trial court suggests. To be sure, there is no question that Gill

knew defendant well and for several years prior to the shooting. As to Clark,

however, the evidence is much less clear. Again, although Clark testified at trial

that she had seen defendant from across the street approximately ten times in the six

months to a year prior to the shooting, she testified before the grand jury that she

had seen him only “[l]ike once or twice” before the shooting. Either way, Clark had

only ever seen him standing on a porch from across the street. She expressly

testified that she had never spoken with him before, had never been in the same

room with him before, and had never even been in the same house as him before.

And when asked directly how long she had known defendant prior to the shooting,

Clark’s response was, “I did not know him.” Depending, then, upon which version

of Clark’s testimony the jury chose to believe, the State’s only testifying

eyewitness in this case is someone who had seen defendant from across the street

possibly once but no more than ten times in the year before the shooting, had never

spoken to defendant, had never been in the same room or in the same house as

defendant, and expressly denied knowing defendant. Nevertheless, the trial court’s

primary basis for denying defendant’s request to present expert eyewitness

testimony in this case is the “glaring” fact that “the persons who identify Mr. Lerma

*** all claim to have known him.” This is overstating the State’s evidence at best.

¶ 30 Finally, we note that, in denying defendant’s motion, the trial court expressly

invoked the Ohio Court of Appeals’ decision in Nickleberry, claiming that the

summary of Dr. Fulero’s testimony in that decision demonstrates that the trial

court’s ruling was “supported by the defense’s own witness.” There are at least two

problems with this. The first problem is that defense counsel informed the trial

court on multiple occasions that the one-sentence summary contained in

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Nickleberry does not accurately reflect Dr. Fulero’s full testimony in that case and

that Dr. Fulero was fully prepared to clarify that if allowed to testify. In addition,

defense counsel informed the trial court that Dr. Fulero was prepared to testify

specifically in defendant’s case that “misidentifications have occurred with people

who the witness knew beforehand.” Rather than hear from Dr. Fulero himself,

however, the trial court chose to treat Nickleberry’s one-sentence summary of Dr.

Fulero’s 1999 testimony not only as indisputably accurate but also as a binding and

authoritative representation of Dr. Fulero’s opinion in 2012, such that the trial court

cited Nickleberry as a valid basis for denying defendant’s motion. Needless to say,

we find this troubling, as it is not difficult to imagine either that a one-sentence

summary fails to capture the full complexity of an expert witness’s entire trial

testimony, or that an expert opinion might have evolved over the course of 13

years. Unfortunately, the trial court’s approach foreclosed the discovery of either

possibility.

¶ 31 The second problem with the trial court’s invocation of Nickleberry is that,

even assuming that the one-sentence summary of Dr. Fulero’s testimony in that

case is accurate, that summary in no way supports the trial court’s decision to

exclude expert testimony in this case. According to the trial court, Dr Fulero’s

testimony, as summarized in Nickleberry, supports the trial court’s belief that the

factors impacting the reliability of eyewitness identifications are not present in a

case such as this, where “the persons who identify [the defendant] *** all claim to

have known him.” (Emphasis added.) Likewise, in defending the trial court’s

decision before this court, the State points out that when the trial court denied

defendant’s request to present Dr. Loftus’s expert testimony, it was aware that Dr.

Loftus’s claim that “misidentification can occur when a witness knows the subject”

was “directly contradicted by” Dr. Fulero’s testimony, as summarized in

Nickleberry. (Emphasis added.) The problem with both the trial court’s and the

State’s positions (aside from the fact that Clark expressly disavowed knowing

defendant), is that Nickleberry’s summary of Dr. Fulero’s testimony says

absolutely nothing about when a witness “knows” the person he or she is

identifying. On the contrary, according to that summary, Dr. Fulero testified in

Nickleberry that the factors impacting the reliability of eyewitness identifications

are not present when the witness is identifying “someone he or she has met before.”

(Emphasis added.) Nickleberry, 2000 WL 1738356, at *3. This distinction is very

important because, in this case, Clark’s testimony was unequivocal that she had

never met defendant prior to the shooting. Again, Clark denied ever having spoken

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to defendant, ever having been in same room or house as defendant, and for that

matter even “knowing” defendant. Given Clark’s testimony on this point, Dr.

Fulero’s prior opinion that identifications are more reliable when the witness has

“met” the accused is not only irrelevant to the actual facts of this case, it cannot

possibly support the trial court’s decision denying defendant’s request to present

expert testimony on the reliability of eyewitness identifications. Nevertheless,

according to both the trial court and the State, Dr. Fulero’s prior opinion did exactly

that, serving as one of the primary justifications for the exclusion of both Dr.

Fulero’s and Dr. Loftus’s testimony in this case.

¶ 32 Abuse of discretion is a highly deferential standard of review, and we reiterate

that we will find such abuse only when the trial court’s decision is “arbitrary,

fanciful, or unreasonable to the degree that no reasonable person would agree with

it.” Rivera, 2013 IL 112467, ¶ 37. We find that to be the case here. As discussed

above, what we have in this case is the trial court denying defendant’s request to

present relevant and probative testimony from a qualified expert that speaks

directly to the State’s only evidence against him, and doing so for reasons that are

both expressly contradicted by the expert’s report and inconsistent with the actual

facts of the case. A decision of that nature rises to the level of both arbitrary and

unreasonable to an unacceptable degree, and we therefore find that the trial court’s

decision denying defendant’s request to admit Dr. Loftus’s expert testimony was an

abuse of discretion.

¶ 33 The only remaining question is whether the trial court’s error was harmless. We

hold that it was not. This court has recognized three approaches to determine

whether an error such as this is harmless beyond a reasonable doubt: (1) whether

the error contributed to the defendant’s conviction; (2) whether the other evidence

in the case overwhelmingly supported the defendant’s conviction; and (3) whether

the excluded evidence would have been duplicative or cumulative. People v. Blue,

205 Ill. 2d 1, 26 (2001). In this case, each of these approaches establishes that the

trial court’s decision excluding Dr. Loftus’s testimony was not harmless beyond a

reasonable doubt. First, there is no question that the error contributed to the

defendant’s conviction, as the exclusion of Dr. Loftus’s testimony prevented the

jury from hearing relevant and probative expert testimony relating to the State’s

sole testifying eyewitness, in a case lacking any physical evidence linking

defendant to the crime. Second, it cannot be said that the other evidence in the case

overwhelmingly supported the defendant’s conviction, as other than Clark’s

testimony, the only evidence of defendant’s guilt is a hearsay excited utterance

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from a nontestifying witness. And while such evidence is certainly sufficient to

support defendant’s conviction, we cannot say that it does so “overwhelmingly.”

Third, the excluded testimony from Dr. Loftus was neither duplicative nor

cumulative of other evidence, as the jury in this case heard precisely nothing in the

nature of expert eyewitness testimony.

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, we affirm the judgment of the appellate court, which

reversed the judgment of the trial court and remanded the cause for a new trial with

directions to allow expert testimony on eyewitness identification subject to the

provisions of Rule 702 of the Illinois Rules of Evidence (eff. Jan. 1, 2011). In doing

so, we reiterate that the totality of the evidence presented at defendant’s trial was

sufficient to prove defendant’s guilt beyond a reasonable doubt, such that no double

jeopardy violation will occur on retrial. People v. Ward, 2011 IL 108690, ¶ 50.

¶ 36 Appellate court judgment affirmed.

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