                                 No. 2-08-0947   Filed: 8-23-10
_________________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                                SECOND DISTRICT
_________________________________________________________________________________

THE PEOPLE OF THE STATE                 ) Appeal from the Circuit Court
OF ILLINOIS,                            ) of Winnebago County.
                                        )
      Plaintiff-Appellant,              )
                                        )
v.                                      ) No. 07--CF--1807
                                        )
COREY D. LATIMER,                       ) Honorable
                                        ) Ronald J. White,
      Defendant-Appellee.               ) Judge, Presiding.
_________________________________________________________________________________

       JUSTICE JORGENSEN delivered the opinion of the court:

       Defendant, Corey D. Latimer, was charged with two counts of unlawful delivery of a

controlled substance within 1,000 feet of a church (720 ILCS 570/401(c)(1), (d), 407(b)(1), (b)(2)

(West 2006)). He moved to suppress evidence obtained as a result of an encounter with a police

officer. He also moved to suppress identification testimony by a different officer. The trial court

granted both motions, and the State now appeals. We affirm in part, reverse in part, and remand for

further proceedings.

       Defendant was charged after an informant, Willie Hernandez, allegedly engaged in a

controlled purchase of heroin from an individual known to Hernandez only as "L.A." The

transaction allegedly took place between 5 and 6 p.m. on February 22, 2007, in the parking lot of

Noble's grocery store. Hernandez purchased the heroin from an individual in a red Pontiac van. No

arrest was made on that date. At the hearing on defendant's two motions, Rockford police officer
No. 2--08--0947


Darin Spades testified that he and another officer conducted "mobile surveillance" within a one- or

two-block area around the grocery store. Other officers conducted video surveillance of the

transaction. Spades testified that he was unable to see anyone inside the van, but he noted the van's

license plate number and later discovered that the van was registered to defendant. Spades obtained

copies of defendant's state-identification-card photograph and a Winnebago County jail booking

photograph of defendant. Spades also had a still image of the driver of the van prepared from the

surveillance videotape. Spades compared the surveillance videotape and the still image with the

photographs of defendant. According to Spades, the individuals depicted in the photographs and the

surveillance images "resembled one another" and "[i]t certainly could have been [defendant] in the

driver's seat of [the van]." However, Spades was not prepared to seek an arrest warrant based on his

comparison of the images; instead, he "wanted to further the investigation" and conduct a second

buy. Spades testified that he did not attempt to identify defendant by means of a "photo lineup."

       The record reflects that Hernandez attempted to purchase more drugs from "L.A." on March

5, 2007. Hernandez rendezvoused with an individual driving a white Buick, but was unable to

complete a transaction. Marc Welsh, a detective with the Rockford police department, was on hand

to apprehend the suspect if the transaction took place. When he learned that the transaction had

fallen through, he followed the Buick, intending to stop the vehicle if its driver violated any traffic

laws. The Buick proceeded west on Mulberry Street, turned onto North Independence Avenue, and

came to a stop. Welsh testified that an individual emerged from the vehicle and started walking

north. Welsh continued west but then circled back, proceeding east on School Street. Welsh

observed that the person who had exited the Buick was walking in the roadway on Andrews Street.

Welsh identified defendant as the person he had seen on Independence Avenue and on Andrews



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Street. Welsh stopped defendant, explaining that defendant was suspected of selling drugs to an

informant on February 22, 2007. Welsh also advised defendant that it was illegal to walk in the

roadway when the sidewalks were clear. See 625 ILCS 5/11--1007(a) (West 2006). Welsh asked

defendant for identification. Defendant told Welsh his name, address, and date of birth. Welsh did

not place defendant under arrest.

          The trial court ruled that, because Spades did not personally observe defendant in the Pontiac

van, and because Spades was unsure whether the individual seen in surveillance images was

defendant, Spades would not be permitted to identify defendant as the individual in the van. In

addition, the trial court expressed its belief that, because of the poor quality of the surveillance

images, it was impossible to make an identification from those images. The trial court also

suppressed defendant's statements to Welsh, ruling that Welsh had no lawful basis for stopping

defendant. Although the State appeals from both rulings, defendant concedes that his encounter with

Welsh was not an unlawful seizure and that there is no basis for suppression of his statements to

Welsh. Thus, the only issue before us is whether the trial court erred in barring Spades from

identifying defendant at trial.

          On appeal from a trial court's decision to suppress evidence, the trial court's findings of fact

will be upheld unless they are against the manifest weight of the evidence. See People v. Walter,

374 Ill. App. 3d 763, 765 (2007). However, the ultimate question of whether the defendant is

entitled to relief on a given set of facts is subject to de novo review. See Walter, 374 Ill. App. 3d

at 765.

          The State points to Spades' testimony that he was unable to positively identify defendant as

the individual seen in surveillance images and could say only that the two individuals resembled one



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another. The State posits that the trial court ruling barring "identification" testimony must have been

based on "an erroneous recollection" of Spades' testimony. The State's argument, as we understand

it, is that the trial court would have ruled as it did only if it believed that Spades' testimony was being

offered as positive identification. The argument flies in the face of the record. When announcing

its ruling, the trial court specifically noted that Spades had indicated only that the individual in the

surveillance images "could have been" defendant. The trial court later noted that Spades had

testified that he was not sure that the individual in the surveillance images was defendant.

        Although we find nothing in the record to suggest that the trial court did not have a firm grasp

on the salient facts, we believe that the trial court's legal analysis would have been more apt in a case

involving traditional eyewitness identification. The trial court relied in large part on Manson v.

Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), which set forth criteria for

determining whether an out-of-court identification that was the product of an unnecessary and

suggestive procedure is nonetheless sufficiently reliable that it may be admitted into evidence

without offending due process. Factors germane to the issue of reliability include "the opportunity

of the witness to view the criminal at the time of the crime, the witness' degree of attention, the

accuracy of his prior description of the criminal, the level of certainty demonstrated at the

confrontation, and the time between the crime and the confrontation." Brathwaite, 432 U.S. at 114,

53 L. Ed. 2d at 154, 97 S. Ct. at 2253.

        In Brathwaite, an undercover officer identified the defendant from a single photograph, a

procedure that the parties agreed was suggestive. Brathwaite, 432 U.S. at 108-09, 53 L. Ed. 2d at

150, 97 S. Ct. at 2250. However, in contrast to this case, in Brathwaite, the officer had engaged in

a face-to-face narcotics transaction with the individual whom he identified as the defendant. There



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No. 2--08--0947


is no dispute that, in this case, Spades never laid eyes on whoever sold heroin to Hernandez; at most,

Spades could testify only that a figure seen in surveillance images resembled photographs of

defendant. Given that Spades cannot identify defendant based on personal observation, the questions

of suggestiveness and reliability are entirely academic; under general evidentiary principles, Spades'

testimony would be inadmissible to establish the identity of the subject who sold heroin to

Hernandez. Whether individuals depicted in various photographs or other images resemble one

another is simply a matter of opinion. "Opinion testimony concerns what a witness ' "thinks,

believes, or infers in regard to facts in dispute, as distinguished from his personal knowledge of the

facts themselves." ' " M. Graham, Cleary & Graham's Handbook of Illinois Evidence §700.1, at 514

(8th ed. 2004), quoting Mittelman v. Witous, 135 Ill. 2d 220, 243 (1989), quoting Black's Law

Dictionary 985 (5th ed. 1979). It is a long-standing rule that "testimony of a lay witness in the form

of an opinion may be introduced only if it is helpful to a clear understanding of his testimony or the

determination of a fact in issue." M. Graham, Cleary & Graham's Handbook of Illinois Evidence

§701.1, at 517 (8th ed. 2004), citing Kolstad v. Rankin, 179 Ill. App. 3d 1022 (1989); see also

Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 393 (2000). We fail to see how,

for identification purposes, Spades' opinion would enhance the trier of fact's understanding of

whatever nonopinion testimony he might provide. Nor would his opinion be helpful to the trier of

fact in determining any fact in issue. Nothing in the record shows that Spades has any special

expertise in comparing images of individuals for identification purposes. The trier of fact would be

perfectly capable of performing such a comparison itself, and (assuming that the State is able to lay

a proper foundation for the images) it would be the trier of fact's responsibility to do so. Because




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No. 2--08--0947


Spades' opinion would be inadmissible for identification purposes, there was no need to consider the

issues of suggestiveness and reliability.1

        Indeed, the State does not argue that an opinion as to the resemblance among figures depicted

in photographs and videotapes would be admissible for identification purposes. The State's primary

concern appears to be that the suppression ruling "might lead to confusion during the defendant's

trial" if the State offers Spades' testimony for a different purpose. The State insists that "suppression

of Detective Spades' identification testimony regarding the defendant as [sic] being at the scene was

unnecessary." Moreover, the State worries that "problems may arise if *** Spades testifies that the

person depicted in the [surveillance images] 'resembles' the defendant." According to the State, such

testimony "would go to the investigative process." The State does not contend that the trial court's

order actually bars Spades from testifying for purposes other than establishing defendant's identity.

However, the State fears that, at trial, defendant will object that such testimony would be within the

scope of the trial court's order. Supreme Court Rule 604(a)(1) authorizes the State to appeal from

an order "the substantive effect of which results in *** suppressing evidence." 210 Ill. 2d R.

604(a)(1). It does not authorize the State to appeal from orders that are "unnecessary" or that "might



        1
            It is apparent from the record that, separate and apart from considerations of suggestiveness

and reliability, the trial court simply did not share Spades' opinion that the figure seen in the

surveillance images resembled defendant. (The court essentially expressed the view that, because

of the poor quality of the surveillance images, they were not suitable for comparison.) We question

whether the trial court's views as to the credibility of proposed opinion testimony should have any

bearing on the admissibility of the testimony. However, because the issue of resemblance was not

a proper subject of opinion testimony, we need not consider the matter further.

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No. 2--08--0947


lead to confusion." In essence, the State asks us to review an objection that has not yet been made,

let alone ruled upon. The State cites no authority that such prospective review is permissible and,

in our view, what the State seeks is nothing more than an advisory opinion. See In re Chilean D.,

304 Ill. App. 3d 580, 584 (1999), quoting Stokes v. Pekin Insurance Co., 298 Ill. App. 3d 278, 284

(1998) (" '[t]his court may not issue advisory opinions that are contingent upon the possible

happening of a future event' ").

       For the foregoing reasons, the portion of the trial court's order suppressing defendant's

statements to Welsh is reversed, the portion of the order barring Spades from identifying defendant

as the occupant of the Pontiac van is affirmed, and the cause is remanded for further proceedings.

       Affirmed in part and reversed in part; cause remanded.

       O'MALLEY and SCHOSTOK, JJ., concur.




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