                                              FIRST DIVISION
                                              September 28, 2007




No. 1-06-1943

THE PEOPLE OF THE STATE OF ILLINOIS,     )    Appeal from the
                                         )    Circuit Court of
     Plaintiff-Appellee,                 )    Cook County.
                                         )
           v.                            )
                                         )
WALTER ALLEN,                            )    Honorable
                                         )    Daniel P. Darcy,
     Defendant-Appellant.                )    Judge Presiding.


     JUSTICE WOLFSON delivered the opinion of the court:

     Social scientists have been conducting research into the

ability of one human being to identify another.   Whether such an

expert should be allowed to testify in a criminal case is a

matter of broad discretion for the trial court.   In light of the

specific circumstances of this case, we hold reversible error was

committed when the trial court refused to allow an expert to

testify.   We reverse the defendant’s conviction and remand for a

new trial.

     This was a jury trial.   The defendant, Walter Allen, was

convicted of attempt murder, attempt armed robbery, and

aggravated battery with a firearm.   He was sentenced to a total

of 43 years in prison.

     In addition to the rejection of his expert witness,

defendant raises fourth amendment and due process issues that
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must be resolved before we reach the matter of the expert

witness.

FACTS

      On March 22, 2001, two black males entered Four Star Dry

Cleaners, showed a gun, and demanded money.    During the robbery,

one of the men “pistol whipped” Che Shin, an employee at the

cleaners.   No money was taken.   Defendant was identified as a

suspect in the attempt robbery after two witnesses, Phil Jones

and Calvin Smith, told police they saw defendant run past them

near the cleaners shortly after the robbery occurred.    Sometime

before April 10, 2001, Shin identified defendant from a photo

array as one of the people who robbed him.    That is not the case

before us, but it plays a role in the case we do decide.

      On April 17, 2001, a second attempt armed robbery was

committed at the same cleaners.    Miye Goodson, an employee at the

cleaners, was standing at the counter when two men entered the

store.   One of the men wore a dark hooded sweatshirt.   The other

man wore a yellow hooded sweatshirt with the hood up, and he

stood and looked out the window.    After one of the men approached

the counter, Goodson asked if she could help him.    The man did

not respond.   When Goodson asked again, the man reached into his

pocket, pulled out a silver handgun, and said: “This is a stick-

up.   Give money.”   When Goodson turned around to get money from

the cash register, she was shot in the back.

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     Before trial, defendant filed several pre-trial motions,

including a motion to suppress Goodson’s identification, a motion

to quash defendant’s arrest, and a motion to exclude gunshot

residue evidence.    The State filed a motion in limine to exclude

the testimony of Dr. Steven Penrod, an expert in eyewitness

identification.

     During the December 21, 2004, hearing on defendant’s motion

to suppress identification, Goodson testified the police visited

her in the hospital two days after she was shot and asked her if

she was willing to look at photographs.    She identified the

defendant.    Goodson could not recall how many photos the police

showed her.   Goodson said her husband had told her the police had

caught the man who shot her before she identified defendant and

signed his photo.    Goodson admitted that when Mort Smith, an

investigator hired by the defense, asked her how many pictures

the police officers showed her, she responded “just the one.”    At

trial she explained what she meant by that.    She did not change

her testimony.    Goodson was not asked to make an in-person

identification of the defendant until the preliminary hearing on

December 21, 2004, when he was sitting at counsel table in a jail

uniform.

     Detective John O’Shea testified that on the morning of April

17, 2001, he was scheduled to go to defendant’s probation

officer’s office to arrest defendant for the March 22 attempt

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robbery.    During roll call on that same morning, he learned a

woman was shot during a robbery that morning at the cleaners.

When defendant arrived at his probation officer’s office,

Detective O’Shea arrested him for the March 22 attempt robbery.

Detective O’Shea did not have an arrest warrant.    Shortly after

defendant’s arrest, Detective O’Shea transported him to the

police station and requested an atomic absorption gunshot residue

(GSR) test be performed on defendant’s hands.

     On April 19, 2001, Detective O’Shea went to Mount Sinai

Hospital to interview Goodson regarding the second attempt

robbery.    He generated a black and white photo array on the ICAM

system that included a photo of defendant.    Detective O’Shea

ended up using five photos that he thought were the most similar

looking.    When Detective O’Shea asked Goodson how she was

feeling, she said she was “in pain” and “not feeling the best.”

Goodson agreed to look at some pictures.    After viewing the photo

array, Goodson identified defendant as the shooter.    Goodson

described the shooter to Detective O’Shea as a “male black in his

30s” and “bald, no hair.”    Detective O’Shea admitted telling

Goodson the police had some suspects before showing her the photo

array.   He did not tell her the suspect was in custody.

Detective O’Shea testified substantially the same at the hearing

on defendant’s motion to quash arrest and suppress evidence.

     Following arguments, the trial court denied each of

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defendant’s motions.   The court granted the State’s motion in

limine to exclude the testimony of Dr. Penrod.

     At defendant’s jury trial, Goodson testified that on April

19, 2001, two detectives visited her at Mount Sinai Hospital.

After Goodson said she could identify the shooter, a detective

showed her five pictures.   She identified defendant as the person

who shot her and signed the bottom of his photograph.   Goodson

also identified defendant in open court.

     Goodson admitted that when Mort Smith, a private

investigator for the defense, asked her how many photos the

police had shown her at the hospital, she answered “just the

one.”   Goodson explained she said “just the one” because she was

only shown one picture of the man who shot her and four other

pictures.   During cross-examination, Goodson said she could not

tell in what hand defendant was holding the gun because she

panicked when she saw it.

     Detective O’Shea testified substantially the same as he had

at the suppression hearing.

     Officer Rivera, a forensic services unit investigator with

the Chicago Police Department, testified that defendant did not

want to participate in the GSR test.   Several detectives

physically restrained defendant and positioned his hands so the

test could be administered.   The detectives were not wearing



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gloves, and Officer Rivera admitted he and his partner had

handled their guns on the day the test was administered.

     Officer Robert Berk of the Illinois State Police Forensic

Science Center testified that the GSR test showed elevated levels

of barium, antimony, and lead on defendant’s left palm.    The

elements are consistent with having handled, fired, or been in

close proximity to a discharged firearm.    He conceded, however,

that these particles can be transferred from one surface to

another.    He noted there is only a six hour window of time for

the administration of an atomic absorption GSR test after a gun

has been fired.    He admitted a positive test result does not

necessarily prove an individual discharged a firearm.    He

believed, however, that the sources of lead, barium, and antimony

he detected on defendant’s hand were from gunshot residue.     A

“scanning electron microscopy” (SEM) test did not confirm the

presence of gunshot residue on defendant’s clothing.    Officer

Berk admitted the SEM test is a more sensitive, selective, and

specific test than the atomic absorption test he used.

     Dr. Samuel Palenik, a forensic analytical microscopist,

testified for the defense.    He said the atomic absorption GSR

test is an unreliable means of identifying whether GSR is present

on a surface.    He noted the elements detected by an atomic

absorption test are found in the environment and many household

items.   According to Dr. Palenik, most law enforcement agencies,

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including the Chicago Police Department, have moved away from the

test in light of the significant problems associated with it.

     Mort Smith, a private investigator, testified that he

visited Goodson at her home on May 8, 2004.    Goodson told him the

police showed her two or three photographs when they visited the

hospital in 2001.    On September 22, 2004, Smith visited Goodson

at her home and taped the interview.    Goodson told Smith the

police showed her only one photograph when she was at the

hospital.

     The jury found defendant guilty of first-degree attempt

murder, attempt armed robbery, and aggravated battery with a

firearm.    Following a sentencing hearing, the trial court

sentenced defendant to a 29-year sentence for the Class X felony

of attempt first-degree murder.    Defendant was also sentenced to

a consecutive 14-year sentence for attempt armed robbery.

Defendant appeals.

DECISION

I. Motion to Suppress Evidence

     Defendant contends the trial court erred when it denied his

motion to suppress evidence obtained in violation of his

constitutional rights.    Specifically, defendant contends the

atomic absorption GSR test administered by the police was non-

routine and completely unrelated to the March 22 attempt robbery

crime he was lawfully arrested for, thus violating his fourth

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amendment rights.

       When reviewing a trial court’s ruling on a motion to

suppress evidence, the court’s factual findings are reviewed for

manifest error while the court’s ultimate ruling is reviewed de

novo.    People v. Steham, 203 Ill. 2d 26, 33 (2002).

       Both the United States Constitution and the Illinois

Constitution protect against unreasonable searches and seizures.

U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.    A

warrantless search and seizure is per se unreasonable unless it

comes within one of a few recognized and limited exceptions.

Steham, 203 Ill. 2d at 34.    “One such exception, which has been

found reasonable under the fourth amendment to the United States

Constitution, is a search incident to a lawful arrest.”       Steham,

203 Ill. 2d at 34, citing United States v. Robinson, 414 U.S.

218, 224-26, 94 S. Ct. 467, 471-73, 38 L. Ed. 2d 427, 434-36

(1973).

       Defendant does not contend the police lacked probable cause

to arrest him for the March 22 attempt armed robbery.    Instead,

he contends that because he was neither under arrest for, nor a

suspect in, the April 17 attempt robbery, the police had no

reasonable basis or justification for performing a GSR test on

him.    Defendant contends the police must provide a rational

justification for conducting a search unrelated to the crime for

which a defendant is arrested, which they have failed to do in

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this case.    Since the police were authorized to detain defendant,

the question becomes to what extent he could be searched.    See

People v. Seymour, 84 Ill. 2d 24, 33, 416 N.E.2d 1070 (1981).

       While no Illinois court has specifically addressed this

issue, similar issues have been addressed at length in the

federal courts.

       In Schmerber v. State of California, 384 U.S. 757, 86 S. Ct.

1826, 16 L. Ed. 2d 908 (1966), a case cited by defendant, the

Supreme Court was asked to consider whether the police were

justified in requiring petitioner to submit to a blood test after

he was arrested while receiving treatment in a hospital following

a car accident.    The Court explained that the fourth amendment’s

proper function is “to constrain, not against all intrusions as

such, but against intrusions which are not justified in the

circumstances, or which are made in an improper manner.”

Schmerber, 384 U.S. at 768, 86 S. Ct. at 1834, 16 L. Ed. 2d at

918.

       The court noted that the percentage of alcohol in the blood

begins to diminish shortly after drinking stops.    Because the

officer might reasonably have believed he was confronted with an

emergency in which the delay necessary to obtain a warrant

threatened the destruction of the evidence, the court held the

attempt to secure evidence of blood-alcohol content was lawful

under the fourth amendment.

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       In United States v. D’Amico, 408 F.2d 331 (2nd Cir. 1969),

the court was asked whether a defendant’s fourth amendment rights

were violated when a federal agent, without a search warrant or

the defendant’s consent, clipped several strands of hair from the

defendant’s head while he was in custody.    The court held the

clipping of the few strands of hair unquestionably constituted a

seizure that might conceivably be subject to the constraints of

the fourth amendment.    D’Amico, 408 F.2d at 332.

       However, because the clipping by the officer of a few

strands of hair was so minor an imposition that the defendant

suffered no true humiliation or affront to his dignity, the court

held a search warrant was not required to justify the officer’s

act.    D’Amico, 408 F.2d at 333.   The taking of several strands of

hair while the defendant was in custody was no more prejudicial

than taking his fingerprints or his photograph.      D’Amico, 408

F.2d at 333.    See also United States v. Richardson, 388 F.2d 842,

845 (6th Cir. 1968) (examination of the defendant’s hands for

evidence of incriminating fluorescein powder held not to be a

search within Schmerber).

       Similarly, in United States v. Bridges, 499 F.2d 179 (7th

Cir. 1974), the court was asked to consider whether a hand swab

test conducted on the defendant without his consent during an

interrogation violated his fourth amendment rights.     Following

the defendant’s refusal to answer questions concerning his

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handling of explosives during an interrogation, federal agents

swabbed his hand without his consent.   Based on the chemical

analysis of the swabs, the agents obtained a warrant to search

defendant’s car and house.   Bridges, 499 F.2d at 184.   The court

found the swabbing was not an unreasonable search because it was

“no more offensive to [the defendant’s] person than

fingerprinting or photographing him.”     Bridges, 499 F.2d at 184.

     Defendant relies on People v. Machroli, 44 Ill. 2d 222, 224,

254 N.E.2d 450 (1970), to support his contention that the GSR

test constituted an unreasonable search and seizure in light of

the facts of this case.

     In Machroli, the defendant was arrested by a police officer

who responded to a domestic disturbance call.    Prior to the

defendant’s arrest, an officer saw him remove a small white box

from his pant’s pocket and place it on a dresser.    After the

defendant left the bedroom, the officer entered, picked up the

box, opened it, and discovered three white tablets.    The pills

were identified as an illegal narcotic.    In rejecting the State’s

justification for the search, the court held “[a] search incident

to arrest is authorized when it is reasonably necessary to

protect the arresting officer from attack, to prevent escape, or

to discover the fruits of the crime.”     Machroli, 44 Ill. 2d at

224-25, citing Chimel v. California, 395 U.S. 752, 89 S. Ct.

2034, 23 L. Ed. 2d 685 (1969).    The court noted the box and its

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contents were in no way related to the offense for which the

defendant was arrested.   The court held there was no

justification other than curiosity for the officer’s conduct in

entering the bedroom and taking possession of the box.     Machroli,

44 Ill. 2d at 225.

     Similarly, in People v. Burnett, 20 Ill. 2d 624, 170 N.E.2d

546 (1960), our supreme court was asked to consider whether the

search of defendant’s apartment was incidental to his arrest.

After defendant was arrested for operating a “lewd and

lascivious” show, the police searched his apartment and found a

locked tin box in the bedroom closet.   The police opened the box

and found obscene photographs.    The supreme court held there was

nothing in the record to indicate a search of the box was

reasonably necessary to protect the officers or prevent the

defendant’s escape.   Burnett, 20 Ill. 2d at 625-26.

Additionally, the police had already gathered all of the evidence

necessary to prove or connect defendant to the crime he was

arrested for.   The court held the search of the box was not

incidental to the arrest.   The evidence was suppressed.    Burnett,

20 Ill. 2d at 626.

     In Robinson, however, the Supreme Court noted the search

incident to a lawful arrest exception to the fourth amendment’s

warrant requirement has historically been formulated into two

distinct positions.   Robinson, 414 U.S. at 224.   “The first is

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that a search may be made of the person of the arrestee by virtue

of the lawful arrest.    The second is that a search may be made of

the area within control of the arrestee.”    (Emphasis added.)

Robinson, 414 U.S. at 224, 94 S. Ct. at 471, 38 L. Ed. 2d at 435.

The Court noted that throughout its series of cases discussing

the permissible area beyond the person of an arrestee that may be

searched, “no doubt has been expressed as to the unqualified

authority of the arresting authority to search the person of the

arrestee.”    (Emphasis added.)   Robinson, 414 U.S. at 225, 94 S.

Ct. at 472, 38 L. Ed. 2d at 436.

     The Supreme Court was asked to consider whether a police

officer’s inspection of a crumpled cigarette package found on the

defendant’s person and seizure of heroin capsules found inside

the package without a warrant were permissible after the

defendant was lawfully arrested for operating a motor vehicle

with a revoked license.    The Court held a search of a defendant’s

person incident to a lawful arrest required “no additional

justification.”    Robinson, 414 U.S. at 235, 94 S. Ct. at 477, 38

L. Ed. 2d at 441. “It is the fact of the lawful arrest which

establishes the authority to search, and we hold that in the case

of a lawful custodial arrest a full search of the person is not

only an exception to the warrant requirement of the Fourth

Amendment, but is also a ‘reasonable’ search under that

Amendment.”    Robinson, 414 U.S. at 235, 94 S. Ct. at 477, 38 L.

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Ed. 2d at 441.

     Our supreme court relied on Robinson in People v. Hoskins,

101 Ill. 2d 209, 216, 461 N.E.2d 941 (1984).    In Hoskins, the

defendant approached an unmarked police car and offered to

perform a sexual act for money.    When she was told she was under

arrest for prostitution, defendant ran from the officers and

dropped her purse.    After defendant was caught the police

searched her purse.    The officers found a hypodermic needle and a

metal cap with cocaine adhering to it.    The State argued the

search was valid as incident to a lawful arrest.    The supreme

court held the search was proper under Robinson, which

“authorizes a warrantless search of the defendant’s purse, which

is immediately associated with defendant’s person, simply on the

lawful, custodial arrest.”    Hoskins, 101 Ill. 2d at 217.    The

court noted the Robinson holding is “ ‘a straight forward rule,

easily applied, and predictably enforced.’ ” Hoskins, 101 Ill. 2d

at 217, quoting New York v. Belton, 453 U.S. 455, 459, 101 S. Ct.

2860, 2863, 69 L. Ed. 2d 768, 774 (1981) (Supreme Court extended

Robinson to all containers within the defendant’s immediate

control).

     Because Machroli and Hoskins involved instances where the

police searched the area in the vicinity of the defendant’s

control, not the defendant’s person, we find they are

distinguishable from the present case.    See Robinson, 414 U.S. at

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235, 94 S. Ct. at 477, 38 L. Ed. 2d at 441; Hoskins, 101 Ill. 2d

at 217.

     The hand swab performed on the defendant was a minor

intrusion, no more offensive than fingerprinting or

photographing.   See Bridges, 499 F.2d at 184.     Because the hand

swabbing was so “minor an imposition that the defendant suffered

no true humiliation or affront to his dignity,” we find a search

warrant was not required to justify the GSR test after defendant

was in custody and while the arresting officers were assigned to

investigate the April 17 attempt robbery.     See Bridges, 499 F.2d

at 184; D’Amico, 408 F.2d at 333.      In light of the circumstances

in this case, we find the hand swabbing was not an unreasonable

search and seizure.

II. Identification Testimony

     Defendant contends the trial court’s denial of his motion to

suppress Goodson’s identification was manifestly erroneous.

Specifically, defendant contends the photo array used by the

police was unduly suggestive.   Defendant also contends the

admission of Goodson’s in-court identification deprived him of

his right to due process because the identification was not

sufficiently independent from the highly suggestive photo array.

     On a motion to suppress identification, the defendant bears

the initial burden of establishing the pretrial identification

was “so unnecessarily suggestive that it gave rise to a

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substantial likelihood of irreparable mistaken identification.”

People v. Curtis, 262 Ill. App. 3d 876, 882, 635 N.E.2d 860

(1994).    A trial court’s ruling on a motion to suppress

identification will not be set aside unless manifestly erroneous.

Curtis, 262 Ill. App. 3d at 882.

     Defendant contends the photograph display was impermissibly

suggestive because Goodson’s contradictory testimony indicates

she may have been shown only a single photo of defendant and no

other suspects.    We disagree.

     Our supreme court has recognized “show-up” identifications,

or identification procedures that include only a single defendant

without any other suspects, carry “a dangerous degree of improper

suggestion” (People v. Blumenshine, 42 Ill. 2d 508, 512, 250

N.E.2d 152 (1969)), but the trial court here found Detective

O’Shea showed Goodson “a number of photographs” in the hospital.

While we recognize Goodson’s testimony at the suppression hearing

and at defendant’s trial wavered regarding exactly how many

pictures she was shown in the hospital, she consistently said she

was shown more than one photo in the array.    Detective O’Shea

also testified that he showed Goodson five pictures at the

hospital, which included one picture of the defendant.      Those

photos are part of the record.

     The issue of witness credibility was for the court to

resolve.    See People v. Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d

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93 (2004) (“This deferential standard of review is grounded in

the reality that the circuit court is in a superior position to

determine and weigh the credibility of the witnesses, observe the

witnesses’ demeanor, and resolve conflicts in their testimony.”)

After reviewing the record, we see no reason to disturb the trial

court’s finding that Goodson was shown multiple photographs.

     Alternatively, defendant contends that even if Goodson was

shown a five-photo lineup, the lineup was still

unconstitutionally suggestive due to the differences in

appearance between defendant and the other alleged individuals in

the photo array.

     Initially, the State contends defendant waived this issue by

failing to raise it in his motion to suppress.    See People v.

McAdrian, 52 Ill. 2d 250, 253, 287 N.E.2d 688 (1972).   Waiver

aside, we reject defendant’s contention.

     Individuals selected for a photo array lineup need not be

physically identical.   People v. Denton, 329 Ill. App. 3d 246,

250, 767 N.E.2d 879 (2002).   “Differences in their appearance go

to the weight of the identification, not to its admissibility.”

Denton, 329 Ill. App. 3d at 250.

     Based on a careful review of the photographs presented as

part of the record, we find the photo array was not impermissibly

suggestive.   All individuals displayed in the photo array had

similar general physical characteristics.   While defendant

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contends he was the only person who was actually bald in the

photo array, we note all of the individuals had very closely

cropped hair in the pictures, which appeared similar to

defendant’s hairstyle in the picture shown to Goodson.

     We find the photo array was not unduly suggestive.    In light

of our determination, we need not address defendant’s contention

that the suggestive photo array tainted Goodson’s in court

identification.

III. Eyewitness Expert Testimony

     Defendant contends the trial court’s exclusion of Dr. Steven

Penrod’s eyewitness identification testimony deprived him of his

right to due process and his right to present a defense.

     Generally, an expert will be permitted to testify 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, 564 N.E.2d 1155 (1990), citing People v. Jordan, 103

Ill. 2d 192, 208, 469 N.E.2d 569 (1984).   See also People v.

Sargeant, 292 Ill. App. 3d 508, 685 N.E.2d 956 (1997).    Trial

courts are given broad discretion when determining the

admissibility of an expert witness.   Enis, 139 Ill. 2d at 290.

The question here is whether the trial court abused its

discretion.

     When considering the reliability of expert testimony, the

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court should balance its probative value against its unfairly

prejudicial effect.   Enis, 139 Ill. 2d at 290.   “In the exercise

of his discretion, the trial judge should also carefully consider

the necessity and relevance of the expert testimony in light of

the facts in the case before him prior to admitting it for the

jury’s consideration.”   Enis, 139 Ill. 2d at 290.

     In Enis, our supreme court considered whether the defendant

was entitled to introduce testimony of an expert witness

regarding reliability of eyewitness testimony.    The defense, in

an offer of proof, claimed the expert would testify that: the

relationship between confidence and accuracy is insignificant;

the higher the stress level the less accurate the memory; the

identification is usually worse if a weapon is present; and

jurors give too much weight to time estimates.

     The supreme court found the expert’s testimony was not

necessary because none of the witnesses was in a high stress

situation, only one witness saw a weapon, and testimony regarding

time estimates was not relevant to the case.   Further, the court

found that while the witnesses’ confidence may have been at issue

in the case, that factor alone did not warrant a new trial.

Concluding the expert testimony would not have aided the jury in

reaching its conclusion, the court held the trial court did not

abuse its discretion in denying the testimony.    Enis, 139 Ill. 2d

at 289.

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     Other Illinois cases have uniformly upheld a trial court’s

refusal to allow expert eyewitness testimony.   See People v.

Tisdel, 338 Ill. App. 3d 465, 788 N.E.2d 1149 (2003) (Tisdel II);

People v. Tisdel, 316 Ill. App. 3d 1143, 1159, 739 N.E.2d 31

(2000), rev’d on other grounds 201 Ill. 2d 597, 775 N.E.2d 921

(2002) (Tisdel I); People v. Perruquet, 118 Ill. App. 3d 339, 454

N.E.2d 1051 (1983) (trial court properly excluded expert

testimony regarding effect of stress upon a victim’s recall of

events where a weapon is used); People v. Brown, 100 Ill. App. 3d

57, 426 N.E.2d 575 (1981) (factors such as stress, opportunity to

observe, distortion of memory, and problems of cross-racial

identification are within realm of common experience and can be

evaluated by jury without expert assistance); People v. Johnson,

97 Ill. App. 3d 1055, 423 N.E.2d 1206 (1981); People v. Dixon, 87

Ill. App. 3d 814, 410 N.E.2d 252 (1980) (trial court properly

excluded expert testimony concerning unreliability of cross-

racial identifications, reasoning trustworthiness of eyewitness

observation is not generally beyond the common knowledge and

experience of average juror).   The Seventh Circuit also disfavors

expert testimony on the reliability of eyewitness identification

on the grounds that it does not assist the jury.   See, e.g.,

United States v. Hall, 165 F.3d 1095 (7th Cir. 1999).

     In Tisdel II, we noted that numerous studies in the area of

eyewitness psychology indicate there is significant potential for

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eyewitness error, and that jurors have misconceptions about the

abilities of eyewitnesses.      Tisdel, 338 Ill. App. 3d at 467.   We

held that a trial court 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.

            Normally, expert testimony that is probative

            and relevant should be allowed.”    Tisdel, 338

            Ill. App. 3d at 468, citing People v.

            Sargeant, 292 Ill. App. 3d 508, 685 N.E.2d

            956 (1997).

     The defendant in Tisdel II contended the expert’s testimony

should have been admitted because it would have aided the jury in

reaching a more informed decision as to the credibility of the

eyewitness testimony.     Because the record showed the trial judge

considered the reliability and potential helpfulness of the

testimony, balanced the proffered testimony against cases in

which courts have upheld the exclusion of such evidence, and

found the testimony would not assist the jury, we found the trial

court properly exercised its discretion under Enis.       Tisdel, 338

Ill. App. 3d at 468.      However, we noted the trial court would not

have abused its discretion had it allowed the testimony, given

the facts of the case.      Tisdel, 338 Ill. App. 3d at 468.

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     Several other jurisdictions have found the exclusion of

expert testimony regarding eyewitness identification is an abuse

of discretion in certain cases.    See People v. LeGrand, 8 N.Y.3d

449, 867 N.E.2d 374 (2007); United States v. Brownlee, 454 F.3d

131 (3rd Cir. 2006); United States v. Smithers, 212 F.3d 306 (6th

Cir. 2000); United States v. Lester, 254 F. Supp. 2d 602 (E.D.

Va. 2003); United States v. Norwood, 939 F. Supp. 1132 (D. N.J.

1996); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983);

People v. Campbell, 847 P.2d 228 (Colo. App. 1992).

     In LeGrand, the defendant moved to introduce eyewitness

expert testimony.   According to a supporting memorandum of law,

the expert would have testified to research findings regarding

several factors that may influence the perception and memory of a

witness and affect the reliability of eyewitness identifications.

The expert would not, however, opine on the accuracy of any

specific eyewitness identification.     After conducting a Frye

hearing, the trial court precluded the testimony on the ground

that the expert’s conclusions were not generally accepted in the

relevant scientific community.

     The New York court of appeals held where there was no

corroborating evidence connecting the defendant to the commission

of the crime, and it was clear the case turned solely on the

accuracy of the single witness’ identification, it was an abuse

of discretion for the trial court to prohibit the expert’s

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testimony.    LeGrand, 8 N.Y.3d at 457.     The court held the

testimony of the defendant’s expert would have benefitted the

jury in evaluating the accuracy of the eyewitness identification.

A new trial was ordered.

     In Brownlee, the court held the primary issue before the

jury was the reliability of the Government’s four eyewitnesses.

The court noted:

            “Both [eyewitnesses] expressed high

            confidence in their identifications of [the

            defendant] as the perpetrator.     To rebut the

            natural assumption that such a strong

            expression of confidence indicates an

            unusually reliable identification, [the

            defendant] sought to admit [expert] testimony

            that there is a low correlation between

            confidence and accuracy.     We believe that

            [the expert’s] proposed testimony ‘is

            sufficiently tied to the facts of this case

            that it will aid the jury in resolving a

            factual dispute.’ ”   Brownlee, 454 F.3d at

            144, quoting United States v. Downing, 753

            F.2d 1224, 1242 (3rd Cir. 1985).

The conviction was reversed and the case sent back for a new

trial.

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     In the case before us, the defense submitted an offer of

proof in the form of a report prepared by Dr. Steven Penrod, an

experienced and highly-credentialed psychologist.    We have

examined the report in the context of the factual posture of the

case–-little or no corroboration of the testimony of a single

identification witness who was not asked to identify the

defendant in person until she saw him at counsel table, in jail

uniform, at a hearing conducted 44 months after the attempt

robbery.

     Some of the data and conclusions referred to in the report

do not fit the facts of the case.    For example, data supporting

the unreliability of cross-racial identifications would not fit

because there is no indication Dr. Penrod considered the Korean

eyewitness had been married to an African-American.    Nor do we

see the need in this case for expert testimony concerning the

conduct of the photo array.

     Other portions of the report are relevant and refer to

commonly accepted misconceptions.    For instance, studies have

shown a witness’s focus on a weapon indicates less attention is

paid to encoding the perpetrator’s characteristics.    Other

studies show jurors tend to rely on a witness’s confidence in her

identification as a guide to accuracy, but that there are low

correlations between the witness’s confidence and the accuracy of

her identification.

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       In final argument, the prosecutor presented conclusions that

would have been challenged by Dr. Penrod’s data concerning weapon

focus, stress, and the relationship between witness confidence

and witness accuracy.     The State’s comments: “[t]here is no

higher degree of attention than someone pointing a gun at you;”

“[defendant’s] face is burned in her memory forever;” “[t]here is

no doubt she was certain;” and “if she is so certain, there is no

reason and no doubt that you should be certain.”

       Neither at trial nor in this appeal does the State challenge

the reliability of the research cited by Dr. Penrod.      Nor did the

trial court when it rejected the proposed testimony.      The court

merely said it did not believe:

            “experts in this particular case will assist

            the jury in determining the identification in

            this case.   I believe it would probably

            confuse them more and I believe that the

            instruction that’s provided by the Illinois

            Pattern Jury Instructions is sufficient.”

       Almost always, when a reviewing court upholds the trial

court’s discretion to reject the eyewitness identification

expert’s testimony it does so on the grounds that the testimony

will not assist the jury.     That is, jurors can use their own

common sense and experience in life.     See Enis, 139 Ill. 2d at

288.    Reliability of the studies rarely is questioned.    See U.S.

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v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986) (“This court

accepts the modern conclusion that the admission of expert

testimony regarding eyewitness identification is proper, and we

have no prior contrary authority which binds us.      We cannot say

such scientific data is inadequate or contradictory.”)        In

Brownlee, the court referred to the research that demonstrates

“the science of eyewitness perception has achieved the level of

exactness, methodology and reliability of any psychological

research.”    Brownlee, 454 F.3d at 143.

     The research challenges the claim that the jury does not

require expert assistance.     As the prosecutor understood,

reasonable people well might believe an eyewitness will be more

accurate when faced with a weapon and when the witness shows

confidence in the accuracy of her identification.     The expert

testimony “dispels myths or attacks commonsense misconceptions

about eyewitness identifications, such as the effects of stress

and weapon focus on the accuracy of identifications.”         Tisdel,

338 Ill. App. 3d at 467.    In Tisdel I we said:

            “Numerous studies in the area of eyewitness

            psychology indicate there is a significant

            potential for eyewitness error and that

            jurors have misconceptions about the

            abilities of eyewitnesses.”    Tisdel, 316 Ill.

            App. 3d at 1157.

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     Here, unlike the witnesses in Enis, Goodson was in a high

stress situation, faced with a gun and an obvious threat to her

life.   She was the only eyewitness.    Her apparent confidence on

the witness stand was reflected in the prosecutor’s rebuttal

argument.

     In Tisdel I the trial court considered the reliability and

“potential helpfulness of the testimony,” and “balanced the

proffered testimony against cases in which this court has upheld

the exclusion of such evidence ***.”      Tisdel, 316 Ill. App. 3d at

1158.

     It is not our purpose to lower the bar for the exercise of

broad discretion trial judges have when it comes to expert

testimony on eyewitness identification.      But present here is the

failure to address the obligation we set out in Tisdel II:

            “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.”    Tisdel, 338 Ill.

            App. 3d at 468.

     No careful scrutiny took place in this case.     Relevance of

the different parts of Dr. Penrod’s proposed testimony was not

seriously considered.    Nor their weight.   The conclusion that the

proposed testimony would confuse the jury had no considered

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basis.   The balancing test requires a weighing of “probative

value against its prejudicial effect.”    Enis, 139 Ill. 2d at 290.

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, which includes potential confusion.

     Because of the trial court’s failure to conduct a meaningful

inquiry into Dr. Penrod’s proposed testimony, under the specific

circumstances of this case, we reverse the defendant’s

convictions and remand this cause for a new trial.    We remand

because we find the evidence sufficient to support a guilty

verdict.

     We express no opinion on whether the trial court on remand

should allow any part of Dr. Penrod’s offer of proof to be heard

by the jury.   We simply hold the offer of proof must be given

serious consideration.    If any of it is admitted, the witness

should not be allowed to directly comment on Goodson’s

credibility or on the weight that should be given to her

testimony.   The expert might supply relevant data, but it is for

the jury to decide what weight, if any, to give the research

offered by the expert.    See People v. Sargeant, 292 Ill. App. 3d

508, 511, 685 N.E.2d 956 (1997) (the expert must not invade the

province of the factfinder, while aiding the factfinder in

reaching its decision).

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IV. Other Claimed Errors

     Defendant contends the trial court erred when it denied his

motion to exclude the results of the GSR test, refused to permit

counsel to publish the tape of Smith’s interview with Goodson,

and admitted Goodson’s bloody clothing into evidence.    In

addition, the defendant contends his trial counsel was

ineffective for failing to argue the photo array used in this

case was highly suggestive.   We have examined these issues and

find they have no merit.   Defendant also raises issues concerning

his sentencing.   We see no need to discuss them.

CONCLUSION

     For the reasons stated, we reverse defendant’s convictions

and sentences and remand this cause for a new trial.

     Reversed and remanded.

     GARCIA, and R. GORDON, JJ., concur.




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