No. 1-19-0882

Opinion filed March 31, 2022.

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. 13 CR 6742 ) ARCADIO DAVILA, ) The Honorable ) Nicholas R. Ford, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant Arcadio Davila was found guilty of first degree murder

and attempted first degree murder, then sentenced to a total term of 80 years in prison. On

appeal, he contends the State failed to prove him guilty beyond a reasonable doubt because his

conviction rested on a single eyewitness-victim who misidentified him. Defendant also contends

the State improperly introduced video evidence of his interrogation that was more prejudicial

than probative. Finally, defendant contends the State violated his constitutional right to a speedy No. 1-19-0882

trial. He requests that we reverse his conviction outright or alternatively remand for a new trial.

For the reasons to follow, we reverse and remand for a new trial.

¶2 BACKGROUND

¶3 Defendant was arrested after he allegedly drove up beside a car in which Ricky Pike and

Christopher Dear were sitting and then shot Pike, killing him, and attempted to murder Dear.

Dear was the only eyewitness-victim to identify defendant and testify at trial. The State theorized

that the shooting was gang related (although neither Dear nor Pike had any gang affiliation)

because Dear was unwittingly wearing a baseball cap with rival gang colors in Imperial Gangster

territory, thereby spurring the shooting. Defendant meanwhile claimed it was a case of mistaken

identity, and he proffered an alibi that he was at home in bed when the shooting took place. He

also offered evidence from cell phone towers suggesting he was at home before the murder and

court documents suggesting that he was in the Chicago Loop paying off traffic tickets several

hours after the murder.

¶4 Prior to trial, defendant filed several motions to dismiss the State’s case as violating his

constitutional right to a speedy trial. The trial court denied the motions, finding that defendant

participated in or acquiesced to the delay. In addition, defendant filed an oral motion to exclude

certain portions of his videotaped interrogation, claiming the clips were more prejudicial than

probative. Following a review of the videotape, the court granted defendant’s motion in part and

rejected it in part, permitting the State to present some allegedly prejudicial statements. These

specific statements will be discussed in further depth in the analysis section.

¶5 At trial, the surviving victim, Dear, age 30, testified that he had known defendant since

childhood, having lived a block apart and attended grammar school with both defendant and

defendant’s older brother, Jose, who was in the same year as Dear. Dear had been to defendant’s

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house and knew his mother, who worked at the laundromat and sometimes gave Dear free wash

services. Defendant, his brother, and Dear all played basketball in the alleyways by their

respective houses “more times than [Dear] could count.” They attended the Boys and Girls Club

and generally socialized together. Following grammar school, defendant and Dear went to

different schools but still saw each other in the neighborhood and had the same friends. Over the

years, defendant and Dear saw each other “thousands” of times. On cross-examination, Dear

acknowledged he knew Jose and defendant were members of the Imperial Gangsters during their

high school years. In 2004 or 2005, around age 17, Dear moved from the neighborhood and did

not see defendant or his brother again until December 2011, when they attended a party thrown

by a grammar school friend from the old neighborhood. There, Dear caught up with Jose and

also said hello to defendant.

¶6 Dear testified that he and defendant nonetheless tragically crossed paths months later

after Dear and Pike had spent an evening out in Chicago. On August 2, 2012, Dear and Pike

went bar hopping in Wicker Park, although Dear claimed to have had only two drinks and then

some food during their outing. Around 3:30 a.m. on August 3, the two drove to Pike’s apartment

towards Kedzie and Armitage Avenues. Two women they had met while out followed directly

behind them in another vehicle. Pike had just moved into the apartment and neighborhood, which

was around where Dear had spent his childhood. As Pike drove them, Dear, who was wearing a

green and gold Oakland Athletics ballcap in a forward-facing fashion, discussed how much the

neighborhood had changed and also observed what still remained.

¶7 Around 4:30 a.m., Pike parked along the right side of 2145 N. St. Louis Avenue in a

brightly lit stretch, with both the street and alley lights illuminating the area, in addition to the

headlights of the women’s vehicle behind them. Dear and Pike remained in their vehicle with the

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driver-side window down. Dear then saw headlights approach close from behind, and a car

pulled parallel to and slightly ahead of them and stopped. Dear, who was not wearing a seatbelt,

leaned forward and looked past the driver’s side. From there, Dear recognized defendant

“instantly” as the lone driver of the parallel vehicle before defendant said in an aggressive tone,

“Hey, what’s up,” as he extended his right arm and fired across the passenger seat into Pike and

Dear’s car. Dear said, “[i]t was clear enough for me to see him,” and Dear was able to observe

defendant’s eyes. At the time of the shooting, Dear could also see defendant’s hair (and even

how it was styled in braids), skin complexion, chubby young face, and mouth, even as defendant

spoke. Dear wanted to shout, “it’s me” and “stop,” but there was no time. Instead, he saw about

two muzzle flashes and ducked as low as possible, then placed his hands over his head. Pike,

who had been buckled in, slouched on top of Dear, and defendant fired about eight more shots

before peeling away in his car.

¶8 One bullet struck Dear in the left hand, and Pike also was struck and gasping for air with

a “glazed look over his face” and blood spreading over his shirt. Despite Dear’s pleas for help,

the women in the vehicle behind them drove away. Dear exited the car and grabbed Pike, holding

his body and encouraging him to breathe, but Pike soon stopped breathing and was dead. Dear

could think of no reason why defendant would shoot them. Subsequently, Dear called 911 and

was transported to the hospital for treatment of his hand. There, he also met with police.

¶9 Initially, Dear told police the shooter’s name was “Juney,” a nickname for defendant’s

brother, Jose, but after viewing an image of Jose, Dear clarified that the shooter was defendant,

Jose’s little brother. Dear testified that while still hospitalized some four hours after the shooting,

at 8:20 a.m. on August 3, he identified defendant from a multisubject photographic array. The

next day, at 3:20 a.m. on August 4, Dear identified defendant from a live lineup at the police

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station and had no doubts or hesitation about either identification. At trial, Dear noted that the

station lineup photos showed defendant’s hair in a long ponytail, as if the braids had just been

taken out, thus buttressing Dear’s account that defendant wore braids at the time of the shooting.

Dear then testified he was 100% sure defendant was the shooter and also made an in-court

identification of defendant.

¶ 10 Chicago police lieutenant James Labbe testified that he met with Dear at the hospital

about an hour or two after the shooting. Dear said he knew the shooter to be the younger brother

of Jose “Delvia” or “Davila” and described the shooter as a chubby, light-skinned Hispanic man

with a baby face, no facial hair, and long hair in braids. Dear believed defendant’s nickname was

“Juney,” although that was later determined to be Jose’s nickname, and knew defendant to be a

member of the Imperial Gangsters. Dear also relayed that he had gone to grammar school with

defendant, a fact Lieutenant Labbe later confirmed by retrieving records from Darwin

Elementary School. Officers then presented Dear with a six-person photographic array based on

this information, and according to police, Dear immediately and without hesitation identified

defendant as the shooter. That day, Dear showed Lieutenant Labbe a Facebook invitation to the

December 2011 party, where he had seen defendant, and also showed him defendant’s Facebook

profile.

¶ 11 An investigative alert subsequently issued for defendant, but on the night of August 3,

defendant voluntarily turned himself in. He was questioned by Lieutenant Labbe and another

detective from August 3 to August 4, 2012, and presented them with information about his

whereabouts and his cell phone. Police then spoke with defendant’s mother, stepfather-to-be,

brother, and girlfriend/fiancé. On cross-examination, it was noted that police subpoenaed

defendant’s phone for its cell tower locations and also extracted data, including text messages,

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call logs, incoming and outgoing calls, and photos and deleted files. According to a report, police

determined a search of the data offered nothing of evidentiary value in the case, meaning police

found no incriminatory or exculpatory evidence. Defendant was subsequently released from

custody but then arrested about eight months later, in March 2013, and formal charges followed.

¶ 12 Evidence at the murder scene showed three bullet holes in the driver’s side door, two in

the windshield, a bullet fragment on the passenger dashboard, and a fired bullet that lay in the

rear driver’s side compartment. Dear’s Oakland Athletics cap was also recovered from the front

driver’s console area of the car. Pike’s autopsy report showed he died from six gunshot wounds

in his upper left arm, upper left shoulder, upper left chest, left back, left arm, and a superficial

wound on his left thigh. The medical examiner ruled it a homicide. In addition, based on a pod

video of the area near the shooting, police believed the shooter possibly had been driving a silver

or gray car.

¶ 13 The State presented evidence that this otherwise senseless murder and shooting was gang

related. Chicago police officer Ronnie Rodriguez, an expert in street gang investigations,

testified that in August 2012 the street block where the shooting occurred was specifically

controlled by Imperial Gangsters. The Orchestra Albany gang, a rival, was also active in the

area, and its members claimed the Oakland Athletics logo as their symbol. He testified an

Oakland Athletics hat could be worn cocked to the right or in a regular fashion, and both would

represent an Orchestra Albany gang member. As rivals, the gangs did not get along, and if they

recognized a member of another gang, they were “expected to take action.” Officer Rodriguez

testified that defendant’s tattoos (i.e., “Chi-Town Gangster,” etc.) showed he was a member of

the Imperial Gangsters. The State thus implied that defendant would be willing to shoot a person

wearing an Oakland Athletics hat and representing the rival gang. The defense, on the other

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hand, implied the shooting was perpetrated by a different gang, and hence not defendant, by

establishing on cross-examination that the Latin Kings were the “biggest and longest” rival of the

Orchestra Albany gang.

¶ 14 Detective Daniel Gillespie testified next that he and his partner, Detective John Lally,

conducted a videotaped interview of defendant following his second arrest on March 4 and 5,

2013, about eight months after the August 3, 2012, shooting. In lieu of direct testimony by

Detective Gillespie, the State published this nearly three-hour long videotape (exhibit 87 1) to the

jury. The video opens showing a fish-eye camera view of a windowless police holding cell,

where defendant is asleep on a bench only to be awakened by a detective walking in. Defendant

is interviewed first by one detective (although the record does not distinguish whether it is

Detective Gillespie or Detective Lally) serving as the “good cop” for the first 37 minutes and

second by the other detective serving as the “bad cop” for the next 40 minutes. During the next

hour and a half or so, both detectives interview defendant. The tone throughout vacillates

between conversational and strident by the parties. At several points, detectives provide

defendant with Miranda warnings (Miranda v. Arizona,

(1966)), and defendant

basically inquires when he will be released, presuming it will be after 48 hours, as in 2012.

While the video clearly shows defendant’s physical gestures, the camera angle and quality are

insufficient to show any detailed facial expressions. Additionally, pursuant to the pretrial

hearing, the video was edited with some statements redacted, resulting in a barely noticeable skip

1 The parties agree that the first two-thirds of the video contain a recording of the interview from March 4, 2013, while the last third contains a recording of the interview from March 5, 2013. This court has reviewed the DVD video titled “VIDEO_TS.IFO,” which is 2 hours and 42 minutes in length. The record does not contain a transcript of the video interrogation. As such, any quoted material reflects statements taken directly from the DVD recording. Likewise, exhibit 87 is the redacted version of the video. The parties do not indicate whether the full video absent redactions is contained in the record. Detective Lally stipulated to the exhibits and interview.

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forward in the interview at various points. We have reviewed the videotape in full and

summarize the interview as follows. 2

¶ 15 At the start, the interviewing detective informed defendant, then age 24, that he had been

rearrested for the murder of Pike. Defendant responded he believed another person named Jarvis

was already in prison for the murder. Regardless, defendant stated that his story had not changed

since he turned himself in pursuant to his lawyer’s advice back in August 2012. Defendant

insisted that he had already told police where he went and given them the names of seven or

eight people with whom he had been at the relevant time. Defendant stated that on August 2, the

night before the murder, he had been driving around in his white Buick LeSabre with his

girlfriend and another friend but was home by 11 p.m., along with his mother, brother, and

stepfather. He fell asleep by midnight.

¶ 16 Defendant acknowledged there was usually a neighborhood group hanging out on the

corner of Medill and St. Louis Avenues (about five blocks from where the murder took place),

and that’s where he picked up his brother around 10 p.m. or 10:30 p.m., before returning home

on August 2. Defendant also volunteered that, after he was released the first time in 2012, he cut

his hair off because people were confusing him with others, including his brother, and accusing

him of crimes. When the detective asked whether the victims might have mistaken defendant for

his brother, defendant stated that he and his brother were both home on August 2 and 3.

¶ 17 Defendant further stated that later in the morning of August 3 (after the shooting had

occurred) he went via the Blue Line Chicago “L” to traffic court at the Richard J. Daley Center

(Daley Center) in Chicago to pay fines around 10 a.m. or 10:30 a.m. This was after also visiting

the Secretary of State on Elston Avenue to reinstate his license (which issued several days later).

2 While we have attempted to summarize the interview chronologically, for the sake of readability, certain portions do not follow the order of the video interview.

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Defendant and his boss had gone to the Secretary of State’s office around 7 a.m. or 8 a.m. The

detectives responded that they had talked to defendant’s boss already and that he was not with

defendant then. Defendant stated his boss was mistaken, as he was old and smoked too much

weed. Defendant emphasized that on August 3, he had to get his license paperwork at the

Secretary of State first before going to the Daley Center to pay the tickets. Defendant stated that

in fact he had paid bills all during that week, including on August 2. He also queried why he

would be doing such things, like paying traffic tickets and $1000 fines, the morning after a

murder and asserted the police were wasting their time focusing on him as a suspect. He insisted

he would not pay fines but then do something to get arrested. Defendant acknowledged that in

the morning on August 3, he knew something had happened in the neighborhood because his

phone “blew up” with messages, but he did not respond because he had to get to court.

Following court, defendant returned to his home and then went to Foot Locker with his girlfriend

in the afternoon.

¶ 18 Some 40 minutes into the interview, the detective informed defendant that the surviving

victim grew up with defendant and was his brother Jose’s age, but the detective did not then

reveal the victim’s name or image. Defendant repeatedly denied knowing the victims and

asserted they did not know him. Defendant stated that police had not shown him photos of the

victims previously. The only way he was familiar with Pike was because he had seen his image

on a pole, presumably outside, since after the shooting there were photos of Pike everywhere in

the neighborhood and the shooting was the talk of the barbershop. Defendant said he had heard

another individual, in addition to Jarvis, was involved in the shooting and that both were

Imperial Gangsters. He had heard from the barbershop that the victims were “neutrons,” meaning

they had no gang affiliation, and that the surviving victim had placed his hands over his head

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when shot at and when “his buddy” had died. Following this statement, defendant then made a

physical gesture to that effect. At some point after the detective told defendant again that the

surviving victim went to grammar school with defendant and used to be friends with him,

defendant asserted the detective was saying the victim was an “OA or something,” meaning an

Orchestra Albany gang member, to which the detective responded he had never said that.

Defendant then asserted he used to chill with the Orchestra Albany gang and got along with

everyone.

¶ 19 Defendant also repeatedly and stridently denied the shooting with such statements

throughout as: “I didn’t pull up on anybody. I was at my house sleeping”; “At four in the

morning, I was probably on my twelfth or thirteenth sleep”; “I didn’t shoot nobody”; “I had

nothing to do with this case”; “I don’t have no gun; I didn’t shoot anyone”; “I don’t have hate in

my heart for people like that”; “Lord as my witness, I get down on my knees right now, it wasn’t

me, I wasn’t there”; “I wouldn’t risk myself for anything this dumb at all. Period.” He insisted he

was never outside at the time of the murder, the accusations were “nonsense,” and it was a

“bullshit case,” since he was just as clueless as police about why the victim would just “put a

case on” him. While defendant was sorry for the victim and his family, defendant was not there

but was sleeping. Defendant asserted it did not matter what the victim said and suggested several

times that police obtain camera footage from the street by the shooting. Defendant said there had

to be some other evidence that would point the detectives in the right direction, as they were

getting nowhere with him because he did not commit the crime. The detectives nonetheless noted

that the evidence was pointing at defendant. When the detectives noted there were only a few

people who knew the absolute truth in this case, defendant responded, “Exactly. And, that’s me,

God, and my family who was there.”

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¶ 20 Defendant asserted he was no longer active with the Imperial Gangsters but working a

full-time construction job and thinking of his kids. Defendant insisted he was trying to get his

life in order. Yet defendant acknowledged that he was on the street corner with two Imperial

Gangsters who were shot a mere two nights before Pike’s murder. He stated, “They shot two of

my guys,” and defendant took them to the hospital. Defendant believed it was the Latin Kings’

doing and stated he could have gotten shot as well. Defendant also acknowledged that his brother

previously was shot twice, his cousin was a “King,” and many people from the neighborhood

knew him, in addition to the police. Defendant further stated that one of his friends, a neutron,

lived on that corner. The detective and defendant discussed how defendant became involved with

gangs at a young age and how defendant was getting along with his ex-girlfriend, girlfriend, and

children. They also discussed his family and siblings. Defendant stated that, even though his

brother was shot two times and nearly died, he did not retaliate. That was not how defendant

operated because he did not want to get locked up.

¶ 21 Detectives also pursued another line of inquiry as to defendant’s associate “Spooky,” an

Imperial Gangster who used to drive a gray Pontiac (like that thought to be the murderer’s).

Defendant stated around the time of the murder he did not then spend time with Spooky and only

found out about Spooky’s look-alike car after defendant was released from his arrest in 2012.

Detectives then asked defendant why he was associating with Spooky when defendant knew

about Spooky’s car (implying the car was the same as that involved in Pike’s murder). Defendant

stated that every weekend his son and Spooky’s son hung out, got haircuts, and ate together. The

detective noted that Spooky was a registered sex offender and questioned why defendant would

associate with Spooky if he wanted to stay out of trouble.

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¶ 22 At the two-hour mark in the interview on March 5, detectives finally revealed Dear’s

identity to defendant and showed defendant Dear’s image. On seeing his image, defendant

immediately said, “Oh, I know him!” and claimed to have nothing against Dear, who was not a

gang member. Defendant stated he had not seen Dear since grammar school and did not

remember seeing Dear at the recent party, although he admitted attending that same party.

Defendant then continuously denied the crime, stating he would never do anything to Dear.

While defendant acknowledged that he was nearby at St. Louis and Medill Avenues the night

before the murder, he claimed it was only for about 30 minutes and then he was home by 11 p.m.

Defendant stated he was just as mystified as the detectives about why Dear would identify him as

the shooter, stating “Your guess is just as good as mine.” Detectives noted that Dear’s memory

was very good and he would not simply pull defendant’s name out of thin air.

¶ 23 Detectives suggested the shooting of Pike and Dear was retaliation for the shooting at

defendant and the Imperial Gangsters several nights before, which defendant denied. In response,

defendant repeated that he was working a full-time job, that he had responsibilities, and that he

had gone to court the morning after the shooting. Defendant stated, “I didn’t do it, I’ll tell you

right now, I didn’t do it, though. I’m sorry, I’m not your guy,” and “you got the wrong person.”

Defendant stated both he and the victims were in predicaments because what was happening to

both parties was not right. He noted that he had already been in police custody last time for 48

hours. Detectives urged defendant to confess. Defendant said that, if he had done something, he

would confess. With that, the video concluded.

¶ 24 Following the video presentation to the jury and during the cross-examination of

Detective Gillespie, it was revealed that the detectives had obtained receipts showing that

defendant’s traffic tickets were paid Thursday, August 2, the evening prior to the shooting. A

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printout from the Cook County circuit clerk further showed several previously issued traffic

tickets were disposed of at 10 a.m. on August 3, 2012, in Room CL97 at the Daley Center. This

would have been six hours after the murder. Defendant’s license, according to the Secretary of

State database, was renewed on August 7, but detectives never sought further information to

confirm or deny that defendant had been to the Secretary of State’s office on the morning of

August 3, as defendant claimed. Detective Gillespie stated that the purpose of an interrogation

was to “find out the truth” and if possible obtain a confession from the suspect. He denied trying

to confuse suspects in order to obtain a confession but acknowledged he never presents full

information about the investigation to the interviewee. He also acknowledged that defendant did

not own a car matching the one they saw fleeing the murder scene, nor did defendant’s friend

Spooky. In fact, the police were unable to obtain further information about the car captured by

the pod camera. Following the aforementioned evidence, the State rested.

¶ 25 Defendant then presented several witnesses in support of his alibi that he was home with

family during the shooting and also presented expert testimony generally challenging the

reliability of eyewitness identifications. Defendant did not himself testify.

¶ 26 The first witness was Dr. Geoffrey Loftus, an experimental psychologist and expert in

perception and memory. Dr. Loftus testified that pre-event information—or what one already

knows about the world at the time an event occurs—can bias a witness’s perception or memory

of that event. Alternatively, post-event information—or what a witness encounters after the event

is over—can supplement the witness’s memory of the event to create a more coherent or

consistent story as to what happened. As such, Dr. Loftus testified that witnesses were capable of

developing strong and seemingly real memories that were unwittingly false in certain respects.

Several additional considerations, such as the witness’s degree of attention, the duration of the

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observation, stress, weapons focus, and lighting conditions, could all affect a witness’s ability to

draw error-free recollections of an event. For example, as to weapons offenses, many victims

focused on the weapon to the exclusion of other aspects of the scene, like the appearance of the

person holding the weapon. A witness who identified a shooter as an acquaintance would then no

longer need to spend energy or resources on determining who the shooter was, and this dynamic

could thus lead to misidentifications. If that same culprit were placed in photos or a lineup, this

could solidify the post-event memory. Alternatively, high stress situations lent themselves to

post-event information “of dubious accuracy.” Dr. Loftus opined that a person’s high level of

confidence in his memory of an event did not necessarily correlate with the accuracy of the

memory.

¶ 27 Nonetheless, in this case, Dr. Loftus could not opine as to whether these factors

specifically affected Dear’s eyewitness recollection. Although Dr. Loftus had reviewed some of

the records and reports from the case, he had not reviewed all of them. He probably did not

review any video recorded statements and did not interview any witness in the case. He did not

remember whether he had reviewed any photos.

¶ 28 Defendant’s alibi witness, Jose Mulero, testified next that he was the fiancé of

defendant’s mother and lived with the family at 5170 N. Lovejoy Avenue during the relevant

time in August 2012. On August 2, defendant and his brother Jose came home around midnight

(so, technically August 3). Defendant went to his bedroom, while Jose went to the living room to

watch television. Around 2:30 a.m., Mulero awoke to use the bathroom and noticed that

defendant was asleep in his own bedroom, which was located right next to Mulero’s. Again, at 5

a.m., Mulero awoke. As before, he saw defendant asleep in his own bedroom. Mulero, a light

sleeper, testified that the apartment walls were thin, insofar as one could hear people talking and

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laughing even with their door closed. During the night, Mulero did not hear anyone leave the

apartment, although Mulero could not say definitively where defendant was from 2:30 a.m. to 5

a.m. because Mulero was sleeping then.

¶ 29 Defendant also presented evidence showing that he had made a number of cell phone

calls using a cell tower near his home. On August 2, those calls occurred around 11:30 p.m. and

10 minutes to midnight. On August 3, they occurred around 1 a.m. and 6 a.m., and two calls

were around 8 a.m. In addition, one call took place around 9:30 a.m. on August 3 using a cell

tower near 180 W. Washington Street in Chicago. Two other calls took place around 10:30 a.m.

on August 3 using a cell tower near 36 W. Randolph Street. The parties stipulated that the Daley

Center, where traffic court is held, is located at 50 W. Washington Street. We take judicial notice

that, according to Google maps, 180 West Washington Street is within four blocks of the Daley

Center, and 36 W. Randolph Street is within one block. See People v. Clark,

(2010). Finally, the last call was issued by defendant’s home around 11:30 a.m. on

August 3. This evidence tended to support defendant’s video statements as to his whereabouts on

the morning of August 3, insofar as it showed he was first at home, next in the Chicago Loop,

and then home again. However, it likewise showed that the cell phone had no definitive location

from about 1 a.m. to 6 a.m. on August 3, within the timeframe of the shooting. Following this

evidence, the defense rested.

¶ 30 During closing arguments, the State emphasized that this was a gang-related shooting

resulting from Dear’s donning of a cap with Orchestra Albany colors while in Imperial Gangster

territory. The State also emphasized that Dear was a strong and credible eyewitness based on his

long acquaintance with defendant and on the five factors set forth in Neil v. Biggers,

(1972), commonly known as the “Biggers factors,” which Illinois courts use to assess the

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reliability of an identification. See People v. Guerrero,

. The

State played portions of the videotaped interview seven times before the jury, mostly during

rebuttal, although the record does not identify which specific clips were played. The defense

argued that Dear’s identification was unreliable and was the only evidence against defendant.

The defense noted defendant had an alibi with corroborating evidence and that he consistently

denied involvement in the shooting.

¶ 31 Following argument and the commencement of deliberation, the jury sent a note

containing three questions as to the interrogation video. First, the jury requested to view the

portion of the video wherein defendant held his hands over his head and, second, the portion

involving the Imperial Gangster shooting several days before Pike’s murder and, third, the

portion involving Spooky. The court granted the jury’s request. Over an hour later, the jury sent

another note asking, if it found Dear’s testimony credible, would that be sufficient to find

defendant guilty? The court instructed the jury that it had the instructions and had heard the

evidence and should continue to deliberate.

¶ 32 Ultimately, the jury found defendant guilty of first degree murder and attempted murder.

As to both offenses, the jury determined that defendant personally discharged the firearm

involved. At the sentencing hearing, it was noted that defendant had a 2010 felony burglary in

his background but no other offenses. Taking into account the 25-year firearm enhancement on

each count, the trial court sentenced defendant to 49 years for murder and 31 years for attempted

murder, to be served consecutively, for a total term of 80 years’ imprisonment. Defendant

appealed.

¶ 33 ANALYSIS

¶ 34 Sufficiency of the Evidence

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¶ 35 Defendant first challenges the sufficiency of the evidence against him, maintaining the

State failed to prove him guilty beyond a reasonable doubt of first degree murder and attempted

murder. When considering a challenge to a criminal conviction based upon the sufficiency of the

evidence, we must determine whether, after viewing the evidence in a light most favorable to the

State, any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. People v. Sutherland,

(2006). In that sense, our function is

not to retry the defendant or substitute our judgment for that of the trier of fact.

Rather, the

trier of fact remains responsible for making determinations regarding the credibility of witnesses,

the weight to be given their testimony, and the reasonable inferences to be drawn from the

evidence. People v. Wright,

. A conviction will not be set aside on appeal

unless the evidence is so unreasonable, improbable, or unsatisfactory that there remains a

reasonable doubt of the defendant’s guilt.

¶ 36 Defendant now challenges Dear’s identification testimony as unreliable and, further,

points to his alibi that he was home sleeping at the time of the shooting, which he claims renders

the evidence insufficient. Where, as here, identification is the main issue, the State must prove

beyond a reasonable doubt the identity of the individual who committed the charged offense.

People v. White,

. It is well established that a single positive

identification by a witness who had ample opportunity for observation is sufficient to support a

conviction. People v. Macklin,

; People v. Killingsworth,

(2000).

¶ 37 A trier of fact assesses the reliability of identification testimony in light of all the facts

and circumstances based on the Biggers factors, 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

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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. Macklin,

;

Killingsworth,

. The Biggers factors continue to be the gold standard for

assessing evidence where a defendant’s identity is at issue. See Macklin,

. Moreover, “[w]hile our supreme court and this court have acknowledged

studies and decisions that have called into question the reliability of eyewitness identifications,

each case must be judged on its own facts against the touchstone” of the reasonable doubt

standard. People v. Lerma,

.

¶ 38 Here, after carefully reviewing the evidence according to that standard in a light most

favorable to the State, we cannot say Dear’s confident and competent testimony identifying

defendant as the shooter was so unreasonable, improbable, or unsatisfactory that there remains a

reasonable doubt as to defendant’s guilt. In light of that standard, Dear’s account of the shooting

was consistent and credible. See id. ¶ 92. Dear testified that he had known defendant and his

brother from grammar school, having visited their childhood house only a block away, visited

their mother at her laundromat workplace, and also socialized outside school at clubs and on the

basketball court in their neighborhood. In short, they had interacted “thousands” of times over

the years. Given our reasonable doubt standard, the persuasiveness of identification testimony

continues to be strengthened by the witness’s prior acquaintance with the accused. See id. ¶ 91;

People v. Barnes,

(2006). Although Dear had not seen defendant from

about 2004 on, he had seen and spoken with defendant in 2011, some months prior to the August

3, 2012, shooting.

- 18 - No. 1-19-0882

¶ 39 Then, in the early morning hours on August 3, in a brightly lit area of the street, Dear

leaned forward and recognized defendant “instantly” after defendant had pulled alongside and a

little ahead in a car. Defendant said in aggressive tone, “Hey, what’s up,” as he extended his

right arm and fired into Pike and Dear’s vehicle, killing Pike and injuring Dear. At the time of

the shooting, Dear could see defendant’s long hair (and even how it was styled in braids), skin

complexion, chubby young face, eyes, and mouth as it moved. The physical evidence, which

revealed bullet holes in the driver’s side door and windshield and Pike’s gunshot wounds to his

left upper body, supported Dear’s account.

¶ 40 Applying the Biggers factors, although Dear viewed defendant for only a short period,

given the strong lighting conditions and position of the two cars, Dear had a clear and

unobstructed opportunity to view defendant. See People v. Wehrwein,

(1989) (noting that an adequate opportunity to view the offender is the most important factor for

the trier of fact to determine). Moreover, as to the second factor, Dear’s degree of attention was

heightened, where he immediately recognized defendant, a childhood acquaintance, with the gun

and was mystified as to why defendant would be shooting at him and his friend Pike. Dear

testified that, at the time of the shooting, he wanted to shout, “it’s me” and “stop,” but it was too

late. As to the third factor, several hours after the shooting, Dear provided an accurate physical

description of defendant as the shooter to police, noting he was a chubby, light-skinned Hispanic

man with a baby face and long hair in braids. This description is consistent with images of

defendant in the record. Dear knew defendant was an Imperial Gangster and stated to police that

- 19 - No. 1-19-0882

he had gone to Darwin Elementary School with defendant, both confirmed facts. Dear then

immediately identified defendant from a photo array and also in a physical lineup. 3

¶ 41 Under the fourth and fifth Biggers factors, Dear thus displayed a high degree of certainty

in identifying defendant only several hours after the shooting. 4 See Macklin,

(noting, according to research, the expression of certainty at the time of an initial

identification is a relevant indicator of accuracy); People v. Green,

(reviewing courts have found identifications reliable where nearly three months or more

elapsed between the crime and the witness’s identification). At trial, Dear testified he was 100%

sure defendant was the shooter and also made an in-court identification of defendant. This is

hardly the vague, doubtful, or uncertain testimony defendant would have us believe. 5 See In re

Jonathon C.B.,

(noting that a conviction will not be reversed merely

because the defendant claims a witness to be incredible); see also Macklin,

(noting that Illinois courts have not rejected a witness’s expression of certainty

as an appropriate factor in the reliability analysis); Guerrero,

(same).

3 While defendant asserts in his sufficiency of the evidence challenge that the lineup was suggestive, he has failed to raise that argument in the proper suppression context on appeal. He has forfeited the argument, and we decline to consider it. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). 4 Defendant also argues that the fifth Biggers factor, the length of time between the offense and identification, should not apply in this case since Dear had prior knowledge of defendant at the time of identification. He writes, “[t]he clear rationale underlying the length-of-time factor is that a witness’s identification will be more accurate if it is made shortly after the precipitating event. The rationale would only seem to apply where the witness does not know the person being identified.” Defendant has not cited any law in support of this argument, and we decline to entertain it further. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). 5 During trial, Lieutenant Labbe testified that, when he interviewed Dear about the shooter, Dear gave “a vague description of a light-skinned male Hispanic, chubby, baby-faced, long hair, and they went to elementary school together,” and Dear also told Lieutenant Labbe that he knew the shooter. Defendant now hones in on Lieutenant Labbe’s use of the word “vague” as a means of challenging the accuracy of Dear’s prior description. Yet, we find Dear’s description can hardly be thought of as vague.

- 20 - No. 1-19-0882

¶ 42 Thus, defendant’s contention that the identification was unreliable and inaccurate because

Dear failed to describe defendant’s extensive tattoos and his facial hair, as seen in his lineup

photograph, is not persuasive. First, defendant’s facial hair in his lineup photos, although visible,

forms a very light frame around his mouth. The heavier facial hair appears mostly under his chin

and on his jaw bones. Viewing his face directly, it is hard to actually see the facial hair.

Considering the evidence in a light most favorable to the State, it was certainly reasonable for

Dear to conclude defendant had no facial hair. Regardless, in making an identification, a witness

need not distinguish a suspect’s individual and separate features, such as tattoos and facial hair.

Macklin,

. “Omissions as to a defendant’s facial features or other

physical characteristics are not fatal,” but merely affect the weight to be given such testimony.

White,

(rejecting a very similar argument as defendant makes).

Contradictory evidence and minor or collateral discrepancies in testimony do not automatically

render a witness’s testimony incredible, and it is the task of the trier of fact to determine if and

when a witness testified truthfully. Macklin, 2019 IL App 1st 161165, ¶ 17.

¶ 43 Likewise, while defendant points to his expert Dr. Loftus’s testimony generally

challenging the validity and reliability of eyewitness identifications, the jury apparently was

unswayed by this specific evidence. In other words, the jury reasonably could have found Dear’s

identification was unaffected by pre- or post-event information, so that he did not prejudge the

identity of the shooter or supplement his judgment of the shooter’s identity. The jury heard Dr.

Loftus’s testimony that lighting conditions, stress, and weapons focus could all negatively impact

the accuracy of identification. It also heard that a witness’s confidence in his memory of an event

did not necessarily correlate with the accuracy of the memory. Yet, the jury chose to believe

Dear, perhaps because Dr. Loftus could not opine on whether any of the above-stated factors

- 21 - No. 1-19-0882

specifically affected Dear’s recollection of defendant as the shooter. In any event, it was the

jury’s duty to evaluate the expert testimony and weigh its relative worth in context and in

comparison to Dear’s identification. See People v. Sims,

(2007). We

decline defendant’s invitation to reweigh the evidence and any inconsistencies or reassess

witness credibility, since that was the jury’s responsibility. See Sutherland,

.

¶ 44 The jury evidently also was not persuaded by defendant’s alibi. Defendant presented

evidence from his stepfather-to-be, Mulero, that defendant was home around midnight and in his

own bed around 2:30 a.m. and 5 a.m. on August 3, the day of the shooting. Cell phone evidence

corroborated that defendant made calls pinging off cell phone towers near his home around

midnight and 6 a.m. on August 3. Cell phone evidence and court documents also corroborated

his contention that he was in the Chicago Loop the morning of August 3, disposing of traffic

tickets. Defendant’s alibi nonetheless did not account for his whereabouts at 4:30 a.m. on August

3, when the shooting occurred. Given how close his home was to Pike’s apartment, where the

shooting occurred, the jury reasonably could have concluded defendant committed the shooting

but then was home in bed by 5 a.m. when Mulero saw him. 6 See In re C.A.H.,

(1991).

¶ 45 Mulero, himself, acknowledged he could not say definitively where defendant was from

2:30 a.m. to 5 a.m. because he was sleeping then. Alternatively, the jury simply could have

entirely discredited Mulero’s testimony. See People v. Logan,

(2004)

(a trier of fact is free to accept or reject as much or as little as it pleases of a witness’s testimony).

6 We take judicial notice that Google maps reflects that defendant’s home at 5170 N. Lovejoy Avenue in Chicago is about 5.6 miles or a 12-minute drive from 2145 N. St. Louis Avenue in Chicago via Kimball Avenue and I-90. See Clark,

. Police in the interrogation video suggested that the morning of the shooting, defendant could have left his home and returned before anyone would notice.

- 22 - No. 1-19-0882

Reasonable doubt is not created merely because alibi evidence exists, nor is the trier of fact

obligated to believe alibi witnesses over those of the State, especially where the alibi witnesses

are related to the accused and possess an obvious bias. People v. Corral,

; Killingsworth,

. Nor is a trier of fact required to search out

all possible explanations consistent with innocence and raise those explanations to a level of

reasonable doubt. Jonathon C.B.,

. Much of defendant’s argument as to his

alibi and Dr. Loftus’s testimony asks that we review the evidence in a light most favorable to

defendant; however, as set forth that is simply not our standard of review.

¶ 46 Moreover, defendant does not dispute that he previously had been an active Imperial

Gangster and had the tattoo marks to show it. While in his interrogation video interview

defendant claimed to have disengaged from the gang, he also acknowledged that just several

days before the shooting of Pike and Dear, he had been outside with a number of Imperial

Gangsters during another gang-related shooting and was himself shot at. In addition, the jury

could have found that several points in the video—for example, where defendant queried

whether the detective was saying the victim was an “OA or something” and where defendant

mimicked Dear’s having reportedly ducked during the shooting—revealed defendant knew more

than he was indicating and supported the State’s theory that he was the shooter. The State also

presented evidence that the block where the shooting took place was controlled by defendant’s

gang and that there was a rivalry between the Orchestra Albanys and Imperial Gangsters. Given

that Dear was wearing an Oakland Athletics ballcap with the colors of the Orchestra Albany

gang in rival territory and that Pike was new to the street, this presented persuasive motive for

the otherwise inexplicable shooting by defendant. Again, it was the jury’s job to weigh the gang

- 23 - No. 1-19-0882

evidence presented and determine whether motive existed. For all the reasons stated, defendant’s

claim that the evidence was insufficient therefore fails.

¶ 47 Admission of Statements from the Videotaped Interrogation

¶ 48 Defendant next contends the trial court erred by admitting into evidence certain

statements police made during his nearly three-hour-long videotaped interrogation. The

admission of evidence is within the sound discretion of a trial court, and a reviewing court will

only reverse it if there is an abuse of that discretion, i.e., where the trial court’s decision is

arbitrary, fanciful, or unreasonable or where no reasonable person would agree with the position

of the trial court. People v. Becker,

(2010). Defendant maintains the police

comments made during the interrogation video improperly bolstered Dear’s identification

testimony and the State’s case and denigrated defendant’s credibility. Defendant argues the

comments, some of which he objected to, were irrelevant, more prejudicial than probative, and

removed the finding of guilt from the province of the jury. Given that the video was key to the

prosecution’s case, defendant argues the prejudice flowing from these errors was incalculable.

¶ 49 To preserve a purported error for consideration by a reviewing court, a defendant must

object to the error at trial and also raise the error in a posttrial motion. People v. Sebby,

, ¶ 48. Where a defendant has made a timely objection, a harmless-error analysis arises,

and the State bears the burden of persuasion with respect to prejudice. People v. Thurow,

(2003). That is, the State must prove beyond a reasonable doubt that the jury verdict

would have been the same absent the error.

By contrast, a failure to properly object to a

claimed error results in forfeiture, and under a plain-error analysis, the error will only be

considered where the evidence is so closely balanced that the error alone threatened to tip the

scales of justice against the defendant or the error was so serious that it affected the fairness of

- 24 - No. 1-19-0882

the trial and challenged the integrity of the judicial process. Sebby,

. Under

a plain-error analysis, the defendant, rather than the State, bears the burden of persuasion with

respect to prejudice. Thurow,

.

¶ 50 Defendant now invokes both the harmless and plain error analyses since he objected to

only some of the claimed errors. We first consider those properly objected-to errors as to the

videotaped interrogation. We note the State was entitled to introduce the videotaped

interrogation during its case-in-chief since any statement made by an accused, unless excluded

by the privilege against self-incrimination or other exclusionary rules, may be used against him

as an admission even if it is not inculpatory or against interest. People v. McCallum,

.

¶ 51 As a result, generally an investigating officer’s questions or statements in a videotaped

interrogation are admissible to demonstrate their effect on the defendant, to explain the

defendant’s response (or lack thereof), and to explain the course of the officers’

interview/investigation. People v. Dunbar,

. These statements,

including opinions and observations as to a defendant’s guilt or credibility, may be presented in

the videotaped interrogation even if they are inadmissible as direct testimony. McCallum,

; cf. People v. Terrell,

(1998) (noting that a

witness, whether expert or lay, may provide an opinion on the ultimate issue of fact in a case).

The officers’ questions or statements should be helpful to the jury in understanding the context

of the defendant’s communications, and practical considerations thus come into play. People v.

Whitfield,

. In certain instances, for example, redacting the

officer’s remarks would render the defendant’s responses nonsensical; in other instances, the

police accusations may simply serve as a standard and permissible interrogation tactic. See

- 25 - No. 1-19-0882

People v. Theis,

; People v. Moore,

; see also People v. Hardimon,

(noting that, in an

interrogation, police may use a variety of noncoercive techniques, which include playing on a

suspect’s ignorance, fears, and anxieties).

¶ 52 Nevertheless, a police officer’s statements during a videotaped interrogation are

ultimately subject to both relevancy requirements and the familiar test of weighing their

probative value versus prejudicial effect. Hardimon,

, ¶ 35. Relevant

evidence has any tendency to make the existence of a fact of consequence to the case more

probable than it would be absent the evidence. People v. Lewis,

(1995).

Thus, such evidence should assist the jury in resolving questions of fact. People v. Owens,

(2007). However, a statement, even if relevant, should be excluded if its

prejudicial effect substantially outweighs its probative value. Hardimon,

, ¶ 35. For example, prejudice arises when a police officer, as a recognized authority

figure, informs the jury that it should believe a portion of the prosecution’s case. People v.

Hanson,

(2010) (citing People v. Crump,

(2001)) 7;

Hardimon,

. Likewise, evidence that a witness believes a

defendant is guilty may be unfairly prejudicial. Hanson,

; see also People v.

Munoz,

(2010) (noting that an officer’s testimony at trial that he did

not believe the defendant ever told him the truth was an impermissible comment on the

defendant’s credibility). Indeed, a witness is not permitted to comment on the veracity of another

witness’s credibility. Munoz,

.

7 We note that, while our supreme court in Hanson relied on this proposition relating to prejudice from the appellate case in Crump, the Hanson court overruled Crump insofar as Crump declined to recognize a distinction between present and past opinion. See People v. Degorski,

.

- 26 - No. 1-19-0882

¶ 53 Each case involving a videotaped interrogation must be decided on its own facts while

viewing the statements of both the police and the defendant in the context of the entire video and

against the evidence offered at trial. See, e.g., McCallum,

;

Dunbar,

; Hardimon,

;

Moore,

. With that in mind, we proceed in our review of this

unique case.

¶ 54 Defendant contends the following objected-to statements 8 by police about Dear were

improperly admitted:

“But what I will tell you is what this guy [(Dear)] is saying. And he’s saying he’s

known you since you guys were little *** were pups. Okay? And, you mentioned last

time you were here about ya know that you and your brother look exactly alike ya know

and that people mistake the two of you all the time. Well that didn’t happen here, because

[Dear] knows the two of you.”

“His memory’s pretty fucking good, and it was dead on *** he’s pretty accurate

with what he says, and that’s why I don’t think that he’s fucked up here.”

“Why would this guy [(Dear)], who’s got no gang affiliation, ever, none *** no

gangs, ever, ever, in their history, no arrests, ever, in their history *** And dude knows

you from this tall *** What makes him just put it on you?”

“He’s not going to pull your name out of thin air and just put a case on you for his

buddy who just got murdered and he got shot. He ain’t gonna do it. It doesn’t make any

sense.”

8 We note there are slight variations in the statements defendant presented in his appellate brief and those in this opinion. We have attempted to transcribe the detectives’ videotaped statements as accurately as possible without the aid of a formal transcript.

- 27 - No. 1-19-0882

¶ 55 Defendant argues, and we agree, that these statements were more prejudicial than

probative. As defendant notes, the detectives vouched for the reliability of Dear’s identification

of defendant as the shooter by describing Dear’s memory as “pretty fucking good,” “dead on,”

and “accurate.” The detective went so far as to state his personal opinion, “that’s why I don’t

think that he’s fucked up here,” providing an official imprimatur to Dear’s testimony and,

therefore, defendant’s guilt. In addition, the detectives for all intents and purposes asserted there

could be no mistake because Dear knew defendant and his brother and had since they were

young. In fact, whether defendant knew the victims or grew up with one was discussed some 16

times during the interrogation. The detectives’ statements in that regard were the equivalent of

prior consistent statements at a trial, which are prohibited because they unfairly enhance a

witness’s testimony. See People v. Johnson,

, ¶ 60. Indeed, “ ‘[p]eople

tend to believe that which is repeated most often, regardless of its intrinsic merit, and repetition

lends credibility to testimony that it might not otherwise deserve.’ ”

¶ 56 In short, the detectives’ statements bolstered Dear’s trial testimony. The detectives

thereby informed the jury that it should believe the prosecution’s case over the defense, since the

State was required to prove the identity of the shooter beyond a reasonable doubt. See Hanson,

; Hardimon,

; Munoz,

.

The statements were highly prejudicial because the jury was likely to credit them with more

weight due to their repetitive quality and the detectives’ status as authority figures. See Munoz,

.

¶ 57 Defendant further argues the following objected-to statements by police about the

strength of the State’s case were improperly admitted:

- 28 - No. 1-19-0882

“If it was a weak case then you wouldn’t be back in here; if there wasn’t enough

to pick you back up, then you wouldn’t be back in here. But there is *** This guy

[(Dear)] who picked you out *** this guy who you accidentally shot[.]”

“There’s people pointing the finger at you *** There’s other stuff too, but we

won’t get into that.”

“Do you think that there’s only one person that’s got their finger on you and it’s

just the surviving victim?”

“Problem is everybody points in your direction *** even if there is another

direction to go *** everybody we talked to.”

“Like we said yesterday, all the arrows are pointing in one direction.” 9

“If I told you who tricked on you, and you went out and killed them, I’d be

fucked. Do you think I’m gonna risk my career over something like that?”

¶ 58 Defendant argues, and we agree, that these comments also improperly bolstered the

State’s case, this time by misleading the jury into believing there were additional witnesses

against defendant who were either unwilling or unavailable to testify. This was, after all, a gang-

related shooting according to the State’s theory, so it would be reasonable for the jury to infer

certain witnesses were too intimidated to come forward and testify at trial. Ultimately, the

statements suggested the State had more corroborative evidence implicating defendant as the

shooter, despite the fact that there was only one eyewitness at trial. These remarks were not

simply course-of-investigation comments, which would be permissible, but conclusory

statements of fact. Cf. People v. Simms,

(1991) (noting that trial testimony

9 While the cliché statement “all the arrows are pointing in one direction” could be likened to a common interrogation tactic, here, detectives suggested that there was additional evidence tying defendant to the crime. The statement, when considered with the other statements, was prejudicial.

- 29 - No. 1-19-0882

by a police officer describing the progress of the investigation is admissible even if it suggests

that a nontestifying witness implicated the defendant).

¶ 59 Moreover, we note that, pursuant to defendant’s oral motion in limine, the parties agreed

to redact the first and the third statements set forth immediately above (starting respectively with,

“If it was a weak case then you wouldn’t be back in here” and “Do you think that there’s only

one person that’s got their finger on you”). However, there is no explanation as to why the

statements were included in the video and shown to the jury. At the very least, this suggests that

the State believed the remarks were more prejudicial than probative and that the trial court did

not disagree. As to the first comment, the court specifically found it referenced probable cause to

arrest and was an inappropriate matter for the jury. The court’s ruling to redact those statements

was not an abuse of discretion, notwithstanding that the statements were subsequently presented

to the jury.

¶ 60 Likewise, the remarks above reveal that, during the interrogation, detectives specifically

urged that it was defendant who shot Pike. The detective suggested defendant would kill the

person who “tricked on” him (which we take to mean gave his name to police), although there

was no evidence as to that particular person. The quantity and quality of these remarks insinuated

that there was more evidence against defendant and the detective himself believed defendant to

be a killer and therefore guilty, also bolstering the State’s case.

¶ 61 Here again, the detectives basically implied that the State should be believed over

defendant, thereby causing prejudice. See Lewis,

(noting that prejudice can be

defined as to suggest deciding a matter on an improper basis); see also Munoz,

(noting, the detective’s testimony that “ ‘he never believed that the defendant told him the

truth’ ” on the night in question essentially translated to instructing the jury not to believe the

- 30 - No. 1-19-0882

defendant). Credibility is not itself a discrete fact but the lens through which all ultimate facts

must pass, and thus it is the decisive thing. The jury, as arbiter, is the reviewer of those ultimate

facts in light of who it finds most credible. Where, as here, a police officer repeatedly vouches

for and enhances the credibility of the State’s single eyewitness and portion of the prosecution’s

case, such conduct usurps the jury’s role in a manner that can be simply devastating. See Munoz,

. While the trial court found the objected-to statements were relevant and

needed for context, were simple interrogation techniques and standard police interview process,

and were more probative than prejudicial, we find the court’s determination to be unreasonable.

We thus reject the State’s response that the statements provided necessary context to the

exclusion of prejudice.

¶ 62 In that sense, this case can be likened to Hardimon,

, where this

court concluded the defendant’s trial counsel was constitutionally ineffective for failing to

further redact the video recording of the defendant’s interview with police. There, from the hour

and twenty-minute long video, police spent the last 50 minutes goading the defendant into a

confession that, in the early morning hours outside a nightclub, the defendant shot and murdered

the victim. Police claimed the evidence was so heavily weighted against the defendant that the

prosecution would insist on taking the case to trial, thereby prevailing and presenting the

defendant with a lengthy prison term. Id. ¶ 36. Police described the defendant as a “ ‘liar’ ” and

“ ‘cold-blooded killer’ ” and relayed that the media would display the word “ ‘execute’ ” next to

the defendant’s photo. Id. ¶¶ 34, 36.

¶ 63 Meanwhile, the defendant in Hardimon was adamant that, although he was at the

nightclub and heard the gunshots, he did not participate in the shooting, and his version of events

remained the same even in the face of the detectives’ interrogation threats. This court concluded

- 31 - No. 1-19-0882

the unredacted portion of the video was not relevant and more prejudicial than probative, where

it “removed the finding of guilt from the province of the jury as the detectives conclusively

stated that the defendant was guilty of murder.” Id. ¶ 37. This court found the video therefore

bolstered the State’s case and disparaged the defendant. 10 Given that there was no witness who

identified defendant as the shooter nor any physical evidence directly connecting the defendant

to the offense, the court held that the video resulted in reversible prejudice.

¶ 64 As in Hardimon, here, given that defendant never admitted to the shooting but

consistently denied it during the videotaped interrogation, the statements did not serve to show

any transformation in defendant’s story or provide helpful context. The aforementioned

interrogation tactics thus had no material value. In that sense, the statements were irrelevant and,

regardless, more prejudicial than probative. Cf. McCallum,

(finding that 18-minute redacted videotaped interrogation segment created context for the entire

53-minute redacted videotaped interrogation and also showed the defendant’s incongruous

emotional response to his friend’s dying declaration in a 911 tape identifying the defendant as

the shooter; given that, plus the defendant’s changing alibi, the challenged portion of the

videotape was held relevant and more probative than prejudicial); Dunbar, 2018 IL App (3d)

10 In Hardimon, the court wrote that “a police officer’s opinion statement regarding the ultimate question of fact possesses significant prejudice as the officer is a recognized authority figure.”

. Yet, in Terrell,

, our supreme court held that a witness, including a police officer, may provide an opinion on the ultimate issue in a case. There, the police detective was permitted to testify he had never before seen injuries like those suffered by the victim so as to establish an ultimate issue in the case—the exceptionally brutal or heinous nature of the crime. Terrell noted this was so “because the trier of fact is not required to accept the witness’ conclusion and, therefore, such testimony cannot be said to usurp the province of the jury.”

; see also Owens,

(following Terrell and noting the ultimate-fact doctrine has been discredited); Ill. R. Evid. 704 (eff. Jan. 1, 2011). Terrell preceded Hardimon. Therefore, we presume the Hardimon court, in its above statement, intended to convey that a police officer is generally prohibited from opining on matters involving credibility, especially as to a defendant’s guilt. See Hanson,

(noting that evidence that a witness believes a defendant is guilty may be unfairly prejudicial); Munoz,

(noting that a witness is not permitted to comment on the veracity of another witness’s credibility).

- 32 - No. 1-19-0882

150674, ¶ 54 (noting the investigating officers’ statements did not rise to the same level of

prejudice as in Hardimon). Here again, the identified comments buttressed the State’s single

eyewitness-victim, while also suggesting extraneous evidence, including some phantom

witnesses not presented at trial, strengthened the State’s case that defendant was the shooter.

¶ 65 These comments also diminished the relevant and more probative portions of defendant’s

statements in the video. Those included defendant’s alibi; his gang history; the fact that he was

present during a gang-related shooting at St. Louis and Medill Avenues a mere two nights before

the murder; whether defendant had heard from the neighborhood and barbershop of the victim’s

identities, especially given that he claimed to know everyone in the neighborhood; defendant’s

assertion that the detective was saying the victim was an “OA or something” and his subsequent

changing of the topic; defendant’s physical gesture of ducking as he had heard the victim did; his

haircut following his release from the first arrest; and defendant’s acknowledgement that he

knew the victim.

¶ 66 The State attempts to distinguish Hardimon, arguing against reversal and claiming any

error was harmless. To determine whether an error is harmless beyond a reasonable doubt, courts

examine whether the error contributed to the defendant’s conviction and whether the other

evidence in the case overwhelmingly supported the defendant’s conviction. People v. Lerma,

. However, the State must prove beyond a reasonable doubt that the jury

verdict would have been the same absent the error. Thurow,

; Johnson,

, ¶ 65.

¶ 67 The State maintains the evidence in this case was overwhelming where Dear identified

defendant, a person he had known since childhood. The State has failed to cite an appropriate

case in support of this argument (see Ill. S. Ct. 341(h)(7) (eff. Oct. 1, 2020)), and regardless, we

- 33 - No. 1-19-0882

find it contradicted by our supreme court’s recent decision in Lerma,

.

There, a gunman dressed in black approached and shot the victim, who was sitting on his unlit

front porch late at night with a friend, Lydia Clark. The victim’s dying words were that “Lucky”

shot him. Lucky, the defendant, lived across the street and had been friends with the victim

several years, often spending time at his home. Id. ¶ 5. In addition to that dying declaration,

Clark identified the defendant as the shooter from a photo array several hours later and in a

show-up the next day, as well as in court. Clark did not specifically know the defendant but had

seen him across the street at least once or twice. Id. ¶ 6. The supreme court found the evidence in

Lerma was not overwhelming where, other than Clark’s testimony, the only evidence was a

dying declaration not subject to cross-examination. The court therefore held the error of

excluding relevant and probative expert testimony on identifications contributed to the

defendant’s conviction and was not harmless. Id. ¶ 33.

¶ 68 Lerma at least suggests that, while knowing a defendant might constitute sufficient or

even substantial evidence to support a conviction, it is not overwhelming. See id. As in Lerma

and Hardimon, in this case there was no physical evidence tying defendant to the crime, and he

neither confessed nor made an unequivocally incriminating statement. Rather, the evidence of

defendant’s cell phone usage and location, plus court documents, offered some support to the

alibi evidence that he was home sleeping and went to court the next morning to pay traffic fines.

In addition, defendant’s denials of his guilt in the videotape remained consistent throughout the

heavy interrogation.

¶ 69 Thus, here, the prosecution claimed, based on its eyewitness and victim, that defendant

committed a gang-related murder when he mistook Pike and Dear for rival members, and

defendant claimed it was Dear who mistook him as the shooter. Where the State’s case rested

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entirely on witness credibility with only minimal circumstantial evidence tying defendant’s gang

activity to this particular shooting, we cannot say the evidence was overwhelming. See Johnson,

, ¶ 65 (noting that the evidence was not overwhelming where the jury

was required to choose between two eyewitnesses identifying the defendant as a drive-by shooter

and three alibi witnesses testifying the defendant was in a different state on the day in question;

notably, one State eyewitness knew the defendant for about four years before the crime); cf.

McCallum,

(finding the result on retrial would not have

been any different absent the videotaped interrogation where there was a 911 recording of the

victim’s dying declaration identifying the defendant as the shooter and an additional eyewitness

identification of the defendant, plus circumstantial evidence).

¶ 70 The State also argues the prejudicial impact of the detectives’ remarks was diminished by

the lengthy videotape and the remarks therefore did not contribute to his conviction. We cannot

agree. The video featured prominently at trial and in the State’s closing, especially during

rebuttal. Cf. McCallum,

(noting that the interviews with police

were not the central pieces of the State’s case). In particular, the State argued Dear was credible

and accurate because he knew defendant and had since grammar school, thus following the same

line as the interrogation. The jury requested to see the video while deliberating, and the identified

errors may well have influenced its decision. See Johnson,

, ¶ 65;

Munoz,

. Consequently, we cannot say beyond a reasonable doubt that the

jury verdict would have been the same absent the prejudicial statements. See Thurow,

. The State has failed to fulfill its burden of proving the error harmless.

¶ 71 This case can thus be distinguished from Hanson,

, which addressed

whether the live testimony by a police officer was improper opinion, relevant, and more

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prejudicial than probative. There, a police officer testified at trial that during his investigation he

had confronted the defendant by phone, asserting that the defendant’s sister Jennifer (who also

testified at trial) thought the defendant “ ‘did this.’ ”

. The “this” was a quadruple murder

of his family members.

. Hanson held the officer’s statement was not improper opinion

testimony, where the officer merely relayed that “Jennifer thought defendant had caused the

victims’ deaths” but not that he presently “believed defendant was guilty.”

. Jennifer

likewise did not testify defendant was guilty. Subsequent cases have interpreted this to mean

“present opinion testimony is improper” while “previous opinion testimony is permissible.”

People v. Degorski,

(cases cited therein); Moore,

.

¶ 72 We find this to be a distinction without much difference before a jury, but even so, here,

it is quite possible the jury mistook the video statements for Detective Gillespie’s present opinion

of defendant’s guilt. The video was presented in lieu of any substantive direct testimony, and

there was no limiting instruction. On cross-examination, Detective Gillespie noted that the

purpose of the interrogation was to “find out the truth,” denied deploying tactics to confuse

suspects, and stated he never revealed full information to the suspects. Cf. McCallum,

(notably, the officer testified at trial that he made false statements to the

defendant in the interrogation video and that lying was a common interrogation tactic). Although

the State suggested during oral arguments that cross-examination would clarify that the video

statements were not the detective’s beliefs, we find it did the opposite. Thus on the stand,

Detective Gillespie essentially endorsed his past position from the video. Given that the evidence

in this case also corresponded with that cited in the video (such as defendant and Dear’s

grammar school records, defendant’s court documents, and defendant’s cell phone evidence), a

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jury likely could not decipher when the detectives were bluffing. The jury may well have been

more likely to take the detectives’ statements in the video as present fact.

¶ 73 Apart from that distinction, in Hanson, the officer did not repeatedly vouch for the truth

of Jennifer’s statement that the defendant committed the murders. Here, the officers did vouch

for and bolster the only eyewitness’s statement identifying defendant. As defendant writes,

“here, the jury heard that the police deemed the information reported by Dear and other unnamed

persons to be credible.” Such prejudice was not present in Hanson, where the conversation

between the officer and the defendant was brief and in context described the officer’s reason for

suspecting defendant. The supreme court held the officer’s statement explained why the

investigation focused on defendant and why defendant later fled. We cannot say the same about

the videotaped interrogation statements here.

¶ 74 Defendant also challenges a number of statements under the plain error doctrine, reserved

for errors that were not properly preserved. Because we reverse for the above-stated reasons, we

need not apply that doctrine or defendant’s alternative argument as to ineffective assistance of

counsel. However, we find the comment, “Well, you shot Ricky,” to which no objection was

raised, likewise did not aid the jury in its determination and was more prejudicial than probative

for the reasons enumerated above. The same applies to the comment, “If it’s somebody [(Dear)]

that’s saying, listen I know this guy, I’m 100% sure that it was him. I grew up with him, I grew

up with his brother.”

¶ 75 In addition, we find no relevance to the police officer’s comments about defendant’s

associate, “Spooky.” As Detective Gillespie explained on cross-examination at trial, while

detectives believed the shooter possibly drove a silver or gray car, they determined that it was

not Spooky’s. Yet extensive comments about Spooky were permitted to air in the video, albeit

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without a proper defense objection: “He’s a registered sex offender, too, you know that?”; “If

you want to stay out of trouble, why the fuck ya hanging out with a registered sex offender?”;

“There’s gotta be better kids that your son can interact with, right?”; “Why is Spook a registered

sex offender *** So you don’t know if he did shit to kids or anything like that?”; “Why would

you want your son anywhere near him?”; “My point is, it doesn’t sound to me like somebody

who wants to stay out of trouble, the company that you’re keeping.”

¶ 76 Given that Spooky had nothing to do with the shooting, the only reason to include this

commentary would have been to rebut defendant’s contention in the video denying his gang

involvement and his claim that he aimed to lead a lawful life. Yet, defendant’s acknowledged

presence by the gang shooting several nights before the shooting of Pike and Dear was sufficient

to rebut this contention. The discussion of Spooky, including his sex offender status, ultimately

lacked any connection to the crime at hand, it was confusing, and regardless, it was more

prejudicial than probative. Therefore, on remand, such portions of the video should be redacted.

¶ 77 Defendant also complains about several additional comments. The first references Dear’s

lack of gang affiliation in contrast to defendant and his brother having been shot at, and the

second comment notes that the victims were not gang bangers, even though the shooter thought

they were. We find those comments are appropriate in context, relevant for the purposes of

motive, and responsive to defendant’s queries suggesting Dear would have noticed defendant’s

tattoos if he were really the shooter. They do not constitute commentary on credibility matters

involving defendant’s guilt or Dear’s identification, and therefore they were not prejudicial.

Second, the statement that defendant could easily access a gun was reasonable based on

defendant’s long affiliation with gangs and was not unduly prejudicial.

¶ 78 Speedy Trial Claim

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¶ 79 Last, defendant contends his constitutional right to a speedy trial was violated,

necessitating dismissal of his case. The sixth amendment guarantees that in all criminal

prosecutions the accused has the right to a speedy trial. Doggett v. United States,

(1992). Cases have qualified the literal sweep of this provision by identifying several factors

for determining whether a particular defendant has been deprived of his right, including

(1) whether the delay before trial was uncommonly long, (2) whether the government or the

criminal defendant is more to blame for the delay, (3) whether in due course the defendant

asserted his right to a speedy trial, and (4) whether he suffered prejudice as a result of the delay.

Id.; see also Barker v. Wingo,

(1972). All four factors are closely related,

and no factor is singularly dispositive. People v. Crane,

(2001); People v.

Echols,

.

¶ 80 Accordingly, each factor must be weighed and considered in light of the circumstances of

the case as reflected by an examination of the entire record. People v. O’Quinn,

(2003). The defendant need only show that the delay was not attributable to his

conduct, and the State bears the burden of justifying any delay that has occurred. Crane,

; People v. Belcher,

(1989). Reasons for the delay are accorded

different weight. Crane,

. Evidence that the State intentionally delayed

prosecution to gain some tactical advantage will weigh heavily against the State, while neutral

reasons, such as a crowded court docket, faulty police procedure, negligence, or incompetence,

will weigh less heavily.

When resolving a constitutional speedy-trial claim, any factual

determinations made by the trial court will be upheld on review unless they are against the

manifest weight of the evidence.

. However, we review de novo the ultimate

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determination of whether a defendant’s constitutional speedy-trial right has been violated.

.

¶ 81 As set forth, when assessing a constitutional speedy-trial claim, the first consideration is

the length of the delay. Defendant now complains he awaited trial over five years, where he was

arrested in March 2013 and not tried until July 2018. Generally, courts recognize that a delay of

one year is “presumptively prejudicial.”

. This does not mean that defendant was in

fact prejudiced, however. O’Quinn,

. Rather, a “presumptively

prejudicial” time period will only trigger the full Barker inquiry involving the aforementioned

factors.

¶ 82 Consequently, we next address the second Barker factor, the reason for the delay. The

record shows that from March 2013 to October 2016 (when the parties finally agreed to a trial

date of February 2017), defendant had engaged in heavy pretrial motion practice, filing a motion

to suppress identification testimony, a motion to produce, and a motion to quash arrest and

suppress evidence, among other things. Thus, while his time awaiting trial was uncommonly

long, the record reveals that, during much of it, defendant was engaging in intentional motion

practice aimed for his benefit. Analyzing the speedy trial claim from thereafter, it is significant

that the delay in October 2016 was due in part to the limited availability of defendant’s own

expert witness and defense counsel’s trial conflicts. In February 2017 (when trial had been set),

the parties continued the case by agreement. The case was continued by agreement two to three

more times before defendant moved for dismissal on speedy trial grounds in November 2017 and

in February 2018, over 4½ years after he was arrested. Notably, at the November hearing, while

demanding a speedy trial in one breath, in the other, defense counsel stated her own expert

witnesses were not available until February 2018.

- 40 - No. 1-19-0882

¶ 83 A delay is considered to have been occasioned by the defendant when his acts caused or

contributed to the delay. People v. Kaczmarek,

(2003); see also O’Quinn,

(noting that a defendant is bound by his attorney’s actions). Moreover, an

agreement to continue the case is properly chargeable to the defendant. Kaczmarek,

. Here, the trial court denied defendant’s speedy trial motions, finding that defendant, through

his counsel, participated in or acquiesced to the delay up until November 2017, which is a

determination the record certainly supports. Following that, the court itself was not able to try the

case in February 2018. 11

¶ 84 Moreover, defendant has not identified any deliberate attempt by the State for the delay.

To the extent defendant asserts the delays were occasioned by the health of one State witness, a

detective, that does not support a finding of ill-will by the State. See Echols,

(noting that the unavailability of a witness is also a valid reason for delay). The

State’s nonspecific inability to procure Dear, its main witness, at various points in 2017 likewise

does not support a finding of ill-will or deliberate delay. See People v. Lacy,

(inability to obtain the testimony of a material witness after due diligence is a valid reason

for delay). While defendant argues the State failed to exercise due diligence in securing Dear as a

witness, the record simply does not support this assertion, as much of it is silent on the details in

the parties’ efforts to procure witnesses. And, as the State notes, the record from May 2018 to

July 2018 is not detailed enough to conclude the reason for the several continuances. Overall, we

11 The State also answered that it was not ready for trial at the February 2, 2018, hearing and responded that it had “an out-of-state witness *** with issues, and there are other strategic reasons” that the State was not “privy to expose.” The State later clarified that that it had been unable to procure the detective, rather than Dear. These comments betray the unavailability of a witness and vague statements as to strategy. While defendant reads ill-will into these comments, at most they betray some negligence.

- 41 - No. 1-19-0882

cannot say this second factor involving the reason for the delay weighs in favor of defendant,

when considered in its totality.

¶ 85 That brings us to the third consideration, whether in due course the defendant asserted his

right to a speedy trial. As just set forth, defendant took an inordinately long time to assert his

right to a speedy trial and only after having participated in or acquiesced to the delay, which does

not weigh in his favor. See Echols,

(“Typically, a failure to

assert the right to a speedy trial weighs heavily against a defendant unless he or she was unaware

of the charges.”). In addition the defense first filed its written demand for trial on May 10, 2018.

¶ 86 The fourth and final consideration in the Barker analysis is prejudice to the defendant.

Prejudice must be assessed in light of the interests of the defendant that the speedy-trial right was

designed to protect. Kaczmarek,

. Those interests are (1) the prevention of

oppressive pretrial incarceration, (2) the minimization of defendant’s anxiety and concern about

the pending charge, and (3) most importantly, the limitation of the possibility that the defense

will be impaired by the delay.

The third factor is most serious, given that a defendant’s

inability to adequately prepare his case “ ‘ “skews the fairness of the entire system.” ’ ”

(quoting Doggett,

).

¶ 87 Here, defendant has not specified how his ability to prepare his defense was impaired by

the lengthy delay, other than that it unfairly enhanced the prosecution’s cross-examination of

Mulero with respect to defendant’s whereabouts the day before the shooting, thereby

undermining Mulero’s alibi testimony. Defendant notes that Mulero’s memory of the days before

the shooting was indistinct and this discredited his testimony as to the day of the shooting. We

would challenge that logic, since Mulero was interviewed by police around August 3, 2012, the

- 42 - No. 1-19-0882

day of the shooting, as a result of defendant’s first arrest and likely recalled that day better as a

result. Thus, Mulero’s inability to remember the days prior likely enhanced the defense.

¶ 88 Regardless, defendant has not demonstrated that, but for the delay, the State’s line of

questioning would have been unavailable previously or that Mulero otherwise would have better

recalled events. As set forth, during much of the delay before trial, defendant was engaging in

pretrial motion practice aimed at enhancing his defense. We see no proof of prejudice as to

witnesses or evidence, yet we acknowledge “excessive delay presumptively compromises the

reliability of a trial in ways that neither party can prove or, for that matter, identify.” Doggett,

. Likewise, we acknowledge the prejudice naturally flowing from defendant’s

anxiety and concern over the pending charge, but we note “this factor is present to some extent in

every case and absent some unusual showing, this inconvenience alone is of slight import.”

Kaczmarek,

.

¶ 89 Balancing all the stated factors in light of the record, we conclude that, although

defendant’s pretrial custody was uncommonly long, the total factors do not weigh in defendant’s

favor. While we do not condone the lengthy delay occasioned here, we likewise do not believe it

qualifies as a constitutional violation warranting the severe remedy of outright case dismissal.

See O’Quinn,

.

¶ 90 CONCLUSION

¶ 91 For the reasons stated, we reject defendant’s speedy trial and sufficiency of the evidence

claims. Nonetheless, we must reverse and remand the case for a new trial with various portions

of the complained-of statements redacted from the videotaped interrogation. Given the State’s

evidence and the repetitive quality of many video statements from both the detectives and

defendant, it would behoove the parties to redact the video accordingly. We also encourage the

- 43 - No. 1-19-0882

parties to create a transcript of the videotape for accuracy and time-saving purposes. As the

evidence was sufficient to allow a rational trier of fact to find defendant guilty beyond a

reasonable doubt, double jeopardy does not bar a retrial. Moore,

.

¶ 92 Reversed and remanded.

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No. 1-19-0882

Cite as: People v. Davila,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 13-CR- 6742; the Hon. Nicholas R. Ford, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Joseph Michael Benak, for of State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Janet C. Mahoney, David H. Iskowich, Assistant Appellee: State’s Attorneys, of counsel), for the People.

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