No. 1-17-3003 Order filed July 31, 2020 Fifth Division

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). __________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT __________________________________________________________________________ PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court of ) Cook County. v. ) ) No. 14 CR 216 TERRELL BROWN, ) ) Honorable Defendant-Appellant. ) Dennis Porter, ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HALL delivered the judgment of the court. Presiding Justice Hoffman and Justice Rochford concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction and sentence are affirmed where: the eyewitness’s in-court identification was proper; pre-trial identification procedures were not unduly suggestive; trial counsel was not ineffective; the evidence was sufficient to support his conviction; and his extended-term sentence of eight years’ imprisonment was not excessive.

¶2 Following a jury trial, defendant Terrell Brown was convicted of three counts of aggravated

battery (720 ILCS 5/12-3(a) (West 2016)), a Class 3 felony, and sentenced to an extended-term of

eight years’ imprisonment. He appeals, arguing that: (1) the trial court erred when it allowed the

State to re-ask the complainant, on direct examination, to identify the offender in open court after

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the complainant had testified that the offender was not in court and where the State showed the

complainant a photograph of the photo-array and lineup before re-asking him to identify the

offender in open court; (2) that the pretrial identification procedures were unduly suggestive and

tainted the in-court identification; (3) that trial counsel was ineffective in failing to introduce

discrepancies in the complaint’s various descriptions of the offender; (4) that the evidence was

insufficient to sustain the conviction where there was a single eyewitness who initially testified

that the offender was not in court, where the photo-array and lineup were not conducted in

compliance with recommended procedures, and where there was a lack of corroborative evidence

– e.g., no evidence that the defendant made any incriminating statements and no physical evidence

which placed the defendant at the scene of the crime on the date in question; and (5) that his

extended-term sentence of eight years was excessive. For the reasons that follow, we affirm

defendant’s convictions and sentence.

¶3 BACKGROUND

¶4 Defendant was arrested on December 6, 2013, and indicted on December 18, 2013, for the

offense of aggravated battery against Akli. A suppression hearing was conducted on October 2,

2014, to suppress defendant’s photo-array and physical line-up identification. During the hearing

defendant’s counsel argued that: the photo-array and physical line-up were unfairly conducted

because there were no persons in the photo-array or physical line-up reasonably similar to

defendant in physical appearance; the composition and construction of the line-up was such as to

improperly suggest the identification of the defendant as the perpetrator of the offense in that there

was a significant disparity in certain distinguishing characteristics between defendant and the other

individuals in the photo-array and the physical line-up, and there was an inadequate number of

subjects presented for comparison; the emotional and physical condition of the witness was such

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as to impair his ability to make a fair, rational and reasoned identification of the offender in this

case; and the conduct of the police and/or other governmental officials was such as to improperly

suggest the identification of the defendant as the perpetrator of the offense. The State presented

two detectives during the hearing who testified regarding their procedures during the photo-array

and physical line-up. At the conclusion of the hearing, the court stated that the detectives’

testimony was straightforward, consistent and credible; the array was conducted two days after the

incident occurred; and, the photos were people of the same gender, racial characteristics, hairstyles,

almost the same mustache, and “remarkably unsuggestive.” Defendant’s motion to suppress his

identification was denied.

¶5 At trial, Akli, a 50-year-old African male taxicab driver, testified on direct examination

that at approximately 4:00 a.m. on October 20, 2013, he had just completed his shift and was

driving his taxicab to his home in Lyons, Illinois. While stopped at a red light on Western Avenue

at Van Buren Street, his cab was rear-ended by a person he later identified as defendant. Akli

testified that he grabbed a piece of paper, a pen, and his phone and exited his cab and began writing

down the license plate number of the other vehicle. He then took his phone out to call the police.

At this time, defendant exited his vehicle and began shouting: “If you call police, I’ll kill you. You

call police, I’ll kill you.” Akli described the person as a tall, light-skinned black man, “just a normal

person wearing a white T-shirt, and I don't remember the color of the pants.” He also described

the vehicle as “an old car, Oldsmobile, and the color was light brown.”

¶6 Akli testified that after he exited his vehicle, he began walking towards the rear of his

vehicle and said, “brother, you just hit my car and you want to kill me?” Defendant began walking

towards him. After Akli and defendant were “very close,” defendant stated that Akli’s vehicle was

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not damaged and he offered Akli a $100 bill, but Akli refused to take it because he felt it was

“against the law of insurance” to accept it.

¶7 The State then asked Akli to identify defendant in court and Akli stated that he did not see

defendant in court.

¶8 Akli further testified that as he proceeded to call the police, defendant became angry and

began hitting him in his face “so many times.” Defendant then jumped in his vehicle and attempted

to run Akli over, and Akli jumped to the side to avoid being struck. As defendant was driving

away, Akli took a picture of defendant’s vehicle. Akli was then presented with the photograph he

took of defendant’s vehicle on October 20 for identification and the photograph was entered into

evidence.

¶9 Akli testified that while he and defendant were at the rear of his vehicle, he noticed that he

had written down the numbers for defendant’s license plate incorrectly but did not correct it at that

time because of the “tension.” After defendant drove away, he changed the second to last number

from a “5” to an “8” and he recorded the plate number as L752588.

¶ 10 Akli testified that after defendant drove off, as he attempted to call the police again, a

detective pulled up in a squad vehicle. Akli told the detective that defendant was a 5’8” to 6’ tall,

light-skinned African-American male, wearing a white t-shirt, and gave the officer the piece of

paper with the license plate number on it. The officer questioned Akli about the corrections on the

paper, and Akli explained he changed the second to last number from a “5” to an “8.” Akli

identified the piece of paper with the plate number in court and the document was admitted into

evidence. Eventually, an ambulance arrived and transported Akli to Stroger Cook County Hospital

(Stroger).

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¶ 11 While at Stroger, Akli learned that he had suffered a ruptured globe injury to his left eye,

causing permanent blindness in that eye. Removal of the eye was recommended but Akli declined.

Akli testified that his sight was perfect prior to the attack and he never had glaucoma.

¶ 12 Akli testified that on October 22, 2013, he went to the police station to view a photo-array

of possible suspects. He reviewed and signed a lineup advisory form after a detective explained

the purpose of the form and the process. Then, the detective showed Akli a photo collage of six

men. Akli identified defendant’s photograph as the man who rear-ended and attacked him and

stated he was “100 percent sure it was him.” Akli signed defendant’s photograph. This photo-array

was entered into evidence.

¶ 13 Akli testified that on December 6, 2013, he returned to the police station to view a physical

lineup. Detective Kolman reviewed a lineup advisory form with him and he signed it. Akli testified

that he identified defendant from the lineup as the man who rear-ended and attacked him on

October 20, 2013. The photo of the lineup was then introduced into evidence.

¶ 14 After the photo-array and physical lineup photos were introduced into evidence, Akli was

asked, again, whether he could identify defendant in court. Akli did. When asked why he failed to

identify defendant previously, Akli stated, “[b]efore they move this thing was so -the light was not

-- did not permit me to recognize him. When I was sitting there when he stand up, they said okay,

let's everybody -- like the jury something, we have to stand up. That is when I noticed it is him.”

¶ 15 On cross examination, Akli testified that at the time of the accident, it was dark, and he had

previously worked a twelve-hour shift. He testified that there was a little space, approximately two

inches, between his vehicle and defendant’s vehicle, but he was able to see his license plate

number. Akli testified that when defendant was attempting to offer him a $100 bill, he was looking

into his eyes as they were conversing. He stated that the entire incident lasted for less than two

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minutes. Akli testified that he is 5’8” and described defendant as taller than him and that defendant

could have been up to seven inches taller.

¶ 16 On redirect examination, Akli stated that he had to look up when he was speaking with

defendant and indicated his height with his hands as approximately 5 inches taller than him.

¶ 17 Des Plaines Police Department Officer Alexander Dunn testified that on July 22, 2013, he

stopped a vehicle driven by defendant as part of a routine traffic stop. Officer Dunn identified

defendant in court. Defendant was driving a gold 1985 Cutlass Supreme (Oldsmobile) with the

license plate number L752588. Officer Dunn learned that defendant lived at 131 Cuyler, Oak Park,

Illinois. A photograph of defendant was taken on that date. Defense counsel’s objection to the

admission of the photograph into evidence was overruled.

¶ 18 Chicago Police officer Nina Moore testified that on December 6, 2013, at approximately

4:55 p.m., she and her partner, Officer Choate, drove to 3360 West Lake Street. Once there, they

stopped a vehicle driven by defendant, whom she identified in court. Defendant was driving a gold

1985 Oldsmobile. Officer Moore arrested defendant in part for a minor traffic violation. During

the arrest, Officer Moore documented the vehicle’s license plate number as S235926. Officer

Moore learned that there was an investigative alert for defendant and notified the detective who

issued the alert that she had defendant in custody.

¶ 19 Dr. Thomas Patrianakos, an ophthalmologist at Stroger Hospital testified that on October

20, 2013, he examined Akli and performed an open globe exploration and repair surgery on his

left eye for a ruptured eye globe. He noticed that Akli’s eye had “quite a bit of swelling” and had

“no light perception.” Dr. Patrianakos testified that Akli also had orbital fractures around his left

eye. Akli became blind in his left eye after the incident.

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¶ 20 On cross examination, Dr. Patrianakos testified that Akli had a prior cataract extraction in

2011. He stated that he did not know if the extraction was successful because he did not evaluate

Akli afterwards. He testified that if a general cataract condition is left untreated or maltreated, it

will worsen and could affect night vision.

¶ 21 On redirect examination, Dr. Patrianakos testified that there was no evidence in Akli’s

records from October 20 that he had glaucoma. He also testified that cataract surgery has probably

one of the highest success rates out of all surgeries that can be performed, and the success rate of

surgery is about 98 percent.

¶ 22 Investigator Eugene Shepherd, an investigator with the Cook County State’s Attorney’s

Office, testified that on April 27, 2016, he went to a tow truck yard at 4699 West Lake Street in

Melrose, Illinois, to take photographs of the 1985 Oldsmobile defendant was driving at the time

of his arrest in December of 2013, which had been held in a secure location in the yard. Investigator

Shepherd identified the photographs in court. He testified that in July of 2016, he was asked to

meet with Akli and recover the piece of paper with defendant’s driver’s license number written on

it. After retrieving the paper, Investigator Shepherd inventoried it, sealed it, and gave it to the vault

person at the State’s Attorney’s Office. He also identified the piece of paper in court.

¶ 23 The State then admitted into evidence a certified vehicle title from the Illinois Secretary of

State for the 1985 Oldsmobile coupe with license plate number L752588. The vehicle was

registered to a single owner, Bridgette Grissette-Brown, the mother of defendant’s daughter, of

131 N. Cuyler, Apartment 313, Oak Park, defendant’s address at the time of his July 22, 2013,

arrest. The registration reflected that the license plate was replaced on December 5, 2013, with a

new license plate, S235926, which is the same license plate number on the vehicle when defendant

was arrested the following day, on December 6, 2013.

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¶ 24 The State then rested their case-in chief. Defendant moved for a directed verdict of

acquittal, which was denied.

¶ 25 The defense, then called defendant’s fiancée, Aisha Henison, as an alibi witness. Henison

testified that on December 6, 2013, she received a call from a police officer who asked her if she

knew defendant. She responded that she did and that he was her fiancé. The officer asked her if

she recalled the date of October 20, 2013, and Henison stated that she did not. She also checked

her text messages on that date, and she did not find anything. Subsequently, Henison began going

through her phone, including pictures of her son attending a homecoming dance on October 19,

2013, the day prior to the accident. Henison testified that she recalled that she, defendant, and her

youngest son were helping her older son get dressed and they took pictures. Then, Henison,

defendant, her two sons, and defendant’s daughter went to her best friend's home because her son

was attending homecoming with her best friend's daughter. After they dropped off the children at

homecoming at Downers Grove High School, everyone proceeded to a restaurant at approximately

8:00 p.m. At approximately 10:15 p.m., they went back to the high school to pick up their children.

¶ 26 Henison testified that after she picked up her son from homecoming, they all went back

home, including defendant, and she and defendant went to bed and stayed in bed until they woke

up the next morning.

¶ 27 When defendant woke up the next morning at approximately 9:00 a.m. on October 20, he

went to play basketball. Henison testified that there is no possibility that defendant left the house

that evening because she is a very light sleeper and would have heard him leave.

¶ 28 On cross examination Henison testified that she told defendant’s attorney about the events

surrounding her son’s homecoming in March of 2017, approximately three years and nine months

after defendant was arrested on December 6, 2013, and one month before defendant’s trial began.

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¶ 29 Following closing arguments, a jury found defendant guilty of aggravated battery causing

great bodily harm, aggravated battery on a public way, and aggravated battery causing permanent

disability. The trial court denied defendant’s motion for a new trial, reasoning that Akli had an

adequate opportunity to observe defendant because “they were face-to-face, close enough for the

victim to lose sight in one of his eyes from the assault that he received.” Further, the court held

that the testimony of a single eyewitness is sufficient to convict if believed, and the believability

of the witness was a matter for the jury, which decided against defendant. The court also held that

the question of the reliability of the in-court identification was a matter of fact for the jury, and the

jury observed the in-court identification, the manner of said identification, and were properly

instructed on the identification.

¶ 30 During the sentencing hearing, the State then called a witness in aggravation, Cook County

Deputy Sheriff Anthony Kolaski. Sheriff Kolaski testified that on May 4, 2008, at approximately

4:34 p.m. he was driving near 4359 North Linder, Chicago, Illinois. He was off-duty and driving

home with his fiancée and nine-year-old stepdaughter. He pulled up to the light in the left lane and

a vehicle pulled up next to him. The light turned green and the other vehicle took off and cut into

his lane. Sheriff Kolaski then pulled back into the right lane to avoid hitting the other vehicle and

was trying to catch up to the vehicle to see the license plate number. While his fiancée was writing

down the license plate, the person in the other vehicle jammed on the brakes, so Sheriff Kolaski

stopped to avoid running into the back of the other vehicle. Sheriff Kolaski testified that the driver,

who was later identified as defendant, stepped out of the vehicle, walked between the two vehicles

and said something like "you white b****," to Sheriff Kolaski’s fiancée, who was sitting in the

passenger seat, and began walking towards her.

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¶ 31 Sheriff Kolaski testified that defendant then began to reach inside the passenger side of the

vehicle, so he got out and walked around the front of his vehicle and said to defendant, "[s]top, I'm

the police. We don't need any of this going on. Just get back in your car" and showed defendant

his badge. Defendant then walked over to Sheriff Kolaski, said “[f]*** the police,” and hit him in

the head. Sheriff Kolaski fell to the ground and as he attempted to stand back up, defendant hit

him in the head again. Sheriff Kolaski and defendant began fighting and they both ended up in

front of defendant’s vehicle. Defendant then “jumped into his car, closed the door and floored it,”

hitting Sheriff Kolaski with his vehicle. Defendant then sped down the street with Sheriff Kolaski

holding onto the hood. Defendant slammed on the brakes, and Sheriff Kolaski went “flying off the

hood of the car,” hitting his head on the ground. Defendant then exited his vehicle and started

kicking and punching Sheriff Kolaski while he was on the ground in front of his vehicle, telling

him “fuck the police.”

¶ 32 Meanwhile, Sheriff Kolaski’s fiancée pulled Kolaski’s vehicle, a Hummer, in between

defendant’s vehicle and Sheriff Kolaski, who was still on the ground. Defendant got back into his

vehicle, “floored it”, and tried to move the Hummer out of the way but could not. Defendant tried

to back up but was unable to do so because there were other vehicles behind him. Defendant got

out of his vehicle and hit Sheriff Kolaski a few more times before running away.

¶ 33 Sheriff Kolaski testified that after defendant ran away, he heard sirens. The police then

returned to the scene of the incident with defendant. Sheriff Kolaski identified defendant as the

person who had just struck him, and his fiancée took him to the hospital. Defendant was

subsequently found guilty of aggravated battery, great bodily harm in that case and was sentenced

on March 4, 2009, to 42 months’ imprisonment in the Illinois Department of Corrections.

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¶ 34 Defense had letters in mitigation from professionals in the community, friends, and family

members, who talked about defendant’s rehabilitation leading up to this case. Defense presented a

certificate of recognition from the Christ Centered Life Learning Ministry, a bible group defendant

completed, and indicated that he had a history of gainful employment in heating, air conditioning

and ventilation.

¶ 35 After considering aggravation and mitigation evidence in the current case, the trial court

sentenced defendant to an extended term of eight years’ imprisonment. The court found this

sentence to be necessary “to avoid deprecating the seriousness of [the] offense” and “for the

rehabilitation of the defendant.” The court found “it particularly aggravating that this [was] exactly

the same type of offense he committed in 2008, a road rage incident.” The trial court further stated

that it was fully prepared to give defendant the maximum sentence but did not “in view of the

mitigation…presented.”

¶ 36 Defendant filed a motion to reconsider his sentence, which was denied. Defendant now

appeals his conviction and sentence. 1

¶ 37 ANALYSIS

¶ 38 A. In-Court Identification

¶ 39 Defendant first contends that the trial court erred when it allowed the State to use a

photograph of the live line-up to prompt Akli’s in-court identification of defendant after Akli was

initially unable to identify defendant in court. Defendant contends that this was an unduly

suggestive method of identification.

1 This case was fully briefed on September 9, 2019, and assigned to the authoring justice’s inventory of cases on September 10, 2019. The authoring justice first circulated a proposed disposition to Justice Hoffman and Justice Rochford on July 22, 2020.

11 No. 1-17-3003

¶ 40 The State responds that Akli explained that he could not identify defendant the first time

he was asked because he could not see him due to the obstruction in his way and the lighting

conditions in the court room, not that he failed to remember what defendant looked like. It also

contends that whether Akli’s explanation was convincing was a question of fact for the jury.

¶ 41 First, we disagree with defendant’s position that this issue is subject to a de novo standard

of review. We review the trial court's evidentiary ruling on whether to admit particular testimony

for an abuse of discretion. People v. Tenney,

(2002); People v. Evans,

; People v. Calderon,

(2006). Our supreme

court has held that an in-court identification of a defendant, on its own, does not violate due

process. People ex rel. Blassick v. Callahan,

, 334–35 (1972); see also People v.

Rodriguez,

(1985) (absent extrajudicial suggestiveness, suggestiveness

at trial does not offend due process because the trial itself, especially the ability for cross-

examination, affords the defendant adequate protection); People v. Patterson,

(1980) (the “prosecution is not required to fill the courtroom with individuals who resemble

the defendant in order to insure a proper identification”).

¶ 42 When a reviewing court assesses the reliability of an identification, relevant factors it

considers are the opportunity of the witness to view the offender at the time of the crime, the

witness' degree of attention, the witness' description, the level of certainty demonstrated by the

witness at the confrontation and the length of time between the crime and the confrontation. People

v. Holmes,

(1990); People v. Slim,

(1989). An identification requires

exclusion if it is caused by impermissible suggestiveness which gives rise to the substantial

likelihood of irreparable misidentification. People v. Robinson,

(1998);

People v. Lutz,

(1982).

12 No. 1-17-3003

¶ 43 Applying the factors in the instant case, Akli testified that he was initially unable to identify

defendant in court because something was obstructing his view. The trial court determined that

Akli’s testimony was credible and admitted his subsequent identification over defense counsels’

objection. The record reflects that Akli had ample opportunity to observe defendant and was able

to describe him with sufficient detail within days of the altercation. Akli testified that during his

interaction with defendant on October 20, 2013, he was able to see defendant’s face and was very

close to him as defendant attempted to offer him $100 to repair any damage to his taxicab, right

before defendant punched him in his left eye. Akli provided a detailed description of defendant

and he never wavered in his statements that defendant was between 5’8” and 6” and light-skinned.

¶ 44 In addition, contrary to defendant’s contention, the witness’ memory did not require

refreshing. Akli did not forget what occurred or how defendant looked. Akli testified that he was

unable to see defendant initially in court because his view was obstructed.

¶ 45 Defendant further contends that Akli’s prior identification was not corroborative of his in-

court testimony. First, we agree with the State that pursuant to section 115-12 of the Illinois Code

of Criminal Procedure (725 ILCS 5/115-12 (West 2016)), “a statement is not rendered

inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the

declarant is subject to cross-examination concerning the statement, and (c) the statement is one of

identification of a person made after perceiving him.” Akli’s out of court statement was

substantively admissible. See People v. Holveck,

(1990) (an in-court

identification to corroborate an out-of-court identification is unnecessary; under the plain language

of the statute, an in-court identification is no longer required). Second, this argument is irrelevant

because Akli did make in an in-court identification of defendant. The jury heard Akli’s testimony

and considered Akli’s subsequent ability to identify defendant in court despite his initial inability

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to do so. Therefore, Akli’s in-court identification of defendant was proper and the trial court did

not abuse its discretion by allowing Akli’s in-court identification of defendant.

¶ 46 Defendant relies on two out-of-state cases in support of his argument that Akli was allowed

to “take a second bite at the apple” and “try again” to make an in-court identification of defendant,

which was unduly suggestive. Not only are these cases unpersuasive authority, but they are

inapposite to the facts in this case. In Commonwealth v. Mims,

(1978), after a

trial judge questioned a witness who was unable to make an in-court identification of a defendant,

the appellate court determined that the “court below improperly injected itself into the proceeding”

and the “procedure was unduly suggestive.” In Hamilton v. State,

(1974), a witness

originally selected the defendant from a photo-array. Four days later she expressed doubt and asked

to see the photos again and eventually chose a different person.

The court determined that the

police officer’s suggestion to a witness that “she had selected the right photograph on the first

occasion and suggested that she try again” was “impermissibly suggestive.”

.

¶ 47 B. Pre-trial Identification Procedures

¶ 48 Defendant’s second contention on appeal is that the trial court erred when it denied his

motion to suppress Akli’s out of court identifications of defendant because the pretrial

identification procedures were unduly suggestive and tainted the in-court identification. We

disagree.

¶ 49 When challenging the propriety of pretrial identification procedures, defendant bears the

burden of proving that the procedure was unnecessarily suggestive and created a substantial

likelihood of misidentification. People v. Corral,

(citing People

v. Lawson,

). The State may rebut defendant's showing by “clear

and convincing evidence that the witness is identifying the defendant based on his or her

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independent recollection of the incident.”

(citing People v. Brooks,

(1999)).

Courts look to the totality of the circumstances when reviewing a claim of an unnecessarily

suggestive identification.

(citing Lawson,

). The reviewing court

may also consider the evidence presented at trial as well as the suppression hearing.

Where the

challenged identification procedure is a photo-array or lineup, individuals selected for the array or

lineup need not be physically identical. People v. Allen,

(2007).

Differences in the appearances of the participants go to the weight of a witness's identification, not

to its admissibility. People v. Jones,

. A trial court's factual

determination that an identification procedure was not unduly suggestive should not be reversed

unless it is against the manifest weight of the evidence. People v. Gaston,

(1994).

¶ 50 The court employs a two-prong test to determine whether a witness’s identification was so

tainted by suggestive identification procedures that its admission at defendant’s trial violated due

process. People v. Ortiz,

(citing People v. McTush,

(1980)). First, the court must determine whether the pretrial identification procedures were

suggestive; if so, then the court must determine whether the identification testimony was so tainted

as to make it unreliable.

In evaluating the reliability of the tainted identification, the court

considers (1) the witness’s opportunity to view the suspect during the offense, (2) the witness’s

degree of attention, (3) the accuracy of any prior descriptions given, (4) his level of certainty at

the time of the identification, (5) the length of time between the crime and the identifications, and

(6) any prior acquaintance with the person identified that would enhance the witness’s ability to

recognize him.

.

15 No. 1-17-3003

¶ 51 First, as the State points out, section 725 ILCS 5/107A-2 (West 2012), which became

effective in January of 2015, was not the governing provision at the time the photo-array

identification took place in this case. This court has declined to retroactively apply section 5/107A-

2 to cases involving photo-array identifications prior to its enactment and we decline to apply it in

this case. See Corral,

, ¶ 96. As such, we will address this issue through

the lens of the applicable statute, section 5/107A-5 (725 ILCS 5/107A-5 (West 2012)), and the

portion of defendant’s argument which relies on section 5/107A-2 will be disregarded.

¶ 52 Section 5/107A-5, which was in effect in 2013, provides in relevant part that:

“(a) All lineups shall be photographed or otherwise recorded. These photographs shall be disclosed to the accused and his or her defense counsel during discovery proceedings…All photographs of suspects shown to an eye-witness during the photo spread shall be disclosed to the accused and his or her counsel during discovery proceedings…(b) Each eyewitness who views a lineup or photo spread shall sign a form containing the following information: (1) The suspect might not be in the lineup or photo spread and the eyewitness is not obligated to make an identification. (2) The eyewitness should not assume that the person administering the lineup or photo spread knows which person is the suspect in the case. (c) Suspects in a lineup or photo spread should not appear to be substantially different from “fillers” or “distracters” in the lineup or photo spread…” (West 2013)

¶ 53 Defendant does not argue that the steps delineated in section 5/107A-2 were not followed.

In fact, when evaluated pursuant to section 5/107A-2, our review of the record reveals that the trial

court's determination that the identification techniques utilized in this case were not unduly

suggestive is not against the manifest weight of the evidence. The trial court stated that after

carefully reviewing all the evidence, there was nothing in the record which indicated that the photo

array or the lineup presented to Akli were suggestive.

¶ 54 Regarding the photo-array process, the trial court stated that the detective’s testimony at

the suppression hearing was straightforward, consistent and credible; the array was conducted two

days after the incident occurred; and, the photos were people of the same gender, racial

16 No. 1-17-3003

characteristics, hairstyles, almost the same mustache, and “remarkably unsuggestive.” See Ortiz,

(no error in the trial court’s denial of defendant’s motion to

suppress because the pretrial procedures were not unduly suggestive; review of both the photo

array and the photograph of the lineup contained in the record confirmed that all the men were

similar in appearance). We agree with the trial court.

¶ 55 Also, defendant’s contention that Akli’s testimony suggested that defendant may have

stood out in the photo-array because of his complexion, is perplexing. It is true that two police

reports described defendant as having “dark complexion” and “medium complexion,” and a

detective who prepared the photo-array testified that defendant was described as having a “brown

complexion.” However, placing other photos in the array with the same complexion as defendant

is actually required by section 5/107A-5(c), which states, “c) Suspects in a lineup or photo spread

should not appear to be substantially different from “fillers” or “distracters” in the lineup or photo

spread…” The police officer included photos that matched defendant’s complexion to avoid a

violation of the statute and render the array unduly suggestive.

¶ 56 Regarding the lineup procedures, the court determined that the testimony of the detective

who conducted the lineup, six weeks after the incident, was also straightforward, consistent, and

credible. The detective informing Akli that there was a “possible suspect” in custody, does not, in

and of itself, render the lineup procedures unduly suggestive or render it tainted. The record reflects

that although the officers asked Akli to come to the station because they had a possible suspect,

when he arrived, they presented him with a lineup advisory form, which they explained in detail.

The officer explained that Akli was not required to make an identification, that defendant may or

may not be in the lineup, and that Akli did not assume that the person administering the lineup

knew which person was the suspect. See People v. Johnson,

(1984)

17 No. 1-17-3003

(fact that the witnesses knew the suspects were in the lineup is not suggestive per se but is merely

stating the obvious) (citing People v. Madden

(1977)).

¶ 57 In addition, defendant contends that he was the only person who wore a coat or other

outerwear during the lineup, which “suggests that a person has been inside longer – presumptively

in the police station – than others who were wearing a coat.” The law does not require the

participants in a lineup to be nearly identical, nor to exactly match the descriptions given by

eyewitnesses. People v. Love,

(2007). The suggestibility of a lineup

depends on “ ‘the strength of the suggestion made to the witness’ ” and, whether, through “ ‘some

specific activity on the part of the police, the witness is shown an individual who is more or less

spotlighted by the authorities.’ ” People v. Gabriel,

(quoting People v.

Johnson,

(1992)) (lineup not overly suggestive where the defendant was the

only one wearing a white T-shirt); People v. Peterson,

(1999) (lineup not

unduly suggestive when the defendant was the only one present wearing a gray sweatshirt); and

People v. Faber,

(lineup not suggestive where the defendant was the

only participant wearing a sleeveless t-shirt a witness described the offender as wearing). Courts

must examine the totality of the circumstances in determining whether a defendant has met the

burden of showing the identification procedure was impermissibly suggestive. People v. Prince,

(2005). If a defendant satisfies this burden of proof, only then will the

burden shift to the State to show, by clear and convincing evidence, an independent basis of

reliability for a later identification.

¶ 58 There is nothing in the record which supports the conclusion that the individuals in the

lineup were required to wear a particular item of clothing. Furthermore, like the aforementioned

cases, defendant’s lack of a coat did not render the lineup unduly suggestive. Defendant cannot

18 No. 1-17-3003

claim improper influence here where he simply wore his own clothing in the lineup. People v.

Jonson,

(1992).

¶ 59 Also, defendant’s contention that the fact that he was the only person in both the photo-

array and the physical lineup renders the lineup unduly suggestive is unsupported by Illinois law.

The mere fact that defendant was the only person in both the photo-array and the lineup does not

render the lineup suggestive.

; Ortiz,

.

¶ 60 Based upon the totality of the circumstances, we find that the pretrial identifications were

not unduly suggestive. Therefore, we need not determine whether these identifications tainted the

in-court identification testimony.

¶ 61 C. Ineffective Assistance of Counsel

¶ 62 Defendant next contends on appeal that his trial counsel was ineffective for failing to

introduce discrepancies in Akli’s various descriptions of defendant.

¶ 63 An ineffective assistance of counsel claim “is evaluated under the two-prong test set forth

in Strickland v. Washington,

(1984).” People v. Henderson,

.

To show ineffective assistance, a defendant must show both that “counsel’s performance fell below

an objective standard of reasonableness, and a reasonable probability exists that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

“A defendant’s

failure to establish either prong of the Strickland test precludes a finding of ineffective assistance

of counsel.”

Whether a defendant sufficiently alleges ineffective assistance of counsel is a legal

question subject to de novo review. People v. Taylor,

(2010).

¶ 64 We can dispose of defendant's assertion of ineffective assistance of counsel on either prong,

and we find that defendant has failed to satisfy the first prong.

19 No. 1-17-3003

¶ 65 With ineffective assistance of counsel claims, a court accords much deference to defense

“counsel's judgment and strongly presumes that counsel's conduct falls within the wide range of

reasonable professional assistance.” People v. Richardson,

(2000). “Generally,

the decision of whether or not to cross-examine or impeach a witness is a matter of trial strategy

which will not support a claim of ineffective assistance of counsel.” People v. Pecoraro,

(1997). Our supreme court has explained that “[t]he manner in which to cross-examine

a particular witness involves the exercise of professional judgment which is entitled to substantial

deference from a reviewing court.” Pecoraro,

. Accordingly, a “[d]efendant

can only prevail on an ineffectiveness claim by showing that counsel's approach to cross-

examination was objectively unreasonable.” Pecoraro,

.

¶ 66 Defendant points to three instances where he believed trial counsel should have introduced

evidence of the inconsistencies between Akli’s trial testimony and his prior statements: (1)

inconsistencies regarding Akli’s description of defendant as having dark complexion prior to the

trial and light complexion during trial; (2) police reports indicating the use of a weapon and no

mention of a weapon during trial; and (3) inconsistencies regarding defendant’s age. However, we

cannot say that trial counsel’s professional judgment on how to cross-examine Akli regarding these

matters resulted in ineffective assistance.

¶ 67 The record reflects that trial counsel questioned Akli’s description of defendant’s

complexion on cross-examination. Specifically, counsel asked if Akli gave a description to the

police that the person who had assaulted him “had a dark complexion,” and Akli responded, “[t]hat

is not correct.” Counsel then followed up with, “[s]o what complexion did they have,” and Akli

responded, “[l]ight skin.” Also, counsel’s decision to refrain from addressing whether Akli was hit

with a weapon or defendant’s age may have been a matter of trial strategy. Although the jury may

20 No. 1-17-3003

not have been aware of what caused Akli’s injuries, it was certainly aware that defendant had

struck Akli with something so hard that it broke his eye socket and rendered him completely blind

in his left eye.

¶ 68 The record also reflects that trial counsel thoroughly defended defendant and cross-

examined the eyewitness. Trial counsel objected to the introduction of the piece of paper

containing defendant’s license plate into evidence, the form Akli signed related to the lineup

procedures, and the identification of defendant in the lineup. Counsel also thoroughly cross-

examined Akli regarding the details of the occurrence, including the lighting, the timeframe from

the beginning to the end of the altercation, his ability to view the defendant, his ability to see

defendant’s license plate; defendant’s height, and the subsequent change Akli made to the piece

of paper. Moreover, during a sidebar, trial counsel requested that the trial court specifically ask the

State’s Attorneys whether they had engaged in conversation with Akli during the lunch break.

¶ 69 Accordingly, defendant has not shown that counsel's approach to cross-examination was

objectively unreasonable. See Pecoraro,

,

. Based upon the

foregoing, we cannot say that trial counsel’s assistance was ineffective.

¶ 70 D. Sufficiency of the Evidence

¶ 71 Defendant further contends that the evidence was insufficient to sustain his conviction.

Defendant argues that Akli was a single eyewitness who initially testified that the offender was

not in court, that the photo-array and lineup were not conducted in compliance with recommended

procedures, and that there was a lack of corroborative evidence – e.g., no evidence that the

defendant made any incriminating statements and no physical evidence which placed the defendant

at the scene of the crime on the date in question.

21 No. 1-17-3003

¶ 72 The State responds that Akli’s identifications of defendant were reliable and credible and

were independently corroborated by defendant’s connection to the vehicle used in the attack.

¶ 73 Defendant’s contentions related to the photo-array and lineup were addressed previously

and will not be readdressed here.

¶ 74 When reviewing a challenge to the sufficiency of the State’s evidence, the reviewing court

considers the evidence in the light most favorable to the State to determine whether “any rational

trier of fact could have found the required elements beyond a reasonable doubt.” People v. Newton,

, ¶ 24. “This standard of review does not allow the reviewing court to substitute

its judgment for that of the fact finder on questions involving the weight of the evidence or the

credibility of the witnesses.” People v. Jackson,

(2009).

¶ 75 As witness credibility is a matter for the trier of fact, it may accept or reject as much or

little of a witness's testimony as it chooses. People v. Peoples,

.

The trier of fact need not be satisfied beyond a reasonable doubt as to each link in the chain of

circumstances; instead, it is sufficient if all the evidence taken together satisfies the trier of fact

beyond a reasonable doubt of the defendant's guilt. In re Jonathon C.B.,

.

The trier of fact is not required to disregard inferences that flow normally from the evidence, nor

to seek all possible explanations consistent with innocence and elevate them to reasonable doubt,

nor to find a witness was not credible merely because the defendant says so. Jonathon C.B.,

. The trier of fact is responsible for assessing the credibility of the witnesses,

weighing the testimony, and drawing reasonable inferences from the evidence. People v.

Hutchinson,

; People v. Ortiz,

(2001). The

reviewing court “will not reverse a criminal conviction unless the evidence is so unreasonable,

22 No. 1-17-3003

improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant's guilt.” People

v. Campbell,

(1992).

¶ 76 In this case, defendant was found guilty of aggravated battery. Section 12–3.05(c) of the

Illinois Criminal Code states that: “[a] person commits aggravated battery when, in committing

a battery, other than by discharge of a firearm, he or she is or the person battered is on or about a

public way, public property, a public place of accommodation or amusement * * *.” 720 ILCS

5/12–3.05(c) (West 2016). “A person commits battery if he or she knowingly without legal

justification by any means (1) causes bodily harm to an individual or (2) makes physical contact

of an insulting or provoking nature with an individual.” 720 ILCS 5/12-3(a) (West 2016). To

establish that defendant committed aggravated battery, the State must prove each element of the

offense beyond a reasonable doubt. People v. Cherry,

; People v. Siguenza-

Brito,

(2009).

¶ 77 The positive and credible testimony of a single witness is sufficient to convict, even if

contradicted by the defendant. People v. Gray,

. Similarly, a conviction will

not be reversed merely because there was contradictory evidence, because minor or collateral

discrepancies in testimony need not render a witness's entire testimony incredible, and because the

task of the trier of fact is determining if and when a witness testified truthfully. Gray,

. When a finding of guilt depends on eyewitness testimony, we must decide

whether a trier of fact could reasonably accept the testimony as true beyond a reasonable doubt.

Gray,

. We find eyewitness testimony insufficient only when the evidence

compels the conclusion that no reasonable person could accept it beyond a reasonable doubt. Gray,

, ¶ 36. Our supreme court has repeatedly found that a valid conviction may be

based on a positive identification by a single eyewitness who had ample opportunity to observe.

23 No. 1-17-3003

In re M.W.,

(2009). A trier of fact assesses the reliability of identification

testimony in light of all the facts and circumstances including (1) the witness's opportunity to view

the offender at the time of the offense, (2) the witness's degree of attention at the time of the

offense, (3) the accuracy of any previous description of the offender by the witness, (4) the degree

of certainty shown by the witness in identifying the defendant, and (5) the length of time between

the offense and the identification. M.W.,

; People v. Joiner,

. These are often referred to as the Biggers factors. Joiner,

(citing Neil v. Biggers,

(1972)). No single Biggers factor by itself conclusively

establishes the reliability of identification testimony; instead, the trier of fact must consider all the

factors. Joiner,

.

¶ 78 Viewing the evidence in the light most favorable to the State as we are obligated to do, we

find that a reasonable trier of fact could have found defendant guilty of aggravated battery beyond

a reasonable doubt. Relying on the Biggers factors, although Akli was the single witness, his

testimony was reliable. Akli’s interaction with defendant lasted approximately two minutes and he

was face-to-face with defendant for approximately five seconds as defendant attempted to give

him $100 for rear-ending his vehicle, but Akli refused the money. During his testimony, Akli did

not waiver or show any ambivalence or uncertainty. Several days after the attack, Akli was able to

identify defendant in a photo-array with four other men with similar features, including their

complexion, hair style and mustache. Less than two months later, Akli identified defendant in a

physical lineup. Additionally, Akli’s recollection of the vehicle defendant was driving at the time

of the attack, a 1985 gold Oldsmobile, and his recording of the license plate number was also

substantial evidence.

24 No. 1-17-3003

¶ 79 We find that Akli’s testimony satisfied the Biggers factors. Based upon the foregoing, a

reasonable trier of fact could reasonably accept the testimony as true beyond a reasonable doubt.

Gray,

.

¶ 80 Aside from Akli’s testimony, the jury also considered Officer Dunn’s testimony that when

defendant was stopped in July of 2013, he was driving a gold 1985 Cutlass Supreme (Oldsmobile)

with the license plate number L752588, and that defendant lived at 131 Cuyler, Oak Park, Illinois.

The jury also considered the certified title from the vehicle registration which indicated that the

vehicle was registered to the mother of defendant’s daughter, with an address of 131 Cuyler, Oak

Park, Illinois. The registration also reflected that the plate number recorded by Akli, L752588, was

valid on the date of the attack, and was changed to S235926, less than two months later and a few

days prior to defendant’s arrest on July 22, 2013. Finally, the jury considered the evidence that

after defendant was pulled over on July 22 for a minor traffic violation, and subsequently arrested,

he was driving the same gold 1985 Oldsmobile. The license plate number was the same as the new

number on the certified title, S235926.

¶ 81 Based upon the foregoing, we cannot say that defendant’s conviction was so unreasonable,

improbable, or so unsatisfactory as to justify a reasonable doubt of his guilt. Gray,

; Campbell,

.

¶ 82 E. Excessive Sentence

¶ 83 Defendant’s final contention on appeal is that his extended-term sentence of eight years’

imprisonment was excessive where the non-extended sentencing range is two to five years and

where eight-year sentences are often imposed in cases involving arguably more egregious conduct

or higher-class felonies.

25 No. 1-17-3003

¶ 84 A trial court’s sentencing decision is reviewed under the abuse of discretion standard.

People v. Alexander,

(2010). A trial court will be found to have abused its

discretion where the sentence is “ ‘greatly at variance with the spirit and purpose of the law, or

manifestly disproportionate to the nature of the offense.’ ”

(quoting People v. Stacey,

(2000)).

¶ 85 Pursuant to section 5/12-3.05(h) of the Illinois Criminal Code, the sentence for a defendant

convicted of aggravated battery, a Class 3 felony, is 2-5 years’ imprisonment. 720 ILCS 5/12-

3.05(h) (West 2016). Section 5/5-5-3.2(b)(1) of the Illinois Unified Code of Corrections provides,

“(b) The following factors, related to all felonies, may be considered by the court as reasons to

impose an extended term sentence under Section 5-8-2 upon any offender: (1) When a defendant

is convicted of any felony, after having been previously convicted in Illinois or any other

jurisdiction of the same or similar class felony or greater class felony, when such conviction has

occurred within 10 years after the previous conviction, excluding time spent in custody, and such

charges are separately brought and tried and arise out of different series of acts.” 730 ILCS 5/5-5-

3.2(b)(1) (West 2016). The sentence of imprisonment for an extended-term Class 3 felony is five

to ten years. 730 ILCS 5/5-4.5(40)(a) (West 2016).

¶ 86 In this case, defendant was convicted of aggravated battery against Akli. The aggravation

evidence presented by the State revealed that defendant had previously been convicted of

aggravated battery against an off-duty sheriff in 2009 for a similar incident which occurred in

2008. This conviction was approximately 5 years prior, involved a separate incident, and defendant

was tried and convicted. This prior conviction made defendant eligible for extended term

sentencing. Based upon the foregoing, we cannot say that the trial court abused its discretion by

sentencing defendant to an extended term of eight years’ imprisonment.

26 No. 1-17-3003

¶ 87 CONCLUSION

¶ 88 For the foregoing reasons, we affirm defendant’s convictions and sentence.

¶ 89 Affirmed.

27