Petition for Writ of Certiorari — Tony Spencer, Petitioner v. Illinois
Supreme Court briefFeb 16, 2020
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SUPREME COURT OF ILLINOIS
SUPREME COURT BUILDING
200 East Capitol Avenue
SPRINGFIELD, ILLINOIS 62701-1721
(217) 782-2035
Tony Spencer
Reg. No. N-71789
Western Illinois Correctional Center
2500 Rt. 99 South
Mt. Sterling IL 62353
FIRST DISTRICT OFFICE
160 North LaSalle Street, 20th Floor
Chicago, IL 60601-3103
(312) 793-1332
TDD: (312) 793-6185
November 26, 2019
in re:
People State of iiiinois, respondent, v. lony Spencer, petitioner.
Leave to appeal, Appellate Court, First District.
125294
The Supreme Court today DENIED the Petition for Leave to Appeal in the above
entitled cause.
The mandate of this Court will issue to the Appellate Court on 12/31/2019.
Very truly yours,
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Clerk of the 'Supre'me Court
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OFFICE OF THE STATE APPELLATE DEFENDER
FIRST JUDICIAL DISTRICT
203 North LaSalle Street • 24th Floor
Chicago, Illinois 60601
Telephone: 312/814-5472 • Fax: 312/814-1447
www.state.il.us/defender • E-mail: lstDistrict@osad.state.il.us
JAMES E. CHADD
August 29, 2018
STATE APPELLATE DEFENDER
PATRICIA MYSZA
DEPUTY DEFENDER
DOUGLAS R. HOFF
ASSISTANT DEPUTY DEFENDER
KARL H. MUNDT
ASSISTANT APPELLATE DEFENDER
Mr. Tony Spencer
Register No. N71789
Menard Correctional Center
P.O. Box 1000
Menard, IL 62259
RE:
People v. Tony Spencer
Appellate Court No. 1-16-0102
Dear Mr. Spencer:
I am sorry to inform you that your conviction and sentence have been affirmed by
the Appellate Court. A copy of the court’s decision is enclosed.
After reviewing the decision in your case, I have determined that there are no
issues with sufficient legal merit to justify the continued representation of you by
this Office. Thus, your file will now be closed. However, in the event you wish to
appeal your case further, you can do so on your own or with other counsel retained
by you. The following pages describe the procedures necessary to urge higher
courts to look at your case.
There are several ways to proceed. You can ask the Appellate Court to look at
your case again (petition for rehearing) or you can appeal directly to the Illinois
Supreme Court (petition for leave to appeal) in Springfield. If the Illinois Supreme
Court does not give you relief, depending on what arguments you are making, you
might also be able to file a petition for certiorari with the United States Supreme
Court, and/or pursue relief through a post-conviction petition and federal habeas
corpus. Please note particularly that the filing of a successive post-conviction
petition that is deemed frivolous may result in the loss of up to six months of good
time, as well as additional monetary penalties. Good luck to you.
Sincerely, KARL H. MUNDT
Assistant Appellate Defender
ends: AC Dedsion, Packet A.
CL1 Client No. 116285
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NOTICE
The text of this order may
be changed dr corrected
prior to the time.for filing of
a Petition for Rehearing of
the disposition of the same.
2018 ILApp( 1st) 160102-U
No. 1-16-0102
Order filed August 24, 2018
Fifth Division
NOTICth This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS,
Respondent-Appellee,
i.
)
)
)
Appeal from the
Circuit Court of
Cook County.
)
v.
)
No. 03 CR 26651
)
TONY SPENCER,
)
)
)
Petitioner-Appellant.
Honorable
Joseph M. Claps,
Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court.
Presiding Justice Reyes and Justice Rochford concurred in the judgment.
ORDER
11
Held:
The circuit court properly dismissed petitioner’s postconviction petition at
the second stage of postconviction proceedings because petitioner failed to
make a substantial showing of ineffective assistance of appellate counsel
based on counsel’s failure to challenge on direct appeal the trial court’s
failure to properly admonish potential jurors about fundamental principles
concerning the presumption of innocence and the defendant’s decision not
to offer evidence or testify. Despite the trial court’s erroneous
admonishment, petitioner failed to make a substantial showing that
appellate counsel’s forfeiture of this issue prejudiced the defense because
the evidence of defendant’s guilt was not closely balanced.
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No. 1-16-0102
If 2
*
In this proceeding under the Post-Conviction Hearing Act (Act) (720 ILCS 5/122-1 et
seq. (West 2012)), defendant Tony Spencer appeals the .circuit court’s order that granted the
State’s motion to dismiss his petition. Defendant argues that he made a,substantial showing of
ineffective assistance of appellate counsel based on counsel’s failure to challenge on direct
appeal the trial court’s failure to properly question potential jurors about their understanding and
acceptance of fundamental principle? regarding the ,presumption of innocence and defendant’s
decision not to offer evidence or testify. Defendant argues that he is entitled to an evidentiary
hearing on this claim because he made a substantial showing that counsel’s forfeiture of this
erroneous admonishment issue prejudiced defendant because the evidence identifying him as the
offender was closely balanced. ;
.13
For the reasons that follow,, we affirm the circuit court’s second stage dismissal of
defendant’s postconviction petition.1
14
15,.
.
,
I., BACKGROUND
Defendant yvas. arrested for and convicted of the robbery of Chicago police sergeant
Ralph Craig, at gunpoint, at an automated teller! machine(ATM) located near - Washington
Boulevard and Loomis Street at about 3 a.m..on November 22,-2003.
1? .
At the jury trial in 2008, the State presented evidence showing that at the time of the
offense Sergeant Craig was not in uniform and drove an unmarked squad car from his office1 to
the ATM. The ATM was outdoors and in an illuminated alcove just outside a building’s
revolving door. As Craig withdrew $10 from the ATM, defendant approached Craig from
behind. Defendant told Craig to give him the money or he would kill Craig. Craig turned and
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),
this appeal has been resolved without oral argument upon the entry of a separate written order.
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No. 1-16-0102
faced defendant, who was approaching quickly and pointing a gun directly at Craig. Defendant
wore a black jacket and a gray hooded sweatshirt. Defendant took Craig’s $10 and ordered him
to empty his pockets and turn over all his money. Craig emptied his pockets and his police
badge, police identification, wallet, and $7 fell to the ground. Defendant picked up Craig’s
money. When defendant realized that Craig was a police officer, defendant threatened to kill
Craig, demanded his gun, and patted hifn down searching for his gun. When defendant’s gun
“dipped down a little bit,” Craig pushed defendant to the side and moved away from the alcove.
Craig fell and. injured his leg as he pulled out'his gun. Defendant came out of the alcove, facing
Craig. Craig tried to regain his balance and fired two gunshots at defendant, missing him both
times. Then defendant fled and Craig called for assistance from his squad car.
If 7
The ATM’s surveillance video camera recorded the crime, and the State introduced into
evidence several still photographs taken from the camera and the video recording! Craig
identified defendant in the camera stills and described what occurred in each photo. Craig
testified that during the offense defendant faced him and came as close as one foot away from
Craig’s .face. The area was lit from a nearby Streetlamp, and Craig could see defendant’s face
despite the hood of defendant’s sweatshirt. Although Craig could not describe defendant’s
hairstyle due to the hood defendant-wore, Craig said that defendant had a “slight, thin mustache”
and “some facial hair.”
P-
.
.
-
. •
According to the record, the first radio report described the offender as a black male
between six feet one inch and six feet two inches tall, weighing about 200 pounds, and wearing
“blue gray sweats” and a black jacket. A second radio report described the offender as a black
male, 30 years old, weighing 200 pounds, having a short Afro haircut, and wearing a black jacket
and gray sweatpants. Detective Patrick Deenihan interviewed Craig at the scene and testified that
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No. 1-16-0102
»
Craig had described the offender as a black male, about 25 to 30 years old, clean shaven, wearing
a gray hooded sweatshirt under a dark overcoat, and armed with a blue steel semiautomatic
handgun.
19
On the date of the offense, Officer Adrienne Seiber and her partner were in a marked
squad car, heard the description of the offender, and began touring the, area near Washington
Boulevard and Loomis, Street at about 3:15 a.m,. They .saw defendant, who was walking and
wearing a puffy black coat over a gray hooded sweatshirt. The ■ officers drove alongside
defendant and followed him for about 30 seconds. Officer Seiber rolled down her window and
said, “Hey, come here.” Defendant turned, looked at her, and then fled down the street and into a
gangway. Seiber pursued defendant on foot while .her partner. followed in the squad car.
Defendant fled into an unlit construction site, and Seiber lost sight of him due to the darkness.
Seiber and her partner continued touring the area in their squad car, looking for defendant,
f 10
At ;about 4 a.rp.^ Officer Anthpny, Gibbons and his partner were driving their marked
squad car and saw defendant walking , and carrying a ,puffy black jacket and wearing a gray
hooded sweatshirt. Because defendant fit the description of the offender, the officers turned their
car around and approached defendant from behind. Defendant turned, looked in the officers’
direction, and immediately began to run. The officers followed him in their squad car. Defendant
fled into a parking lot and then jumped over the wrought-iron fence surrounding the parking lot.
Officer Gibbons pursued defendant on foot and noticed another marked squad car, which was
occupied by Officer Timothy Parker and his partner, also approach defendant.
1.11
.
Officer Parker stopped , and exited his squad car and assisted Gibbons. They saw
defendant drop the jacket he was carrying and run into a backyard-. Gibbons saw what looked
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No. 1-16-0102
like the handle of a gun protruding from a pocket of the jacket. Gibbons remained with the jacket
while Parker followed defendant into the backyard and took him into custody. Parker described
defendant as having a mustache and a “scruffy” beard. Officer Seiber arrived at'the scene and
identified defendant as the man who fled when she asked him to “come here.”
12'
The police recovered the black jacket and the gun,1 which was not loaded and did not
contain a magazine for bullets. The gun lacked a magazine safety feature and thus could be fired
: without a magazine. The police also recovered from the ground at the scene of the ATM
Sergeant Craig’s $10 ATM'receipt.
f 13
;
:
. .
At about 6:30 a.rii., a lineup was held at the police station. Defendant chose the third
position in the lineup. He Wore the same blue sweatpants and gray hooded sweatshirt he was
wearing at the time of his arrest. The four other participants in the lineup wore dark-colored
jackets or sweatshirts, which were the clothes they were wearing when they were arrested Craig
identified defendant as the offender and recognized his face and’the gray hooded sweatshirt.
Craig also identified the gun used in the robbery. A photograph of the lineup Was introduced into
evidence.
Tf 14
'The gun was tested for DNA evidence. The results revealed that a mixture of two
incomplete human DNA profiles was present on the gun. The major and minor profiles were
incomplete because not enough DNA was present at 13 locations on the DNA strands to obtain
the full information necessary to constitute a complete profile. Defendant was excluded as a
contributor to the minor profile but could not be excluded from having contributed to the major
profile. The calculation of the expected occurrence of the major profile in the general population
• 'I
No. 1-16-0102
%
was 1 in 330,000 black people, 1 in 4.2 million white people, and l in 1.1 million Hispanic
people.
If 15
The jury convicted defendant of armed robbery, and the trial court sentenced him to
natural life in prison as a habitual criminal based on his two prior convictions for armed robbery.
-If 16
On direct appeal, defendant argued that the State failed to prove his' guilt because (1) he
did not resemble Craig’s description of the offender or.,the person shown on the 'surveillance
video, (2) Sergeant Craig’s limited view of the offender rendered his identification testimony
unreliable, (3) Officer Seiber’s identification of defendant was an1 unreliable showup
identification, and (4) the lineup was impermissibly suggestive. This court affirmed defendant’s
conviction. People v. Spencer, 2011 IL App (1 st) 091813 -U.
1f 1?
' :
'
In July 2Q12, defendant filed the!pro se postconviction petition in the instant case, and
appointed counsel amended the petition to allege ineffective assistance of appellate counsel for
failing .to challenge the Trial, court’s improper admonitions to the venire members. Specifically,
the amended, petition alleged that appellate counsel failed to raise this issue under the plain error
doctrine and the evidence identifying defendant, as the offender was closely balanced.'
If 18
The State moved to dismiss the petition, and the circuit court granted the State’s motion.
Defendant timely appealed.
If 19
120
II. ANALYSIS
On appeal; defendant argues that he is entitled to an evidentiary hearing on his claim that
he suffered prejudice when appellate counsel rendered ineffective assistance by forfeiting review
of the trial court’s failure to properly admonish the potential jurors about fundamental principles
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No. 1-16-0102
concerning the presumption of innocence and defendant’s decision not to offer evidence or
testify because the evidence identifying defendant as the offender was closely balanced.
^ 21
A proceeding under the Act is a collateral attack on the defendant’s prior conviction and
allows only constitutional claims to be heard that were not presented during trial and could not
have been raised in the appeal from the conviction. People v. Harris, 224 Ill.- 2d 115, 124-25
(2007). Therefore, res judicata bars any issues previously decided at trial or on direct appeal and
issues that could have been presented in the appeal from the conviction but were not. People v.
Blear, 215 ;I11. 2d 427, 443-47 (2005). However, 'the doctrines of res judicata and forfeiture are
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
ofthe original appellate record. Peoplev. Williams, 209 Ill. 2d 227, 233 (2004).
If 22
The Act provides a three-stage process for hearinga petitioner’s'constitutional claims.
Harris, 224 Ill. 2d at 125. A petition that states the gist of a constitutional claim advances from
the first stage to the second stage if the trial court examines it independently and determines it is
not frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2012): A petition is frivolous
and patently without merit when it has no arguable basis in either fact or law.- People v. Hodges,
234 Ill. 2d 1, 13 (2009). At the second stage of the process, the trial court may appoint counsel
for the defendant, the petition may be amended, and the State may either answer the petition or
move to dismiss it. 725 ILCS 5/122-4, 122-5 (West 2012); Harris, 224 Ill 2d at 126.
f 23
•
The petition may be dismissed, at the second stage “when the allegations in the petition,
liberally construed in light of the trial record, fail to make a substantial showing of a
constitutional violation.” People v. Hall, 217 Ill. 2d 324, 334 (2005). At this stage, the court shall
focus only on the legal sufficiency of the claims, and all well-pleaded facts in the petition and
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No. 1-16-0102
' N
any accompanying affidavits, which are not. positively rebutted by the record, are taken as true.
People v. Domagala, 2013 IL 113688, f 35, Any fact-finding or witness credibility
determinations must await an evidentiary hearing at the third stage of the postconviction
proceedings. Id. The defendant, however, N not entitled to an evidentiary hearing as a matter of
right; the allegations of the petition must, be supported by the record or by accompanying
affidavits, and nonspecific and nonfactual assertions that merely amount to conclusions are not
sufficient to warrant a hearing under the Act .‘People v. Coleman, 183 Ill. 2d 366, 381 (1998).
When, as here, a petition is dismissed at the second stage of the postconviction process, we
review the matter de novo. People v. Whitfield, 217 Ill. 2d 177,182 (2005).
124
A defendant alleging a claim of ineffective assistance of counsel, must satisfy both prongs
of the test discussed in Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a
showing that “counsel’s.performance was deficient” and the deficient performance “prejudiced
the defense.” To satisfy the test’s performance prong, the defendant must show “that counsel’s
representation fell below an objective standard of reasonableness.” Id at 688. To satisfy the
prejudice prong, the 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. If an ineffectiveness claim can be disposed of on the ground of insufficient prejudice, then
that course should be taken and the court does not need to consider the quality of the attorney’s
performance. Id. at 697.
1.25
Appellate counsel is not obligated to raise “every conceivable issue on appeal,” but,
rather, is expected to “exercise professional judgment to select from the many potential claims of
error that might be asserted on appeal.” Williams, 209,111. 2d at 243. Appellate counsel’s
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No. 1-16-0102
assessment of the merits of an issue, .furthermore, depends on the state of the law at the time of
the direct appeal. See People v. Weninger, 292 Ill. App. 3d 340, 345 (1997). Appellate counsel is
not required , to raise issues that counsel reasonably determines are not meritorious. People v.
Collins, 153 Ill. 2d 130 (1992); see also Stridklahd, 466 U.S. at 689 (“A fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s'challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.’’).
If 26
Defendant contends that he should receive a third-stage evidentiary hearing under the Act
because the trial court failed to comply with Illinois’Supreme Court Rule 431(b) (eff. July 1,
2012), which requires the Court to ask the venire members if they understand and accept four
'.principles about the presumption of innocence, the burden of proof, and the defendant’s decision
not to offer evidence or testify. Defendant argues that he was prejudiced by appellate counsel’s
unreasonable forfeiture of this issue because the evidence identifying defendant as the offender
.was so closely balanced that the trial court’s error threatened to tip the stales of justice against
him.
■ 1T 27
Forfeited claims of error are reviewable under the plain error rule, which is a narrow and
limited exception to forfeiture. People v. Hiller, 231 Ill. 2d 539, 545 (2010). To obtain relief
under this rule, a defendant must show that a clear or bbvious error occurred. Id. The defendant
bears the burden of persuading the court that either (1) the evidence at the hearing was So closely
balanced (regardless of the seriousness of the error) as to severely threaten to tip the scales of
justice against the defendant, or (2) the error was so serious (regardless of the closeness of the
evidence) as to deny the defendant a fair trial and challenge the integrity of the judicial process.
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No. 1-16-0102
People v. Herron, 215 Ill. 2d 167, 187 (2005). If the defendant cannot meet this burden of
persuasion, the “procedural default must he honored,” People v. Walker, 232 111. 2d 113, 124
(2009). In order to determine whether the plain error doctrine should be applied, the reviewing
court must first determine whether any error,occurred. Herron, 215 Ill. 2d at 187.
1f 28
Rule 431(b) requires the trial court to ask prospective jurors if they understand arid accept '
that (1) a defendant is presumed innocent of the charges against him; (2) the State must prove the
defendant guilty beyond a reasonable doubt before he can be convicted; (3) the defendant is hot
required to offer any evidence on his own behalf; and ;(4) if a defendant does not testify, it cannot
be held against him.., The .couif’s method of inquiry shall provide each juror an opportunity to
respond to specific questions concerning the principles set out in [Rule .431 (b)]*” Id: The trial
court’s questioning of the venire concerning these four principles, which are commonly referred
to as the Zehr principles, is-intended to ensure compliance with People v. Zehr, 103 Ill. 2d 472,
477 (1984), ,whiQh. so)ight.to end the practice where the judge made a broad statement of the
applicable law followed, by a general, question, concerning the juror’s willingness to follow the
law. Ill. S. Ct. R. 431, Committee Comments.
\29
According to. the record, the trial court told the venire members that it was “absolutely
essential as we sele.cj: this jury that each of you understand and embrace these fundamental
principles” that all persons charged with a crime were presumed innocent, that the State had the
burden of proving the defendant guilty beyond a reasonable doubt, and that the defendant had no
obligation to testify on his own behalf or call any witnesses in his defense. The court explained
that the defendant “may simply sit here and rely upon what he and his attorneys perceive to be
the inability of the State to present such evidence to meet their burden. Should that happen, you
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No. 1-16-0102
will have to decide the case on the basis of the evidence presented by the prosecution. The fact
that the defendant does not testify must not be considered by you in any way in arriving at your
verdict.
The court explained that if defendant elected to testify or his attorneys presented
witnesses on his behalf, then the jurors should consider that evidence in the same manner and by
the, same standard as the evidence presented , by the State. The court repeated that there was no
burden on defendant to prove his innocence. .Rather, it was the State’s burden to prove him guilty
beyond a reasonable doubt.
Tf 30
Later, the court again fully explained :the first and third Zehr principles regarding the
presumption of defendant’s innocence and no requirement that he offer any evidence on his own
behalf. Concerning the fourth Zehr principle, the court explained that the defendant “need not
' testify, and if he chooses not to testify,' you must not consider that in any way in arriving at your
verdicts. However, if defendant “does testify,-then you shouldjudgefiis testimony in the same
manner and by the same standards that you use in judging the testimony ;6f ahy other witness.”
Then the court asked; “Does anybody here not accept those principles of law and are unwilling to
follow them? Anybody? No response.”
r1f 31'- Finally, the court asked, “Dev each of you also understand and accept the provision that
the State has .the burden of proving the defendant’s guilt beyond a reasonable doubt? This'is their
burden.. Anybody not accept that? No response,”
f 32
.
; i
'
The record establishes that the trial court properly admonished the venire regarding the
second Ze/zr principle concerning the State’s burden of proof. However, the trial court failed to
ask the venire members whether they understood the first, third, and fourth Zehr principles.
Furthermore, the trial court did not completely and accurately state the fourth Zehr principle;
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No. 1-16-0102
when the trial court admonished the venire against considering “in any way” defendant’s choice
not to testify, the trial court omitted the admonishment that a defendant’s decision not to testify
cannot be held against him.
133
A trial court’s questions about the Zehr principles “constitute preliminary instructions to
potential jurors on how they must evaluate the evidence” (People v. Sebby, 2017 IL 119445,
11 67), and “an instruction given at the end ofthe .trial will have little curative effect” {Zehr, 103
Ill. 2d at 477). The Zehr principles were directly implicated in this case where defendant did not
testify or present evidence. The trial court’s failure to properly admonish the venire regarding '
these principles, was clear error. Sebby, 2017 IL 119445, f 49.
If 34
Once clear error has been established, the relevant question in a first-prong plain error
case is whether the evidence ,was closely balanced. Id.
69. Defendant must show that the
quantum of evidence presented by the State against him rendered the evidence closely balanced.
Id. f 51. “Whether .jthq evidence is closely balanced is, of course, a separate question from
whether the evidence is sufficient to sustain a conviction on review against a reasonable doubt
challenge.” People v, Piatkowski, 225 Ill. 2d 551,, 5,66 (2007). In order to determine whether the
evidence was closely balanced, “a reviewing court must evaluate the totality of the evidence and
conduct a qualitative, commonsense assessment within the context of the case;”- Sebby, -2017 IL
119445, f 53, This “inquiry involves an assessment of the evidence on the elements of the
charged offense or offenses, along with any evidence regarding the witnesses’ credibility;’’ Ids
1f 35
Defendant argues that the evidence identifying him as the offender was closely balanced
because (1) he did not resemble either Craig’s description of the offender or the surveillance
camera stills of the offender, (2) Craig did not have a good opportunity to see the offender’s face
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No. 1-16-0102
during the crime, (3) the lineup at the police station was impermissibly suggestive, and (4) the
robbery proceeds were not found on defendant, who never gave an inculpatory statement.
H 36
First, defendant argues that Craig described the offender as clean shaven and about 25 to
30 years old whereas defendant was 42 years old and had a “graying beard (a mustache and
connected goatee) when he was arrested one hour after the offense. Defendant also contends that
the offender in the camera stills was a distinctly clean shaven young man with thin lips and a
small angular nose whereas defendant has pronounced lips and a wide nose and had
unmistakable facial hair.
137
Second, defendant argues that Craig had a limited opportunity to see the offender’s face
because Craig s attention was drawn to the offender’s gun and the robbery occurred in less than
30 seconds. During that time, according to defendant, Craig and the offender faced away from
each other- for about 22 seconds. Moreover, defendant claims that during the approximately
8 seconds when they faced each other, Craig’ s View of the offender Was obscured by the hood of
his sweatshirt and the lack of light outside the alcoVe of the ATM. Third, defendant contends that
the suggestive nature of the linieup would have completely overwhelmed Craig’s memory of the
offender because defendant’s light gray sweatshirt'caused him to stand out drastically from the
four other lineup participants, who wore dark coats.1:
11- 38
Fourth, defendant argues that he did not have any proceeds of the robbery on his person
when he was arrested about three blocks from the scene of the robbery. He asserts that it would
have been illogical for the offender to have stayed near the scene of the robbery and maintained
possession of the jacket, sweatshirt, and gun used during the robbery because those items would
have been readily identifiable by the police officer robbery victim, who could quickly obtain
assistance from other police officers in the search for the offender.
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No. 1-16-0102
f 39
In determining whether a witness’s identification is reliable, courts have considered the
witness’s opportunity to view the criminal at the time of the crime, the wijtness’s degree of
attention, the accuracy of the witness’s prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation,,and the length of time between the crime and
the confrontation. Neil v. Biggers, 4P9 U.S. 188, ,199-200 (1972). Courts also consider whether
the witness was acquainted with , the suspect before the crime, and-whether there was any
pressure on the witness to,make a certain identification..People v. Brooks, 187 Ill. 2d 91, 130
(1999).
H 40
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■
After reviewing the record in this case, we do not find the evidence to be closely
balanced. Craig did not know defendant prior to the offense, a gun was displayed and pointed at
Craig during the robbery, the robbery occurred quickly, and there was some variation in the
descriptions of the offender’s facial hair. Nevertheless, identifications based on a view of an
offender for only a fe^.seconds have been found reliable,, and a witness’s failure to mention a
physical characteristic .such as; a mustache or facial hair does not-render an otherwise positive
identification unreliable. Williams', 118 Ill. 2d. 407, 413-14 (1987).
If 41
.....
Craig positively , and credibly identified defendant as the . offender shortly after the
offense. The testimony and pictorial evidence established that the ATM alcove-had lighting and
the area was illuminated by a nearby streetlamp. Moreover, Craig explained that the offender
came as close as one foot to Craig’s face while they faced each other, and the sweatshirt hood
did not conceal the offender’s face. Craig also testified that he described the offender to
Detective Deenihan as having a “slight, thin mustache” and “some facial hair.” Even if Deenihan
accurately recorded Craig’s description at the scene as including the term “clean shaven,” this
detail does not raise a significant discrepancy. Defendant did not have a heavy or full beard but
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No. 1-16-0102
rather had groomed his facial hair to sport a goatee with a connected mustache while the sides of
his face had been shaved.
If 42
Contrary to' defendant’s argument on appeal, the offender shown in the surveillance
camera stills resembles defendant’s appearance at the time of his arrest, and this pictorial
evidence .is not at odds with either’Craig’s description of the offender’s facial hair or Officer
Parker’s description that defendant had a mustache and a “scruffy” beard. In addition, this court
rejected on direct appeal defendant’s assertion1-that the lineup was impermissibly suggestive
because he was the only person wearing a gray hooded sweatshirt. Defendant was not required to
wear distinctive clothing worn by the suspect in the crime (see People v. Gabriel, 398 Ill. App.
3d 332, 349 (2010)), and the four Other lineup participants also wore clothing similar to that
worn by the offender—i.e., dark coats. Finally, although the police did not recover the $17
robbery proceeds on defendant When he was arrested, he Was found hem the scene of the robbery
shortly after the offense, he fled police officers who approached‘ hiitii1 and1 he was still in
possession of the gun, sweatshirt, and black jacket at the time of his arrest?’"
143
'■ '
The Present case is distinguishable from Sebby, 2017 IL 119445 at’ if 63, where the court
concluded that the evidence was-closely balanced because the State and defense eyewitnesses
presented two- conflicting yet credible Versions of-the events without extrinsic evidence to
corroborate or contradict either Version. Specifically, the defendant was convicted of. resisting a
peace officer after three deputies went to a residence to serve a court order regarding the custody
of a minor. Jd. || 3, 5. The three deputies testified that the defendant became agitated, yelled,
poked one of the deputies and then stmggled and fell when the deputies attempted to handcuff
him. Id.
10-21. The defendant and two other occupants of the house testified that the
defendant remained calm and did not make any contact with the deputies, who were belligerent,
-15 -
\
No. 1-16-0102
cursed and threatened the defendant, and then grabbed and pulled him, which caused him to fall
on his face onto the gravel covered ground. Id. ff 22-36.
If 44
Here, in contrast, Craig identified defendant as the offender, and no opposing witness
testified otherwise. Furthermore, the camera stills of the offense and the recovery of the gun,
sweatshirt, and jacket in defendant’s possession near the scene of the robbery and shortly after
!
the offense occurred corroborated the testimony of Craig and the police officers who responded
to the call to locate the offender.
145
Given the totality of the evidence, the evidence finding defendant guilty of armed robbery
was not closely balanced. Because the evidence was not closely balanced, defendant fails to
make a substantial showing that appellate counsel rendered ineffective assistance to defendant by
not invoking the plain error rule and challenging the trial court’s erroneous admonishments
concerning the Zehr principles.
f 46
III. CONCLUSION
bv
1f4v7\ For the foregoing reasons, we affirm the circuit court’s second stage dismissal of
defendant’s postconviction petition.
If 4r8
I Affirmed.
i
/
\
-16-
I
MOTJC3:
»The text of this order may
changed or corrected
' •prior to the time for flang ef
a Petition for Rebessfng or
the disposition of tie earns.
2011 IL App (1st) 091813-U
No. 1-09-1813
NOTICE: This order was filed under Supreme Court Rule 23 and may
not be cited as precedent by any party except in the limited
circumstances allowed under Rule 23(e)(1).
FIRST DIVISION
August 8, 2011
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF.THE STATE OF ILLINOIS,
)
)
Plaintiff-Appellee
Appeal from the
Circuit Court of
Cook County.
)
v.
No. 03 CR 26651
)
)
TONY SPENCER,
Defendant-Appellant.
)
The Honorable
Joseph M. Claps,
Judge Presiding.
JUSTICE LAMPKIN delivered, the judgment of the court;
Presiding -Justice Hall and Justice Rochford concurred in the
judgment.
ORDER
HELD: Where the victim had a clear view of the assailant's ■
face and unequivocally identified defendant as gunman,
the evidence was sufficient to support defendant's
conviction, and lineup in which defendant wore
■ clothing similar to attacker and distinct from that
worn by other participants was not impermissibly
suggestive; the tripil court's judgment was affirmed.
1 1
Following a jury trial, defendant Tony Spencer was
convicted of armed robbery and was sentenced as a habitual
1-09-1813
criminal to natural life in prison.
On appeal, defendant
contends the evidence was insufficient to.establish his guilt
because he did not match the description of the offender or
resemble the person shown on surveillance video, the victim had a
brief period to view.the offender
and the police lineup at which
he was identified was suggestive., Defendant also asserts the
trial court erred in denying his motion to suppress the lineup
identification because he wore clothing,distinct from that worn
by the other lineup participants.
1 2
We affirm.
Defendant was convicted of robbing Ralph Craig, a
Chicago police sergeant, at gunpoint at an automated teller.
machine (ATM) near Washington and Loomis streets in Chicago.
Before trial, defendant filed motions to quash his arrest and
suppress his.identification. .
1 .3
At .the hearing on .the motion to- quash, .Chicago police
officer Anthony.Gibbons testified that.at about 3 a.m. on ■
November 22, 2003, he received-a radio report of shots fired.
The parties stipulated the first message, sent at-3:12 a.m.,- .
described the offender as a black male between 6 feet 1 inch and
6 feet 2 inches tall and weighing about 200 pounds, " wearing "blue
gray sweats" and a black jacket.
Officer Gibbons spotted.a .man
who met that description wearing a gray sweatshirt and carrying"a
black jacket.
A second message, issued at 3:39 a.m. ,. described a
black male who was 30 years old and weighed 200 pounds with a
"short Afro." haircut and wearing a black jacket and gray
sweatpants.
-2-
L
1-09-1813
SI 4
The suspect fled upon seeing the police car.
Officer
Gibbons pursued the suspect, who dropped his jacket, and a weapon
in the jacket became visible--to the officer.
The suspect was
apprehended by police while Officer Gibbons remained with the
jacket.
The court denied defendant's motion to quash his arrest,
stating the police had probable cause to arrest' defendant based
on the firearm in his jacket. '
1-5
At the■suppression hearing, Chicago police detective
Patrick Deenihan-testified he met with Craig.between. 3:15 and
3:30 a.m. after the robbery.
Detective Deenihan said Craig
described the robber'as a black male between 6 feet and 6 feet 2
inches tall and weighing between 180 and 200 pounds.
Craig'said
the-man wore a’black coat with a gray hooded sweatshirt
< «r- .
underneath and was armed with a semi-automatic handgun.
The-
written report of Craig's description indicated that he said the
offender was between 25 and 3 0 years old and "clean shaven."
1 6
: Defendant was arrested at-about 4:30 a.m. and was
placed in a lineup viewed by Craig,
Detective Deenihan testified
the lineup included defendant and four black men that "to the '
best we-could" matched defendant's physical characteristics.
Defendant wore blue pants, a gray sweatshirt and a gray or white
T-shirt.- The four other participants wore black coats or black
sweatshirts.
Craig identified defendant in the lineup as the
robber.
1 7
'■ The trial court denied defendant's motion to suppress
the lineup identification, stating, inter alia, that although
-3-
J
1-09-1813
j
defendant was - the only person wearing a gray, sweatshirt, the
other lineup participants wore dark coats,1 which .also was
clothing described as being worn -by the robber.
The-court noted:
"There is no requirement that I'm.aware of to dress everybody in
the lineup in the way as■described by the victim."
The court,
stated-the lineup composition did not■improperly suggest that
defendant should be identified as the offender..
SI 8
, At. trial,; Craig testified that on the night of-.the
offense, he was- not in uniform and drove an unmarked squad, car.
As Craig withdrew $10 from the ATM, which was located in ..an
illuminated vestibule, defendant entered the area, approached
Craig from behind, and said, "Give me your money or I will kill
you."
Craig turned around to face defendant, who wore a black
jacket and a gray. hood.
Craig testified he could see defendant.'s
face despite the hood.
Craig said the area also was lit from a
nearby streetlamp.
5-9.
-
Craig said defendant pointed the gun directly at him
and "got as close as a foot from my face, face-to-face."
After
Craig handed defendant the .$10,. defendant ordered - him.- to empty. ;
his pockets.
ground.
As Craig did so, his police star and I-D. fell on the
When defendant recognized those.items, defendant; patted
Craig down for a weapon while still continuing to hold his .gun.
Craig testified defendant "came within a foot of my face" while
reaching around his waist to search for a weapon.
SI 10
Craig was carrying a weapon in his waistband that
defendant failed to detect in his search.
-4-
When defendant's gun
1-09-1813
"dipped,"
Craig pushed defendant, drew his own weapon and fired
twice at defendant while defendant faced him.
Craig injured his
knee while firing, and'defendant exited the vestibule and fled.
Craig reported the crime on the radio of his unmarked squad car
parked nearby. •
I 11
■ Craig said he .chose defendant from the•lineup because
he "recognized his face from the incident" and also because he'
wore-a gray- hooded', jacket.
The - State' entered into evidence
several'still photographs taken" from surveillance'video, and
Craig described what■occurred in-each photo.
The- surveillance ■
video was -shown to the jury and admitted into evidence', along
with a-photograph of the lineup.
1 12
-
On cross-examination, Craig said-he'" turned--around and -
faced def endant when defendant 'first ■ spoke to' him-.'-- Craig stated
he .-was focused on the- gun in defendant 's hand.
Craig- could not
describe defendant's hairstyle because of the hood he wore;
however, Craig cOuld- see defendant's face and said defendant had
a "slight,- thin mustache" and "some facial hair .• Chicago police
officer Timothy Parker, who placed defendant7 in custody,
"
.described defendant as having a mustache and a "scruffy" beard.Chicago police officer Adrienne Seiber testified she'and her
partner, ' who-were in a squad car, received the radio report
regarding'the ATM robbery and spotted a man meeting - the-suspect1s
description.
Officer Seiber -sa-id that when she asked the man to
"come here," he fled.
-The officer identified the man in court as
defendant.
-5-
1-09-1813
1 13
.Detective Deenihan conducted the- lineup identification
between 6:30'and 7 a.m.
Based on. Craig's description of the
offender, the detective selected men in custody in the police
station as "fillers" in defendant's lineup.
.Defendant chose his
position in the center of the lineup, and the men wore the ■
clothing they had on -when they wer-e arrested.
. ;
Defendant was- not
wearing his ■ black jacket because-it was being -inventoried as
evidence in the case.
Detective Deenihan acknowledged - the other
lineup participants were wearing -clothing under their black coats
■or jackets but he did not ask them .to remove their outer
garments . 1 14
On- appeal,- defendant first contends the State failed to
prove his guil-t beyond a reasonable doubt..
He argues: (1) he did
not.resemble either the person shown in the surveillance video or
the physical description of the offender; --(2) the- identifications
of him by Craig and-a police officer were unreliable; and (3) the
remaining evidence was insufficient to establish his guilt..
I 15
When reviewing the. sufficiency of the evidence- ot: a
criminal conviction, the-task of a reviewing court is to.
determine whether, viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found- the essential elements of the crime beyond a .
reasonable doubt.
Jackson v. Virginia, .443 U.S. 307, 318-19
(1979); People v. Ward, 215, Ill. -2-d 3.17, 322 (2005).
Under this
standard, this court will not substitute -its judgment for that of
-6-
1-09-1813
the trier of fact on issues of the weight of the evidence or the
credibility of witnesses. < People v. Cooper, 194 Ill. 2d 419, 431
(2000).
A conviction will only be reversed when "the evidence is
so unreasonable', .improbable, or unsatisfactory as to- justify a
reasonable doubt of the'defendant' s guilt.-"
People v. - Gabriel,
398 Ill. App. 3d 332, 341 (2010)-.
T 16
Defendant contends several differences exist in the
characteristics of -the -man pictured 'in- the ATM surveillance video
and Craig's description- of the attacker, when compared to
defendant's own' appearance.
Defendant argues the mad in'the
video was "distinctly clean-shaven" -and had -a "small' angular nose
and thin lips," and defendant points out Craig described - his
-
assailant as clean-shaven- and between 25 and 3-0': years old.
In
■ con-trast, defendant said he was 42 years old'a'-t the time of the
offense and- had' a mustache and "connected goatee,"pronounced
lips" and a! "wide nose."'
1 17
As defendant -acknowledges, the identification of the -
accused by. a Single witness is sufficient to sustain a conviction
if -the witness- viewed the perpetrator under circumstances
permitting a positive identification-, - even if that- testimony is
contradicted by the accused.1 • People v. Siguenza-Brito, 235 Ill.
2d '213, 228 (2009) ; ■ People v. Slim, 121 Ill. 2d 302, 207 (1989)1
The inability of a witness to precisely describe a suspect's
physical characteristics is not- fatal to an identification but'
simply affects the weight to be given that testimony, and
discrepancies between-a witness ' description of the accused and
--7-
1-09-1813
the defendant's physical appearance do not, in and of themselves,
generate a reasonable'doubt as long as a positive identification
has been made.
People v. Holmes
141 Ill. 2d 204, -240-41 (1990).
The failure to accurately describe an offender's facial hair or
any other single characteristic is not- fatal to an otherwise
positive and credible identification.
Slim, 127 Ill. 2d at 310,
It was the province-' of the jury as the trier of fact to compare
the description provided by Crai-g and determine if . the man.who
was pictured in the surveillance video and chosen in the police
lineup reasonably met that description.
1 -18
Defendant next, asserts Craig's identification of him in
the lineup was unreliable.
To determine whether an
identification is.reliable, courts look to several factors,
including:
(1) -the- opportunity of the witness- to view the suspect
at the time of.the crime;
(2) the witness' degree of attention;
(3) the accuracy of any prior descriptions of the suspect by the
witness;
(4) the level of certainty by the witness at the time of
the confrontation; _ and (5) the -length of time between the crime,
and the confrontation-.
459-60 (2011)
(1999)..
People v. Lacy, 407 Ill. App . ,3d 442..,-.
/
citing People v. Brooks, 187 Ill. 2d- 91, 129-30.-.
No single factor is dispositive, and the
identification's reliability is based on the totality of the
circumstances.
Neil v. Biggers, 409 U.S. 188, 199 (1972).
Defendant's challenge to the identification in this case involves
the first three factors only
As to the opportunity and degree.
of attention that Craig paid to his assailant, defendant argues
-8-
1-09-1813
V
Craig could not view his attacker at length.
Defendant contends
Craig viewed the offender's face only for about eight seconds,
based on a-time stamp on the surveillance video, and defendant
further points out that according' to Craig's own testimony, he
was focused on the gun and escaping the offender.
Defendant also
contends that'as shown in the video, the' hood worn by the
assailant cast a shadow "on a substantial portion of [the
attacker's] face."
I 19
The evidence presented at■trial established that Craig
viewed defendant's face at close'range under sufficient lighting.
Craig testified defendant was about a foot away from his face at
one point as he searched Craig for a weapon. ■Identifications ’
based on a view of an offender that last only-a few'seconds have
been found reliable.
91,130 (1999)
See, e.g., People v. Brooks/ 187 ill. 2d -
(witness viewed defendant for "a-second or so"
during shooting); People v. Williams, 118 Ill. • 2d 407,'413 (1987)
(" [t]hat the'victim "saw her attacker's face for only several /
seconds d-id not preclude her from making a positive/
identification").
Although defendant argues Craig likely focused .
on the gun-and not on.the gunman's face, Craig'had a clear view
of defendant as he reached in Craig's•waistband to search for a
weapon.
I 20
As to the third factor, the accuracy of any prior-
descriptions of the suspect, defendant reiterates the differences
between his physical features and Craig's account of his
assailant's characteristics.
He contends Craig's description of
-9-
1-09-1813
j
his attacker as "clean-shaven" weakens the reliability of his
identification in light of defendant's facial hair.
The failure
of a .witness to mention .a physical.characteristic such as a
mustache, or facial hair does not render an otherwise positive
Williams, 118 Ill. 2d at 414.
identification unreliable.SI 21
Defendant does not discuss the fourth or .fifth factors.
We observe.that Craig's identification of defendant in the lineup
was .unequivocal, -and the time span between the offense' and ..the
identification was about four hours, which is not an unduly long
period.
S 22
As a general rule, the reliability of a witness's
identification of a defendant is a question.for the trier of
fact. - In re Keith,- C.,. 378 Ill. App. 3d 252, 258 (2007)
(applying
factors) . . The ..three factors discussed by defendant all weigh in
favor of the reliability of Craig's.identification of defendant.
Regarding defendant '.s attempt to. independently analyze the
surveillance video on appeal at length, the video was presented
into evidence,■and the jury was able to analyze its content as
-
well as the still photographs.
1 23
Defendant argues
f '
however, that although, the jury's.
determination is entitled to deference, this court may reverse.a
conviction upon finding the State's evidence insufficient to
establish his guilt, and defendant points to "substantial
weaknesses and conflicts" in the State's case.
The evidence
presented here was not so unreasonable, improbable or ,
unsatisfactory as to-justify a reasonable doubt of defendant's
-10-
1-09-1813
guilt in this case.
- (1999) .
See People v. Smith, 185 Ill.'2d 532, 542
Defendant was apprehended in the vicinity of the
offense, while carrying a weapon and a black coat,
Defendant met
the description of Craig's attacker, and Craig's unwavering
identification of defendant was based both on his facial fea-tures
and'his clothing.
St 24
Defendant further argues the remaining evidence offered
by the State; other than the identification testimony, did not
establish his guilt beyond a reasonable doubt.
He contends no
proceeds of the robbery were recovered from him and he points out
he did not ’confess to the crime.
A lack of physical evidence in
a case does not raise a reasonable doubt where the defendant has
been positively identified as the offender.
Ill.’App. 3d 636, 649 (2009).
People v.- Reed, 396
Furthermore, sufficient evidence
to convict can exist even’ without a defendant's-inculpatory
statement, and defendant in this case has provided no authority
to the Contrary.
St 25
; ’
Defendant also challenges Officer Seiber's
identification of defendant as an unreliable showup
identification.
Defendant did not object to the' officer's
testimony at trial.
Furthermore, even aside from-that evidence
the identification testimony Of Craig was-sufficiently reliable
to support his conviction.
St 26 -
- Defendant's second main contention on appeal is that
the trial court erred in denying his motion to-suppress Craig's
identification in the police lineup.
-11-
Defendant argues his gray
(!>
1-09-1813
sweatshirt matched the description of the offender and that
attire distinguished him from the four "fillers" in the-lineup
who wore black coats.
He contends.the lineup could have been
made more neutral by having the "fillers" remove the black coats
and be shown in the shirts they wore underneath.
f 27
In a motion..to -suppress identification testimony, the.
defendant bears the burden, of proving a pretrial identification;
was impermissibly.suggestive.- Gabriel, 398 Ill.-App. 3d at 348.
An identification can be suggestive if the defendant.is required
to wear distinctive clothing worn by the suspect in the crime.
Gabriel, 398 Ill. App. 3d at 349, citing United States v. Wade,
388 U.S. 218, 233 - (1967) .
1 28
Craig testified his attacker wore a black coat with a
gray hooded ..sweatshirt underneath.
Although defendant was
dressed differently than the four "fillers" in the lineup, police
are not required to find matching clothing for all participants
of a lineup.
(1999)
See People v. Peterson, 311 Ill. App. 3d 38, 49
(citing numerous cases finding lineups not impermissibly
suggestive even if defendant is only person wearing clothing .
similar to that worn by suspect).
Indeed, here, - all ,of the men-
in the lineup with-defendant wore c-lothing similar to that worn,
by the offender; the attire of the four "fillers," who wore' black
coats, matched the attire described by Craig, as did'defendant's
gray hooded sweatshirt.
That defendant was the only person,
wearing a gray hooded sweatshirt did not render the composition
of .the lineup unduly suggestive.
-12-
f
1-09-1813
SI 29
Defendant nevertheless maintains that suspects should
not appear to-be "substantially different" from the "fillers" in
a lineup, citing section- 107A-5:(c) of the Code of Criminal Procedure {725 ILCS 5/107A-5(c) (2004)'.
Defendant points out
that statutory section was adopted in 2003, after Peterson and
similar decisions were issued, and he argues the "substantially
different" standard therefore supercedes the earlier case law.
SI 30 '
The statute to which defendant refers-states, in-
pertinent -part■: "Suspects in a lineup or'photo spread’should
not- appear to be substantially different from
"fillers" or "distracters" in the lineup or
- photo spread, based on the eyewitness'
;
previous' description of - the perpetrator) or
based on other' factors that would 'draw -'
attention to the suspect."
5(c)
T "31--- '-
725 ILCS 5/107A-
(2004).
This court has discovered no published decisions
de-fining the term "substantially different" as-used in this ■
statute, and defendant has not directed us to any'such case law.
Since 2003, this court has held that participants-in a lineup are
not- required to be-physically identical.
Gabriel, 398 Ill. App.
3d at 348; People v.-Love, 377 Ill. App. 3d 3 06, 311 ' (2 007) .
To
the extent that defendant suggests the rules stated in Petersonand the-cases cited therein are nullified by the statute, we reject that contention in the absence of any contrary authority.
-13-
■5-
1-09-1813
\,
v>
SI 32
To suppress .an identification based,on.a violation of
due process, a court must find both that (1) the confrontation
was unduly suggestive and (2) the identification was not
■i
independently reliable, which is measured by applying the factors
Lacy, 407 Ill. App. 3d at 459.
we have set out above.
We have
concluded in our analysis of the previous issue that Craig's
identification of defendant was reliable under those factors.
SI 33
1
: * /
LV
Accordingly, the judgment of the trial court is
~
f '
■
!■:
''HV'./. in.:”.;-
affirmed.
SI 34
Affirmed.
-14-
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.