The opinion
JUSTICE DiVITO, dissenting:
Because I believe that confidence in the reliability of the result of this trial has been tarnished by ineffective lawyering, I respectfully dissent.
First, I agree with the majority that ineffectiveness was not shown by counsel’s tactical decision to forgo calling an expert and, instead, to challenge the eyewitness testimony through traditional cross-examination. Because the difficulty of making observations under unexpected and fast-moving conditions is commonly known, the "helpfulness” of the expert testimony at issue here would have been of questionable value. See, e.g., Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 365 (1992) (expert testimony admissible when it assists in understanding evidence or in determining a fact in issue; "expert opinions on matters of common knowledge are not admissible unless the subject is difficult of comprehension or explanation”).
On the other hand, with due regard for the majority’s observation that Jiminez was vigorously cross-examined about many things and that his testimony was impeached in other areas, the fact remains that he was never confronted with questions most directly related to the credibility of his testimony. The unused impeachment was significant because the witness was Jiminez’s friend, had no motive to lie, and would have provided persuasive evidence that Jiminez’s testimony was an invention. This failure to impeach, moreover, was not a tactical decision. Defense counsel demonstrated his intention to introduce the impeaching evidence by his unsuccessful efforts to do so through Chavez, without first having laid a proper foundation by confronting Jiminez with his prior inconsistent statements. By so doing, counsel displayed his ignorance of a basic rule of evidence and thereby revealed his ineffectiveness.
The evidence here was by no means overwhelming. The weight of Officer Trojner’s testimony was diminished by the fact that she never reported her observation, orally or in writing, until shortly before the trial, and only after she was told of an identification problem. The obvious difficulty of making an identification, even a partial one, under the circumstances present here further diminishes the weight of her testimony. If Jiminez’s testimony had been successfully impeached and its weight thereby rendered questionable, one must wonder — notwithstanding the post-trial comments of the trial court that ineffective assistance of counsel as set forth in Strickland had not been satisfied — whether Officer Trojner’s testimony would have been sufficient to convict.
Although I believe that the trial court’s statement at the post-trial hearing can be read, as the majority states, as an implicit statement that a successful impeachment of Jiminez would not have affected the outcome, I have a lingering doubt as to whether effective lawyering would have made a difference here. Because I believe that there is a reasonable probability that the result of defendant’s trial would have been different had Jiminez been impeached with his prior inconsistent statements, this conviction should be reversed and the case should be remanded for a new trial.