                                     2014 IL App (1st) 121880


                                                                            FIRST DIVISION
                                                                            September 8, 2014



No. 1-12-1880

THE PEOPLE OF THE STATE OF ILLINOIS,                 )      Appeal from the
                                                     )      Circuit Court of
       Plaintiff-Appellee,                           )      Cook County
                                                     )
       v.                                            )      No. 08 CR 9899
                                                     )
EDUARDO LERMA,                                       )      Honorable
                                                     )      Timothy J. Joyce,
       Defendant-Appellant.                          )      Judge Presiding.

       JUSTICE HARRIS delivered the judgment of the court, with opinion.
       Justices Simon and Liu concurred in the judgment and opinion.


                                            OPINION

¶1     A jury convicted defendant, Eduardo Lerma, of first degree murder, personally

discharging the firearm that caused death, and aggravated discharge of a weapon in connection

with the May 3, 2008, murder of Jason Gill.    The only living eyewitness to the shooting, Lydia

Clark, identified defendant.   Clark and Jason Gill's father, Bill Johnson, both testified that a

critically wounded Gill stated that defendant had shot him.     Prior to trial, defendant sought to

have an expert witness, Dr. Solomon Fulero, testify on eyewitness identification.      The circuit

court denied the motion, finding that because Clark, Gill, and defendant were acquaintances,

expert testimony was not required.     Shortly thereafter, Dr. Fulero passed away.    During trial,

defendant indicated to the court that he had secured a new expert witness, Dr. Geoffrey Loftus.

He renewed his motion and submitted a report describing Dr. Loftus's anticipated testimony,

which, unlike Dr. Fulero's report, directly addressed the effects of eyewitness identification when
No. 1-12-1880


the eyewitness and the suspect are acquaintances.       The circuit court denied the motion, relying

on its reasoning as stated in its denial of Dr. Fulero's testimony.   At issue is whether the circuit

court abused its discretion when it denied defendant's motion to allow Dr. Loftus to testify

regarding eyewitness identification testimony.       We hold the circuit court abused its discretion

because it did not carefully consider or scrutinize Dr. Loftus's anticipated testimony before

denying defendant's motion.

¶2                                         JURISDICTION

¶3      The circuit court sentenced defendant on May 23, 2012. Defendant timely filed his notice

of appeal on June 6, 2012. Accordingly, this court has jurisdiction pursuant to article VI, section

6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals

from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI,§ 6;

Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Feb. 6, 2013).

¶4                                        BACKGROUND

¶5      The State charged defendant by indictment with first degree murder, aggravated

discharge of a firearm, and unlawful use of a weapon by a felon for the May 3, 2008, shooting

death of Jason Gill.    At the time of the shooting, approximately 11:20 p.m., Gill and Lydia

Clark were on Gill's front porch when defendant, whom she knew as "Lucky," allegedly

approached the porch and shot at Gill and Clark. Clark dragged the critically wounded Gill into

the house.   Gill, in the presence of both Clark, and his father, Bill Johnson, who came onto the

scene after hearing gunshots and Clark's screaming, stated that "Lucky" shot him.           Gill and

Clark are African-American while defendant is Hispanic.

¶6      Prior to trial, defendant filed a motion in limine to allow a licensed psychologist and

attorney, Dr. Solomon Fulero, to testify as an expert witness on memory and eyewitness

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identification.    Defendant argued that Dr. Fulero would assist the trier of fact with his

specialized knowledge of information not commonly known by laypersons and that few jurors

know the theory of memory within the field of psychology.         Rather, jurors rely on many of the

misconceptions of memory and eyewitness identification that Dr. Fulero would address.

Defendant alleged that cross-examination of eyewitness testimony would appear insignificant to

jurors due to their common misperceptions and lack of knowledge regarding memory and

eyewitness identification.

¶7      Defendant attached Dr. Fulero's resume and a report showing Dr. Fulero anticipated

testifying that the following factors present in defendant's case illustrate common misconceptions

about eyewitness identifications: the confidence of the witness does not related to accuracy; the

reliability of an identification is reduced by stress or the presence of a weapon; the

overestimation of time frames by an eyewitness; cross-racial identification problems; the

forgetting curve and the effect of time on the reliability of an identification; the impact of partial

disguises, such as a hood, on identification; "the effect of postevent information"; the problems

associated with night time identification; and that multiple witness identifications and dying

declaration identifications are not necessarily more reliable.         Dr. Fulero would have also

testified that the accuracy of eyewitness identifications could be reduced by police procedures

utilized in this case. Defendant argued Dr. Fulero would have also addressed how common

misconceptions of memory are in conflict with the theory of memory as generally accepted in the

field of psychology.

¶8      Dr. Fulero reported that he also intended to testify as to the reliability of dying

declarations.     Specifically, that a dying witness's physical condition could contribute to a lie or

mistake; the dying witness's account may be truncated, incomplete, or one-sided due to the

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No. 1-12-1880


limited time to communicate; that, depending on the witness, such a witness may lie or extract

revenge; and that the listener may miscomprehend the statement from a dying witness.                        Dr.

Fulero also noted that "the factors that affect eyewitness reliability *** are just as present at the

time of an event that involves a dying witness as one who is not dying."

¶9      In reply, the State stressed that Illinois courts had consistently upheld a trial court's

decision to bar expert testimony concerning witness identification.               The State considered Dr.

Fulero's proposed testimony as within the common knowledge of the jury and would not aid it.

The State argued that any identification issues defendant may have were better addressed by

thorough cross-examination, closing argument, and jury instructions.                       The State found

defendant's case to be factually distinguishable from Dr. Fulero's report because the

eyewitnesses 1 in this case knew defendant and identified him to the police by name, a fact Dr.

Fulero failed to consider.      The State also pointed out that defendant failed to cite any authority

that would allow Dr. Fulero to testify regarding the reliability of dying declarations.

¶ 10    In a supplemental response, the State argued that Clark was the only eyewitness to the

murder and knew defendant's nickname to be "Lucky." The State also pointed out that Dr.

Fulero testified, in an unrelated case in Ohio, that the factors that lead to unreliable eyewitness

identification were not applicable when the eyewitness knew the suspect. 2                         The State




        1
           Prior to trial, the circuit court referred to three eyewitnesses: Gill, Clark, and Gill's girlfriend,
Jasmine Harris. The State, however, did not elicit testimony from Harris at trial and Clark testified that at
the time of the shooting, she and Gill were alone on the front porch waiting for Harris to return home.
         2
           The case of State v. Nickleberry, No. 77516, 2000 WL 1738356, at *3 (Ohio Ct. App. Nov. 22,
2000), contained the following statement in the body of its decision: "Solomon Fulero, Ph.D. who testified
that eyewitness identification may be unreliable because of a variety of factors. He admitted, however,
that these factors are considered applicable where the eyewitness is viewing a stranger and not someone he
or she has met before."

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No. 1-12-1880


maintained that because Clark and defendant were acquaintances, Dr. Fulero's testimony would

not be relevant or have probative value.

¶ 11   Prior to oral argument on the matter, defense counsel sought to have Dr. Fulero testify at

the hearing.   The circuit court did not allow defendant to call Dr. Fulero to testify at the hearing.

At oral argument on the motion, defense counsel disputed the State's argument that Dr. Fulero's

testimony was not relevant because the witness knew defendant.         Defense counsel argued that

Dr. Fulero would testify that the witness and defendant knowing each other would just be

another factor in his opinion and would not make his testimony irrelevant.         Regardless, defense

counsel argued the State would be able to impeach Dr. Fulero on this aspect of the case.

¶ 12   The State argued that Dr. Fulero's testimony does not apply to defendant's case due to the

fact that the eyewitness knew defendant prior to the shooting, and knew him as "Lucky." The

State disputed that dying declarations were unreliable and argued there was no precedent to

support that theory.

¶ 13   The circuit court denied defendant's motion to allow expert witness testimony on

eyewitness identification.   It pointed out that the one fact that distinguishes this case from other

identification cases is that the eyewitnesses knew defendant prior to the shooting, which it found

negated the need for expert testimony.     Specifically, the court found:

                "[I]t is not a circumstance that requires the testimony of an expert

                to establish what pretty much everybody knows, which *** it is a

                fact that persons *** are less likely to misidentify someone they

                have met or know or seen before than a stranger.            That's not a

                function of psychology or expert opinion testimony.             It is a

                function of human nature, and it is not something that would

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No. 1-12-1880


                 require the application of expert opinion testimony because it is not

                 beyond the ken of an ordinary juror."

The court found two things to be prejudicial.      First, it noted that Dr. Fulero's testimony tended

"to generate *** a referendum on the efficacy of identification testimony generally"; and second,

it could possibly lead to his voicing his opinion on the credibility of the eyewitnesses. The

court also found Dr. Fulero's proposed testimony concerning the reliability of the dying

declaration exception to the hearsay doctrine to be irrelevant because the preferred evidence

from the deceased victim was an excited utterance.

¶ 14      The circuit court denied defendant's subsequent motion to reconsider and stressed that a

distinguishing fact was that the eyewitnesses in this case knew defendant before the shooting.

Prior to trial, defendant informed the court that Dr. Fulero had passed away.      Defendant sought

a continuance to seek a new expert witness to be used as an offer of proof, which the circuit court

denied.

¶ 15      Midway through trial, defendant asked the court to reconsider its ruling on its expert

witness.     Defense counsel noted that it had secured a new expert witness, Dr. Geoffrey Loftus,

after Dr. Fulero's death.     Defense counsel provided a report from Dr. Loftus describing his

anticipated testimony.      In his report Dr. Loftus stated he reviewed police reports, witness

statements and interviews, photo montages, lineup photos, and transcripts from court hearings in

developing the report.    Dr. Loftus stated he would discuss the general theory of perception and

memory and how scientific evidence addressing the following topics related to eyewitness

testimony: circumstances where memory fails; effects of low lighting; effects of distance on

visual perception; effects of divided attention, including weapons focus; time durations and how

people overestimate time durations in stressful or eventful circumstances; effects of cross-racial

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No. 1-12-1880


identification; effects of stress; consequences of a person's face being partially obscured; effects

of expectations; consequences of nonindependent identifications; effects of suggestive postevent

information; and the effect of the confidence of an eyewitness.         Dr. Loftus stressed that he

would not "issue judgments about whether a particular witness's memory and assertions *** are

correct or incorrect." He noted that "any testimony on my part which implies unreliability on

the part of eyewitness(es) who identify a defendant should not, ipso facto, be taken to imply that

the defendant is innocent–it implies only that the eyewitness evidence should be viewed with

appropriate caution." (Emphasis in original.)

¶ 16   Additionally, and unlike Dr. Fulero's report, Dr. Loftus anticipated discussing the

implications of an eyewitness being acquainted with the identified person.          Specifically, Dr.

Loftus stated that "[i]t would seem intuitive to a jury that if a witness identifies a suspect with

whom he or she is acquainted, the witness's identification would likely be accurate.       However,

this is not necessarily true." Dr. Loftus explained that "if circumstances are poor for a witness's

ability to perceive a person," and "the situation fosters a witness's expectations that he or she will

see a particular acquaintance [,]*** then the witness will tend to perceive the person as the

expected acquaintance even if the person is in fact someone else."            He noted those poor

circumstances included low lighting; viewing longer distances in the dark; divided attention of

the witness, including a focus on a weapon; time duration, with less time leading to less available

information, and witness's tendency to overestimate time durations; cross-racial identification;

stress; and a partially obscured face.         Dr. Loftus stated such situations may lead to

misidentification because:

                "In such circumstances, the witness's acquaintance with the

                expected–and hence perceived–person works against accurate

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No. 1-12-1880


                identification for two reasons: First, it would be natural and easy

                for the witness to subsequently pick the acquaintance in an

                identification procedure *** (because the witness already knows

                whom she is seeking in a lineup procedure, she could immediately

                rule out all the fillers, and zero in on the acquaintance/suspect).

                Second, the witness could use his or her prior knowledge of the

                acquaintance's appearance to reconstruct his or her memory of the

                original events–the crime–such that the in fact poor original

                memory of the actual criminal is replaced with a stronger and more

                confidence-evoking memory of the acquaintance***."

¶ 17   The State maintained that expert testimony was not needed because Clark knew

defendant before the shooting.

¶ 18   The circuit court noted it reviewed Dr. Loftus's report and resume, but denied the motion

for reasons "consistent with the reasons [it] set forth in detail when [it] made the ruling on

[defendant's] similar motion with respect to Dr. Fulero."

¶ 19   At trial, Jason Gill's mother, Delma Johnson, testified she had known defendant three or

four years.   She knew him as "Lucky," but did not know his real name.       She testified he would

come over every weekend and was friends with Gill.            Approximately one week before the

shooting, she observed defendant arguing with a member of her family, Mekyell Bynum.

¶ 20   Lydia Clark testified at the time of the shooting, she was 17 years old.       She also knew

defendant as "Lucky," and estimated she had seen him on the porch of the house across the street

approximately 10 times prior to the shooting.    She did not know his real name and had never

spoken with him or been in the same house with him.         At approximately 11:20 p.m. on the day

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No. 1-12-1880


of the incident, she and Gill were sitting on the front steps of Gill's house.   The streetlights were

on.    She saw defendant wearing all black with a hooded sweatshirt with the hood down.

Defendant pointed a black gun toward her and Gill and shot it two to five times.         Gill covered

her with his arms.    Gill fell and Clark dragged him into the house through the door.     She called

the police and heard Gill's father, Bill Johnson, come downstairs. Johnson asked Gill who shot

him and Gill stated " ' Lucky shot me.' " Gill's voice sounded "[l]ike he was gasping for air."

She told the two police officers who first responded to the scene what had happened.        That next

morning, at 1:25 a.m., she went to the police station, where she was shown six photographs of

Hispanic males, one of which was defendant.       She identified defendant from the photographs as

the shooter.    On May 5, 2008, she identified defendant at the police station.

¶ 21    On cross-examination, Clark testified that although she had seen defendant, she "did not

know him." She admitted that she testified before the grand jury, on May 9, 2008, several days

after the shooting, that she had only seen defendant once or twice before the shooting.      She also

admitted that on or about May 4, 2008, she told Detective Hughes that she had known defendant

for a couple of months.     She testified she had never had a conversation with defendant prior to

the shooting.     She denied that she told Detective Hughes shortly after the shooting that

defendant's hood on his sweatshirt was up at the time of the shooting. She agreed that when the

shooter approached she saw the gun; she felt fear and wanted to get out of the way.          The gun

was already in the shooter's hand.     Gill's house did not have a front porch light.    The shooter

came from across the street in front of an abandoned house.          She testified that there were no

lights on in the yard of the abandoned house.          Clark testified that she told the officers that

responded to the shooting that defendant shot Gill and that defendant had been in a feud with



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No. 1-12-1880


Gill's family.   When she identified defendant at the police station in the holding cell, he was

alone.

¶ 22     Bill Johnson, Gill's father, testified consistently with Clark's testimony concerning Gill's

statement that "Lucky" had shot him.      Bill Johnson thought the fight between Mekyell Bynum

and defendant "was supposed to be over."        In cross-examining Clark and Johnson, defendant

played a recording of Clark's 911 call made after the shooting and provided a transcript of the

call.    Johnson's voice and a conversation he had with Clark were on the recording.        Johnson

told the operator on the call that Gill could not talk.   The recording did not reflect that Johnson

asked Gill who shot him.

¶ 23     Chicago police officer John Layne testified he responded to the scene of the shooting and

found Clark "in shock."     He testified that "All [Clark] could say basically to us was Lucky shot

him.     He just walked up and shot him." She later told Officer Layne that "Lucky," who was

Hispanic, aged 23 to 28, and lived on the block, shot Gill.     When Officer Layne arrived on the

scene, Gill was unable to speak.

¶ 24     Detective Thomas Benoit of the Chicago police testified he assembled a photo array,

which included defendant and five others, to show to Lydia Clark.           When shown the photo

array, Clark identified defendant as the shooter.         On cross-examination, Detective Benoit

testified the photos of the people in the array other than defendant were generated from a

computer.

¶ 25     Kurt Zielinski, a forensic scientist with the Illinois State Police, admitted on

cross-examination that he did not find any physical evidence linking defendant to the shooting.

Similarly, Detective James Las Cola, who reported to scene shortly after the shooting, testified

that he did not find any firearm evidence on the scene.

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No. 1-12-1880


¶ 26   Detective Halloran testified that on May 5, 2008, in the early morning, Lydia Clark told

him that "Lucky" shot Gill.       Detective Halloran did a "show-up" identification procedure

whereby defendant stood alone in a room.           Clark, looking through a window, identified

defendant as the shooter.    He explained he did a "show up" identification procedure as opposed

to a lineup because Clark knew the shooter beforehand.

¶ 27   Detective Michael Hughes testified he interviewed Lydia Clark, who told him that a

person wearing a black, hooded sweatshirt with the hood up approached her and Gill and fired a

gun at them.    Clark indicated to Detective Hughes that she had known the shooter a couple of

months.     On cross-examination, Detective Hughes testified Clark told him Lucky was the

shooter.    She also described defendant as a "5/6 or 5/9" white male in his twenties weighing

approximately 160 pounds.

¶ 28   Taurhern Gill, the victim's brother, testified that an hour or two before the shooting, he

was in the alley directly behind his house when he saw Salvador Rojas with a gun in his hand.

On cross-examination, he testified he had known defendant five or six years and that defendant

did not look like Rojas. He had seen Rojas in the past with defendant in the house across the

street from his house.     On redirect examination, he testified that both defendant and Rojas are

light-skinned Hispanics.

¶ 29   Sergeant Calvin Williams testified he spoke with Bill Johnson, the victim's father.

Johnson did not tell Williams that his son told him anything about the shooting. He did tell

Williams that a family member had an altercation with defendant the previous Wednesday or

Thursday.    He also said that defendant had been hanging around the block that day.

¶ 30   Dr. Humilier performed the autopsy on Jason Gill's body and testified Gill died from

homicide due to multiple gunshot wounds.         On cross-examination, Dr. Humilier testified he

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No. 1-12-1880


found cocaine present in Gill's body, but he could not make a judgment on when Gill had used

cocaine.

¶ 31   The parties stipulated that Lydia Clark testified before the grand jury that Gill crawled

into the house, as opposed to Clark dragging him into the house.       The parties further stipulated

that the three streetlights on the block were properly functioning on May 3, 2008. The parties

stipulated that an expert in astronomy would have testified that on May 3, 2008, the moon was

not visible in the sky at 11:20 p.m.

¶ 32   After trial, defendant filed a motion for new trial arguing, in relevant part, that the circuit

court erred in not allowing him to present expert witness testimony regarding the reliability of

eyewitness testimony.    The circuit court sentenced defendant to 45 years' imprisonment.

¶ 33                                        ANALYSIS

¶ 34   Defendant argues the trial court erred in excluding expert testimony addressing

misconceptions commonly involved in evaluating identification testimony where his conviction

stemmed from factors underlying those misconceptions.          According to defendant, the circuit

court relied on a common misconception of eyewitness testimony, i.e., that such identification by

a prior acquaintance is reliable, which his expert witness's report directly disputed.    Defendant

maintains that this error is reversible error because the preclusion of the evidence directly

impacted the jury's verdict.   In response, the State argues the circuit court acted properly within

its discretion in denying defendant's motion.      Specifically, the State argues the circuit court

conducted a meaningful inquiry before denying the motion.           The State maintains any error

made by the circuit court here was harmless because defense counsel managed to elicit any

relevant point that his proposed expert witness would have covered by way of cross-examination

and closing argument.

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¶ 35      A criminal defendant's right to due process and a fundamentally fair trial includes the

right to present witnesses on his or her own behalf.        People v. Wheeler, 151 Ill. 2d 298, 305

(1992).     "In Illinois, generally, an individual will be permitted to testify as an expert if his

experience and qualifications afford him knowledge which is not common to lay persons and

where such testimony will aid the trier of fact in reaching its conclusion."     People v. Enis, 139

Ill. 2d 264, 288 (1990).     Expert testimony addressing matters of common knowledge are not

admissible "unless the subject is difficult to understand and explain." People v. Becker, 239 Ill.

2d 215, 235 (2010).       In addressing the admission of expert testimony, the trial judge should

balance the probative value of the evidence against its prejudicial effect to determine the

reliability of the testimony.   Enis, 139 Ill. 2d at 290.   Furthermore, the necessity and relevance

of the expert testimony should be carefully considered in light of the facts of the case.         Id.;

People v. Tisdel, 338 Ill. App. 3d 465, 468 (2003) ("Trial courts should carefully scrutinize the

proffered testimony to determine its relevance–that is, whether there is a logical connection

between the testimony and the facts of the case."). Relevant and probative testimony should be

admitted, whereas misleading or confusing testimony should not be admitted.           Tisdel, 338 Ill.

App. 3d at 468.      When determining the reliability of an expert witness, the trial judge is given

broad discretion.     Enis, 139 Ill. 2d at 290.    Therefore, we review the trial court's decision to

admit evidence, including expert witness testimony, for an abuse of that discretion.     Becker, 239

Ill. 2d at 234.     Arbitrary, fanciful, or unreasonable decisions by the trial court constitute an

abuse of discretion. Id.

¶ 36      The trial court here ruled that Dr. Fulero's testimony was not needed principally because

Clark and Gill knew defendant before the shooting.           The court found that "it is a fact that

persons who are less likely to misidentify someone they have met or know or seen before than a

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stranger."    After Dr. Fulero's death, defendant secured a new expert witness, Dr. Loftus.

Defendant renewed his motion to call an expert witness and submitted Dr. Loftus's report and

resume.      Dr. Loftus's report, unlike Dr. Fulero's, directly addressed the implications of an

eyewitness being acquainted with the identified person.         Specifically, Dr. Loftus, noted that

factors present in the case at bar such as low lighting, darkness, presence of a weapon,

cross-racial identification, stress, and partially obscured face 3 could lead to an eyewitness

misidentifying an acquaintance. Dr. Loftus explained that "it would be natural and easy for the

witness to subsequently pick the acquaintance in an identification procedure," and that "the

witness could use his or her knowledge of the acquaintance's appearance to reconstruct *** her

memory of the original events." The trial court, despite Dr. Loftus directly addressing problems

associated with eyewitness identification of an acquaintance, denied defendant's renewed motion

to call Dr. Loftus for reasons consistent with its prior ruling.    Both our supreme court and this

court have stressed that expert testimony should be carefully considered and scrutinized in light

of the facts of the case.   Enis, 139 Ill. 2d at 290; Tisdel, 338 Ill. App. 3d at 468 ("Trial courts

should carefully scrutinize the proffered testimony to determine its relevance–that is, whether

there is a logical connection between the testimony and the facts of the case." (Emphasis added)).

It is clear that the trial court here, in relying on its prior reasoning, did not carefully consider or

scrutinize Dr. Loftus's report where the report directly contradicted the court's prior finding that

it is common knowledge that an eyewitness is less likely to misidentify an acquaintance.

¶ 37   We find this court's decision in People v. Allen, to be instructive here.        In Allen, this

court held that the trial court abused its discretion when it failed to scrutinize, weigh, or consider,

       3
         Conflicting evidence regarding whether the shooter's hood on his sweatshirt was up or
down was presented at trial. Clark testified the hood was down while Detective Hughes testified
Clark told him shortly after the shooting that the hood on the shooter's sweatshirt was up.

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relevant proposed testimony from the report of an expert on eyewitness identification.             People

v. Allen, 376 Ill. App. 3d 511, 521-26 (2007).     This court explained:

                       "No careful scrutiny took place in this case.         Relevance of

                 the different parts of [the] proposed testimony was not seriously

                 considered.   Nor their weight. *** The balancing test requires a

                 weighing of 'probative value against its prejudicial effect.'

                 [Citation.] The test cannot be accomplished without an inquiry into

                 the probative value of the proposed testimony and its relevance to

                 the issues in the case.   It is then that the inquiry shifts to the risk

                 of unfair prejudice***." Id. at 526.

This court in Allen concluded that the "failure to conduct a meaningful inquiry" into the

proposed testimony was reversible error.       Id. at 526.     In the case at bar, we cannot say that any

meaningful inquiry took place where the circuit court denied Dr. Loftus' proposed testimony

based on the same reasoning it applied to Dr. Fulero's proposed testimony, even though Dr.

Loftus' report directly contradicted that reasoning.         As in Allen, the trial court's failure here to

carefully scrutinize Dr. Loftus' anticipated testimony, as stated in his report, constituted an abuse

of discretion.

¶ 38   We also find it difficult to accord the customary degree of deference to the trial court's

discretion in this case because the trial court, in relying on its prior ruling, explained itself with

little more than a series of conclusions based on its personal belief.             The trial court found

"everybody knows" that eyewitnesses are less likely to misidentify an acquaintance, describing it

as "a function of human nature." As discussed above, Dr. Loftus directly contradicted these

statements in his report, stating such sentiments are "not necessarily true," especially when

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various circumstance were present, many of which were present in the case at bar.           The circuit

court further feared such testimony would "generate *** a referendum on the efficacy of

identification testimony generally" and that the expert could voice his opinion on the credibility

of witnesses.   Dr. Loftus also addressed these fears in his report, stating that when testifying, he

does not "issue judgments about whether a particular witness's memory and assertions in the case

at hand are correct or incorrect."     He further noted that "any testimony on my part which

implies unreliability on the part of eyewitness(es) who identify some defendant should not, ipso

facto, be taken to imply that the defendant is innocent–it implies only that the eyewitness

evidence should be viewed with appropriate caution."             The circuit court's reliance on its

previous ruling, despite being addressed and contradicted by Dr. Loftus's report, highlights the

need for careful scrutiny of proposed expert testimony.        Accordingly, we hold the trial court's

injection of its subjective value judgments and exercise of judicial protectionism for the State

renders its denial of defendant's expert witness an abuse of discretion.

¶ 39    We acknowledge that courts in Illinois and around the country have recognized that

scientific studies have shown significant errors in eyewitness identifications and that the public

have misconceptions of eyewitness identification.       Allen, 376 Ill. App. 3d at 523; Tisdel, 338 Ill.

App. 3d at 467; United States v. Brownlee, 454 F.3d 131, 141-43 (3d Cir. 2006); United States v.

Smithers, 212 F.3d 306, 311-12 (6th Cir. 2000) State v. Lawson, 291 P.3d 673,684-90 (Or.

2012); State v. Cheatam, 81 P.3d 830, 840-41 (Wash. 2003); State v. Henderson, 27 A.3d 872,

877 (N.J. 2011).   The advent of DNA testing, particularly in postconviction reviews, has shown

a significant percentage of conviction reversals involve eyewitness identifications that turn out to

be false.   Studies have shown that erroneous identification accounted for as much as 85% of the

convictions later exonerated by DNA testing.        Jacqueline McMurtie, The Role of the Social

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Sciences in Preventing Wrongful Convictions, 42 Am. Crim. L. Rev. 1271, 1271-75 (2005).

The current state of the law in Illinois requires that the trial court carefully consider and

scrutinize proposed expert eyewitness identification testimony. Enis, 139 Ill. 2d at 290 (holding

that the necessity and relevance of the expert testimony should be carefully considered in light of

the facts of the case); Tisdel, 338 Ill. App. 3d at 468 ("Trial courts should carefully scrutinize the

proffered testimony to determine its relevance–that is, whether there is a logical connection

between the testimony and the facts of the case."). The trial court here did not do so and failed

to give Dr. Loftus's report the proper consideration required before denying his proffered

testimony.

¶ 40    We also hold the trial court's failure to give Dr. Loftus's report proper consideration

before denying his proffered testimony is reversible error.    When determining whether an error

is harmless, "a reviewing court may (1) focus on the error to determine whether it might have

contributed to the conviction; (2) examine the other properly admitted evidence to determine

whether it overwhelmingly supports the conviction, or (3) determine whether the improperly

admitted evidence is merely cumulative or duplicates properly admitted evidence." Becker, 239

Ill. 2d at 240.   Here, we hold the error contributed to defendant's conviction.   The State did not

present any physical evidence linking defendant to the crime.     Clark's eyewitness testimony was

only corroborated with a hearsay excited utterance. Dr. Loftus's testimony addressing common

misconceptions associated with eyewitness testimony, especially testimony whereby an

eyewitness identifies an acquaintance under the circumstances present in this case, would have

assisted the jury in reaching its conclusion.   Failure to allow Dr. Loftus's relevant and probative

testimony therefore contributed to the jury's verdict.        Accordingly, we reverse defendant's

conviction and remand the matter for a new trial with directions to allow expert testimony on

                                                - 17 -
No. 1-12-1880


eyewitness identification subject to the provisions of rule 702 of the Illinois Rules of Evidence

(eff. Jan. 1, 2011).

¶ 41     We note that the evidence was sufficient to prove defendant guilty beyond a reasonable

doubt.    This finding removes the risk of subjecting defendant to double jeopardy.   See People

v. Taylor, 76 Ill. 2d 289, 309-10 (1979).

¶ 42                                        CONCLUSION

¶ 43     For the reasons stated, we reverse defendant's conviction and remand the matter for a new

trial with directions.

¶ 44     Reversed and remanded with directions.




                                               - 18 -
         REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT



THE PEOPLE OF THE STATE OF ILLINOIS,

                              Plaintiff-Appellee,

               v.

EDUARDO LERMA,

                              Defendant-Appellant.


                                          No. 1-12-1880

                                   Appellate Court of Illinois
                                   First District, First Division

                                       September 8, 2014


JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Simon and Liu concurred in the judgment and opinion.


                         Appeal from the Circuit Court of Cook County.

                       The Honorable Timothy J. Joyce, Judge Presiding.


Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender,
203 North LaSalle Street, 24th Floor, Chicago, IL 60601, (Alan D. Goldberg and
Linda Olthoff, of counsel), for APPELLANT.

Anita Alvarez, State’s Attorney, County of Cook, Room 309, Richard J. Daley Center,
Chicago, IL 60602, (Alan J. Spellberg and Janet C. Mahoney, of counsel), for APPELLEE.
