                        Docket No. 102087.


                              IN THE
                      SUPREME COURT
                                 OF
                THE STATE OF ILLINOIS




THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LOUIS
               PIATKOWSKI, Appellant.

                    Opinion filed May 24, 2007.



   CHIEF JUSTICE THOMAS delivered the judgment of the court,
with opinion.
   Justices Freeman, Fitzgerald, Kilbride, Garman, and Karmeier
concurred in the judgment and opinion.
   Justice Burke took no part in the decision.



                             OPINION

    The issue presented in this case is whether an erroneous jury
instruction about eyewitness identification testimony rose to the level
of plain error so as to require a new trial. In 1996, defendant was
convicted of first degree murder for the shooting death of Pedro
Melquiadez and attempted first degree murder and aggravated battery
for shooting Jamie Fragoso. On appeal, the appellate court reversed
defendant’s convictions and remanded the cause for a new trial.
People v. Piatkowski, No. 1–96–3827 (1999) (unpublished order
under Supreme Court Rule 23). Following a jury trial, defendant was
again convicted of the same crimes. His convictions were
subsequently affirmed by the appellate court. People v. Piatkowski,
No. 1–01–3766 (2003) (unpublished order under Supreme Court Rule
23). Defendant then filed a petition for leave with this court. We
denied leave to appeal, but entered a supervisory order directing the
appellate court to vacate its judgment and reconsider its decision in
light of People v. Herron, 215 Ill. 2d 167 (2005), which involved the
same jury instruction given in the present case. Following
reconsideration in light of Herron, the appellate court affirmed
defendant’s convictions. No. 1–01–3766 (unpublished order under
Supreme Court Rule 23). Defendant then filed another petition for
leave to appeal with this court, which we granted (210 Ill. 2d R.
315(a)).

                            BACKGROUND
    At defendant’s retrial in July of 2001, Jamie Fragoso testified that
around 2:30 a.m., on July 4, 1994, he was sitting on the doorway
stoop of an apartment building located at 1631 West Wallen in
Chicago with his friends–Pedro Melquiadez, Erica Ladezma, Juan
Morales, and Jose Soto–when he noticed a blue and white Astro
conversion van turn onto Wallen. Wallen is a one-way street going
west. The van proceeded very slowly, stopped for a few seconds and
then drove on to where the group was sitting on the south side of the
street. It finally stopped directly in front of them with its driver’s side
window down and with the driver’s side of the van facing the group.
The driver then turned in his seat, leaned outside the window and
spoke to them for a few seconds. The driver was looking directly at
Fragoso, and Fragoso could see the driver’s face clearly for those few
seconds because the street lights were working and they illuminated
the whole area. Despite the fact that the driver’s window was down,
Fragoso could not make out what the driver was saying, however, so
Fragoso turned to Ladezma and Morales to ask them what the driver
had said. At that point, Fragoso heard gun shots coming from the van
so he ducked down. He felt a bullet hit him in the head and saw
flashes coming from the van. He and Melquiadez covered Ladezma
with their bodies until there was a momentary pause in the firing.
Fragoso and Ladezma then got up and started running east. As they
did so, Fragoso was shot in the leg. In all, he heard about 20 shots
fired.


                                   -2-
    Fragoso identified a photograph of the steps where he was sitting
prior to the shooting, which showed the letters “L.K.” above the door.
Over defendant’s objection, Fragoso testified that the letters “L.K.”
stood for the Latin Kings street gang, that he himself was a member
of the Latin Kings in 1994, and that the area on Wallen where the
shooting occurred was Latin Kings territory.
    On January 11, 1995, over six months after the shooting, Fragoso
identified defendant as the driver of the van and the shooter from a
photo array of a total of five pictures shown to him by police. At a
lineup conducted at the police station on February 3, 1995, Fragoso
again identified defendant as the driver and shooter. Defendant was
the only person depicted in the photo array and the lineup with a
goatee. Fragoso also positively identified defendant at trial as the
driver and shooter.
    On cross-examination, Fragoso testified that he had seen two
persons in the van on the night in question, but he did not get a good
look at the passenger because Fragoso focused on the driver when he
spoke. Fragoso noted that while he was undergoing treatment at the
hospital for his wounds immediately after the shooting, he told a
police detective that the driver was a “male white Hispanic” who had
a goatee and that the passenger was Puerto Rican. Fragoso stated that
he also noticed that the driver had protruding eyebrows and eyes that
were “sucked in.” He acknowledged, however, that he did not tell
police anything about the driver’s eyes. He also admitted that he did
not notice on the night of the shooting whether or not the driver had
dark eyes. When Fragoso was asked by defense counsel if he was able
to identify defendant from the photo array and at the lineup because
the person depicted in the photo and lineup had short hair, a
mustache, a goatee and dark eyes, Fragoso responded in the negative
and stated that he identified defendant because he recognized him as
the driver.
    On redirect examination, the prosecutor asked Fragoso what he
had told the detective who interviewed him at the hospital about who
might have done the shooting. Fragoso responded that he told the
detective that his gang was having some problems with other gangs,
such as the Black Gangster Disciples, Ashland Vikings and Simon
City Royals. The area where the shooting took place was just a few


                                 -3-
blocks from the Simon City Royals area. Defendant’s objection to this
testimony was overruled.
     After Fragoso’s testimony was completed, defendant renewed his
objection to the gang testimony and moved for a mistrial. Prior to
trial, the court had granted defendant’s motion in limine to bar
evidence of gang activity with the following exceptions: (1) a
photograph of the doorway where the shooting took place that
showed the letters “L.K.” above the door; (2) testimony that “L.K.”
stood for Latin Kings; and (3) testimony from Fragoso himself that he
was a member of the Latin Kings at the time of the shooting. The trial
court denied defendant’s motion for a mistrial.
     Erica Ladezma testified that on July 4, 1995, at 2:30 a.m., she was
sitting in front of a building at 1631 West Wallen talking with her
friends–Fragoso, Melquiadez, Morales and Soto. They were
discussing their plans for a Fourth of July picnic, when she saw a dark
Astro van with white stripes turn onto Wallen. Mini blinds covered the
rear windows of the van. After stopping briefly at two alleys, the van
stopped in front of where Ladezma was sitting. The van had two
occupants, and the driver’s side of the van was facing her with the
driver’s side window down. The driver looked at her for 15 to 20
seconds, while she and her friends waited for him to say something.
She also noticed that the passenger climbed out of his open window
area and sat on the ledge of the window opening. In the meantime, the
driver kept looking at her with his hands on the wheel. He then
stretched out his arm with a gun in hand and pointed it at her and her
friends. She heard gunshots and then felt Fragoso and Melquiadez pile
over her, like they were trying to cover her.
     During a momentary break in the shooting, she and Fragoso
started to run. When they reached an alley, Fragoso told her that he
had been shot, and she could see that he was bleeding from his head.
Ladezma then went back to check on Melquiadez and found him
unconscious on the ground. She held him until the paramedics came.
When the police arrived at the scene, she told them that the driver of
the van was a “male white Hispanic,” with “really short” hair, who
was wearing a tank top and a gold chain around his neck.
     Ladezma further testified that in January 1995, she viewed two
separate photo arrays. From the first photo array, she identified
defendant as the driver of the van and the shooter. From the second

                                  -4-
photo array, she identified Shondell Gray as the passenger in the van.
She later identified defendant at a lineup and at trial as the driver of
the van and the shooter. Defendant was the only person in the lineup
with a goatee.
    On cross-examination, Ladezma testified she did not know if the
van had white wall tires and she did not remember whether she told a
detective that the van had checkered-style hubcaps. She told the police
detective at the scene that the driver was young. When defense
counsel asked Ladezma, who was 25 years old at the time of the
shooting, if she thought the driver was approximately Ladezma’s age,
she responded, “About, yes, twenties, somewhere around there.” She
also testified that the detective at the scene did not ask her if the driver
had facial hair, and she did not remember telling the detective that
defendant had a goatee. When asked if she had ever mentioned to any
police officer that defendant had a goatee, Ladezma’s response was
ambiguous. She first noted that she thought she did mention it to
police, but then added that she did not recall. After defense counsel
rephrased the same basic question, she responded, “Yes, I think so. I
did. I don’t know.” She denied stating in a prior proceeding that she
picked defendant out of the lineup because he had a goatee. On
redirect, she stated that the only reason she picked defendant out of
the photo array and lineup was because he was the person she saw
drive the van and then shoot and kill Melquiadez.
    Chicago police detective Steven Stratton testified that he
interviewed Ladezma on July 4, 1994, at the scene of the shooting.
She told him that the vehicle involved was a dark Astro van with
white stripes, and there were at least two persons in it. She described
the driver as “a male white or white Hispanic,” in his early twenties,
who wore a black tank top and gold chain. In his police report dated
July 4, 1994, Stratton noted that Ladezma described the suspect as
“male/WH”; this is his own shorthand notation, which to him means
“white or white Hispanic.”
    On cross-examination, Stratton stated that Ladezma never
mentioned that the driver had a goatee. She said that the van had
checkered hubcaps and white-walled tires. Ladezma did not describe
any windows behind the driver’s window of the van and did not
mention mini blinds.


                                    -5-
    Chicago police detective Lawrence Thezan testified that he
prepared two photo arrays in January 1995. From the first group of
photos, Ladezma identified defendant as the driver of the van and the
shooter. From the second group of photos, she identified Shondell
Gray as the passenger of the van. Fragoso viewed the first group of
photos and identified defendant as the driver and the shooter. Thezan
further testified that he conducted a lineup on February 3, 1995, at
which both Ladezma and Fragoso identified defendant as the driver
and shooter. Ladezma and Fragoso were kept apart from each other
for their respective identifications.
    On cross-examination, Thezan testified that none of the persons
depicted in the first group of pictures shown to the witnesses had a
goatee. When defense counsel asked Thezan if the photo of defendant
showed that he had hair on his chin, Thezan responded that there
“appears to be something on his chin.” With respect to the photograph
of the lineup, which occurred three weeks after the witnesses were
shown the photo array of the first group, Thezan acknowledged that
defendant was the only person with a goatee. Thezan also
acknowledged that the police report of defendant’s arrest listed
defendant’s eye color as blue.
    The medical evidence presented at trial showed that Melquiadez
died of multiple gunshot wounds, including a shot that penetrated his
lungs and heart. He had no drugs or alcohol in his system.
    The forensic evidence presented revealed that 19 spent cartridges
were recovered from the scene of the shooting–14 were fired from a
nine-millimeter handgun and the other 5 were fired from a .45-caliber
handgun. The cartridges were tested for fingerprints, but no usable
images were obtained. The State’s expert explained that this was not
unusual because the intense heat of the burning gunpowder “fries” any
prints off the cartridge cases. In his 20 years as a forensic investigator,
he had never recovered a fingerprint from a fired cartridge.
    The State rested, and defendant moved for a directed verdict. The
motion was denied.
    Defendant called one witness to testify on his behalf. Chicago
police detective Andrew Sobolewski testified that he interviewed
Fragoso at the hospital on July 4, 1994, following the shooting.
Fragoso described one of the suspects as “a male white or Hispanic”


                                   -6-
and the other suspect as “possibly Puerto Rican, with curly hair, short,
combed back.” Fragoso did not specify which description applied to
the driver, and the detective was not able to ascertain at that time
which description fit which suspect. The detective further testified that
he did not recall Fragoso telling him that either of the suspects had a
goatee or unusual eyebrows.
    On cross-examination, Sobolewski testified that at the time of the
interview, Fragoso was being prepared for transfer to another hospital
for additional treatment. Thus, their discussion only lasted a few
minutes. He explained that he did not want to interfere with Fragoso’s
treatment, so he did not ask him anything in depth at the time, like
whether the suspects had any facial hair.
    The parties stipulated that defendant was a few weeks short of his
sixteenth birthday at the time of the shooting, as he was born on July
31, 1978. The parties further stipulated to the following additional
matters. If called to testify, a court reporter would state that at a
previous hearing in this case, Fragoso testified that the reason he
identified defendant in the photo array and lineup was because of
defendant’s “short hair, his mustache and the goatee and his eyes, dark
eyes he had.” Additionally, another court reporter would testify that
at a previous hearing in this case, Ladezma testified that she picked
defendant out of the lineup because he had a goatee. Ladezma also
testified at that same hearing that she picked defendant out of the
photo array and lineup because she remembered his face.
    The jury was given Illinois Pattern Jury Instructions, Criminal, No.
3.15 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 3.15), which lists
the five factors to consider in weighing identification testimony.
Without any objection from the defense, the instruction separated the
five factors listed with a disjunctive “or” between them.1 The
instruction given read as follows:
             “When you weigh the identification testimony of a witness,
         you should consider all the facts and circumstances in
         evidence, including, but not limited to, the following:



   1
    IPI Criminal 4th No. 3.15 was changed in 2003 to remove the “ors”
between the factors. See IPI Criminal 4th No. 3.15 (Supp. 2003).

                                  -7-
             The opportunity the witness had to view the offender at
         the time of the offense.
                                   [or]
             The witness’s degree of attention at the time of the
         offense.
                                   [or]
             The witness’s earlier description of the offender.
                                   [or]
             The level of certainty shown by the witness when
         confronting the defendant.
                                   [or]
             The length of time between the offense and the
         identification confrontation.”
     During deliberations, the jurors sent several written notes to the
trial judge. One asked for a definition of reasonable doubt and another
requested a law dictionary. Two other notes requested transcripts of
the testimony of Fragoso and Ladezma. The trial judge answered the
jurors’ request with written notes telling it that it had already had all
the instruction needed to decide the case and that the transcripts were
not available and that they should use their own recollection of the
testimony to decide the case. The jury returned verdicts finding
defendant guilty of first degree murder, attempted first degree murder
and aggravated battery with a firearm. Defendant was sentenced to 45
years in prison for first degree murder to run concurrently with a 30-
year sentence for attempted first degree murder. The aggravated
battery with a firearm conviction merged into the attempted murder
conviction.
     The appellate court, with one justice dissenting, affirmed
defendant’s convictions after we remanded the cause for
reconsideration in light of our decision in People v. Herron, 215 Ill.
2d 167 (2005). The appellate court majority noted that this court in
Herron ruled that giving IPI Criminal No. 3.15 with the “ors” is error.
No. 1–01–3766 (unpublished order under Supreme Court Rule 23),
citing Herron, 215 Ill. 2d at 191. Herron found that an unpreserved,
jury-instruction error is reviewed under the plain-error analysis. See
No. 1–01–3766 (unpublished order under Supreme Court Rule 23),


                                  -8-
citing Herron, 215 Ill. 2d at 191. Under that test, a new trial is
required for this particular jury-instruction error of inserting the “ors”
only if a defendant shows that the evidence was so closely balanced
that the error alone threatened to tip the scales of justice against
him.’ ” See No. 1–01–3766 (unpublished order under Supreme Court
Rule 23), quoting Herron, 215 Ill. 2d at 187, 192-93. In Herron, the
evidence was closely balanced, so the defendant was awarded a new
trial. In the present case, however, the appellate court majority found
that the evidence was not closely balanced, noting that “two
eyewitness, on six different occasions, positively identified defendant
as the shooter and driver.” The appellate court dissent in the present
case argued that the evidence was closely balanced because the
witnesses did not know the suspect, had viewed him for only a short
time on the date of the offense and defendant was the only person
depicted in the photo array and lineup with a goatee. The dissent also
noted that there was “no corroborating evidence, no confession and
no physical evidence linking defendant to the crime.” No. 1–01–3766
(unpublished order under Supreme Court Rule 23) (Theis, J.,
dissenting). We allowed defendant’s petition for leave to appeal. 210
Ill. 2d R. 315(a).

                                ANALYSIS
    Defendant argues before this court that he is entitled to a new trial
because the jury was erroneously instructed about how to evaluate
identification testimony. Defendant acknowledges that he failed to
raise the jury instruction issue in the trial court, but argues that the
cause should nonetheless be remanded for a new trial because he has
met his burden to show that the plain-error test has been satisfied.
    Generally, a defendant forfeits review of any supposed jury
instruction error if he does not object to the instruction or offer an
alternative at trial and does not raise the issue in a posttrial motion.
Herron, 215 Ill. 2d at 175. This principle encourages a defendant to
raise issues before the trial court, thereby allowing the court to correct
its errors before the instructions are given, and consequently
precluding a defendant from obtaining a reversal through inaction.
Herron, 215 Ill. 2d at 175.



                                   -9-
    Supreme Court Rule 451(c), however, provides that “ ‘substantial
defects’ in criminal jury instructions ‘are not waived by failure to make
timely objections thereto if the interests of justice require.’ ” Herron,
215 Ill. 2d at 175, quoting 177 Ill. 2d R. 451(c). Rule 451(c) fashions
a limited exception to the general rule to correct “ ‘grave errors’ and
errors in cases ‘so factually close that fundamental fairness requires
that the jury be properly instructed.’ ”Herron, 215 Ill. 2d at 175,
quoting People v. Hopp, 209 Ill. 2d 1, 7 (2004). Rule 451(c) is
coextensive with the plain-error clause of Supreme Court Rule 615(c),
and the two rules are construed identically. Herron, 215 Ill. 2d at 175.
Rule 615(a) states the following: “Any error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.
Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the trial court.”
134 Ill. 2d R. 615(a).
    In Herron, this court recently conducted an extensive analysis of
the plain-error doctrine and concluded the following:
             “[T]he plain-error doctrine bypasses normal forfeiture
         principles and allows a reviewing court to consider
         unpreserved error when either (1) the evidence is close,
         regardless of the seriousness of the error, or (2) the error is
         serious, regardless of the closeness of the evidence. In the first
         instance, the defendant must prove ‘prejudicial error.’ That is,
         the defendant must show both that there was plain[2] error and
         that the evidence was so closely balanced that the error alone
         severely threatened to tip the scales of justice against him. The
         State, of course, can respond by arguing that the evidence was
         not closely balanced, but rather strongly weighted against the
         defendant. In the second instance, the defendant must prove




  2
    The word “plain” here is synonymous with “clear” and is the equivalent
of “obvious.” See United States v. Olano, 507 U.S. 725, 734, 123 L. Ed. 2d
508, 519, 113 S. Ct. 1770, 1777 (1993). It is not used as a term of art, and
we do not mean to imply that a defendant must somehow satisfy the plain-
error test before determining whether the evidence in the case is closely
balanced.

                                   -10-
         there was plain[3] error and that the error was so serious that
         it affected the fairness of the defendant’s trial and challenged
         the integrity of the judicial process. [Citation.] Prejudice to the
         defendant is presumed because of the importance of the right
         involved, ‘regardless of the strength of the evidence.’
         (Emphasis in original.) [Citation.] In both instances, the
         burden of persuasion remains with the defendant.” Herron,
         215 Ill. 2d at 186-87.
We now reiterate that the plain-error doctrine allows a reviewing
court to consider unpreserved error when (1) a clear or obvious error
occurs and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless
of the serousness of the error, or (2) a clear or obvious error occurs
and that 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. See Herron, 215 Ill. 2d at
186-87.
     Turning to the above-mentioned test, we note that the first step is
to determine whether error occurred in the giving of the instruction.
This court has already determined that giving IPI Criminal 4th No.
3.15 with the “ors” is indeed clear and obvious error. See Herron, 215
Ill. 2d at 191. The reason that it is error is because, “[i]f the
instruction initially directs jurors to consider all the facts and
circumstances surrounding the identification, but then, through the use
of the conjunction ‘or,’ directs jurors to consider one of five factors
regarding the reliability of the identification, then the instruction
contains an internal inconsistency.” Herron, 215 Ill. 2d at 191.
Moreover, it is ambiguous and misleading, regardless of any further
comment on it by the prosecutor during closing argument. Herron,
215 Ill. 2d at 191.
     Determining that the instruction was clear and obvious error,
however, does not end our inquiry because Herron implicitly found
that giving IPI Criminal 4th No. 3.15 with the “ors” was not an error


   3
    See footnote 2, supra. Again, the word “plain” here is synonymous with
“clear” and is the equivalent of “obvious.” See Olano, 507 U.S. at 734, 123
L. Ed. 2d at 519, 113 S. Ct. at 1777.

                                   -11-
so serious that reversal was required regardless of the closeness of the
evidence. Thus, defendant must meet his burden to show that the error
was prejudicial–in other words, he must show that the quantum of
evidence presented by the State against the defendant rendered the
evidence “closely balanced.” Herron, 215 Ill. 2d at 193. When error
occurs in a close case, we will opt to “err on the side of fairness, so as
not to convict an innocent person.” Herron, 215 Ill. 2d at 193.
     Whether the evidence is closely balanced is, of course, a separate
question from whether the evidence is sufficient to sustain a
conviction on review against a reasonable doubt challenge. The
relevant inquiry for reasonable doubt purposes is whether, after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. People v. Pollock, 202 Ill. 2d 189,
217 (2002). A positive identification by a single eyewitness who had
ample opportunity to observe is sufficient to support a conviction.
People v. Vriner, 74 Ill. 2d 329, 343 (1978). In the present case, the
appellate court determined that the evidence was sufficient to convict
defendant beyond a reasonable doubt. Defendant has abandoned any
reasonable doubt challenge on review to this court, and we find that
the evidence was sufficient to convict for reasonable doubt purposes,
thereby precluding any double jeopardy claim on remand should we
determine that a new trial is warranted. See People v. Taylor, 76 Ill.
2d 289, 309 (1979).
     As to whether the evidence is nevertheless closely balanced, we
begin by noting that defendant presented no alibi and no evidence
whatsoever other than the testimony of Detective Sobolewski. But
this is not fatal to his argument. Although defendant has the burden
before this court to show that the evidence is closely balanced, he had
no burden to present any evidence or to testify himself at trial. The
State, on the other hand, presented no physical evidence to connect
defendant to the shooting, and no inculpatory statements by defendant
were admitted. The only evidence linking defendant to the crime was
the testimony of the two eyewitnesses. The erroneous instruction in
this case related to how the jury would assess the reliability of that
eyewitness testimony.
     Thus, we must consider whether the evidence presented on the
reliability of the eyewitness testimony rendered this case one that is

                                  -12-
closely balanced. The five factors listed in the instruction are the same
factors noted by the United States Supreme Court in Neil v. Biggers,
409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382 (1972),
for assessing the reliability of identification testimony. Those factors
include (1) the opportunity of the witness to view the criminal at the
time of the crime, (2) the witness’ degree of attention, (3) the
accuracy of the witness’ prior description of the criminal, (4) the level
of certainty demonstrated by the witness at the confrontation, and (5)
the length of time between the crime and the confrontation. Neil, 409
U.S. at 199-200, 34 L. Ed. 2d at 411, 93 S. Ct. at 382.
    After carefully examining defendant’s argument in relation to the
facts in the record, we find that the evidence presented on these five
factors did not overwhelming favor the State, and we believe that
defendant has met his burden to show that the evidence was
sufficiently closely balanced so as to require a remand for a new trial.
    With respect to the first Neil factor, we note that Fragoso only
viewed the suspect’s face for a few seconds prior to the shooting.
Similarly, Ladezma simply testified that the suspect looked at her for
15 to 20 seconds. Neither witness claimed to have previously known
the suspect. We do not find that this first factor greatly favors the
State.
    Regarding the second factor, there is no indication that the
witnesses were paying a great deal of attention to the driver’s
appearance, as they did not know that they would be fired upon and
were not attempting to assess his appearance for a later identification.
Moreover, neither witness testified that they had any opportunity to
view the suspects after the shooting began.
    Turning to the third factor, we note that the prior descriptions of
the suspect given by the witnesses were fairly consistent with respect
to defendant’s actual appearance, yet there were arguably some
discrepancies and questions raised. Neither of the witnesses’
descriptions was very detailed. Ladezma described the suspect as
having short hair, which matched the photograph shown to the
witnesses six months later. However, the actual date the photograph
was taken was not established at trial. Both witnesses described the
driver as a “male, white Hispanic,” but neither witness elaborated on
what this meant to them. It was undisputed that defendant is actually
a male Caucasian. Fragoso testified that he told the police at the

                                  -13-
hospital that the suspect had a goatee, whereas Ladezma gave an
ambiguous response about whether she ever told police prior to any
identification that defendant had a goatee. The police testimony at
trial, however, established that neither witness mentioned the goatee
prior to their first identification. All of this ambiguity about the goatee
could arguably be explained by the fact that defendant’s goatee as
shown in the photo array and lineup is a very weak one and does not
greatly impact his appearance. Yet, it nevertheless does leave room
for an argument as to the witnesses’ credibility. There is also the
matter of the parties’ stipulation that both witnesses testified at a prior
proceeding that the goatee was at least one factor in leading them to
identify defendant. There was also a minor discrepancy between the
actual age of the defendant at the time of the crime–15 years–and the
approximate age of the driver that Ladezma gave to police–early
twenties–though it could be fairly argued that this description was at
least close to defendant’s actual age and appearance.
     Defendant emphasizes that Fragoso testified at the first trial in this
case that the driver had dark eyes and dark eyebrows, but at the
second trial, he testified that he did not notice whether the driver had
dark eyes. Although photographs in the record show that defendant
does in fact have dark eyebrows and eyelashes, Fragoso was
impeached on the matter of whether he even noticed the driver’s eyes
on the night in question. Moreover, it was undisputed that defendant’s
eye color is blue. Under the circumstances, we are unable to say that
the third Neil factor greatly favors the State.
     The fourth and fifth factors–the level of certainty demonstrated at
the confrontation and the lapse of time between the crime and the
identification–also do not heavily favor the State. Even though neither
witness testified as to his or her level of certainty, both made
unequivocal identifications of defendant, identifying him in a photo
array, a lineup and again at trial. Additionally, neither witness ever
wavered from those identifications. But the first time that the
witnesses were asked to make an identification of the suspect, some
six months after the offense, they were shown just five photographs,
and so they had a 20% chance of picking defendant out even if they
had simply guessed. Defendant was also the only suspect pictured
with a goatee, albeit a barely discernible one, and both witnesses were
impeached with their testimony from the first trial where they stated
that they had identified defendant, at least in part, because of his

                                   -14-
goatee. More importantly, the lapse of six months between the crime
and the photo identification is “a seriously negative factor in most
cases.” See Neil, 409 U.S. at 201, 34 L. Ed. 2d at 412, 93 S. Ct. at
383. Although such a long delay between the crime and the
identification is not enough to overturn a conviction on reasonable
doubt grounds, it can be considered “significant” and goes to the
weight of the evidence to be considered by the jury. People v. Holmes,
141 Ill. 2d 204, 242 (1990).
    This case turned on the credibility of the witnesses’ identification
testimony and the erroneous instruction involved how the jury would
weigh and evaluate such identification testimony. While we do not
mean to imply that a new trial is required in every case where this
particular erroneous-identification instruction is given and the only
evidence against defendant is identification testimony, we believe that
a new trial is required in this case under the totality of the
circumstances, particularly where the witnesses were only able to view
the suspect for as little as a few seconds, did not previously know the
suspect, some discrepancies existed in their prior descriptions and a
lapse of more than six months occurred from the crime to the
identification.
    A number of cases have found that the error of using the “ors” in
IPI Criminal 4th No. 3.15 was not prejudicial because the evidence
was not closely balanced. See Herron, 215 Ill. 2d at 192 (collecting
cases). But these cases are all easily distinguishable based on the
quantum and quality of evidence presented by the State against the
defendants in those cases. For example, in People v. James, 348 Ill.
App. 3d 498 (2004), three eyewitness identified the defendant, and
each of those witnesses had known the defendant from the
neighborhood. In People v. Sims, 358 Ill. App. 3d 627 (2005), the
witness did not identify the defendant until 14 months after the
shooting, but she explained that she had known the defendant for
seven years and was afraid to come forward sooner. The State also
presented inculpatory statements from the defendant establishing that
he had done the shooting. In People v. Carrero, 345 Ill. App. 3d 1
(2003), the victim, who was robbed at gunpoint, gave the license plate
number of the getaway vehicle to police and identified the defendant
just 15 minutes after he was apprehended in the vehicle matching the
plate number given by the witness. In People v. Mercado, 333 Ill.
App. 3d 994 (2002), the witness’ identification was corroborated by

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the defendant’s confession and the physical evidence. In People v.
Furdge, 332 Ill. App. 3d 1019 (2002), the identifying witness had
known the defendant from the neighborhood for many years and
identified the defendant from a photo lineup within one day of the
shooting.
    We find that this case is closer factually to Herron and People v.
Gonzalez, 326 Ill. App. 3d 629 (2001), two cases where the error was
found to be prejudicial because of the closely balanced evidence. In
Gonzalez, there were two eyewitness, but no other physical or
corroborating evidence. One eyewitness was unable to tell police
shortly after the shooting “whether the gunman was African-American
or Hispanic.” Gonzalez, 326 Ill. App. 3d at 633. The other eyewitness
described the suspect as having a mark on his neck and a gold tooth.
Neither witness had previously known the defendant. The defendant
presented alibi testimony at trial, as well as the testimony of his dentist
stating that none of the defendant’s teeth had ever been reduced for
a crown. The appellate court found that the evidence was close, and
the defendant was therefore prejudiced by the error. Gonzalez, 326 Ill.
App. 3d at 641.
    In Herron, an armed robbery at a hotel was committed by two
men with hoods that covered their foreheads. Several hotel employees
witnessed the robbery, but only one them could identify the defendant
as one of the robbers. The identification was made 15 months after the
robbery at a lineup. One other witness who viewed the lineup could
not identify the defendant. There was no physical evidence linking the
defendant to the robbery. The defendant made a statement to police
that placed him at the hotel, but the statement did not specifically
implicate him as one of the armed gunmen. This court found that the
evidence was close and that the jury’s verdict may have been different
with a different instruction. Herron, 215 Ill. 2d at 193-94. We find
Herron and Gonzalez to be ample support for our conclusion that a
new trial is required in this case due to the jury-instruction error.

                           CONCLUSION
    For the foregoing reasons, we conclude that defendant has
satisfied his burden to show that the evidence was closely balanced
and that plain error occurred. For the foregoing reasons, we reverse



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the judgments of the circuit and appellate courts and remand the cause
to the trial court for further proceedings consistent with this opinion.

                                                 Judgments reversed;
                                                    cause remanded.

    JUSTICE BURKE took no part in the consideration or decision
of this case.




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