No. 1-15-1967 Opinion filed April 16, 2019

Second Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 9493 ) CLARENCE CLIFTON, ) Honorable ) Anna Helen Demacopoulos, Defendant-Appellant. ) Judge, presiding.

JUSTICE HYMAN delivered the judgment of the court with opinion. Justice Pucinski concurred in the judgment and opinion. Justice Lavin concurred in part and dissented in part, with opinion.

OPINION

¶1 Before trial, Clarence Clifton moved to suppress three pretrial identifications on the

ground that the police used unduly suggestive lineup procedures. The trial court denied the

motion and, after a bench trial, convicted Clifton of armed robbery with a firearm. Clifton

received a prison sentence of 35 years—20 years for the underlying offense and a mandatory 15-

year add-on for the firearm. Although Clifton complained about his counsel’s performance, the

trial court proceeded without a preliminary inquiry into his concerns. No. 1-15-1967

¶2 Clifton now challenges his conviction and sentence on four grounds: (i) the State failed to

prove beyond a reasonable doubt that the object he brandished during the robbery met the

statutory definition of “firearm,” (ii) the trial court erred by denying his motion to suppress

identification, (iii) the trial court improperly failed to conduct a preliminary inquiry into his

posttrial claims of ineffective assistance of counsel as required by People v. Krankel,

(1984), and (iv) his 35-year sentence constitutes an abuse of discretion.

¶3 We find that the State presented sufficient evidence to prove the presence of a “firearm”

beyond a reasonable doubt. We are mindful that the cross-reference in the Criminal Code of

2012 (Criminal Code) (720 ILCS 5/1-1 et seq. (West 2012)) to the hyper technical definitions of

“firearm” in the Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/0.01

et seq. (West 2012)) creates tension with well-established precedent allowing proof of a firearm

on a single lay witness’s testimony. But, this precedent controls given the specificity of the

testimony about the object. We find, however, that the lineup procedures were unduly suggestive

and agree that a remand is necessary to determine whether a sufficiently independent basis exists

for the identifications made by the complainants. Because we vacate the denial of Clifton’s

motion to suppress and remand for further proceedings, we do not address his sentencing

argument. We do, however, find his Krankel claim likely to recur on remand and agree with the

parties that the trial court failed to conduct a proper Krankel hearing.

¶4 BACKGROUND

¶5 About 10:45 on a night in April 2012, two men walked up to Michael Smith, Victoria

Tolbert, Ashley Lee, and Ciara Reed in an alley behind Smith’s home. The two men robbed them

of their belongings and fled.

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¶6 Smith was standing around a car in the alley with Tolbert, Lee, and Reed. Two men

walked past them, turned around and walked up to the group. One of the men said, “you know

what this is, it’s a robbery” and then “pointed a gun at [them].”

¶7 Smith described the gun as a black “revolver.” In response to defense counsel’s questions

on cross-examination, he estimated the revolver to be either .32 or .38 caliber. The gun was not

the first gun, .32-caliber or otherwise, Smith had seen. The man pointed the gun as close as one

inch from Smith’s face. The man took two phones from Smith’s pants pocket. The other man

took items from the women. The men then got into a Jeep and left.

¶8 Officer Matthews soon arrived, Smith’s aunt having called police. Smith described the

armed offender as having “[l]ong dreads *** a blue hoodie, all white low top Nikes, and a black

Jeep.” As to the second man, Smith could not describe him because he “was only focused on the

guy who was in [his] face with the gun.”

¶9 According to Tolbert, the two men walked by and then “walked back and grabbed

[Smith] by the *** collar and put the gun to his head *** and waved the gun back and forth to

him and me and told us that we know what this is approaching us to rob us.” Tolbert described

the gun as black but did not touch the gun or know what it was made of. While the first man held

the gun on the group the whole time, the second man took Tolbert’s cell phone and purse.

Tolbert described the man with the gun to Officer Matthews as having “dreads” and wearing a

blue or black hoodie and white shoes.

¶ 10 When the two men walked up, Lee was inside the car. Lee saw one of the men pointing a

gun at Smith; she knows what a gun looks like, but could not tell what type of gun the man was

holding or what it was made of. The second man told Lee to get out of the car, which she did.

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The man with the gun pointed it at her and told her to take off her jacket. She complied. The

second man reached into the car for Lee’s purse. Lee told Matthews that the man with the gun

wore “[w]hite gym shoes, jogging pants,” and a dark black or blue hoodie. Also, the man “had a

scar or a tattoo” on his face.

¶ 11 Lineup Identifications

¶ 12 Two days later, Smith, Tolbert, and Lee viewed lineups at the Harvey police station.

They each testified at trial, along with Detective Banks, about the lineup procedures.

¶ 13 Banks identified lineup advisory forms signed by Smith and Tolbert. Lee also signed a

form, but it had been lost. Banks identified State’s Exhibit 1 as two photos of the five men in the

lineup ultimately viewed by the witnesses sitting in the booking area where the lineup was

conducted. The order of the lineup participants differed for each witness, but Banks confirmed

that Exhibit 1 “fairly and accurately show[ed] how the people in the lineup appeared at the time

of the lineup.” Smith, Tolbert, and Lee identified Clifton as “the person that actually removed

items from them.”

¶ 14 Banks acknowledged that Clifton was the only person in the lineup whose dreadlocks hit

his shoulders. He also acknowledged that Clifton was the only person with a mark on his face as

he could not find anyone tattooed in that way.

¶ 15 Smith testified that when he viewed the lineup, Tolbert and Lee were present. Referring

to Exhibit 1, he selected the person he identified at the lineup as Clifton and confirmed Clifton

had the gun during the robbery. Regarding Clifton’s appearance, Smith agreed that the only

person in the lineup with long dreadlocks was Clifton and that Clifton was wearing “the same

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hoodie he robbed us in, and the shoes.” Smith also said that he did not take into consideration

Clifton’s clothes; he saw “who [he] knew did it for sure” and recognized his face.

¶ 16 Tolbert also described the lineup procedures. When asked to look at Exhibit 1, she

identified Clifton in the photo as Smith had done and confirmed that Clifton was “[t]he one with

the gun.” Contrary to Smith’s testimony, she had gone to the police station with the other two

women and viewed the lineup alone. Like Smith, Tolbert agreed that of the men in the lineup,

only Clifton had long dreadlocks and a mark on his face. Tolbert testified that the men in Exhibit

1 appeared in a different order during her lineup but that the photo showed the participants “the

way they were in the lineup that [she] saw.”

¶ 17 Lee could not recall whether she had been given any of the admonishments on the form

but said nobody told her one of the robbers was in the lineup or urged her to pick any particular

person. Lee, like Tolbert, testified that she was alone with just one other officer at the time of the

lineup. Lee identified Clifton and, like Smith and Tolbert, said he “robbed [her]” and was “[t]he

person who had the gun.” Lee could not remember if she had seen other people in the lineup with

tattoos but agreed that she could not see any on the other faces in Exhibit 1. Like Tolbert, Lee

testified that the men in the photo in Exhibit 1 appeared in a different order for her lineup but

that the photo showed “the way the lineup looked when [she] saw it.”

¶ 18 Motion to Suppress the Lineups

¶ 19 Before trial, Clifton moved to suppress the lineup identifications as unduly suggestive.

The motion referred specifically to Clifton’s long dreadlocks and tattoo and alleged that, as the

only one with those features, the lineup’s composition was suggestive. The court heard no

testimony at the hearing; instead, the parties stipulated that there had been a prior description

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given of “Suspect Number 1, male black, 5’9’’ in height, dark complexion, long dreadlocks, no

clothing description or age group available, armed with a black handgun.” Counsels’ argument,

like the written motion, focused on Clifton being singled out by virtue of his long dreadlocks and

a face tattoo.

¶ 20 The trial court, after viewing photographs of the lineup participants, found Clifton’s

dreadlocks were “not distinguishably longer than the other two” participants with dreadlocks.

And that all the participants had their dreadlocks pulled back and that everything else, including

height, complexion, and clothing appeared to be similar. The trial court could not see any mark

on Clifton’s face other than in the close-up booking photo. The court concluded that “[t]he police

are not mandated to put people in a lineup that look exactly like the defendant,” and denied the

motion to suppress.

¶ 21 After the close of trial evidence, defense counsel renewed her motion to suppress

identification. She reiterated concerns about Clifton’s hair and tattoo, adding:

“[A]s the testimony went on, it appeared that there were other factors, a dark

hoodie, some white shoes that were supposedly told to the officers, but that even

Miss Tolbert indicated when she looked at the pictures, oh, he has on the same

thing he had on during the ‘robbery.’

And I think, Judge, that now we can also put in the fact that not only was

he the only one that had long dreads and a mark on his face, but he also was the

only one who had a dark hoodie and white shoes in that lineup.

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And we are asking this Court to reconsider the decision made in the initial

motion to suppress the identification testimony, because now new issues have

come to light.”

Defense counsel asked the court to take account of Smith’s testimony that he viewed the lineup

together with two witnesses and find the lineup procedure violated Clifton’s rights.

¶ 22 The State responded that it was not “proper” to ask the court to consider testimony about

the victims’ descriptions of Clifton’s clothes because the issue of Clifton’s appearance had been

litigated. The State dismissed Smith’s testimony about the lineups’ procedure as a “mistake” and

argued that the other witnesses testified that they viewed lineups with only the detective present.

¶ 23 The trial court found nothing suggestive about Clifton’s appearance, noting that in the

lineups “there are similar hairstyles, there are similar heights, there are similar weights, there are

similar clothing [sic].” On the lineup procedures, the trial court viewed each lineup as its own

identification. Viewed that way, the trial court found that Lee and Tolbert’s testimony

established they were alone when they viewed the lineup. The trial court agreed with Clifton and

found Smith’s testimony warranted suppression of his lineup identification, but a sufficiently

independent basis existed for his in-court identification. With the exception of Smith’s lineup

identification, the trial court denied the renewed motion to suppress.

¶ 24 Posttrial Motions and Sentencing

¶ 25 Clifton was found guilty of armed robbery as to Smith, Tolbert, and Lee without any

express factual findings. Defense counsel moved for a new trial disputing the court’s guilty

finding. The written motion omitted mention of counsel’s motion to suppress the lineup

identifications.

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¶ 26 At the sentencing hearing, the judge heard arguments on the motion for a new trial.

Counsel argued that “there were some questions about the black hoodie—black hoodie, long

dreads, blue or black hoodie, white high tops, white shoes” and a problem with the

identifications where Clifton was the only one in the lineup with “long dreads and a mark on his

face.” Counsel asked the court for “some serious reconsideration” in light of the trial testimony

“to reconcile it with what was put forth to the Court in terms of the motion to suppress

identification.” The court denied the motion for a new trial, stating it “made the appropriate

findings of fact in the motion to suppress identification.”

¶ 27 The trial court sentenced Clifton to 35 years in prison, reflecting 20 years for the

underlying offense and 15 years for the mandatory firearm add-on. Clifton’s motion to

reconsider his sentence was denied.

¶ 28 ANALYSIS

¶ 29 Clifton raises four issues: (i) the State failed to prove him guilty beyond a reasonable

doubt because insufficient evidence indicates that the firearm he was accused of possessing met

the statutory definition of a “firearm,” (ii) his clothing and physical features made the lineup

unduly suggestive, (iii) the trial court did not properly inquire when he raised pro se claims of

ineffective assistance of counsel, and (iv) 35 years was excessive given the nature of the offense

and the mitigation evidence.

¶ 30 The State responds that it presented sufficient evidence in the form of witness testimony,

from which a reasonable fact finder could infer that Clinton had a “firearm.” The State also

disputes the suggestiveness of the lineup, as police are not required to find identical lineup

participants and, in regard to Clifton, that would have been impossible. The State agrees with

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Clifton that no inquiry was made into his pro se ineffectiveness claims and concedes the need for

a remand. Finally, given the serious nature of the crime and Clifton’s criminal history, the State

asserts that his sentence amounted to a reasonable exercise of discretion.

¶ 31 Sufficiency of the Evidence

¶ 32 Armed robbery requires taking “property *** from the person or presence of another by

the use of force or by threatening the imminent use of force” and doing so “armed with a

firearm.” 720 ILCS 5/18-1(a) (West 2012) (definition of robbery); 720 ILCS 5/18-2(a)(2) (West

2012) (armed robbery charge against Clifton). A violation of subsection (a)(2) carries a

mandatory 15-year sentencing enhancement. 720 ILCS 5/18-2(b) (West 2012). For the purposes

of the armed robbery statute, we derive the definition of “firearm” from the FOID Card Act. 720

ILCS 5/2-7.5 (West 2012) (referring to 430 ILCS 65/1.1 (West 2012)); see also People v.

Wright,

. The FOID Card Act defines “firearm” as “any device, by

whatever name known, which is designed to expel a projectile or projectiles by the action of an

explosion, expansion of gas or escape of gas” and exempts many types of guns including

pneumatic guns, spring guns, paintball guns, BB guns, signal guns, and antique guns. 430 ILCS

65/1.1 (West 2012).

¶ 33 Proof a brandished object constitutes a firearm can be established by the testimony of a

single eyewitness. Wright,

, ¶ 76. When analyzing a witness’s testimony, we

ignore a witness’s subjective beliefs about the nature of the weapon. People v. Ross,

(2008) (“[t]he trial court incorrectly based its ruling on the subjective feelings of the

victim, rather than the objective nature of the gun”). Wright distinguished Ross on its facts

(Wright,

) without questioning its objective analytical framework. We

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do not find any inconsistency in the propositions from those two cases. We can rely on the

eyewitness testimony of a single witness, but that testimony must provide sufficient facts to

allow one to objectively conclude that the object used in the robbery meets the statutory

definition of a firearm.

¶ 34 Before addressing the facts, we clarify the precedential value of the cases cited and relied

on by the parties. Central to the dispute in addition to Ross and Wright are People v. Washington,

and People v. Malone,

. The decisions in Washington

and Ross analyze the sufficiency of the evidence to prove armed robbery under the statute before

its amendment in 2000. See Washington,

; Ross,

(defendant’s offense committed in 1999). Before January 1, 2000, the armed robbery statute had

one requirement: a defendant commits robbery while he or she carried, or was otherwise armed

with, a dangerous weapon. See Pub. Act 91-404, § 5 (eff. Jan. 1, 2000) (amending 720 ILCS

5/18-2). The amendment left the requirement of a dangerous weapon in place but made separate

categories allowing for sentencing enhancements when a defendant possesses or uses a “firearm”

in the course of a robbery. Pub. Act 91-404, § 5 (eff. Jan. 1, 2000); see also 720 ILCS 5/18-

2(a)(1)-(4) (West 2012). The decisions in Wright and Malone analyze the sufficiency of the

evidence to prove armed robbery under the current statute. Wright,

;

Malone,

. The courts in Wright and Malone discussed, but did not

decide, the continued relevance of the analysis of the sufficiency in Washington and Ross. See

Wright,

; Malone,

.

¶ 35 A different panel in this division called Ross into question in People v. Fields,

, on which the State relies. We respectfully disagree and find that cases

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analyzing the preamendment armed robbery statute remain just as precedential after amendment.

Recently, yet another panel in this division came to a similar conclusion. In People v. Charles,

we noted that our supreme court’s analysis in Wright expressly adopted the analysis of the

preamendment statute in Washington.

. We find good reason to

retain a consistent analysis postamendment of the armed robbery statute. In Ross, our supreme

court defined “dangerous weapon” broadly, allowing proof that the weapon used be either (i)

dangerous per se, as is a loaded gun; (ii) not necessarily dangerous but actually used in a

dangerous manner; or (iii) not necessarily dangerous but capable of use in a dangerous manner.

. Under that expansive definition, the State need not prove that a gun was

loaded and operable to be dangerous.

. Instead, the State could meet its burden on the

“dangerous weapon” element by showing the gun capable of use as a club or a bludgeon.

¶ 36 By amending the armed robbery statute to require the presence of a “firearm,” the

General Assembly narrowed the scope of the offense by virtue of the Criminal Code’s cross-

reference to the FOID Card Act’s stringent definition of firearms. The State needs to rely on

more than the common sense notion that a firearm is dangerous because it is capable of being

used dangerously; the State must prove that the object wielded during a robbery “is designed to

expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas.”

430 ILCS 65/1.1 (West 2012). The legislature then struck the balance by automatically

increasing a defendant’s sentence by 15 years when the State meets its heavy burden of proving

the presence of a “firearm.” 720 ILCS 5/18-2(b) (West 2012).

¶ 37 Ross and Malone, and other cases interpreting the preamendment armed robbery statute,

still apply. In sum, the amendment of the armed robbery statute has made the State’s burden

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more onerous in armed robbery cases alleging the use of a firearm. If the State failed to meet its

burden in Ross, where the statute allowed far more leeway in proving the presence of a

“dangerous weapon,” then Ross’s analysis is even more persuasive in cases with similar facts

because the amended statute increased the specificity of proof required.

¶ 38 That said, we find the situation before us distinguishable from Ross. There, the victim

was only able to describe the gun as black and “small, portable, and concealable.” Ross,

. The officer who recovered the gun expressly testified that it was a pellet gun.

. By contrast, Smith gave far more specifics. He testified that the gun was black, a

revolver, and either a .32 or .38 caliber. He had personally observed .32-caliber guns before.

And, Smith testified that the gun was within one inch of his face.

¶ 39 Smith’s testimony has a level of specificity like that in Wright. The witness testified

about the color of the gun and explained that he had experience firing the exact type of gun he

believed was used. Wright,

. Plus, the witness felt the gun and described

“ ‘something sharp’ ” being pressed into his back.

All of his observations led him to be

“ ‘100% sure’ ” that the weapon was “an ‘actual firearm.’ ”

Smith described the gun by its

color (black), type (revolver), and caliber (.32 or .38). Smith also had experience with the caliber

of gun he believed Clifton possessed. While the witness in Wright testified to being subjectively

100% certain that the item was an actual firearm (id.), we need not rely on a witness’s subjective

belief about the nature of the firearm. Ross,

. Looking at the objective evidence

provided by Smith compared to the testimony of the victim in Wright, we find sufficient

evidence that the nature of the firearm was proven beyond a reasonable doubt.

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¶ 40 Both the majority and concurrence in People v. McLaurin,

,

provide assistance. In McLaurin, the criminal offense, armed habitual criminal, also requires

proof that the defendant possessed a “firearm” as defined in the FOID Card Act. Id. ¶¶ 1, 20-21.

The court found the evidence insufficient to prove the defendant’s possession of a “firearm”

because the sole witness to see him with the gun, a police officer, testified that she saw what

appeared to be a gun but could only provide details about color because all she observed was the

handle and the barrel. Id. ¶ 26.

¶ 41 The majority in McLaurin distinguished armed robbery cases on the ground that “the

underlying offense is robbery” and, to prove robbery, “there is no requirement to prove that a

firearm was used in the taking.” Id. ¶ 24. The majority, thus, found that use of a firearm during a

robbery to be an “aggravating factor” and, as a result, the State had more leeway to prove the

presence of a firearm by circumstantial evidence. Id. To the extent the McLaurin majority has

implied a different standard of proof applies to a “firearm” in robbery cases as opposed to

possession cases, we disagree. Instead, we adopt the approach of the special concurrence. See id.

¶¶ 33-36 (Mikva, J. specially concurring). The presence of a firearm undoubtedly presents more

than an “aggravating factor” under subsection (a)(2) of the armed robbery statute; indeed, the

State must prove it beyond a reasonable doubt. Id. ¶ 34; see also Wright,

¶¶ 70-

71. While true that the State may be able to prove a firearm by different types of circumstantial

evidence in an armed robbery case than in a possession case (McLaurin,

; see also id. ¶ 34 (Mikva, J. specially concurring)), the same definition of “firearm”

applies in both the robbery and the possession contexts.

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¶ 42 Again, we find Clifton’s case distinguishable from McLaurin. The witness in McLaurin

could only see the color of the gun and saw it from 50 feet away. Id. ¶ 26 (majority opinion).

Smith testified to the color as well as the type of gun and caliber. And, the gun was an inch or so

from Smith’s face, giving him a substantially better opportunity to observe the gun up close than

the officer in McLaurin.

¶ 43 Long-standing precedent allowing proof of a “firearm” based on the testimony of a single

lay witness, coupled with the testimony actually elicited, compel our conclusion. But, we remain

mindful that cross-referencing the Criminal Code and the FOID Card Act creates two particular

evidentiary problems.

¶ 44 First, while the State carries the burden of proof beyond a reasonable doubt, the technical

definition of a firearm in the FOID Card Act has led to decisions impliedly and improperly

shifting the burden so the defense must disprove the presence of a statutorily defined firearm. For

example, in People v. Clark,

, the appellate court took the

defendant to task for failing to offer evidence that the gun was fake or some type of air rifle.

And, in People v. Hill,

(2004), the appellate court found that the

defendant had forfeited his challenge to the sufficiency of the evidence by failing to present his

own evidence that the gun was inoperable. A defendant can never forfeit his or her challenge to

the sufficiency of the evidence proving an element of a criminal offense (People v. Cregan,

), and it undermines due process by placing on defendants the burden to present

evidence disproving the State’s charge (People v. Jeffries,

(1995) (“A

defendant’s due process rights are violated when the burden shifts to the defendant to disprove

an element of the offense.”)).

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¶ 45 Our recognition of the State’s burden leads to the second concern. Illinois courts hold that

the State need not present physical evidence of a gun to establish the presence or use of a

firearm. People v. Jackson,

(citing Washington,

). Absent some physical evidence, it seems almost impossible to prove that an item alleged

to be a firearm meets the technical statutory definition unless fired. The FOID Card Act’s

definition of “firearm” requires the object to expel a projectile “by the action of an explosion,

expansion of gas or escape of gas.” 430 ILCS 65/1.1 (West 2012). No lay witness would ever be

able to testify to this feature unless the gun was fired or the witness somehow had an opportunity

to examine the gun. As Clifton suggests, the act exempts BB guns and other guns that “expel[ ] a

single globular projectile not exceeding .18 inch in diameter.”

Again, no lay witness would be

able to confirm that the object brandished met this definition without examining the ammunition

or seeing the weapon fired.

¶ 46 As the court indicated in McLaurin, and as the facts establish here, armed robberies pose

a pernicious possibility that an offender will use a firearm (or even an object that looks like one)

to force compliance with the robbery.

(describing circumstances

of offenses in Washington and Wright). But, the General Assembly has already accounted for

that possibility with the aggravated robbery statute. Aggravated robbery involves taking property

from the person or presence of another, “while indicating verbally or by his or her actions to the

victim that he or she is presently armed with a firearm ***. This offense shall be applicable even

though it is later determined that he or she had no firearm ***.” 720 ILCS 5/18-1(b)(1) (West

2012). The General Assembly has addressed concerns like those expressed in McLaurin by

creating an offense punishing an offender who attempts to coerce compliance by implying he or

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she has a firearm. While precedent compels us to affirm Clifton’s conviction, it appears the

aggravated robbery statute more aptly describes Clifton’s offense.

¶ 47 The FOID Card Act contains highly technical definitions and exemptions for “firearms.”

Those technical definitions have been imported wholesale into the Criminal Code for any offense

that punishes the use or possession of a “firearm.” It appears the General Assembly has crafted a

careful balance, requiring the State to prove the technical presence of a firearm but allowing a

much greater punishment should they be successful. We are troubled by the cases that allow for

proof of a firearm with testimony that does not come close to describing the technical features of

a firearm outlined in the FOID Card Act, but our supreme court has expressly approved of that

type of testimony. Indeed, our supreme court has condoned convictions for armed robbery with

far less specific testimony than is present here. So we affirm defendant’s conviction.

¶ 48 Suppression of Identification

¶ 49 Clifton argues that the trial court erred in denying his motion to suppress identification.

He contends that the procedures used by the Chicago Police Department were unduly suggestive

because Clifton was the only participant in the lineup wearing a dark sweatshirt and white shoes,

which the witnesses described the offender as wearing. Clifton also refers to Smith’s testimony

indicating that Smith viewed the lineup at the same time as other witnesses. Finally, Clifton

argues the witnesses’ identifications were too unreliable to salvage any suggestiveness in the

lineup procedures, although he conceded at oral argument that a remand for a hearing on whether

there is an independent basis for the identifications would be appropriate if we find the record

unclear or underdeveloped on this point.

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¶ 50 The State preliminarily responds that Clifton forfeited his claim of suggestiveness of the

lineup on account of dress. Alternatively, the State argues “no one person glaringly stood out

from anyone else in the lineups,” despite only Clifton wearing a dark sweatshirt and white gym

shoes. As to Smith’s identification, the State responds that the trial court suppressed his pretrial

identification and that, even if Smith viewed the lineup with the others, the record shows no

impact on their independent identifications. Finally, the State contends the witnesses’ ability to

identify Clifton was independently reliable even if the lineup was suggestive and also proposes

the alternative remedy of a remand for a fuller exploration.

¶ 51 As we will explain, we partially agree with Clifton. After reviewing the lineup

photographs and the testimony regarding the lineup procedures, we find the lineup was unduly

suggestive. We do not agree, however, that the record is sufficiently developed to review the

question of whether the identifications are sufficiently independent to be admissible. Critically, a

finding that the lineups are suggestive shifts the burden to the State, but because the trial court

did not find the lineup suggestive in the first instance, the State had no opportunity to attempt to

satisfy its burden. Therefore, we vacate the trial court’s judgment and remand for a hearing on

the independent reliability of the identifications.

¶ 52 Forfeiture

¶ 53 The State initially argues that Clifton has forfeited his claim. We disagree. To preserve an

issue for review, a defendant must object to the alleged error when it occurs and raise the issue in

a posttrial motion. People v. Enoch,

(1988). The forfeiture rule protects (i)

respect for the trial court as the tribunal with the primary responsibility to make findings of fact

and render initial judgments, (ii) time and judicial resources by heading off appeals of

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nonmeritorious claims, and (iii) against unfair surprise to the State who may otherwise hear of an

issue for the first time on appeal. See

at 188 (citing People v. Irwin,

(1965)). An oral motion protects the interests served by a written motion as long as the State

waives the requirement of a written motion by not objecting or arguing the motion anyway.

People v. Edwards,

(1993) (citing Enoch,

); People v.

Todd,

(1993).

¶ 54 The State’s forfeiture argument is twofold. The State asserts that Clifton did not

“properly or fully” litigate the suppression issue in the trial court because he only asserted a

problem with the lineup based on a “tattoo and dreadlocks.” Alternatively, the State argues that

Clifton did not include his suppression claim in his written posttrial motion. The State

acknowledges that Clifton orally argued the suppression issue during the hearing on the motion

for a new trial but repeats its argument that the hearing focused on the tattoo and dreadlocks. We

find both arguments unsupported by the record.

¶ 55 The State correctly notes that the original motion to suppress identification did not raise a

specific claim about the victims’ description of the offender’s clothing. But, the first argument

about the motion to suppress reveals the reason. At the time of the filing and argument on the

original motion, defense counsel relied on information in the police reports, which described the

offender with the gun as: “Suspect Number 1, male black, 5’ 9’’ in height, dark complexion, long

dreadlocks, no clothing description or age group available, armed with a black handgun.” So, at

the time the initial motion, no facts available to defense counsel supported an argument about

Clifton’s clothing during the lineup.

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¶ 56 Then, at trial, all three witnesses testified about the offender’s clothing. At the close of

evidence, defense counsel argued that new information had come forward “that not only was

[Clifton] the only one that had long dreads and a mark on his face, but he also was the only one

who had a dark hoodie and white shoes in that lineup.” While the State characterized the

argument based on this additional information as “improper,” the trial court did consider the

additional information when it denied counsel’s renewed motion to suppress. In ruling, the trial

court referred to “Mr. Clifton’s physical appearance” generally and found that all of the

participants in the lineup had similar hairstyles, similar height and weight, and similar clothing.

The trial court’s ruling on the renewed motion to suppress considered and incorporated counsel’s

arguments based on the additional information about Clifton’s clothes.

¶ 57 Turning to the posttrial litigation about the motion to suppress, again, the State correctly

states that trial counsel’s written motion contains no mention of Clifton’s suppression claim.

That said, the parties amply litigated the claim at the hearing on the posttrial motion. As part of

counsel’s argument about identification, she said, “there were some questions about the black

hoodie *** long dreads, blue or black hoodie, white high tops” and “each and every of these

three witnesses told this Court *** that the defendant was the only person—the only person in

those lineups that had long dreads and a mark on his face.” The State responded, “we believe that

the Court’s ruling of the pretrial motion on the lineup was appropriate.” Defense counsel tried to

reply, but the court interjected, “I don’t need to rehear what you’ve already reargued five times,

[counsel].” The trial court then allowed counsel to adopt the arguments she made at the motion

hearing at the close of the State’s evidence. Ultimately, the court denied the motion for a new

- 19 - No. 1-15-1967

trial, stating, “I do believe the Court made the appropriate findings of fact in the motion to

suppress identification ***.”

¶ 58 The State’s insistence that the issue has been forfeited would require us to adopt an

unreasonably strained reading of the record. The litigation of the motion to suppress

identification gave the trial court the opportunity to make both factual and legal rulings, gave the

State an opportunity to respond, and refined the scope of the issue for our review. See Enoch,

. The application of forfeiture would be particularly unfair given the State’s

participation on the issue of suppression at every stage of the proceedings in which the issue

arose. Clifton has sufficiently preserved this claim.

¶ 59 Merits of the Motion to Suppress

¶ 60 Identifications made at a lineup always present “the possibility of unfairness to the

accused in the way a lineup is conducted.” Foster v. California,

(1969). So, a

two-part framework has been developed. First, the defendant bears the burden to show the

pretrial lineup as “impermissibly suggestive.” People v. McTush,

(1980). If

the defendant successfully makes the showing, the burden shifts to the State to present clear and

convincing evidence that “the witness is identifying the defendant solely on the basis of his

memory of events at the time of the crime.” (Internal quotation marks omitted.)

We review

the totality of the circumstances surrounding the identification (People v. Lawson,

) and may look to facts adduced at both the suppression hearing and trial

(People v. Gill,

(citing People v. Brooks,

(1999) (where defendant seeks reconsideration of suppression rulings posttrial, appellate court

may consider both hearing and trial testimony)).

- 20 - No. 1-15-1967

¶ 61 We employ a two-part standard of review. We adopt the trial court’s factual findings

unless they are against the manifest weight of the evidence and review the ultimate legal

question of whether suppression is warranted de novo. Lawson,

.

¶ 62 Clifton’s primary argument contends that the lineup was unduly suggestive because only

Clifton appeared in the lineup with dreadlocks, a dark hoodie, and white shoes, the description

given by the victims of the offender with the gun. At first blush, the weight of authority in

Illinois appears to reject this argument—a substantial body of case law upholds a lineup when a

suspect wears clothing described to police by the victims. People v. Peterson,

(1999) (collecting seven cases holding similarly). But, Clifton’s identification is

unique relative to this body of case law. We are not presented with a situation where a defendant,

described only as wearing one particular item or having one particular physical feature, appears

in a lineup with the piece of clothing or physical attribute. Instead, both the lineup photograph

presented at the suppression hearing and the hearing testimony itself confirms that Clifton was

described, and later presented, as the only participant in the lineup with three particular articles

of clothing, a unique hairstyle, and a facial feature matching the description of the offender. On

these facts, we find the lineup was unduly suggestive.

- 21 - No. 1-15-1967

Exhibit 1, which the State showed to all three witnesses at trial.

¶ 63 While the law “does not require that lineups and photographic arrays *** include near

identical or look alikes of the witnesses’ descriptions,” if the defendant is the only one in the

lineup required to wear the clothing that the suspect reportedly wore the lineup may be unduly

suggestive. People v. Johnson,

(1992) (citing United States v. Wade,

(1967)). We view the suggestiveness of the lineup in light of the totality of the

circumstances, with our focus on “the strength of [the] suggestion made to the witness.”

In

his brief and at oral argument, Clifton emphasized the multiple similarities between his prior

description and his appearance in the lineup arguing that they made the lineup strongly

suggestive. We agree.

¶ 64 The State argues that lineup participants need not be “physically identical” for a lineup to

be fair. In support, the State cites People v. Simpson,

(1996), Peterson,

, People v. Johnson,

(1991), and People v. Coleman, 203 Ill. App.

- 22 - No. 1-15-1967

3d 83 (1990). We find the simplest way to explain our conclusion is to distinguish the cases on

which the State relies.

¶ 65 In Simpson, the complaining witness described the suspect as having curly hair.

. The defendant was one of five black males to be included in a lineup in which every

participant “had similar skin tone, had moustaches, fairly short hair and wore casual clothing.”

Each participant was between 5 feet, 9 inches, tall and 6 feet, 1 inch, tall and between 144 and

210 pounds; the defendant was 5 feet, 11 inches, tall and weighed 179 pounds.

The defendant

was, however, the only participant with curly hair.

The supreme court found the lineup to be

proper because the defendant’s hairstyle was not “so distinctive as to render the lineup

suggestive.”

.

¶ 66 In Peterson, the suspect was described as having pink rollers in his hair and the

defendant, though he had long hair, had it “covered by [a] baseball cap.”

.

The defendant was not wearing pink rollers in the lineup.

. The defendant was also the

only participant to appear in the lineup in an “unremarkable gray sweatshirt” after the suspect

had been described as wearing one.

. We found the sweatshirt, given the totality of

the circumstances, was not sufficient to render the lineup suggestive.

.

¶ 67 In Johnson, the defendant was arrested in red pants and placed in the lineup while

wearing those pants.

. The complaining witness had previously said the

suspect wore red pants.

. The defendant, who was black, was in the lineup with several

other men who were black and every person in the lineup wore “causal or informal clothing.”

This court found the lineup was not suggestive because everyone in the lineup was “basically

- 23 - No. 1-15-1967

similar in appearance” and the police were not obligated to provide the defendant clothing other

than what he was arrested in.

.

¶ 68 Finally, in Coleman, the defendant was the only person in the lineup wearing a dark shirt

where the complaining witness “had told the police that the [suspect] was wearing a dark shirt at

the time of the offense.” (Emphasis in original.) 203 Ill. App. 3d at 91. This court found that the

mere fact that the defendant was wearing a black shirt while the suspect had been described as

wearing a dark shirt did not render the lineup suggestive. Id. at 91-92.

¶ 69 The critical theme running through these cases is that one distinct feature, standing alone,

is not sufficient to render a lineup suggestive where the participants in the lineup otherwise have

substantially similar appearances. In stark contrast to these earlier decisions, Clifton is the only

person present in the lineup that has the precise combination of several features described by the

witnesses.

¶ 70 The witnesses consistently described Clifton as having dreadlocks, a dark (black or blue)

hoodie, and white gym shoes. Lee also described Clifton’s pants as “jogging pants.” There are

multiple men in the lineup photo that have dreadlocks, but of them only Clifton has dreadlocks

and hoodie. There are multiple men that have “jogging” pants or sweatpants, but Clifton is the

only one of them also wearing white shoes. There is one other man in a dark colored hoodie, but

of the two, only Clifton has dreadlocks and white shoes. Indeed, no other lineup fillers had white

shoes. It is not simply that Clifton was wearing clothing described by the witnesses—he was the

only one in the lineup that appeared consistent with every feature that the witnesses had provided

in their descriptions of the suspect.

- 24 - No. 1-15-1967

¶ 71 Given the sheer number of characteristics that Clifton matched exactly, we find his

reliance on People v. Maloney,

(1990), persuasive. There, the defendant

appeared in a lineup with four other men.

. Three men wore pressed white shirts,

pressed grey slacks, socks and shoes, and wristwatches.

The fourth man wore a pressed

pullover shirt, pressed jeans, socks and shoes, and a wristwatch.

. The defendant,

however, wore a brown or extremely dirty shirt, wrinkled blue slacks, shoes with no socks, and

no wristwatch.

. The defendant, overall, appeared unkempt compared to the well-

dressed and well-groomed men who accompanied him at the lineup.

Along with the stark

contrast in dress, a “difference in physical size” existed among the lineup participants.

This

court found that the lineup procedure “all but hung a sign saying ‘pick me’ around defendant’s

neck.”

¶ 72 We find similar spotlighting here. The defendant in Maloney stuck out because he was

dressed in a completely unique manner from the other lineup participants; in Clifton’s case,

while his clothes may fit in with the general style worn by the other participants, only Clifton’s

appearance matches precisely the descriptions given by the witnesses as to several articles of

clothing and at least two aspects of his physical appearance. Clifton argues in his brief, “If one

hundred people were asked to view the lineup and choose which participant was not like the

others, there is no question that all one hundred would choose Clifton.” In most cases, we might

be inclined to disagree with such a broad statement, but on the facts only a minor modification

makes it accurate: if one hundred people, who knew of Clifton’s earlier description, were asked

to view a lineup and choose which participant was not like the others, we find it highly probable

that they would pick Clifton.

- 25 - No. 1-15-1967

¶ 73 The dissent asserts that

“[i]f one is looking to identify somebody in [Exhibit 1] who is unlike the others, one need

only look next to [Clifton], where a young man with a short-cropped haircut sits, wearing

an unzipped hoodie that pointedly reveals his bare chest. One might say he looks

different, but even he is approximately the same age, height, and weight as the others.”

Infra ¶ 100.

But Smith, Tolbert, and Lee did not describe their assailant as having “a short-cropped haircut”

or wearing an “unzipped hoodie” with no shirt underneath. This young man may be the stand-out

participant for an observer unimpeded by a prior description they gave, but here Clifton stands

out because he matches previous descriptions in several unique ways. The question is not who

among the participants is least like the others; the question is who among the participants is most

like the previous descriptions. And the answer is Clifton.

¶ 74 The dissent’s only answer is to juxtapose Exhibit 1 with photos that were not introduced

at trial or ever shown to any witnesses. Infra ¶ 100. This is critical because every witness who

testified explained that Clifton appeared in the lineup as he appeared in Exhibit 1. So, Clifton

may have appeared differently at some point while he was in police custody, but that simply does

not matter for our purposes because we know that when the witnesses viewed their lineups,

Clifton appeared as he did in the only photo admitted at trial, which does not show an unzipped

hoodie.

¶ 75 For similar reasons, we distinguish the cases the State relies on to argue, “differences in

physical characteristics have likewise been held not enough to render a lineup or photo array

suggestive.” People v. Daniel,

, ¶ 15 (finding none of defendant’s

- 26 - No. 1-15-1967

claims about suggestiveness persuasive where “all [of the subjects]—including defendant—

match [the victim’s] general description”); People v. Allen,

(2007)

(defendant was only person in lineup who was bald, but hair was only unique characteristic and

other participants had closely cropped hair anyway); People v. Johnson,

(1982) (only noticeably unique aspect of defendant’s appearance was that he was

balding, an attribute not visible to witness at lineup because defendant was wearing bandana).

Again, even though other participants in Clifton’s lineup had dreadlocks or braided hair, none of

the others had hoodies or white shoes and it appears only one of them may have been wearing

“jogging pants” or sweatpants. It is the fact that Clifton is the only person matching every aspect

of the previous description that renders his lineup unduly suggestive.

¶ 76 On a more pragmatic level, the State argues that we should not find the lineup suggestive

because Clifton simply wore the clothes in which he was arrested and the officers “did not tell

[him] what to wear.” In support, the State cites People v. Faber,

,

where we found no suggestiveness in a lineup even though the defendant was the only person

wearing a sleeveless white T-shirt as the victim had described. But, the sleeveless white T-shirt

was the only purportedly unique feature about the defendant matching his previous description

and other participants in the lineup were wearing short sleeved white T-shirts.

Clifton’s case

of course, differs—his appearance matched the previous description in many particulars. We find

this case surpasses the limits of police taking suspects as they find them.

¶ 77 At oral argument, Clifton’s counsel clarified that there was little that officers could have

done about the tattoo on his face. Our review of the photos suggests that Clifton’s tattoo may not

even have been visible from the distance at which the witnesses were viewing the lineup. Indeed,

- 27 - No. 1-15-1967

the tattoo appears faintly visible in Clifton’s close-up booking photo. Clifton’s counsel also

agreed that his tattoo is not a major factor in the analysis. Given the suggestiveness present in the

remainder of Clifton’s appearance, we agree.

¶ 78 The suggestiveness of Clifton’s lineups was substantial; the necessary fixes were

relatively easy. Clifton’s tattoo aside, the officers need not have gone to extraordinary measures

to prevent suggesting Clifton as the offender. They certainly need not have, as the dissent

suggests, taken a “shopping trip to Target.” Infra ¶ 102. Tucking in Clifton’s hood, taking all of

the participants’ shoes off, and providing hats to Clifton and the fillers would have sufficed.

Indeed, it appears that police stations in Chicago follow these types of procedures as a matter of

routine practice. See People v. Brown,

, ¶ 6 (“police gave all lineup

participants hats to disguise their hairstyles” where offender was described as having braided

hair); People v. Smith,

, ¶ 6 (“due to defendant’s braided hair and

the large tattoos on his face, in order to make the lineup fair and not suggestive, all of the

participants had bandages on their faces and wore baseball hats”). We do not cite these decisions

for their precedential value, because of course they have none (see Ill. S. Ct. R. 23(e) (eff. July 1,

2011)), only as examples to dispel the practical concern the dissent has that it would be onerous

for police to remedy the obvious differences in Clifton’s appearance. See People v. Carr,

, ¶ 29 n.2 (Schmidt, J. specially concurring) (citing Rule 23 order as an

example, not as authority).

¶ 79 Again, the dissent responds to this point by referring to photos that were not introduced at

trial. Infra ¶ 102. The witnesses confirmed that Exhibit 1 shows Clifton as he appeared during

their lineups. Detective Banks, looking at Exhibit 1, agreed that Clifton was one of two people in

- 28 - No. 1-15-1967

a dark hoodie. Importantly, Clifton did not supplement his claim about the suggestiveness of his

lineup with arguments about his clothing until after the witnesses confirmed that he appeared as

he did in Exhibit 1. Any suggestion that Clifton’s hood may have been tucked-in in other photos

is irrelevant where no witness testified that Clifton appeared as he did in the other photos at the

time of the lineups. Cf. People v. Thomas,

(1990) (error for trier of fact to

consider exhibits not introduced into evidence).

¶ 80 While not dispositive, we also find it illuminating the Chicago Police Department

expressly instructs its officers that “[s]uspects in a lineup should not appear to be substantially

different from fillers based on the eyewitness’s previous description of the perpetrator or based

on other factors that would draw attention to the suspect. For example, fillers should be the same

race, sex, approximate height, weight, age, and physical appearance and be similarly clothed.”

(Emphases added.) Chicago Police Department, Special Order S06-02 § 2(F)(3) (eff. Jan. 1,

2016) (http://directives.chicagopolice.org/directives/data/a7a57be2-12be97cf-78912-be98-

99723f421ce10458.html?hl=true) [https://perma.cc/3AU9-EUKU]. (We acknowledge that the

effective date of this special order comes after the time at which Clifton’s lineup was

administered. But, according to the notations about amendments in the order, it appears this

language existed in earlier versions.)

¶ 81 Of primary importance, it appears that Chicago police officers are aware that they are to

carefully ensure, when constructing a lineup, that any difference between an offender and a filler

is not related to the descriptions given by witnesses. Here, the State does not dispute that the

officers were aware of the description that Smith, Tolbert, and Lee had given and that no

- 29 - No. 1-15-1967

remedial steps were taken to ensure that Clifton’s appearance did not set him apart based on

those descriptions.

¶ 82 We reiterate that under Illinois law, the mere fact that a suspect appears in the lineup with

one article of clothing or distinctive feature that matched his or her description does not render a

lineup suggestive. Our conclusion is limited to its facts—the sheer number of Clifton’s features

matching the witnesses’ descriptions compels our result.

¶ 83 Turning to remedy, as we have said the parties now agree that a remand is appropriate to

allow the trial court to evaluate the independence of the witnesses’ identifications in the first

instance. We agree. As we have set out, a defendant bears the initial burden to establish that the

identification procedures are suggestive. McTush,

. Once he or she does that, the

State must prove “by a clear and convincing showing, based on the totality of the surrounding

evidence, that the witness is identifying the defendant solely on the basis of his [or her] memory

at the time of the crime.” (Internal quotation marks omitted.)

Here, the trial court did not find

the identification procedures suggestive in the first instance, and so the burden never shifted to

the State. As a result, the State did not have the opportunity to provide evidence to meet its

burden to show an independent basis for the identifications. As we are a court of review, not first

view, we find a remand appropriate.

¶ 84 The dissent is “puzzled” that we would choose to remand to afford the State an

opportunity to meet its burden and allow the trial court to make findings of fact in the first

instance. But, as the dissent points out, we may consider the independence of witness

identifications for the first time on appeal if the record is sufficiently developed. See Brooks,

. What we may do, however, is not always what we should do. Here we see no

- 30 - No. 1-15-1967

judicial economy rationale for doing so ourselves. We are remanding—as the dissent agrees we

should—for a preliminary Krankel hearing. So, this case will already be before the trial court

once again.

¶ 85 We vacate the trial court’s denial of Clifton’s motion to suppress identification. In

accordance with our review of the record and the parties’ agreement as to remedy, we remand for

the trial court to conduct a hearing to determine whether there is a sufficiently independent basis

on which to find the complainants’ identifications of Clifton reliable.

¶ 86 Krankel

¶ 87 Given our resolution of Clifton’s suppression claim, we might ordinarily put off deciding

his Krankel claim. But, as we will discuss, the ineffectiveness that formed the basis of Clifton’s

pro se claims stemmed from counsel’s purported failure to interview witnesses and discuss the

case with Clifton. While the trial court’s disposition of the suppression motion on remand might

alter the contours of any claim of ineffectiveness, we find the claims that Clifton has already

presented are likely to recur on remand and likely to be the same regardless of the outcome of the

suppression motion. As a result, we address his Krankel argument now.

¶ 88 Clifton argues that the trial court erred by failing to conduct the preliminary inquiry set

out in Krankel,

. The State argues, “[t]his record does not necessarily reflect an

express claim of ineffective assistance of counsel,” but ultimately concedes that the trial court

failed to flesh out the facts underlying Clifton’s ineffectiveness claims. We agree with the parties

that no proper Krankel hearing took place and find that the record unambiguously compels that

conclusion.

- 31 - No. 1-15-1967

¶ 89 Following Krankel, when a defendant brings his or her pro se claims of ineffective

assistance to the trial court’s attention, the court must make a preliminary inquiry into the claim’s

factual bases. People v. Ayres,

. The trial court may rely on its own

knowledge of trial counsel’s performance and, if necessary, ask questions of trial counsel and the

defendant. Id. ¶ 12. If the trial court determines that the claims lack merit, it may deny the

defendant’s motion. Id. ¶ 11. But, if the trial court finds possible neglect, the court may appoint

new counsel to represent the defendant while further litigation about counsel’s alleged

ineffectiveness takes place. Id. We review questions of the trial court’s compliance with Krankel

procedures de novo. People v. Jolly,

.

¶ 90 Here, Clifton made specific allegations of ineffectiveness claiming his counsel failed to

investigate witnesses and did not come to see him to discuss the case. The trial court did not

attempt to uncover the factual bases of those claims, declining to appoint new counsel and

describing Clifton’s lawyer as “a very capable public defender.” We find Clifton’s dialogue with

the court satisfies the requirements to trigger a preliminary Krankel inquiry. See People v.

Lobdell,

(requiring defendant to use magic words—“ineffective

assistance of counsel”—would elevate form over substance). The parties agree, as do we, that no

preliminary Krankel inquiry took place.

¶ 91 Affirmed in part and vacated in part.

¶ 92 Cause remanded.

¶ 93 JUSTICE LAVIN, concurring in part and dissenting in part:

¶ 94 The majority has held that the lineup in which defendant was identified was “unduly

suggestive,” resulting in a remand for a “hearing to determine whether there is a sufficiently

- 32 - No. 1-15-1967

independent basis on which to find the complainants’ identifications of Clifton reliable.” I

disagree and respectfully dissent, as I find that the trial court correctly found the police lineup

evidence was fair to defendant.

¶ 95 At trial, the victims testified that they were confronted by a gun-wielding young man who

took their possessions on April 17, 2012, shortly before midnight. That evening, three of them

gave investigating Officer Matthews of the Harvey Police Department detailed descriptions of

the perpetrator of this crime, including his approximate age, his race, a facial scar or tattoo, his

hairstyle, and what he was wearing. The following morning, three of the victims discussed the

encounter again with police. At that point, police decided to contact the cell phone provider for

Smith’s phone to see if it could employ technology to identify the phone’s current whereabouts.

Police quickly learned that the phone was in use on the south side of Chicago, and they went to

an address on Carpenter Street, where they found defendant in possession of the cell phone in

question. As fate would have it, defendant was apparently dressed in the same clothes that he

wore the previous evening when the robbery occurred. Police kept defendant in custody and

arranged lineups for the following day.

¶ 96 The trial court found nothing inherently suggestive about defendant’s appearance, finding

similarities in hairstyles, height, weight, and clothing. Smith testified that he was with Lee and

Tolbert when he viewed the lineup, but the trial court found that Lee and Tolbert’s testimony

established they were each alone when they viewed the lineup. The trial court agreed with

defendant and suppressed Smith’s statement of his lineup identification, but a sufficiently

independent foundational basis permitted his in-court identification. With the exception of

Smith’s lineup identification, the trial court denied the renewed motion to suppress.

- 33 - No. 1-15-1967

¶ 97 After reviewing the lineup photos and the related testimony regarding the lineup

procedures from the suppression hearing and the trial, the trial court’s factual findings were not

against the manifest weight of the evidence. The defendant clearly did not satisfy his burden of

showing that the lineup identifications were unduly suggestive. The trial court specifically noted

that the participants in the lineup shared a number of similar characteristics, giving confidence

that the identifications depended upon the memory of the witnesses and not the composition of

the lineup. Identifications made at a lineup always present “the possibility of unfairness to the

accused in the way a lineup is conducted.” Foster v. California,

(1969). As a

result, a two-part framework has been developed. First, the defendant bears the burden to show

that the pretrial lineup was “impermissibly suggestive.” People v. McTush,

(1980). If the defendant successfully makes the showing, the burden then shifts to the State to

present clear and convincing evidence that “the witness is identifying the defendant solely on the

basis of his memory of events at the time of the crime.” (Internal quotation marks omitted.)

Our analysis reviews the totality of the circumstances surrounding the identification. People v.

Lawson,

. And we may look to facts adduced at both the

suppression hearing and trial. People v. Gill,

(citing People v.

Brooks,

(1999) (where the defendant seeks reconsideration of suppression

rulings posttrial, we may consider both hearing and trial testimony)).

¶ 98 A two-part standard of review is utilized where we would disturb the trial court’s factual

findings only when they are against the manifest weight of the evidence, and we review the

ultimate legal question de novo. Lawson,

.

- 34 - No. 1-15-1967

¶ 99 Defendant contends, in the main, that the lineup was unduly suggestive because only he

appeared in the lineup with dreadlocks, a dark hoodie, and white shoes, which is how the victims

described the offender with the gun. The weight of authority in Illinois would clearly reject this

argument. A substantial body of case law upholds the admissibility of lineup identification

evidence when a suspect wears clothing described to police by the victims. People v. Peterson,

(1999) (collecting seven cases holding similarly). Having reviewed

the lineup photos presented at the suppression hearing and at trial, I agree with the trial court’s

determination that defendant’s clothing did not single him out to a degree to make the lineup

suggestive.

Exhibit 1, which the State used at trial.

A careful analysis of the lineup photograph used at trial reveals five African American men who

look to be around the same age. Defendant is seated at the left (next to the desk) in this particular

exhibit. All five are dressed in casual clothing. Three of the five (including defendant) have

dreadlocks or braided hair. Four of the five (including defendant) have facial hair. No facial scars

- 35 - No. 1-15-1967

or tattoos are discernible in the photograph, but there was testimony that only defendant had a

tattoo on his left cheek. Two of the men (including defendant) are wearing dark hoodies and

while it is not observable in the photograph, testimony at trial established that defendant was the

only person in the lineup wearing white sneakers. Defendant’s argument that these factors

resulted in an unduly suggestive lineup is quintessentially specious.

¶ 100 Defendant complains that “[i]f one hundred people were asked to view the lineup and

choose which participant was not like the others, there is no question that all one hundred would

choose [him].” This is patently absurd. If one is looking to identify somebody in this photograph

who is unlike the others, one need only to look next to defendant, where a young man with a

short-cropped haircut sits, wearing an unzipped hoodie that pointedly reveals his bare chest. One

might say he looks different, but even he is approximately the same age, height, and weight as

the others. The majority takes issue with this, stating, “[t]he question is not who among the

- 36 - No. 1-15-1967

participants is least like the others; the question is who among the participants is most like the

previous descriptions” and asserts that the complainants’ never described their assailant as

“wearing an ‘unzipped hoodie.’ ” Yet, in several of the lineup photos presented at the

suppression hearing, defendant is wearing an unzipped hoodie. Thus, defendant is neither “least

like the others” nor “most like the previous descriptions.” Undaunted, defendant cites (and the

majority relies upon) People v. Maloney,

(1990), and argues that his

lineup appearance “all but hung a sign saying ‘pick me’ around [his] neck,” as the Maloney court

found. This ill-considered and hyperbolic gambit is easily debunked by even a cursory

comparison to Maloney, which at the admitted risk of considerable judicial understatement, is

distinguishable.

¶ 101 In Maloney, the defendant appeared in a lineup with four other men.

. Those

four happened to be detectives, as the investigating officers were said to be “unsuccessful” in

their attempts to locate similar-looking arrestees from nearby police stations.

. Three

wore pressed white shirts, pressed grey slacks, socks and shoes, and wristwatches.

.

The fourth wore a pressed pullover shirt, pressed jeans, socks and shoes, and a wristwatch.

. By contrast, the defendant had an undeniably disheveled appearance, wearing a brown

(or extremely dirty) shirt, wrinkled blue slacks, shoes sans socks, and no wristwatch.

.

The defendant, overall, appeared unkempt compared to the well-dressed and well-groomed law

enforcement professionals who sat with him at the lineup.

Along with the stark contrast in

dress, a “difference in physical size” existed among the lineup participants, with the defendant

possessing a Lilliputian body habitus as compared to the others.

- 37 - No. 1-15-1967

¶ 102 Suffice it to say, the composition of this lineup is wholly dissimilar to that in Maloney.

Here, all participants were dressed casually, two with dark hoodies and three had hair styled with

dreadlocks or braids. All five men are similar in height, weight, and complexion. Far from being

suggestive, this lineup is a veritable paragon of propriety that could only have been surpassed by

a police shopping trip to Target in order to dress defendant so he wasn’t wearing the clothes he

had on when he was arrested. Bluntly put, there is no duty for police to change a suspect’s

clothing or to dress other members of a lineup in the same manner as the suspect. The majority

proposes the police in this case could have mitigated the suggestiveness of the lineup by, among

other things, “[t]ucking in Clifton’s hood.” Supra ¶ 78. Looking at the following lineup photos

presented at the suppression hearing, however, it appears they did just that. A careful review of

the two photos reveals that defendant is wearing a zipped hoodie with a logo in one, but not in

the other. Thus, either defendant’s hood was tucked in or he was wearing a different sweatshirt.

¶ 103 Since the offender was described as wearing a blue or black hoodie and white shoes,

defendant contends that that the lineup was unduly suggestive because only he wore a dark

hoodie and white shoes and because he is the only one with dreadlocks and a facial tattoo. These

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sorts of situations are not uncommon, however, and as the trial court here stated, “defendant

made the decision to make himself very unique looking and that is what he has to live with.”

¶ 104 In People v. Lopez,

(1981), the defendants asserted that a lineup

was unduly suggestive because they were wearing the same clothing as that said to have been

worn by the perpetrators. The court noted that “[a]pparently, defendants were arrested with these

clothes, and there is no evidence that the police forced them to wear this clothing.”

As a

result, the court found that “there can be no claim of impermissible suggestiveness.”

¶ 105 Similarly, in People v. Woods,

(1969), the defendant in the

lineup was wearing the same clothing that he wore upon his arrest. Although the victim stated

that the jacket and trousers worn by the defendant during the lineup were the same as those worn

during the crime, this did not render the lineup unduly suggestive. Id.; see also People v. Hughes,

(1994) (upholding a one-person show-up identification where

the defendant wore the same clothing he wore during the robbery).

¶ 106 Moreover, in People v. Bragg,

(1995), the reviewing court

rejected the defendant’s claim that a lineup was unduly suggestive because the clothing he wore

in the lineup matched the witnesses’ descriptions. The court also stated that “there is no

requirement that police find matching clothes for everyone in the lineup.” In People v. Faber,

, this court held that a lineup was not unduly suggestive even though

the defendant was “the only person wearing a sleeveless T-shirt” when the victim described the

offender as wearing a “Dago-T.”

¶ 57 (citing People v. Johnson,

(1991)

(where the court held that a lineup was not suggestive despite that the defendant was the only

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one wearing red trousers in an investigation where the offender was described as wearing red

trousers)).

¶ 107 Even though defendant in this case was wearing the same clothing in the lineup that he

apparently wore during the robbery and when he was arrested, defendant has been fairly

identified, in part, as a result of his wardrobe faux pas. One could call that situation unlucky for

the defendant or serendipitous for the prosecution, but it clearly is not a basis for retrial. I would

affirm defendant’s convictions on the merits and remand only for a Krankel hearing.

¶ 108 On the subject of the relief granted, I must say that I am puzzled that my colleagues are

remanding for a hearing where the trial court is to determine whether an independent basis exists

upon which the identifications of the victims should be admissible. The trial court has already

conducted such a hearing and has made the determination that the lineups were not unduly

suggestive and that the identifications of the two witnesses in question were sufficiently

independent to be admissible. Defendant and the majority have manifestly failed in proving that

the lineups were unduly suggestive and have also failed in establishing that the trial court

findings in this regard were against the manifest weight of the evidence, which is the appropriate

standard of review here.

¶ 109 Finally, even if one were to assume that the lineup procedures were unduly suggestive,

the testimony at the suppression hearing and at trial sufficiently showed that the in-court

identifications of defendant had an origin independent from the lineup identifications. See

People v. Brooks,

(1986) (finding that the testimony at the pretrial hearing

and at trial provided a sufficient account of events to determine whether the identification had an

independent basis, rendering it unnecessary to remand for further proceedings). The witnesses

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here identified defendant shortly after the offense occurred. They had the opportunity to view

their assailant, paid a great deal of attention to his appearance, provided an incredibly accurate

description of the offender, and demonstrated the identification with absolute certainty. See

Brooks,

. Any further proceedings would be futile.

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