                               2018 IL App (1st) 152242
                                     No. 1-15-2242
                            Opinion filed September 28, 2018

                                                                 FOURTH DIVISION

                                          IN THE

                          APPELLATE COURT OF ILLINOIS

                                    FIRST DISTRICT


     THE PEOPLE OF THE STATE OF               )      Appeal from the Circuit Court
     ILLINOIS,                                )      of Cook County.
                                              )
         Plaintiff-Appellee,                  )
                                              )
         v.                                   )      No. 10 CR 14964
                                              )
     LEONARDO GONZALEZ,                       )      The Honorable
                                              )      Thomas V. Gainer, Jr.,
         Defendant-Appellant.                 )      Judge, presiding.



         JUSTICE GORDON delivered the judgment of the court, with opinion.
         Presiding Justice McBride specially concurred, with opinion.
         Justice Burke dissented, with opinion.



                                      OPINION

¶1            After a jury trial, defendant Leonardo Gonzalez was convicted of

       attempted first degree murder and aggravated battery with a firearm, for a

       shooting on July 3, 2010. Defendant was sentenced on June 25, 2015, to
     No. 1-15-2242


        concurrent sentences of 38 years and 10 years, respectively, with the Illinois

        Department of Corrections (IDOC).

¶2             On appeal, defendant raises numerous claims, including that his

        conviction and sentence for aggravated battery must be vacated under the one-

        act, one-crime rule, since the two offenses stemmed from the same shooting of

        the same victim. The State agrees.

¶3            Defendant's other claims include: (1) that the trial court improperly

        denied his right to present a defense by barring him from showing the tattoos on

        his hands to the jury where the tattoos would have further established the

        weakness of the State's eyewitness identifications, unless he waived his right to

        testify; (2) that the unreliable eyewitness identifications failed to prove beyond

        a reasonable doubt that defendant was, in fact, the shooter, where the police told

        the eyewitnesses, prior to their initial identifications that they had found the

        shooter and that his photo appeared in the photo spread given to them; (3) that

        his trial counsel was ineffective for failing to call numerous alibi witnesses; and

        (4) that the trial court erred in denying his motion for a new trial based on

        evidence of actual innocence.

¶4            For the following reasons, we reverse and remand for a new trial.




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     No. 1-15-2242


¶5                                    BACKGROUND

¶6                                        I. Pretrial

¶7            Prior to trial, the State made an oral motion in limine to exclude gang

        evidence. Defense counsel explained that the victim had admitted to being in a

        gang and had stated that he believed the shooter was also in a gang. However,

        counsel “agree[d] there should be no gang evidence [with] regards to”

        defendant. The ASA replied that the State did not intend to elicit any gang

        evidence. The ASA confirmed that the victim had stated to a detective that the

        victim was in a gang and believed that the shooter had also been in the same

        gang. However, the ASA clarified that the victim “indicated to [the ASA] that

        he does not know the defendant, and has never known the defendant prior to

        this incident.” The trial court ruled that, if defense counsel tried to impeach the

        victim with his prior statement concerning gangs, then counsel will have

        opened the door to the State also to bring in gang evidence.

¶8                                         II. Trial

¶9            The following facts were established at trial. On July 3, 2010, at some

        time after 1 a.m., the victim left a party, and his van hit a pothole, blowing out a

        tire, near Harding Avenue and 28th Street in the South Lawndale neighborhood

        of Chicago. He called his girlfriend, who arrived in her sport utility vehicle

        (SUV), which the two of them sat in while they waited for a tow truck. In the

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       No. 1-15-2242


          rearview mirror, the victim observed a man looking inside his van. A second

          man approached, and the first man told the second man that there was a stereo

          in the van. The first man tried to open the van by reaching into the van through

          a window. The victim exited his girlfriend’s vehicle and told the two men not to

          steal the stereo from his van. As the first man started backing away from the

          van, the victim walked toward it. The first man then lifted up his shirt with his

          left hand, pulled out a gun from his waistband with his right hand, cocked the

          gun with his left hand, and fired at the victim. When the shooting started, the

          victim was approximately six feet away from the shooter. After the victim was

          shot in his right hand three times, he ran and was shot in the leg and in the

          posterior. The two men ran off, and the victim’s girlfriend drove the victim to

          the hospital.

¶ 10            At trial, the victim testified that he was 26 years old and had three felony

          convictions for (1) attempted residential burglary, in 2003, (2) burglary in 2004,

          and (3) criminal damage to government property, in 2012. On July 2, 2010, he

          was at a wedding party at his grandmother’s house, where he consumed six

          beers. He stopped drinking by 1 a.m. on July 3, 2010.

¶ 11            The victim testified that, after leaving the party, his van hit a pothole near

          28th Street and Harding Avenue, which was a residential neighborhood with

          streetlamps. It was “like three in the morning,” so there were no other drivers

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       No. 1-15-2242


          on the road. He parked his van on 28th Street, and there was a streetlamp right

          by his van, at the corner. After inspecting the broken wheel, he called both a

          tow truck and his girlfriend. When his girlfriend arrived 10 minutes later, she

          parked her SUV on Harding Avenue, about three houses or 50 feet away from

          his van, and he entered the passenger side of her SUV. While talking to his

          girlfriend and waiting in her SUV for the tow truck, he also kept an eye on his

          van by looking in the rearview mirror.

¶ 12            The victim testified that, after five minutes, he observed a man walk to

          his van and peer inside by the driver’s side. Then this first man walked across

          the street towards a second man who was exiting from the rear of a house. The

          two men were talking loudly, and the victim had his window rolled down, and

          so the victim could clearly hear the first man state “there’s a stereo in that car.”

          The van’s windows were rolled down, and the first person returned to the van

          and stuck “pretty much half his body” inside the van, through the passenger

          window. The victim could hear the first man trying to open the van’s door from

          the inside. At this point, the second man was three feet from the first man.

¶ 13            The victim testified that he exited his girlfriend’s SUV and approached

          his van. As the victim approached, both men looked toward him. The first man

          stopped leaning into the van, turned toward the victim, and was standing five or

          six feet away. In court, the victim identified the first man as defendant, who the

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       No. 1-15-2242


          victim had “never” observed before. The victim testified that he told the first

          man: “this is my van. Don’t steal it. Don’t rob it. I live [nearby].” At that

          moment, the first man backed 8 or 10 feet away from the van, and the victim

          walked toward the passenger side of his van. The first man lifted up his shirt

          with his left hand, pulled a gun out of his waistband with his right hand, cocked

          it back with his left hand, and pointed it at the victim’s abdomen. Before the

          first man fired, the victim placed his hands over his abdomen and was shot in

          his right hand three times. When the shooting started, the victim was six or

          seven feet away from the gun.

¶ 14            The victim testified that, after he was shot in his right hand, he turned and

          ran and was hit two more times, once in the leg and once in his posterior. The

          bullet in his leg exited through his lower stomach, while the second bullet, in

          his posterior, remained in his body. The first man fired a total of 10 to 12 times

          at the victim. The victim screamed that he was shot in the chest, in the hope that

          the firing would stop. After the victim observed the two men run away, the

          victim ran toward and entered his girlfriend’s SUV, and she drove him to the

          hospital.

¶ 15            The victim testified that, when he first arrived at the hospital, he received

          morphine. During the 24 hours that the victim was at the hospital, he was

          visited twice by the Chicago police. During the first visit, the victim estimated

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       No. 1-15-2242


          that his pain level was a 10, on a scale of 1 to 10, and he had to stop the

          conversation with the police.

¶ 16            The victim testified that, on August 5, 2010, he met with Detective Jose

          Gomez who showed him a photo spread. The victim identified the bottom left

          photo as a photo of the shooter and initialed and dated it. In court, the victim

          identified both “a lineup photo-spread advisory form” that he had signed 1 and

          the six-photo spread itself. On the next day, August 6, 2010, the victim was

          informed that the shooter had been arrested, and he and his girlfriend went to a

          police station to view a lineup. During the lineup, he identified the shooter as

          the second person from the left, who was wearing a jersey stating “Detroit.” In

          court, the victim identified a set of photos as photos of the lineup and identified

          defendant as the person whom he had identified in the lineup.2

¶ 17            At the end of the direct examination, when asked if he was sure that

          defendant was the shooter, the victim replied:

                       “VICTIM: I’m 100 percent sure. I was only a couple feet away. I had

                a good glimpse of his tattoos and his face to—


                1
                   The advisory form was read into the record on redirect examination, so
          we provide its contents at that time.
                 2
                   People’s exhibit Nos. 3 through 6 were photos of the lineup. In the
          lineup, the other three men are all wearing black or white T-shirts and dark
          pants. Defendant is wearing a bright blue basketball tank top stating “Detroit 3”
          and a pair of shorts and is the only person with visible tattoos.
                                                 7
       No. 1-15-2242


                       ASA: Rest at this time, Judge, with regards to this witness.”

¶ 18            On cross-examination, the victim testified that, when the shooter cocked

          the gun with his left hand, the victim noticed that the shooter had tattoos on his

          arms. When asked whether the shooter had tattoos on his hands, the victim

          responded that he “was just focused on the ones on the arms.” When defense

          counsel asked if the victim was focused on the left hand that had lifted the shirt

          and cocked the gun, he replied “yes.” When counsel asked if the victim noticed

          any tattoos on the shooter’s left hand, the victim then stated that he “was more

          focused on [the shooter’s] face and his reactions to see if he would say

          anything.” Counsel then asked, when the victim was focused on the shooter’s

          face, whether he noticed an overbite. The victim testified that he did not notice

          an overbite because he was “concentrated on the face part.” When counsel

          asked again whether the victim noticed any tattoos on the shooter’s hands, he

          replied: “There were tattoos that I still can’t distinguish like what they were.”

¶ 19            On cross-examination, the victim testified that it took 10 minutes to drive

          to the hospital, and that he spoke to the police five minutes later. At that time,

          he told the police that the two men were Hispanic and that they were dressed in

          all black clothing, but he did not mention that the shooter had tattoos and a

          “shag” haircut. The victim explained that, in a shag haircut, the hair is long in

          back. Although the victim testified on direct examination that he received

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       No. 1-15-2242


          morphine at the hospital, on cross-examination he testified that he did not know

          what medications he received at the hospital and he did not tell the police that

          he was on morphine.

¶ 20            On cross-examination, the victim testified (1) that he spoke to the police

          a second time on July 3, 2010; (2) that when the police asked him if his van had

          been rammed, he told them no; and (3) that when the police asked further

          questions, he replied that he did not want to speak to them anymore.

¶ 21            Later on cross-examination, when asked again about whether he told the

          police about tattoos, the victim replied: “I think I told him like there was some

          like I said on the arms.” The victim also testified: “I could have mentioned that

          there was something on the hands but in the front of the hands but I didn’t

          recognize what they are so I didn’t say any.” As to the tattoo that he recalled,

          the victim testified: “There was a letter A and some bunny ears on one of the

          arms.” Defense counsel then asked his client to stand up, and the court stated:

          “Now we will have a sidebar.” After the sidebar was held off the record,3 the

          court ruled: “Objection’s sustained.” Thus, immediately after the victim

          described the shooter’s tattoos, defense counsel asked defendant to stand up,

          and the jury heard the court prohibiting that action without any explanation.



                3
                 This issue was discussed again, on the record, at the end of the victim’s
          testimony, and we quote that discussion below.
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       No. 1-15-2242


¶ 22            On cross-examination, the victim testified that the second time that he

          spoke with police on July 3, 2010, his girlfriend was also present in the room

          and she spoke with the police at the same time that he did. The victim testified

          that, during that second conversation, he believed he told the police that the

          shooter was wearing a “black shirt, beige something.”

¶ 23            On cross-examination, the victim testified that, when he was in court last

          month, on April 1, 2013, he viewed People’s exhibit No. 2, which was the

          photo spread. Counsel asked: “And when you saw that photo that’s when you

          made the statement the shooter did have a shag, correct?” The victim replied:

          “Yes.”

¶ 24            The victim testified (1) that, on August 6, 2010, he viewed a physical

          lineup; (2) that People’s exhibit No. 6 is a photo of the lineup; and (3) that, in

          the photo of the lineup, defendant does not have a shag haircut. The victim

          testified: “I wasn’t clear that the shag had to do with anything else. I was more

          focused on his face that’s how I pointed him out by his face and by a haircut.”

          The following colloquy ensued:

                       “Q. But it was important enough for you to mention back on April 1st

                of 2013 last month, oh, I do remember that the shooter had a shag,

                correct?

                       A. Yes.

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       No. 1-15-2242


                       Q. I can’t hear you?

                       A. Yes.

                       Q. But it’s not important now, correct?

                       A. It is important.

                       Q. And prior to April 1st, 2013, you had never told anyone in law

                enforcement that the shooter had a shag, did you?

                       A. No, I didn’t because I didn’t see one. ***.”

¶ 25            The victim testified that, on August 5, 2010, when he viewed the photo

          array, the detective told him that he had found the shooter and that the shooter

          was in the photo array:

                       “DEFENSE COUNSEL: Now, back on August 5, 2010, when you

                went for the photo array, that’s when you saw the six photos, you were

                contacted by a detective, is that correct?

                       VICTIM: Yes.

                       DEFENSE COUNSEL: And that detective told you he had discovered

                the person that shot you, right?

                       VICTIM: Yes.

                       DEFENSE COUNSEL: And they told you that you were going to see

                a photo array and the shooter was in that photo array, right?


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       No. 1-15-2242


                       ASA: Objection.

                       THE COURT: Overruled.

                       DEFENSE COUNSEL: Is that right?

                       VICTIM: Yes.”

¶ 26            The victim testified that, before viewing the photo spread, a detective

          called him to ask if he was at home and if the detective could come over. The

          victim agreed, and after the detective arrived, the detective asked if the victim’s

          girlfriend was there, and the victim replied that she was at work but he would

          call her. The victim informed the detective that his girlfriend should arrive in 30

          minutes, so the detective waited, and the detective and the victim talked during

          this time. Defense counsel then asked:

                       “Q. And while you were talking to him for 30 minutes, at that time,

                that’s when he told you he had identified who the shooter was?

                       A. Correct.”

¶ 27            On redirect examination, the victim testified that, on August 5, 2010, he

          had the opportunity to read People’s exhibit No. 1, which was the lineup photo

          spread advisory form, that it was also read aloud to him by the detective on

          August 5, 2010, and that the victim signed it. The form, which the ASA read

          into the record, stated in relevant part:



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       No. 1-15-2242


                       “I, [name], agree to view a lineup/photo spread at [address] on 5 Aug.

                2010.

                       *I understand that the suspect may or may not be in the

                lineup/photospread.

                       I understand that I am not required to make an identification.

                       I do not assume that the person administering the lineup/photospread

                knows which person is the suspect.”

¶ 28            On redirect examination, the victim also testified that the detective did

          not tell him who the shooter was, that the victim’s girlfriend was not in the

          room when the victim viewed the photo spread, and that he was not in the room

          when she viewed the photo spread.

¶ 29            After the victim was excused from the stand and the jury was excused for

          lunch, the trial court and the attorneys held a conference about showing

          defendant’s tattoos to the jury:

                       “THE COURT: All right. Now, at some point there was a request by

                the defense to have [defendant] stand and show his hands to the witness

                for the purpose of identifying or talking about some tattoos I’m not clear

                are on his hand. Why did you want to do that?

                       DEFENSE COUNSEL: I wanted, your Honor, to show that on

                [defendant’s] left [ ]hand he has a tattoo which would have been evident

                                                   13
No. 1-15-2242


         to [the victim] if he had viewed what he say[s] he described when he saw

         the person lift with his left [ ] hand a shirt[,] as well as in a cocking

         motion cock a [pistol], Judge, I believe that I should have been able to

         have [defendant] show his hand and let the jury see his hand, your Honor,

         the same way that he was identified by [defendant] as the person that shot

         him.

                THE COURT: Okay. Well, the problem I have with this and the

         reason I didn’t let you do it is because there’s absolutely no way for the

         prosecution to cross-examine your client, when the tattoo was placed on

         [his] hand, how long he’s had the tattoo, whether he had receipts for the

         tattoo so [defendant] wants to show his hand to the jury, he’s going to

         have to do it from the witness stand so that the prosecution can cross-

         examine him about that which he’s offering into evidence.

                DEFENSE COUNSEL: Your Honor, just briefly, with regards to the

         photo lineups, your Honor, being the tattoos are in the lineup which [is]

         already in evidence.

                THE COURT: Then that’s something you can argue, but as far as him

         making any displays, they have got to be able to cross-examine and they

         can’t if you do it that way.”



                                         14
       No. 1-15-2242


¶ 30            In the discussion quoted above, where defense counsel argued that “the

          tattoos are in the lineup which [is] already in evidence,” he was referring to

          People’s exhibit Nos. 3 through 6, the photos of the lineup held on August 6,

          2010, approximately a month after the offense. These photos show that

          defendant had tattoos across the width of both of his hands, and defense counsel

          was correct that these photos were already in evidence. 4 Defendant’s hands

          were flat on his lap, so the photos provide a side or horizontal view of the

          tattoos. Since the hands were not photographed from above, one cannot discern

          exactly what the tattoos depict or precisely how eye-catching they were.

          However, the tattoos’ existence, on the date of the lineup, was established and

          in the record, as defense counsel had argued to the trial court.

¶ 31            The victim’s girlfriend, age 21, testified that on July 3, 2010, after 2 a.m.,

          she received a call from her boyfriend, who stated that he had a busted tire and

          needed a tow truck. She then drove to 28th Street and Harding Avenue in her

          SUV, arriving “a little after three in the morning.” The area was residential with

          street lights. After she parked on Harding Avenue, the victim entered the


                4
                  Toward the end of the trial, when the trial court and counsel were
          reviewing what exhibits had already been admitted into evidence, the trial court
          began: “Here’s what I got, People’s 1 through 13, admitted into evidence. Do
          you agree with that, [defense counsel], or not?” Defense counsel then indicated
          he agreed. Thus, there is no question that the photos were admitted, thereby
          establishing the tattoos’ existence both at the time of identification and shortly
          after the offense.
                                                 15
       No. 1-15-2242


          passenger side of her SUV. As they were talking and waiting for a tow truck,

          she noticed that the victim became distracted, and that is when she noticed two

          men outside and she heard them say “something about a radio.” When asked if

          she was able to view their faces, she replied: “Just their side face.” In court, she

          identified defendant as one of the two men whom she noticed that night.

¶ 32            The victim’s girlfriend testified that, after she noticed the two men, the

          victim exited her SUV and approached the two men. The victim stated that the

          van was his van and that he lived in the area. One of the men pulled out a silver

          gun from his shirt and started shooting at the victim. She heard at least eight

          shots and observed the victim run. She heard the victim state “my chest, my

          chest,” and observed the two men run away. Then the victim entered her SUV,

          and she drove him to the hospital, which took less than five minutes. Still on

          July 3, 2010, but hours later, she spoke with the police at the hospital.

¶ 33            The victim’s girlfriend testified that, on August 5, 2010, she viewed a

          photo spread at her boyfriend’s house with Detective Gomez. Prior to viewing

          the spread, she viewed and signed an advisory form. 5 From the photo spread,

          she identified a photo of defendant as the shooter. In court, she identified

          People’s exhibit No. 15 as the spread that she had viewed. She also viewed a



                5
                 The ASA reviewed the contents of the advisory form with her on
          redirect examination.
                                                 16
       No. 1-15-2242


          physical lineup, although she did not recall the date. From the lineup, she also

          identified defendant as the shooter.

¶ 34            The victim’s girlfriend testified that, on July 3, 2010, when she was

          sitting in her SUV prior to the shooting and she observed the two men, she

          recognized defendant as someone with whom she had gone to high school. She

          did not know his name, but she recognized his face. However, when the police

          spoke with her at the hospital, she did not inform them that she had recognized

          the shooter because she was “scared because he had just shot [her] boyfriend so

          [she] knew he had a gun.” She also did not tell the police when she met with

          them again to view the photo spread because she was still scared.

¶ 35            On cross-examination, the victim’s girlfriend admitted that, the day

          before, she had stated that the reason she did not reveal she recognized the

          shooter was because she did not want her boyfriend to know that she knew the

          shooter. While she was driving the victim to the hospital, she also called the

          police. At the hospital, she spoke to her boyfriend while two police officers

          were present and asking questions. In court, she did not recall telling the

          officers that she had given her SUV to the victim’s brother and that she had no

          way of contacting him. She also did not recall telling them that she did not

          recognize any of the people involved in the incident. She denied telling the

          officers that the shooter had either one or two companions with him. She did

                                                 17
       No. 1-15-2242


          recall telling the officers that she knew the shooter from high school so she was

          “a little shocked” the day before when the ASA did not know that. She also

          recalled telling the police, in the victim’s presence, that the shooter wore a

          beige and black shirt. She did not recall the victim telling the officers that he

          did not want to talk to them any more after they asked if his van had been struck

          or rammed.

¶ 36            On cross-examination, the victim’s girlfriend testified that, after the

          hospital, she did not speak to the police again for a month, until she met with

          them at the victim’s house. When she was heading to the victim’s house that

          day, she had no idea that the police were there. When she arrived, the victim

          was there with his grandmother, and two detectives were there, one of whom

          was named “Detective Gomez.” All four were sitting in the living room of the

          single-family house. Prior to her viewing the photo spread, the detectives told

          her that they had identified the shooter and his photo was in the photo spread:

                       “DEFENSE COUNSEL: [B]efore they showed you the pictures, they

                told you they had identified who the shooter was, right?

                       A. Yes.

                       Q. And they told you the shooter was going to be in the lineup in the

                photo array that you were going to see, correct?

                       A. Yes.

                                                  18
       No. 1-15-2242


                       Q. And then you were shown the photo array, correct?

                       A. Correct.

                       Q. And that’s when you recognized [defendant] who you went to high

                school with, correct?

                       A. Yes.

                       Q. And that’s who you picked out?

                       A. Yes.”

          However, she did not inform the police at that time that defendant had attended

          her high school, and she did not inform them the following day when she

          selected defendant from a physical lineup.

¶ 37            The victim’s girlfriend testified that, between August 6, 2010, the date of

          the physical lineup, and “yesterday’s date,” which was May 7, 2013, she did not

          speak to the police. She testified, that prior to May 7, 2013, she had not

          informed the police that she recognized defendant from school. 6 The two men

          involved in the incident wore T-shirts, and she was not sure whether she told

          the police that one of them had tattoos. Periodically, the police would call her to

          give her updates about the case, and every time the police called, she would


                6
                  This testimony contradicted her earlier testimony on cross when she
          testified that she did recall telling the officers that she knew the shooter from
          high school and, thus, she was “a little shocked” the day before when the ASA
          did not know that.
                                                 19
       No. 1-15-2242


          speak to the victim about the incident and the men involved in it. However, she

          did not inform her boyfriend that she knew defendant from high school until

          sometime shortly after August 5, 2010. When she told him, she also stated to

          him that she had not told the police. The next time that she told someone, other

          than her boyfriend, was when she told the ASA on May 7.

¶ 38            On redirect examination, the victim’s girlfriend testified that Detective

          Gomez showed her the advisory form before showing her the photo spread and

          that she read and understood it. The ASA read the advisory form into the

          record, and it stated in relevant part:

                       “I, [name], agree to view a lineup/photo spread at [address] on 5 Aug.

                2010.

                       *I understand that the suspect may or may not be in the

                lineup/photospread.

                       I understand that I am not required to make an identification.

                       I do not assume that the person administering the lineup/photospread

                knows which person is the suspect.”

          Then the ASA asked “[a]t no point did Detective Gomez tell you that he already

          had the shooter in that photo array, correct?” and she answered “yes.” However,

          on cross-examination, she had testified that there were two detectives present,

          and the ASA did not inquire about the other detective. Similarly, with respect to

                                                    20
       No. 1-15-2242


          the physical lineup, the ASA asked only whether Detective Gomez had stated

          that the shooter was in the physical lineup, and she responded that Detective

          Gomez had not. She testified that no one had told her who to select from the

          photo array or lineup.

¶ 39            On recross-examination, defense counsel inquired about the photo

          spread:

                       “Q. You knew when you were having a conversation with the

                detectives on August 5, 2010, that you were going to participate in a

                photo lineup, correct?

                       A. Yes.

                       Q. And the police officers explained to you what you were about to do

                when you looked at the lineup, correct?

                       A. Yes.

                       Q. Yes?

                       A. Yes.

                       Q. When they explained that to you, they were explaining that to both

                you and [the victim]?

                       A. Correct.

                       Q. They told you they had identified the person who shot [defendant]

                on July 3, 2010, correct?
                                                  21
       No. 1-15-2242


                       A. No.[7]

                       Q. They told you they wanted you to look at some photos, correct?

                       A. Yes.

                       Q. And they told you that you were going to sign on the photo of the

                person that shot [the victim] on July 3, 2010, right?

                       A. Initial.

                       Q. Initial, right?

                       A. Yes.

                       Q. And they told you all of that before you went into a separate room,

                correct?

                       A. Correct.”

¶ 40            The State’s next witness, Elizabeth Dawson, was an evidence technician

          with the Chicago Police Department who processed the crime scene on July 3,

          2010, at 5 a.m. Specifically, she photographed the victim’s green van and a

          nearby red vehicle and searched for firearm evidence, which she did not find.

          On cross-examination, she testified that she did not look for fingerprints on the

          green van. She looked for but did not find any bullet fragments or spent shell

          casings. She testified that, as she was sitting on the witness stand, she was


                7
                  This answer is in direct contradiction to the answer that the victim’s
          girlfriend gave to the same question on cross that we quoted above. Supra ¶ 36.
                                                  22
       No. 1-15-2242


          currently wearing on her hip a semiautomatic weapon. Defense counsel asked

          her to demonstrate to the jury how she would cock a semiautomatic weapon,

          and then counsel stated: “So that the record is clear, could it reflect that with

          your right hand you made a forward movement with your right hand with your

          left hand on top of it in a backward position, going in a backward position.”

          Dawson agreed, and she also testified that, if a semiautomatic weapon was

          fired, she would expect to find spent shell casings. She agreed that “the spent

          shell casing is the rear portion of ammunition or bullet in common terms.”

¶ 41            The State’s next witness, Detective Jose Gomez, testified that he had

          been employed with the Chicago Police Department for 21 years. Detective

          Gomez testified that, on August 5, 2010, he met with the victim at his residence

          for the purpose of showing him a photo spread. The victim also called his

          girlfriend and told her to come over “because [Detective Gomez] needed to talk

          to her.” Both the victim and his girlfriend read and signed a lineup advisory

          form and selected defendant from the photo spread. Detective Gomez testified

          that the victim and his girlfriend viewed the spread separately. On August 6,

          2010, the victim and his girlfriend also separately viewed a physical lineup at

          the police station and selected defendant from the lineup. Detective Gomez

          denied telling either the victim or his girlfriend that the detective had the

          shooter or knew who the shooter was.

                                               23
       No. 1-15-2242


¶ 42            On cross-examination, Detective Gomez testified that he spoke with the

          victim outside of his house and that he did not recall speaking with the victim’s

          grandmother. When Detective Gomez finished speaking with the victim and

          finished showing him the photo spread, the detective asked the victim to contact

          his girlfriend and “have her come over.” Thus, the victim’s girlfriend knew why

          she was coming over, namely, because the detective “needed to talk with her.”

¶ 43            On cross-examination, Detective Gomez testified that, prior to visiting

          the victim on August 5, 2010, he told him: “I’m going to show him some photo

          arrays and if he sees the person who shot him on the date [of] the incident I

          want him to pick him out.” Detective Gomez testified that he was aware that the

          victim had been asked on July 3, 2010, about damage to the victim’s vehicle

          and had refused to answer any further questions at that time. On August 5,

          2010, the victim’s girlfriend arrived in 10 to 15 minutes. When Detective

          Gomez testified that he could not recall what the victim’s girlfriend had stated

          on August 5, 2010, the defense introduced defendant’s exhibit Nos. 1 and 2,

          which were the two reports that Detective Gomez generated with respect to this

          investigation. Exhibit No. 1 was the case report, and exhibit No. 2 was a general

          progress report. After reviewing his reports, he testified that she did not inform

          him either on August 5 or August 6, 2010, that she had gone to high school with

          defendant.

                                                24
       No. 1-15-2242


¶ 44            Detective Gomez testified that the victim and his girlfriend arrived

          together at the police station on August 6, 2010, before viewing the physical

          lineup. Neither of them informed the detective that they recognized any of

          defendant’s tattoos, and the girlfriend never informed him that she knew

          defendant.

¶ 45            On redirect examination, Detective Gomez testified that defendant was

          the only person in both the photo spread and the lineup. On recross-

          examination, he testified that he was aware that there were different ways to

          show a photo lineup and one of those ways is to show the photos one at a time

          instead of showing a group of photos as he did.

¶ 46            The State rested, and the trial court denied defendant’s motion for a

          directed verdict. The defense called Detective Paul McDonagh, who testified

          that he had been employed with the Chicago Police Department for 16½ years.

          On July 3, 2010, after 3 a.m. he went to the hospital to interview the victim of a

          shooting. When Detective McDonagh arrived, the hospital staff were still

          working on the victim, and thus, the detective’s conversation with the victim

          was “very limited.” The victim stated the offenders were “two Hispanic males”

          dressed in black. The victim did not provide any information regarding either

          tattoos or a shag haircut. After speaking briefly with the victim, Detective

          McDonagh left the hospital and went to the vicinity of 28th Street and Harding

                                                25
       No. 1-15-2242


          Avenue, where the offense occurred. While there, he spoke to individuals who

          identified themselves as witnesses. He also looked for firearm evidence and did

          not find any “expended cartridge casings.” After returning to the hospital,

          Detective McDonagh had “information” that he had “learned pursuant to the

          investigation,” and he confronted the victim with that information. One of the

          questions the detective asked was whether his vehicle had been rammed. The

          detective had found physical evidence of fresh damage to the victim’s van.

          Once the detective asked that question, the victim ended the conversation.

¶ 47            Detective McDonagh testified that on July 3, 2010, he also spoke with

          the victim’s girlfriend and asked her to provide a description of the offenders.

          She never told him that she recognized any of them or that one had gone to high

          school with her. She told him that she could not give him access to her vehicle

          because it had been given to the victim’s brother and she had no way of

          contacting him. Neither the victim nor his girlfriend mentioned that the shooter

          had tattoos. The victim did not state that it was because of the morphine he

          received that he did not want to have a conversation. The detective’s questions

          required only a one- or two-word answer, and the victim’s answers were

          coherent. On recross-examination, Detective McDonagh testified that, when he

          spoke with the victim, the victim was receiving “a drip” that, based on his

          experience, is normally a saline solution with painkiller, “usually morphine.”

                                               26
       No. 1-15-2242


          The victim’s girlfriend was crying and distraught. While at the crime scene, the

          detective was unable to obtain the names of any witnesses. The last question

          defense counsel asked was: “[Y]ou had learned pursuant to your investigation at

          the scene that the car had been rammed prior to shooting, correct?” The State

          objected, and the trial court sustained the objection. The defense then rested,

          and defendant did not take the stand.

¶ 48            After the jury was excused, defense counsel explained that Detective

          McDonagh indicated in his report that there was a witness who told the

          detective that the victim’s vehicle had been rammed by a van and that three

          individuals exited their van and chased the victim around the vehicle while

          shooting at him. Defense counsel argued that this version contradicted the

          description of events testified to by the victim and his girlfriend. Although

          hearsay, defense counsel argued that he should have been able to ask about the

          victim’s reaction when confronted with this information. The court ruled, “[N]o

          I don’t think there was any way for you to get into what you got into. I gave you

          a great deal of leeway.”

¶ 49            After closing arguments, the trial court provided detailed jury

          instructions, including that the jurors “should disregard questions and exhibits

          that were withdrawn or to which objections were sustained” and “should




                                                  27
       No. 1-15-2242


          disregard testimony and exhibits which the Court has refused or stricken.” 8 In

          addition, the court instructed: “The evidence which you should consider

          consists only of the testimony of the witnesses and the exhibits which the Court

          has received.” After listening to the jury instructions and deliberating, the jury

          found defendant guilty of attempted first degree murder and aggravated battery

          with a firearm.

¶ 50                                   III. Posttrial Motions

¶ 51            On August 5, 2013, defense counsel filed a posttrial motion for a new

          trial that made mostly boilerplate claims, such as that the State failed to prove

          defendant guilty beyond a reasonable doubt. One of the few nonboilerplate

          claims, which was made with an eye toward sentencing, was that defendant

          “has no criminal record.”

¶ 52            On February 3, 2014, defense counsel filed an amended posttrial motion

          for a new trial that claimed, among other things, that on December 11, 2013,

          defense counsel had discovered new evidence of actual innocence that could not

          have been discovered earlier. Attached to this motion were the affidavits of two

          witnesses who averred that at a small “get together” on April 3, 2013, they

          overheard the victim state that he had been shot but “that the person that had
                8
                  Similarly, prior to trial, the trial court instructed the jury, including that
          it “will decide the disputed issues of law that arise during the trial” and that “[i]f
          an objection to a question is sustained, you should not guess at what the answer
          might have been.”
                                                  28
       No. 1-15-2242


          been locked up for it was not the person that shot him” and “that the friends of

          the person that was locked up would have to give [the victim] money to drop

          the charges.” One of the witnesses, Yesenia De La Cruz, averred that, in

          November 2013, she spoke with defendant’s sister and asked the name of the

          victim in defendant’s case. On December 4, 2013, De La Cruz called the other

          witness, Rosa Pliego, and on December 11, 2013, they visited defense counsel

          and swore out affidavits.

¶ 53            On April 30, 2014, defendant filed a pro se posttrial motion in which he

          claimed, among other things, that “I feel my lawyer *** took advantage of me

          because of my birth defect, I always was I Special Ed [sic] growing up in

          school.” Attached to the motion was a letter by defendant in which he stated

          that he was “an innocent man,” that he “was at home with my daughter [‘]n the

          whole family,” and that he wanted to take a lie detector test.

¶ 54            On December 2, 2014, defendant engaged new counsel who submitted a

          supplemental posttrial motion for a new trial that claimed defendant received

          ineffective assistance of counsel for several reasons, including (1) that trial

          counsel failed to move either for a mistrial or to suppress the identifications

          after the victim and his girlfriend testified that the detective stated that the

          shooter was in the photo spread and lineup and (2) that trial counsel failed to

          introduce evidence of defendant’s tattoos. Attached to the motion was an

                                                29
       No. 1-15-2242


          affidavit from defendant in which he averred that he had taken special

          education classes from second grade through sophomore year of high school

          and that he has “the same tattoos on my hands today that I had on the date of

          the offense.”

¶ 55            On March 10, 2015, defendant’s new counsel filed a second

          supplemental posttrial motion claiming ineffective assistance of counsel for

          several reasons, including that his trial counsel failed to call three alibi

          witnesses, 9 that defendant’s sister had provided defendant’s trial counsel with

          an affidavit from one of the three alibi witnesses prior to trial, and that when

          defendant’s sister attempted to retrieve the affidavit from counsel after trial, he

          denied knowledge of it.

¶ 56                                  IV. Posttrial Hearing

¶ 57                                    A. Defense Case

¶ 58            On defendant's posttrial motions for a new trial based on actual

          innocence and ineffective assistance of counsel, the trial court held a posttrial

          hearing on April 22, 2015. Defendant called seven witnesses. In sum, two

          witnesses, Rosa Pliego and Yesenia De La Cruz, testified that they heard the


                9
                 Defendant’s appellate brief states that the motion included affidavits
          from the three alibi witnesses, but the affidavits are not attached to the motion
          in the appellate record. However, the record does have their testimony at the
          subsequent posttrial hearing.
                                                30
       No. 1-15-2242


          victim talking at a party about how the person in jail for the offense was not the

          shooter and how the victim wanted money to drop the charges. Three alibi

          witnesses testified that defendant was at home at the time of the offense, and

          defendant’s sister, Nancy Gonzalez, testified that she brought affidavits from

          the alibi witnesses to trial counsel prior to trial. The three alibi witnesses were

          Rosario Calderon, the grandmother of defendant’s two daughters and the

          mother of his girlfriend, and Rosario’s two sons, Julian Calderon and Victor

          Zea. The three witnesses testified that defendant, Julian, and Zea were at home

          playing video games during the night, at the time when the offense occurred.

          Rosario lived in a one-family house, and defendant, his girlfriend, and their

          daughters lived in the basement.

¶ 59            Defendant testified at the posttrial hearing that when he asked his trial

          counsel why he did not contact the alibi witnesses, trial counsel replied that

          they did not need them and he “got this beat.” Defendant testified that, during

          the night of the shooting, he was at home watching his daughter but then she

          went downstairs and went to sleep and he stayed upstairs with his girlfriend’s

          brothers playing video games. Defendant also testified that the tattoos on his

          hands were not gang tattoos but were his daughter’s names and that he had

          these same tattoos when he was arrested. The parties stipulated that the tattoo

          on defendant’s right hand was 4½ inches by 2 inches and stated “Nevaeh” with

                                                31
       No. 1-15-2242


          a heart on top of the “v”; and that the tattoo on his left hand was 3 inches by 1½

          inches and stated “Alani.” 10

¶ 60                                      B. State’s Case

¶ 61            In response, the State called defendant’s trial counsel, who denied that

          defendant’s sister gave him affidavits and explained that he decided not to

          introduce evidence of the tattoos on defendant’s hands for fear that it might

          open the door to gang evidence. 11 With respect to the tattoos, counsel testified:

          “It was my belief that if we put in tattoos on his hands, that could possibly open

          up the door to other gang evidence.” On cross-examination, trial counsel

          testified that he recalled that defendant had a tattoo on one hand but did not

          recall whether defendant had tattoos on both hands. He did not approach the

          State or file a motion in limine seeking to prohibit the State from introducing

          gang evidence if he introduced evidence of the hand tattoos on the ground that

          this was solely a matter of identification.

¶ 62            Trial counsel testified that he learned from reading police reports that

          defendant had told the police when he was arrested that he was at home during

                10
                     According to both the presentence investigation report and defendant’s
          testimony at the posttrial hearing, Nevaeh and Alani are the names of
          defendant’s two daughters. “Nevaeh” is “heaven” spelled backwards.
                  11
                     This made limited sense, since the tattoos on defendant’s hands were
          the names of defendant’s two daughters. In addition, defense counsel did, in
          fact, try to introduce evidence of defendant’s tattoos when he asked defendant
          to stand for the purpose of displaying them to the jury.
                                                 32
       No. 1-15-2242


          the evening of the offense “taking care of his child at his child’s mother’s

          residence.” 12 While trial counsel did meet prior to trial with Nancy Gonzalez,

          defendant’s sister, he denied that she gave him affidavits from other possible

          witnesses at that time or that he was ever informed, prior to trial, that defendant

          had an alibi for the night of the offense that he was at home playing video

          games.

¶ 63            Trial counsel testified that the only possible alibi defense that he was told

          about was by defendant and the alibi was that defendant “was with his child’s

          mother’s mother that evening. That they were having a relationship and

          smoking marijuana.” By “relationship,” he testified that he meant “a physical,

          sexual relationship.”13 Trial counsel told defendant that the alibi was not

          “believable.” Defendant provided counsel with the grandmother’s telephone

          number and asked trial counsel to contact her. “The next day or the day after,”

          trial counsel placed a phone call and did not receive a reply. He testified that the

          grandmother, Rosario Calderon, also did not call him. Trial counsel testified

          that he did not pursue this line of defense because of defendant’s prior

          statement to the police and because of a prior “statement by his children’s

          mother that indicated that he had not been there and something to the effect

          they [sic] she had not seen him on that day or a few days prior to.” When trial
                12
                     Defendant also lived in the same house.
                13
                     At the posttrial hearing, defendant denied ever telling counsel this.
                                                   33
       No. 1-15-2242


          counsel was asked on cross-examination how defendant’s prior statement that

          he was at home conflicted with an alibi that he was at home, counsel replied

          that it conflicted with the girlfriend’s statement. However, trial counsel did not

          explain and was not asked how the girlfriend’s statement that she had not

          observed defendant that day or a few days before conflicted with an alibi that

          defendant was at home that night. Counsel did testify: “I did not believe the

          veracity of what he was telling me.”

¶ 64            Trial counsel testified that, at a posttrial court appearance, Rosario

          Calderon, the grandmother of defendant’s daughters, accused him of not

          returning her telephone calls. On direct examination, he testified that he tried to

          call her once. On cross-examination, he testified, “[o]nce or twice,” and then

          testified that he was “not sure how many phone calls [he] made.” The State also

          called Rosario Calderon, who testified that she called trial counsel twice prior to

          trial and that he never contacted her.

¶ 65                                        C. Ruling

¶ 66            The trial court denied the posttrial motions. In denying the motions, the

          trial court made a number of observations, including that “the jury had more

          than ample time to observe what counsel calls—what is already in the record as

          the size of the tattoos on his hands” and that “just sitting there, you can see the



                                                   34
       No. 1-15-2242


          tattoos.”14 In effect, the trial court found that the jurors had considered

          defendant’s hand tattoos, despite the trial court’s express instruction to them not

          to consider any exhibits “to which objections were sustained.”

¶ 67            With respect to the alibi, the trial court found that “these three witnesses

          established an alibi for the defendant that would have put him in the house on [a

          certain street] at the time of the shooting.” However, the trial court observed

          that the alibi contradicted a statement that defendant’s girlfriend “apparently”

          made to the police that defendant was not “at the house” and contradicted

          defendant’s statement that he was at home watching his daughter. 15 In addition,

          trial counsel testified that he was not told that defendant was playing video

          games but that he was having sex and smoking marijuana with his daughters’

          grandmother, which was a story that counsel found unbelievable.

¶ 68            The trial court found that “the video game alibi was a good alibi” but that

          “it would be strategically very risky thing to do knowing that it is going to be
                14
                    In its ruling on the posttrial motions, the trial court did not explain how
          the jurors were supposed to know that they were free to consider this evidence,
          after the trial court had barred it in front of them and then instructed them to
          disregard any evidence “to which objections were sustained.” Immediately after
          the victim had described the shooter’s tattoos, defense counsel asked defendant
          to stand up, and the jury heard the court prohibiting defendant from showing his
          tattoos.
                 15
                    The State’s “Answer to Discovery,” filed February 13, 2013, states that
          defendant’s girlfriend made a written statement that was provided to defendant
          in open court and that police reports were also provided in open court.
          However, the appellate record contains neither her written statement nor police
          reports.
                                                 35
       No. 1-15-2242


          shot out of the water by Chicago police officers” who spoke earlier to defendant

          and his girlfriend.

¶ 69            With respect to Rosa Pliego and Yesenia De La Cruz, who testified that

          they heard the victim talking at a party about how the person in jail for the

          offense was not the shooter and how he wanted money to drop the charges, the

          trial court found that it reflected poorly on their credibility that they waited to

          report what they had heard. The trial court observed that the party occurred

          three weeks before trial but they did not come forward with this information

          until after trial. The trial court found this information should have led to “a mad

          dash to the lawyer’s office to get the lawyer to stop the imminent trial.”

¶ 70            After reviewing the evidence, the trial court denied the posttrial motions

          for a new trial.

¶ 71                                   V. The Sentencing

¶ 72            On June 25, 2015, defendant’s new counsel filed a third supplemental

          posttrial motion, in which he claimed that the State failed to prove great bodily

          harm. The jury instructions stated that the State had charged that, during the

          commission of attempted first degree murder, defendant had personally

          discharged a firearm that proximately caused great bodily harm.

¶ 73            On June 25, 2015, the trial court denied the third supplemental posttrial

          motion and proceeded to sentencing. After hearing from three witnesses in

                                                36
       No. 1-15-2242


          mitigation and listening also to factors in aggravation, the trial court sentenced

          defendant to 38 years with IDOC for attempted murder and 10 years for

          aggravated battery, to run concurrently. Defendant immediately filed a motion

          to reconsider sentencing, which was denied. On June 25, 2015, defendant filed

          a notice of appeal, and this timely appeal followed.

¶ 74                                       ANALYSIS

¶ 75            Since the evidence in this case was closely balanced and we find that the

          trial court did err in ruling that defendant could not offer evidence of his tattoos

          without testifying, and where the trial court failed to consider the testimony of

          Yesenia De La Cruz and Rosa Pilego, we remand for a new trial. We find that

          the tattoo evidence, together with the testimony of De La Cruz and Pilego,

          could reasonably change the result of the verdict in this case.

¶ 76                                        I. Tattoos

¶ 77            On appeal, defendant claims that the trial court erred in barring him from

          showing his hand tattoos to the jury without subjecting himself to cross-

          examination. In the case at bar, identification was the only issue, and

          defendant’s only defense at trial was misidentification. The only evidence

          linking defendant to the offense were the identifications of the victim and his

          girlfriend, who did not tell the police initially that the shooter had any tattoos.



                                                 37
       No. 1-15-2242


          Defendant claims that barring the jury from considering the prominence, type,

          and size of his tattoos prevented him from offering a meaningful defense.

¶ 78            The trial court stated that it barred the display because the prosecution

          lacked the opportunity to cross-examine defendant as to when the tattoos were

          placed on defendant’s hands. Thus, defendant’s claim on appeal raises a purely

          legal question, namely, whether a display of tattoos is testimonial and subject to

          cross-examination, as the trial court found. While evidentiary rulings are

          generally within the sound discretion of the trial court, de novo review applies

          to an evidentiary question if that question concerns how to correctly interpret a

          rule of law. People v. Caffey, 205 Ill. 2d 52, 89 (2001); People v. Williams, 188

          Ill. 2d 365, 369 (1999) (“Where a trial court’s exercise of discretion has been

          frustrated by an erroneous rule of law, appellate review is required ***.”). An

          abuse of discretion occurs where the trial court’s ruling is arbitrary, fanciful, or

          unreasonable or where no reasonable person would take the view adopted by

          the trial court. People v. Patrick, 233 Ill. 2d 62, 68 (2009). By contrast, de novo

          consideration means that we perform the same analysis that a trial judge would

          perform. People v. Schlosser, 2017 IL App (1st) 150355, ¶ 28.

¶ 79            Simply put, the exception to the general rule of deference applies in cases

          where a trial court’s exercise of discretion has been frustrated by the erroneous

          application of a rule of law. Caffey, 205 Ill. 2d at 89. Where “the only issue for

                                                 38
       No. 1-15-2242


          the reviewing court is the correctness of the trial court’s legal interpretation,

          de novo review is appropriate.” People v. Risper, 2015 IL App (1st) 130993,

          ¶ 33. Thus, de novo review applies to this claim. However, our result would be

          the same whichever standard we applied.16

¶ 80            A criminal defendant is constitutionally guaranteed a meaningful

          opportunity to present a complete defense. People v. White, 2017 IL App (1st)

          142358, ¶ 30 (citing Holmes v. South Carolina, 547 U.S. 319, 324 (2006);

          People v. Ramirez, 2012 IL App (1st) 093504, ¶ 43; U.S. Const., amends. VI,

          XIV; Ill. Const. 1970, art. I, § 8). The right is abridged by evidentiary rulings

          that infringe upon a weighty interest of the accused and are arbitrary or

          disproportionate to the purpose the purpose that they are supposed to serve.

          Holmes, 547 U.S. at 324. Arbitrary rules are ones “that excluded important

          defense evidence but that did not serve any legitimate interests.” Holmes, 547

          U.S. at 325.

¶ 81            Defendant argues in his brief to this court that Illinois courts have long

          held that physical in-court demonstrations are not testimony, and the State does




                16
                   Neither party on appeal has much discussion about the appropriate
          standard of review. The State assumes that the abuse-of-discretion standard
          applies.
                                               39
No. 1-15-2242


   not dispute this point of law.17 People v. Warmack, 83 Ill. 2d 112, 126 (1980)

   (“no testimonial compulsion was involved” when the trial court forced the

   defendant to model certain clothing in front of the jury); People v. James, 348

   Ill. App. 3d 498, 508-09 (2004) (“a tattoo was not testimonial in nature and the

   defendant’s sixth amendment right to confrontation was not violated where a

   nontestifying codefendant’s gang tattoos were displayed to the jury”); 18 see also

   Gilbert v. California, 388 U.S. 263, 266 (1967) (compelling the defendant to

   provide handwriting exemplars did not violate his fifth amendment privilege

   against self-incrimination); People v. Hayes, 353 Ill. App. 3d 355, 360 (2004)

   (no error occurred when the trial court ordered the defendant to walk before the

   jury in order to demonstrate a limp); People v. Speirs, 231 Ill. App. 3d 807,

   807-09 (1992) (no error occurred when the defendant was compelled to show

   the tattoo on his arm to the jury, after the victim testified that he recalled a

   tattoo on his attacker’s arm).




         17
             Although in its appellate brief the State “maintain[s] that the trial
   court’s evidentiary rule was correct,” it offers no discussion of statute or case
   law to support that assertion.
          18
             See also United States v. Hubbell, 530 U.S. 27, 35 (2000) (“[A]
   criminal suspect may be compelled to put on a shirt, to provide a blood sample
   or handwriting exemplar, or to make a recording of his voice. The act of
   exhibiting such physical characteristics is not the same as a sworn
   communication by a witness that relates either express or implied assertions of
   fact or belief.”).
                                         40
       No. 1-15-2242


¶ 82            In People v. Davenport, 301 Ill. App. 3d 143, 154 (1998), a police officer

          was allowed to testify to the gang significance of a tattoo on a co-defendant

          while the co-defendant was required to stand in the well of the courtroom and

          display his tattoo.   In that case of first impression in a trial which was

          conducted jointly before two juries, we recognized that the courtroom display

          of the co-defendant's gang related tattoos, was not testimony, and did not trigger

          Davenport's Sixth Amendment right to cross-examine the prosecution's

          witnesses because the co-defendant's body was used as an exhibit or

          demonstrative evidence. Davenport, 301 Ill. App. 3d 3d at 154.

¶ 83            In People v. Speirs, 231 Ill. App. 3d 807, 811 (1992), although not based

          upon the non-testimonial nature of the display, the appellate court held that the

          trial court properly required a defendant who was charged with aggravated

          battery to remove his jacket to reveal his tattoos on his arms which were similar

          to those described by the victim, since those tattoos were relevant to the issue of

          identification.

¶ 84            More recently, there is authority which suggests a defendant should be

          allowed to demonstrate or display his tattoos without providing testimony. In

          People v. White, 2017 IL App (1st) 142358, ¶ 36, this court vacated the

          defendant's conviction and remanded for new trial where the trial court's

          erroneous limitation and exclusion of defendant's arm tattoos was not harmless.

                                                41
       No. 1-15-2242


          Here, the trial judge did not have the benefit of the White decision when he

          ruled, nor was the issue in White the same as the one we are confronted with in

          this appeal. Since this specific issue has not been addressed directly in any

          other Illinois decision, it is this court's opinion that we should set forth a clear

          rule for trial judges to follow when confronted with a similar issue in the future.

¶ 85            Courts of other jurisdictions which have dealt directly with the issue of a

          defendant's request to display some physical characteristics without testifying

          have allowed such displays on the basis of due process. These courts have held

          that to permit the State the right to require a defendant to display some physical

          characteristic without allowing a defendant the same right to display a physical

          characteristic would violate that defendant's right to due process. See State v.

          Martin, 519 So. 2d 87, 90-93 (1988) (since defendant could have been

          compelled by the State to demonstrate any tattoos he had on his body, without

          violating his privilege against self-incrimination, as display would not be

          testimonial, defendant was entitled to show his tattoos or lack of them at trial

          where such display was material, without any cross-examination as to tattoo's

          origin); U.S. v. Bay, 762 F.2d 1314, 1315-17 (1984) (holding that it was error to

          refuse bank robbery defendant, who did not take the stand, to exhibit to the jury

          the tattoos on the backs of his hands, where on cross-examination, the teller at

          the bank testified that she did not remember anything unusual about defendant's

                                                 42
       No. 1-15-2242


          hands except that he had long fingers; the hand display would be relevant to

          other robbery counts where other tellers saw defendant do things with his hands

          and handed him money and, when asked what they remembered about the

          perpetrator's appearance, specifically including his hands, they did not mention

          any tattoos on the perpetrator's hands). Based upon all of the above, we find

          that a defendant's right to display a physical characteristic should not be

          conditioned upon a defendant's relinquishment of his Fifth Amendment right

          not to testify.

¶ 86             Like the introduction of any physical evidence, a foundation for that

          evidence is required. Therefore, the party offering a tattoo into evidence, to be

          published or displayed to the jury, has the burden to establish a foundation that

          the tattoo was placed on the defendant or viewed by others at the relevant time.

          Without such a foundation, a display of tattoos or a lack of tattoos would have

          no evidentiary basis.

¶ 87             In the case at bar, the trial court stated that it barred the display, for the

          following reasons:

                       “Well, the problem I have with this and the reason I didn’t let you do

                 it is because there’s absolutely no way for the prosecution to cross-

                 examine your client, when the tattoo was placed on [his] hand, how long

                 he’s had the tattoo, whether he had receipts for the tattoo so [defendant]

                                                  43
       No. 1-15-2242


                wants to show his hand to the jury, he’s going to have to do it from the

                witness stand so that the prosecution can cross-examine him about that

                which he’s offering into evidence.”

          Not only is that ruling legally wrong as we discussed above, it was also

          factually problematic for the following reasons. The victim testified that he was

          “100 percent sure” that defendant was the shooter because he had “a good

          glimpse of his tattoos”—when the ASA cut off his answer. The lineup photos in

          evidence were not taken from above defendant’s hands but from the front of his

          hands which were flat on his lap and, thus, show a two-dimensional or

          horizontal view of the tattoos. However, the hand tattoos are unmistakably there

          and unmistakably in evidence, as of the date the photos were taken, but not

          necessarily before that time. What is not in evidence is a good view of how eye-

          catching and prominent they are, and what they actually display. People v.

          Minter, 2015 IL App (1st) 120958, ¶ 95 (discussing another case, this court

          observed that “the defendant’s tattoos were relevant to establish his identity

          because one of the State’s witnesses identified him by the tattoos”).

¶ 88            If the jurors were faithfully following the instructions given to them, and

          we have been given no reason to think that they were not, then the jurors were

          told specifically to disregard any evidence, “to which objections were

          sustained,” such as the tattoos on defendant’s hands. The trial court’s ruling

                                                44
       No. 1-15-2242


          caused the jurors, if they were following the instructions, to disregard this

          evidence.

¶ 89             When the trial court revisited the issue again during the posttrial hearing,

          the trial court found no error, finding that the tattoos were “obvious to the jury”

          and, “just sitting there, you can see the tattoos.” Again, this assumes that the

          jurors considered the evidence that they had been explicitly told not to consider.

¶ 90             Apart from a defendant testifying himself, there are any number of ways

          of laying a proper foundation for the viewing of tattoos. Any witnesses who

          knew defendant could testify that he had the tattoos at or before the date of the

          shooting. A receipt or other business record from a tattoo parlor, if properly

          introduced, could also establish a foundation—all without subjecting defendant

          to cross-examination. Defendant concedes on appeal that he failed to preserve

          this issue for appeal. We find that the trial court's ruling, that defendant could

          not admit evidence of his tattoos without surrendering his right not to testify,

          constituted a clear and obvious error. Thus, the next question is whether this

          ruling rose to the level of plain error. 19

¶ 91             When a defendant has failed to preserve an error for review, we may still

          review the issue for plain error. People v. Sebby, 2017 IL 119445, ¶ 48; Ill. S.

          Ct. R. 615(a) (“Plain errors or defects affecting substantial rights may be
                 19
                  This court is not certain that this concession is correct, but we accept it
          for purposes of our analysis.
                                                   45
       No. 1-15-2242


          noticed although they were not brought to the attention of the trial court.”). The

          plain error doctrine allows a reviewing court to consider unpreserved error

          when (1) a clear or obvious error occurred and the evidence is so closely

          balanced that the error also threatened to tip the scales of justice against the

          defendant, regardless of the seriousness of the error, or (2) a clear or obvious

          error occurred and the error is so serious that it affected the fairness of the

          defendant’s trial and challenged the integrity of the judicial process, regardless

          of the closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565

          (2007). For the reasons already explained above, a clear and obvious error

          occurred. Thus, we next consider whether the evidence was closely balanced.

          To determine whether the evidence at trial was close, “a reviewing court must

          evaluate the totality of the evidence and conduct a qualitative, commonsense

          assessment of it within the context of the case.” Sebby, 2017 IL 119445, ¶ 53.

¶ 92            At trial, as we have explained, the State presented no evidence linking

          defendant to the offense except for the identifications by the victim and his

          girlfriend. The State offered no testimony that defendant was arrested at or near

          the scene of the crime. The State did not introduce a confession or any

          incriminating words or actions by defendant. The State presented no evidence

          that defendant tried to flee or avoid the police. The evidence technician testified

          that she recovered no gun or ballistics evidence from the scene. The State

                                                46
       No. 1-15-2242


          offered no items found on or near defendant, such as ammunition. Although the

          victim testified that the shooter tried to enter the victim’s van, inside and out,

          the evidence technician stated that she did not look for fingerprints.

          Immediately after the offense, the only description that the victim and his

          girlfriend provided was that the offenders were Hispanic men dressed in

          black—a description that could fit a vast number of men in the city of Chicago.

          The State provided no evidence or testimony of how the police came to select

          this particular Hispanic man to place in a photo spread. Defendant had no prior

          felony convictions and only three minor misdemeanors from years ago. In sum,

          there was no introduced link between defendant and the shooting except for the

          victim’s and his girlfriend’s selection of defendant from the photo spread and

          lineup shown to them.

¶ 93            While the identification of one eyewitness is enough to find that the

          evidence was sufficient to find defendant guilty beyond a reasonable doubt (e.g.

          People v. Smith, 185 Ill. 2d 532, 545 (1999)), the question for us at this juncture

          in our analysis is not sufficiency but whether the evidence was closely

          balanced. Piatkowski, 225 Ill. 2d at 566 (“[w]hether the evidence is closely

          balanced is, of course, a separate question from whether the evidence is

          sufficient to sustain a conviction”).




                                                  47
       No. 1-15-2242


¶ 94            At trial, as we have explained, the State presented no evidence linking

          defendant to the offense except for the identifications by the victim and his

          girlfriend. The State offered no testimony that defendant was arrested at or near

          the scene of the crime. The State did not introduce a confession or any

          incriminating words or actions by defendant. The State presented no evidence

          that defendant tried to flee or avoid the police. The evidence technician testified

          that she recovered no gun or ballistics evidence from the scene. The State

          offered no items found on or near defendant, such as ammunition. Although the

          victim testified that the shooter tried to enter the victim’s van, inside and out,

          the evidence technician stated that she did not look for fingerprints.

          Immediately after the offense, the only description that the victim and his

          girlfriend provided was that the offenders were Hispanic men dressed in

          black—a description that could fit a vast number of men in the city of Chicago.

          The State provided no evidence or testimony of how the police came to select

          this particular Hispanic man to place in a photo spread. Defendant had no prior

          felony convictions and only three minor misdemeanors from years ago. In sum,

          there was no evidentiary link between defendant and the shooting except for the

          victim’s and his girlfriend’s selection of defendant from the photo spread, the

          lineup shown to them and their in-court identifications.




                                                48
       No. 1-15-2242


¶ 95            Both eyewitnesses testified at trial that, prior to their initial identification

          from the photo array, the police told them (1) that the police had found the

          shooter and (2) that his photo was in the photo array. The witnesses were

          thereby encouraged to select the photo that most resembled the shooter rather

          than selecting a photo only if they were positive it was, in fact, the shooter.

          After the ASA led the victim’s girlfriend through every line of the advisory

          form on redirect examination, she answered “no” on recross-examination when

          asked if the police told her that they had identified the person who shot the

          victim. However, it is unclear if this “no” referred to the form or to the prior

          conversation that she had already testified to because, when subsequently asked

          if the police told her that she was “going to sign” on the photo of the person

          who shot the victim, she replied affirmatively.

¶ 96            This error was compounded when defendant was the only person to

          appear in both the photo array and the subsequent lineup. Since the police told

          the witnesses that they had found “the shooter” and since defendant was the

          only person in both the photo array and the lineup, the only person who could

          have possibly been “the shooter,” according to the police, was defendant, who

          was the only person to appear in both displays.

¶ 97            The police conduct in conducting the photo array and lineups may have

          undermined the reliability of the identification by the victim, who testified that

                                                 49
       No. 1-15-2242


          he had never observed either the shooter or defendant before. However, the day

          before trial, the victim’s girlfriend volunteered to the authorities, 20 for the first

          time, that she recognized defendant from school. Thus, if believed, she had

          some independent basis for recognizing defendant. However, her view of the

          shooter was compromised, since she testified that she observed only the side of

          the shooter’s face. She was sitting inside her vehicle rather than standing on the

          street as the victim had been.

¶ 98            We reverse and remand for a new trial. Based upon all the above, we

          find that the trial court erred in denying evidence of defendant's tattoos. The

          evidence of the tattoos, and the two additional witnesses who claim the victim

          admitted that defendant is not the person who shot at him, could possibly

          change the result in this case and meet the test for a new trial based upon actual

          innocence. People v. Ortiz, 235 Ill. 2d 319, 332 (2009) (to support a claim of

          actual innocence, the evidence must be newly discovered, material and not

          merely cumulative, and of such a conclusive character that it would probably

          change the result on retrial).




                20
                 As we discussed, she never told the police. She told the prosecutor the
          day before trial.
                                                  50
        No. 1-15-2242


¶ 99                                   II. Double Jeopardy

¶ 100            When a reviewing court remands for a new trial, it must consider whether

           a new trial would violate double jeopardy. People v. McKown, 236 Ill. 2d 278,

           311 (2010). If the evidence presented at the first trial could permit “any”

           rational trier of fact to find defendant guilty, retrial is permitted. McKown, 236

           Ill. 2d at 311; White, 2017 IL App (1st) 142358, ¶ 36 (observing “the minimal

           standard for a sufficiency of the evidence challenge”). Since one eyewitness

           identification can render a verdict simply sufficient, double jeopardy is not a bar

           to a new trial. E.g. Smith, 185 Ill. 2d at 545 (the testimony of a single witness

           may be sufficient to convict).

¶ 101                                       CONCLUSION

¶ 102            For the foregoing reasons, we reverse and remand for a new trial.

¶ 103            Reversed and remanded with instructions.

¶ 104            PRESIDING JUSTICE McBRIDE, specially concurring:

¶ 105            Although I agree with the decision to reverse and remand for a new trial,

           I do so for two simple reasons: (1) the trial court’s denial of defendant’s request

           to present evidence of his tattoos was an error that was plain; the evidence was

           closely balanced and defendant has carried his burden of persuasion that the

           outcome of the trial would probably have been different if he had been allowed

           to present this evidence (People v. Herron, 215 Ill. 2d 167, 178-79, 186-87

                                                 51
        No. 1-15-2242


           (2005); and, (2) the motion for a new trial based upon actual innocence should

           have been granted. It is the combination of these two rulings under the facts and

           circumstances of this case which undermines confidence in the outcome of

           defendant’s trial and warrants a reversal and remand for a new trial.

¶ 106            Speaking first to the motion for a new trial, it is my opinion that

           defendant clearly established the evidence was new, material, non-cumulative,

           and likely to change the outcome on retrial. People v. Molstad, 101 Ill. 2d 128,

           134-36 (1984). The most significant testimony presented on the claim of actual

           innocence at the hearing on defendant’s multiple motions for a new trial, was

           that of Rosa Pilego and Yesenia De La Cruz. Both witnesses testified that they

           attended a party where the victim in this case, Mr. Montenegro, spoke about

           being shot and that the person in jail for shooting him, was not the person who

           actually shot him. Montenegro was also heard to say that he wanted money

           from that person’s family and friends in order for him to drop the charges

           against that person. Thus, under Molstad, this evidence should have been

           scrutinized more closely to determine defendant’s guilt or innocence. Molstad,

           101 Ill. 2d at 136.

¶ 107            Considering the closeness of the evidence in this case, which I describe

           below, the outcome of the defendant’s trial probably would have been different

           had the jury heard from these two witnesses. Finally, although, the trial court

                                                 52
        No. 1-15-2242


           rejected the new alibi testimony, based upon the claim of ineffectiveness of trial

           counsel, the hearing did disclose that there were other alibi witnesses available

           to testify at a new trial. It should also be noted that there was no conflict

           concerning these new alibi witnesses, because of a statement made by the

           mother of defendant’s children. Her hearsay statement, which was actually

           never testified to but was made to a police officer shortly after defendant’s

           arrest, could not be used to impeach another alibi witness’s statement that

           defendant was with that person on the night of this shooting. The person to

           whom it was made, a police officer, if it was made, could not testify to this

           hearsay statement and it is doubtful that the mother of defendant’s children

           would testify and possibly be impeached, when other alibi witnesses were

           available. In any event, the testimony of these two witnesses, Pilego and DeLa

           Cruz, regarding statements of the victim which indicated this defendant did not

           shoot the victim were, in themselves, sufficient to undermine confidence in the

           verdict at defendant’s trial.

¶ 108            As to the presentation of the tattoo evidence, I agree, for the reasons cited

           above, that defendant should have been allowed to present this evidence

           without surrendering his right not to testify. However, it is also apparent from

           the record of the proceedings on defendant’s motions for a new trial that

           defendant’s sister would also have been available to testify that defendant’s

                                                 53
        No. 1-15-2242


           tattoos were on his hands at or around the time of the commission of the

           offenses at issue here. Her testimony at that hearing established a sufficient

           foundation to show that the tattoos were on defendant’s hands and in place at

           the time of the shooting. This testimony surrounding the placement of

           defendant’s tattoos would also probably change the result on retrial. Further,

           any claim that this evidence would open the door to gang evidence is not

           supported by this record, because there is no question that the tattoos were the

           names of defendant’s two daughters and nothing more. Consequently, there was

           sufficient evidence to show that a new trial should have been granted based

           upon what can only be described as a closely balanced case. Although the

           evidence presented at trial was enough to satisfy the sufficiency of the evidence

           argument on appeal, it is not enough to withstand the defendant’s argument on

           his right to present his defense and whether he is entitled to a new trial on actual

           innocence grounds.

¶ 109            As to plain error, there is little doubt that the evidence in this case was

           closely balanced. Both eyewitnesses were impeached on numerous matters,

           their identifications were riddled with inconsistencies, and the victim of the

           shooting was a convicted felon. The prosecution’s case also lacked

           corroborating physical evidence, or any incriminating statement of defendant.

           In addition, and very early on, the victim refused to answer questions posed by

                                                  54
        No. 1-15-2242


           police concerning what another unnamed eyewitness told police about this

           shooting, specifically whether prior to the shooting, the victim’s vehicle was

           rammed by another vehicle, that three people—not two—got out of that other

           vehicle, and that they then chased the victim on the street and eventually shot

           him. This area of inquiry was not allowed to be explored by the defense even

           though it was completely contrary to the version of events testified to by the

           victim and his girlfriend, and even though there was evidence that a police

           officer noticed that the victim’s vehicle appeared to have been recently

           damaged. Granted, this testimony was perhaps, inadmissible, but the testimony

           that an officer noticed recent damage to the victim’s vehicle was not hearsay

           and these facts show that the victim was uncooperative and demonstrate further

           evidence concerning the victim’s credibility.

¶ 110            Since we are remanding for a new trial, it is not necessary to address any

           of the defendant’s other claims, in particular, the claim of ineffectiveness of

           trial counsel. Accordingly, I concur in the decision to reverse and remand for a

           new trial for the two reasons stated in this special concurrence.

¶ 111            JUSTICE BURKE, dissenting:

¶ 112            I write separately because I disagree with the majority’s conclusion that

           the trial court committed reversible error in preventing defendant from showing

           his tattoos to the jury. Although the majority has not addressed the defendant's

                                                 55
        No. 1-15-2242


           claim of ineffective assistance of counsel due to the reversal on other grounds, I

           also write separately to address the ineffective assistance of counsel claim that

           was briefed by both parties.

¶ 113            The victim and his girlfriend testified for the State that on July 3, 2010,

           they were waiting for a tow truck in the girlfriend’s SUV when two men

           approached the victim’s nearby van. The victim approached the two men

           because he believed they were attempting to steal the stereo from his van.

           Defendant had been leaning inside of the van. Defendant pulled a gun out of his

           waistband when the victim was six or seven feet away him, and he shot the

           victim three times in the hand, once in the leg, and once in the posterior. The

           victim and his girlfriend testified that the streetlights provided enough light so

           that they could see clearly. The victim could see defendant’s face and identified

           him as the shooter in a photo array, in a lineup, and at trial. He had never seen

           defendant before the shooting, but was sure defendant was the shooter because

           he got a good look at his face and the tattoos on his arms.

¶ 114            The victim’s girlfriend also testified that she could see the sides of both

           men’s faces from the SUV and identified defendant as the shooter in a photo

           array, in a lineup, and at trial. The victim’s girlfriend also testified that she

           recognized defendant because they attended the same high school, but she

           acknowledged that she did not tell police that information. The victim told

                                                 56
        No. 1-15-2242


           police that there were two male offenders, both of whom were Latino, wearing

           black and beige clothing. The jury found defendant guilty of the charged

           offense.

¶ 115            Defense counsel filed a posttrial motion for a new trial alleging that there

           was newly discovered evidence of defendant’s actual innocence. Defendant

           engaged new counsel who filed two supplemental posttrial motions.

           Defendant’s new counsel alleged that defendant’s trial counsel provided

           ineffective assistance by, inter alia, not introducing evidence of defendant’s

           hand tattoos and failing to call three alibi witnesses.

¶ 116            The court held an extensive hearing on defendant’s posttrial motions

           where defendant called seven witnesses. Two of the witnesses testified that they

           heard the victim state that the person who was “locked up” was not the person

           who shot him, and that he wanted money from that person’s friends or family to

           drop the charges. Defendant also presented the testimony of three alibi

           witnesses who testified that defendant was at home playing video games at the

           time of the offense. Defendant’s sister testified that she presented affidavits

           from these alibi witnesses to defendant’s trial counsel prior to trial. Defendant

           testified that he asked his trial counsel about the alibi witnesses, but trial

           counsel told him that he did not need to call the alibi witnesses because he

           could win the case without them.

                                                  57
        No. 1-15-2242


¶ 117            The State presented the testimony of defendant’s trial counsel who

           testified that he did not present an alibi defense because the police reports

           indicated that defendant’s girlfriend told police that defendant was not at the

           house that day. Trial counsel testified that the only alibi evidence he was

           presented with prior to trial was defendant’s claim that at the time of the offense

           he was having sex with his children’s maternal grandmother. Trial counsel did

           not present this alibi because he did not believe defendant was being truthful,

           and because it was contradicted by defendant’s girlfriend’s statement to police.

           Trial counsel testified that he had met with defendant’s sister, but she had not

           given him any affidavits. Trial counsel also testified that he was never presented

           with any evidence regarding defendant being at home playing video games at

           the time of the offense.

¶ 118            Trial counsel also testified that he made a strategic decision to not

           introduce evidence of defendant’s tattoos at trial because, based on the pretrial

           motion in limine, that would open the door for the State to present evidence of

           defendant’s gang-related tattoos. He believed, however, that questioning the

           witnesses regarding whether they saw defendant’s tattoos was relevant to

           defendant’s defense.

¶ 119            The trial court denied defendant’s posttrial motions finding that the

           testimony of the alibi witnesses that defendant was at the house playing video

                                                 58
        No. 1-15-2242


           games at the time of the shooting contradicted the statement defendant’s

           girlfriend gave to police that defendant was not at the house that day. The court

           also noted that trial counsel did not find defendant’s alibi, the only alibi he

           knew about prior to trial, believable. The court thus determined that it was

           reasonable for trial counsel to not present an alibi defense because of the State’s

           opportunity for impeachment. With regard to defendant’s tattoos, the court

           observed that the jury had the opportunity to observe the tattoos on defendant’s

           hands throughout the trial, even though defense counsel did not present any

           evidence of them.

¶ 120            The court also rejected defendant’s claim of actual innocence based on

           the testimony of two witnesses, noting that because they knew defendant, the

           court did not believe the two witnesses would wait to come forward until after

           the trial. Accordingly, the court did not find their testimony credible.

¶ 121            I disagree with the majority’s conclusion that the trial court’s comments

           that defendant could not introduce evidence of his tattoos without taking the

           stand and being subject to cross-examination constituted reversible error. The

           majority addresses this issue as an error of law subject to de novo review. I find

           that not only does the majority apply the incorrect standard of review, but the

           majority’s analysis also confuses the issue. The majority presents the issue as

           whether defendant’s demonstration would be testimonial. The issue identified

                                                  59
        No. 1-15-2242


           by the trial court, however, was one of foundation, an issue the majority touches

           upon only briefly and only after finding error.

¶ 122             Initially, the majority correctly recognizes that evidentiary rulings are

           generally within the sound discretion of the trial court, and that such rulings

           will not be reversed absent an abuse of discretion. People v. Caffey, 205 Ill. 2d

           52, 89-90 (2001). Without much explanation, however, the majority concludes

           that de novo review is appropriate in this case because “defendant’s claim on

           appeal raises a purely legal question, namely, whether a display of tattoos is

           testimonial     and   subject   to   cross-examination.”    This,   however,     is

           mischaracterization of the trial court’s ruling. The majority quotes from the trial

           court’s comments, but ignores the substance of the statements. The trial court

           stated that:

                          “Well, the problem I have with this and the reason I didn’t let you

                  do it is because there’s absolutely no way for the prosecution to cross-

                  examine your client, when the tattoo was placed on [his] hand, how long

                  he’s had the tattoo, whether he had receipts for the tattoo so [defendant]

                  wants to show his hand to the jury, he’s going to have to do it from the

                  witness stand so that the prosecution can cross-examine him about that

                  which he’s offering into evidence.”




                                                  60
        No. 1-15-2242


¶ 123            Here, the court’s comments identify the crux of the issue that the

           majority glosses over: foundation. The court’s comments recognize that

           defendant has a right to not testify and he would not waive that right by

           showing his tattoos to the jury, i.e., that demonstration would be non-

           testimonial. The court clearly states that if defendant were to show his tattoos to

           the jury “there’s absolutely no way for the prosecution to cross-examine your

           client,” that is, defendant is in “no way” subject to cross-examination merely by

           displaying his tattoos to the jury. The court’s concern, however, was

           establishing a foundation for when the tattoos were placed on defendant’s

           hands.

¶ 124            It is important to remember that, in this case, the shooting occurred on

           July 3, 2010. The victim and his girlfriend viewed a photo array with

           defendant’s photograph on August 5, 2010, and viewed the lineup with

           defendant in it on August 6, 2010. The trial court acknowledged that

           defendant’s hand tattoos were visible in the lineup photograph, but this cannot

           and does not serve as evidence that defendant had the tattoos on the night of the

           incident over a month prior.

¶ 125            Defense counsel was offering evidence of the tattoos to challenge the

           witnesses’ identification. However, defendant’s tattoos are relevant only if he

           had them on the date of the offense. Thus, based on how this issue was

                                                 61
        No. 1-15-2242


           presented to the trial court, defendant was the only person who could provide

           the required foundation. The court thus correctly found that if defendant wanted

           to display his tattoos in the manner defendant requested, he would have to take

           the stand to establish a proper foundation and be subject to cross-examination

           on that topic. As the majority recognizes, defendant could have established a

           foundation for the tattoos through another witness or through a business record,

           if admissible. However, that was not the issue that was presented to the trial

           court, and the trial court was merely required to rule on the issue that was

           presented to it, not to suggest every possible avenue through which defendant

           could establish a foundation for this evidence.

¶ 126            The majority’s misidentification of the issue is further illustrated by its

           citation to People v. White, 2017 IL App (1st) 142358. Somewhat

           contradictorily, the majority notes that the trial court did not have the “benefit”

           of the White decision when it ruled, but also finds that the “issue in White [was

           not] the same as the one we are confronted with in this appeal.” The majority is

           correct that the issue in this case was not before the White court. In White, the

           issue was whether the trial court denied defendant a meaningful opportunity to

           present his defense and confront the witnesses against him by being permitted

           to display both his arm tattoos. Id. ¶ 30. There was no discussion in that case of

           whether such a demonstration was testimonial and there was no discussion of

                                                 62
        No. 1-15-2242


           whether defendant presented a proper foundation. Notably, however, the

           majority in White noted that it took “no issue with the proposition that a court

           may limit, restrict, or deny altogether a demonstration in the appropriate

           circumstances. And we will defer to that ruling unless we find, as we do here,

           that the court abused its discretion.” White, ¶ 37. Thus, the court in White

           recognized, unlike the majority here, that whether to permit defendant to

           display his tattoos is within the trial court’s discretion, and that, under

           appropriate circumstances, the court may restrict or deny defendant an

           opportunity to do so.

¶ 127            In this case, there is simply no basis to find that the trial court abused its

           discretion where defendant failed to establish any foundation to show that he

           had the tattoos on the date of the offense. The court’s comments do not suggest

           that defendant was precluded from introducing this evidence unless he waived

           his right to testify, but merely suggest that if defendant, personally, was going

           to introduce the evidence of his tattoos suggesting that he had them on the date

           of the offense, then defendant would be required to establish the foundation for

           that evidence and be subject to cross-examination for his foundational

           testimony. Such a ruling does not represent an abuse of discretion.

¶ 128            The majority’s concludes that the court’s error constituted plain error. As

           discussed, I do not find that the court’s ruling constituted clear or obvious error,

                                                  63
        No. 1-15-2242


           and thus no plain error occurred. Even assuming an error occurred, however, I

           would not find that the evidence was closely balanced and that the error

           threatened to tip the scales of justice against defendant. People v. Piatkowski,

           225 Ill. 2d 551, 564-65 (2007) (quoting People v. Herron, 215 Ill. 2d 167, 186-

           87 (2005)). At trial, the victim testified that he identified defendant by his

           haircut, the tattoos on his arms, and because he was able to see defendant’s face

           from six or seven feet away on a well-lit street. When defense counsel asked the

           victim if he had a clear look at defendant’s hands, the victim responded, “No. I

           was focused on the face.” The victim also testified that he clearly saw a tattoo

           on defendant’s arms of a “letter ‘A’ and some bunny ears.”

¶ 129            The victim’s girlfriend similarly testified that she was able to see the side

           of defendant’s face as he approached the victim’s van. Defense counsel

           questioned both witnesses regarding whether they observed any tattoos on

           defendant’s hands, and they both testified that they did not. Thus, there were

           two positive identifications of defendant, and both witnesses testified that they

           relied on physical characteristics other than defendant’s hands in identifying

           him, whether or not he had the hand tattoos at the time of the shooting. This

           evidence was sufficient to prove defendant guilty at trial, and there is no basis

           for finding that if defendant had been permitted to display his hand tattoos to

           the jury that the result would have been different. Thus, the evidence was not so

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           closely balanced that the evidence of defendant’s hand tattoos would have

           tipped the scales of justice.

¶ 130            Finally, during posttrial proceedings, the trial court heard testimony from

           two witnesses who claimed to hear the victim saying that defendant was not the

           shooter and would drop the charges if he received money from the defendant’s

           family and friends. The trial court did not just review affidavits from the

           potential witnesses making these claims. The trial court conducted an extensive

           hearing with these witnesses. The trial court did what a trial court is supposed to

           do.   He assessed their credibility and he found it lacking. Being in the

           courtroom, being able to see and hear witnesses, is solely the function of the

           trial court. Reading the record on appeal, does not, and cannot, give this court

           the ability to discern what a trial court sees and hears. That is why the trial court

           is given deference in making those determinations. That is why we review the

           court’s determinations on granting a motion for new trial based upon newly

           discovered evidence under an abuse of discretion standard. People v. Rudell,

           2017 IL App (1st) 152772, ¶ 38. Accordingly, I respectfully dissent and find

           that the trial court did not abuse its discretion in precluding defendant from

           displaying his hand tattoos to the jury or in denying his motion for new trial.




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