

                                              Docket  No.  90480–Agenda
10–November 2001.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                       MELVIN TISDEL, Appellee.
                     Opinion filed March 15, 2002.
      JUSTICE THOMAS delivered the opinion of the court:
      Following a jury trial, defendant, Melvin Tisdel,  was  convicted
of the first degree murder of Julio Lagunas.  Defendant  was  sentenced
to 35 years’ imprisonment. The  appellate  court  reversed  defendant’s
conviction on the ground that the trial court should not  have  allowed
the  State’s  witnesses  to  testify  concerning  a   nonidentification
lineup. 316 Ill. App. 3d 1143. The appellate court concluded  that  the
error was not harmless, because the evidence was closely  balanced  and
it was possible that the jury would have reached  a  different  verdict
had  the  nonidentification  testimony  been   excluded.   This   court
thereafter granted the State’s petition for leave to appeal.  177  Ill.
2d R. 315.

                               BACKGROUND
      Defendant’s conviction was based upon the  drive-by  shooting  of
Julio Lagunas on September 3, 1995. The facts detailing the  crime  and
the investigation leading to defendant’s arrest  are  set  out  in  the
appellate court’s opinion (316 Ill. App. 3d 1143), and will be  recited
here only as necessary to an understanding of  the  issue  before  this
court.
      On  September  3,  1995,  around  5:50  p.m.,  18-year-old  Julio
Lagunas was shot to death as he stood on the  corner  of  Clark  Street
and Jarvis Avenue in Chicago. Lagunas was shot by the  passenger  in  a
passing black IROC Chevrolet Camaro. Although the driver of the  Camaro
was identified and arrested shortly after the shooting,  defendant  was
not identified until almost one year later,  in  lineups  conducted  on
August 16, 1996, and September 12, 1997.  Ultimately  there  were  four
eyewitnesses  that  identified  defendant   as   the   shooter.   Those
eyewitnesses  included  Gerardo  Quiroz   (Gerardo),   Osvaldo   Quiroz
(Osvaldo), Francisco Curonel (Francisco) and Jose Ramos (Jose).
      Gerardo testified  at  trial  that  on  September  3,  1995,  he,
Osvaldo and Jose were standing on the sidewalk outside the  Clark  Mall
in Chicago when he saw a black IROC Camaro with tinted windows,  chrome
wheels and two tailpipes pull into the entrance  to  the  mall  parking
lot. The two men inside the car tried to talk to some girls going  into
the mall, then drove toward the back of the mall  parking  lot,  turned
right, and came through the middle of the lot. The Camaro then  stopped
on the sidewalk before turning left onto Clark  Street.  The  passenger
side of the car was facing Gerardo and the others, and the  window  was
down. At that point, the passenger pulled out a gun and pointed  it  at
Gerardo, Osvaldo and Jose. The car then drove north onto Clark Street.
      As the car  drove  along  Clark  Street,  Gerardo  saw  Francisco
across the street from the Clark Mall, in Touhy Park. Gerardo  saw  the
passenger take out his gun and point it at Francisco.  Francisco  tried
to hit the car with something, then ducked. The car kept driving  north
on Clark Street, then stopped as Julio  Lagunas  and  Ulysses  Renteria
were trying to cross Clark Street at the  intersection  of  Jarvis  and
Rogers Avenue. Gerardo again saw a hand holding a gun sticking  out  of
the passenger side window pointing at Julio and Ulysses. Gerardo  heard
a gunshot as the car sped up and “took off.” Gerardo ran toward  Julio,
who was lying on the ground bleeding.  Osvaldo  went  home  before  the
police arrived.
      Gerardo described the passenger to the police  as  a  skinny  23-
year-old black male with a  light  complexion  and  braided  hair  with
beads on the  ends.  The  police  took  Gerardo,  Jose,  Francisco  and
Ulysses (who was deceased at the time of trial) to the police  station.
At the station, Gerardo recognized the black  Camaro  involved  in  the
shooting. Gerardo also  looked  at  a  lineup  that  day  but  did  not
identify  anyone.  Approximately  one  week  later,  Gerardo  told  the
officers that his brother Osvaldo  also  had  witnessed  the  shooting.
Almost one year  later,  on  August  16,  1996,  Gerardo,  Osvaldo  and
Francisco separately viewed a lineup at  the  police  station.  Gerardo
identified defendant in the lineup as  the  passenger  in  the  Camaro.
Gerardo identified defendant in court as the person  he  recognized  as
the shooter in the August 16, 1996, lineup. A photo of the  August  16,
1996, lineup reveals that defendant had  a  braided  hairstyle  at  the
time of the lineup.
       Osvaldo’s  testimony  concerning  the  events  leading  to   the
shooting was similar to  Gerardo’s  testimony.  Osvaldo  described  the
passenger as a dark male who had long braided hair  with  black,  white
and blue beads at the ends. Osvaldo testified that he did not  talk  to
the police on the day of the shooting because his mother  came  to  the
scene and told him  to  go  home  because  he  was  too  young  to  get
involved. The next day, Osvaldo and his mother were walking on  Ashland
Avenue in Chicago when Osvaldo saw a green Nissan  Maxima  drive  past.
Osvaldo recognized defendant as a passenger in  the  Maxima.  Defendant
stared at Osvaldo for awhile and Osvaldo stared back.
      On September 12, 1995, Osvaldo spoke  with  police  officers  for
the first time. On that date, Osvaldo viewed five  photographs  at  the
police station and identified the driver of  the  car  in  one  of  the
photographs. Osvaldo told  the  officers  he  was  pretty  certain  the
person in the picture was the driver, but said he  would  have  to  see
him in person. On September 21, 1995, Osvaldo went back to  the  police
station to view a lineup. Osvaldo identified the driver of the  car  in
the lineup. Although another individual in the lineup had his  hair  in
braids, Osvaldo did not identify him as  the  shooter.  On  August  16,
1996, Osvaldo viewed a lineup and identified defendant as the  shooter.
Osvaldo also identified defendant in court as the shooter.
      Francisco also testified at trial that he saw the car  turn  into
the Clark Mall, then later pull out from the middle of the parking  lot
and turn north on Clark Street. Francisco  heard  someone  yell  “watch
out with the car, they’ve got a gun.” The passenger in  the  car  threw
his arm out and pointed a gun at Francisco. Francisco then threw a  bag
at the car then fell to the ground. Francisco  started  running  toward
Julio and Ulysses. The car slowed down when  the  occupants  saw  Julio
and Ulysses. The passenger put his arm out the window with the  gun  in
his hand. Francisco heard a shot and the car sped off.  When  Francisco
reached Julio, Julio was lying on the ground bleeding.
       That  same  day,  Francisco  went  to  the  police  station  and
identified a car as the Camaro  involved  in  the  shooting.  Francisco
also viewed a lineup around 1 a.m. and identified  the  driver  of  the
car. Francisco described the passenger as a black male, 25 to 28  years
old, with a skinny face and braided hair close to his head.  On  August
16, 1996, Francisco viewed another lineup and identified  defendant  as
the shooter. Francisco identified defendant in court as the  person  he
picked out of the lineup as the shooter.
      Jose testified that he was on a pay phone in front of  the  Clark
Mall with Gerardo and Osvaldo standing nearby when a black IROC  Camaro
stopped in front of him on the sidewalk.  The  windows  of  the  Camaro
were down, so that Jose could see two males in the car.  The  passenger
was smoking marijuana and there was a  gun  on  the  seat  between  the
driver and passenger. The passenger grabbed the gun and put it  between
his legs. Jose identified defendant in court as the passenger. The  car
went around the mall parking lot, then came out the middle. Before  the
car turned left onto Clark Street,  the  passenger  pointed  a  gun  at
Jose, Gerardo and Osvaldo. Jose described the passenger  as  21  to  25
years old, dark skinned, with braids.
       Jose’s  description  of  the  events  leading  to  the  shooting
paralleled that of Gerardo, Osvaldo and Francisco. Jose  also  went  to
the police station immediately after the shooting  and  identified  the
Camaro used in the shooting. Jose viewed a lineup that night,  but  did
not identify anyone in the lineup.  Jose  viewed  a  second  lineup  on
September 12, 1997,  approximately  one  month  prior  to  trial.  Jose
identified defendant in the lineup as the  shooter.  A  photo  of  this
lineup reveals  that  defendant  had  a  different  hairstyle  at  this
lineup, with his hair short  and  not  braided.  On  cross-examination,
Jose testified that he did not see any beads in the shooter’s  hair  on
September 3, 1995.
      As noted, following  his  conviction  for  first  degree  murder,
defendant appealed his conviction  to  the  appellate  court  claiming,
inter alia, that he was deprived of  a  fair  trial  when  the  State’s
witnesses testified that they had  viewed  lineups  containing  persons
other than defendant and had made no identification. Defendant  claimed
that  the  State  was  attempting  to  bolster  its   case   with   the
nonidentification  testimony.  Defendant  conceded  that  he  had   not
objected to the testimony at trial or in  his  post-trial  motion,  but
asked the court to apply the plain error rule.
      The appellate court agreed that the issue  should  be  considered
under the plain error rule. 316 Ill.  App.  3d  at  1154.  Citing  this
court’s opinion in  People  v.  Hayes,  139  Ill.  2d  89  (1990),  the
appellate court noted that a witness’  identification  of  a  defendant
may not be bolstered by introducing evidence that  the  witness  failed
to identify anyone else during pretrial identification procedures.  316
Ill.  App.  3d  at  1154.   The   appellate   court   held   that   the
nonidentification testimony should not have  been  allowed  because  it
was  presented  simply  to  corroborate   the   witnesses’   subsequent
identification of defendant. 316 Ill. App. 3d at  1154.  The  appellate
court also held that because it was possible that the jury  might  have
returned a different verdict had the nonidentification  testimony  been
excluded, the error in admitting the  testimony  required  reversal  of
defendant’s conviction. 316 Ill. App. 3d at 1154-55. One justice  wrote
a special concurrence to express his “strong  disagreement”  with  this
court’s position that nonidentification testimony is inadmissible.  316
Ill. App. 3d at  1158-59  (Quinn,  P.J.,  specially  concurring).  This
court thereafter granted the State’s petition for leave to appeal  that
decision. 177 Ill. 2d R. 315.

                                ANALYSIS
      In People v. Hayes, 139 Ill. 2d 89, 138 (1990), this court  found
error in the admission of witness testimony stating that the  witnesses
had viewed pictures of persons other than defendant  and  had  made  no
identification.  This  court  held  that  the  testimony  violated  the
general rule that a witness may not testify in court as  to  statements
made out of court for the purpose of corroborating his trial  testimony
concerning the same subject. Hayes, 139 Ill. 2d at 138.
      We recognized, however, that there were  two  exceptions  to  the
general rule. Hayes, 139 Ill. 2d at  138.  One  exception  is  where  a
prior consistent statement is  introduced  to  rebut  a  charge  or  an
inference that the witness is motivated to testify falsely or that  his
in-court testimony is of recent fabrication.  Hayes,  139  Ill.  2d  at
138. That exception did not apply in Hayes because  the  defendant  had
not expressly or impliedly charged  that  the  State’s  witnesses  were
motivated to falsely identify him,  but  instead  simply  attempted  to
show that the witnesses may have been mistaken in their  identification
of him. Hayes, 139 Ill. 2d at 138.
      The second exception to the general rule  is  where  the  out-of-
court statement is one of identification. Hayes, 139 Ill.  2d  at  138.
That exception  did  not  apply  because  the  witnesses’  out-of-court
statements were not statements of identification. Hayes,  139  Ill.  2d
at 138.  Rather,  the  statements  were  that  the  witnesses  did  not
identify the defendant  from  police  photo  books  and  photo  arrays.
Hayes, 139 Ill. 2d at 138. In fact, the State  introduced  the  out-of-
court  statements  to  bolster  the  reliability  of   the   witnesses’
subsequent  lineup  and  in-court  identifications  of  the  defendant.
Hayes, 139 Ill. 2d at 138-39. This court concluded that  such  evidence
was  improperly  introduced,  although  the   evidence   was   not   so
prejudicial as to deprive defendant of a fair trial.  Hayes,  139  Ill.
2d at 139.
      In this case, the State  asks  this  court  to  depart  from  the
precedent  set  forth  in  Hayes.  The  State  argues   that   negative
identification testimony is both relevant  and  admissible.  The  State
observes that in Hayes, this court  was  not  presented  with  evidence
that a witness had viewed photographs or  multiple  lineups  containing
individuals similar in appearance to the  defendant.  Thus,  the  court
did not consider  that  a  witness’  failure  to  identify  individuals
similar to the defendant  demonstrates  the  witness’  reliability  and
also refutes the possibility that  the  prior  pretrial  identification
was based upon the suggestiveness of the identification procedure.
       Defendant  responds  that   Hayes   is   controlling   authority
concerning the use of pretrial  nonidentification  evidence.  Defendant
further  contends  that  neither  of  the  exceptions  to   the   prior
consistent statement rule apply, because there was no charge  that  the
witnesses in this case were fabricating their testimony, nor  were  the
statements of the witnesses  statements  of  identification.  Defendant
therefore maintains that this court must affirm  the  decision  of  the
appellate court.
       Upon  review,  we  find  this  court’s  determination  in  Hayes
concerning nonidentification testimony to be flawed.  The  Hayes  court
acknowledged that there was an exception to the general rule  where  an
out-of-court statement is one of identification. Hayes, 139 Ill. 2d  at
138. The court then held that the nonidentification testimony  was  not
admissible  under  this  exception  because  the  statements  were  not
statements of identification. Hayes, 139 Ill. 2d  at  138.  We  believe
the Hayes court construed the term “statements of  identification”  too
narrowly.
       At  the  outset  we  note  that  nonidentification  evidence  is
inherent in most  “statements  of  identification.”  As  Justice  Quinn
observed in his special concurrence to the appellate court  opinion  in
this case, when identifying a defendant from a lineup or  photo  array,
a witness necessarily does not identify the  remaining  individuals  in
the lineup or photo array. See 316 Ill. App. 3d at 1163  (Quinn,  P.J.,
specially concurring). This type of  nonidentification  is  crucial  to
the accuracy of the witness’ identification  because,  in  the  typical
case, a witness is shown a group of  similar  looking  individuals  and
asked to pick out only the one who committed the  crime.  Consequently,
the fact that the witness did not pick the  other  individuals  in  the
lineup becomes as important as the fact that the witness did  pick  the
defendant. Given the crucial role  that  nonidentification  plays  with
regard to a lineup or photo  array  where  a  defendant  is  positively
identified, it follows that the same considerations apply  with  regard
to those lineups or photo arrays where a defendant is  not  identified.
Indeed, it is logical to  presume  that  the  more  lineups  and  photo
arrays a witness views, the more likely  that  witness’  identification
is reliable and is not based upon suggestiveness.
      With the foregoing in mind, we find that the  Hayes  court  erred
in  limiting  “statements  of  identification”  to  a  witness’  actual
identification of a defendant. This interpretation  mistakenly  focuses
on the result rather than the process. As a  consequence,  a  trier  of
fact may be deprived of information necessary to an  informed  decision
concerning a witness’ reliability. In contrast, construing  “statements
of identification” to include the entire identification  process  would
ensure  that  a  trier  of  fact  is  fully  informed  concerning   the
reliability  of   a   witness’   identification,   as   well   as   the
suggestiveness or lack thereof in that identification.
      Justice Quinn, in  his  special  concurrence,  pointed  out  this
potential problem with limiting “statements of identification” to  only
positive identifications. Justice Quinn noted that the court’s  holding
would:
      “require the State on retrial to confine  its  evidence  on  the
      subject of identification of the defendant to the  date  of  the
      first identification–one year (or two) after the shooting.  What
      is the jury to make of this delay? The defense will  attack  the
      investigation and the State will be  precluded  from  explaining
      what investigatory  steps  were  taken  from  the  time  of  the
      shooting to the first lineup identification.” 316 Ill.  App.  3d
      at 1162 (Quinn, P.J., specially concurring).
       That   the   entire   identification   process   includes   both
identification and nonidentification  evidence  has  been  given  tacit
approval by the United States Supreme Court. In Neil  v.  Biggers,  409
U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), the Court  held  that
although a showup procedure was unnecessarily suggestive, there was  no
substantial likelihood of misidentification requiring evidence  of  the
identification  to  be  excluded.  The  Court  noted  various   factors
weighing in favor of the admission of the identification.  Among  those
factors was  that  the  victim  had  looked  at  numerous  photographs,
lineups and showups in the seven-month time period  between  the  crime
and her identification of the defendant as  the  perpetrator.  Biggers,
409 U.S. at 201, 34 L. Ed. 2d at 412, 93 S. Ct. at  383.  Specifically,
the Court stated that:
            “There was, to be sure, a lapse of  seven  months  between
      the rape and  the  confrontation.  This  would  be  a  seriously
      negative factor in most cases. Here, however, the  testimony  is
      undisputed that the victim made no  previous  identification  at
      any of the  showups,  lineups,  or  photographic  showings.  Her
      record  for  reliability  was  thus  a  good  one,  as  she  had
      previously  resisted  whatever  suggestiveness  inheres   in   a
      showup.” (Emphasis added.) Biggers, 409 U.S. at 201, 34  L.  Ed.
      2d at 412, 93 S. Ct. at 383.
      Obviously, the admissibility  of  nonidentification  evidence  is
limited by considerations of relevance. If  nonidentification  evidence
is not relevant, it should be  excluded  from  evidence.  For  example,
evidence that a witness viewed a lineup  containing  red-haired,  blue-
eyed men would not be relevant or admissible if the  witness  described
the perpetrator as a blond-haired, brown-eyed  man.  However,  evidence
that a witness  viewed  a  lineup  containing  individuals  similar  in
appearance to the defendant  but  did  not  identify  anyone  would  be
relevant to the identification process.
      In this case, the trial court properly allowed the  witnesses  to
testify concerning the nonidentification lineups. As in Biggers,  there
was a significant lapse of time between the shooting of Julio  and  the
witnesses’ identification of defendant.  Consequently,  the  fact  that
some of the witnesses had viewed prior lineups  and  did  not  identify
anyone was relevant in demonstrating the reliability of the  subsequent
identifications. This is especially true  with  regard  to  the  lineup
viewed by Osvaldo, which contained not only the driver of  the  Camaro,
but also an individual similar in appearance  to  defendant,  including
defendant’s distinctive hairstyle–braids or cornrows.
      We further note that the gravamen of the  defense  was  that  the
witnesses were mistaken in their identification  of  defendant  as  the
shooter.  Defense  counsel  extensively  cross-examined  the  witnesses
concerning their  ability  to  observe  the  shooter,  their  level  of
attention to the occupants in  the  Camaro,  and  the  almost  one-year
length of time between the shooting and the  lineup  identification  of
defendant. Under the circumstances, the process leading to  the  lineup
identification, including nonidentification lineups,  was  relevant  to
the witnesses’ ultimate identification of defendant as the shooter.
      Because we find that this court in Hayes erred  in  finding  that
nonidentification evidence was not admissible under the  “statement  of
identification” exception to the general  rule,  and  therefore  depart
from that holding, it follows that the appellate  court  in  this  case
erred in reversing defendant’s conviction based  upon  our  holding  in
Hayes. We therefore reverse the decision of  the  appellate  court  and
affirm defendant’s conviction and sentence.
      For the foregoing reasons, the judgment of  the  appellate  court
is reversed, and the judgment of the circuit court is affirmed.

                                     Appellate court judgment reversed;
                                       circuit court judgment affirmed.

      JUSTICE McMORROW, dissenting:
      At issue in this appeal is  whether  the  trial  court  erred  in
allowing witnesses for the State in a  murder  prosecution  to  testify
concerning a nonidentification lineup. In answering  this  question  in
the negative, the majority neither  discusses  nor  makes  citation  to
this court’s decision in People v. Jones, 153 Ill.  2d  155  (1992),  a
unanimous ruling less than 10 years old  which  addresses  the  precise
issue at bar, and which compels a result  opposite  to  the  majority’s
ruling. The  majority  also  overrules,  without  cogent  reason,  this
court’s decision in People v. Hayes, 139 Ill.  2d  89  (1990).  Because
the majority’s conclusion  represents  an  unwarranted  departure  from
this court’s holdings in Jones and Hayes, I respectfully dissent.
      This appeal has its genesis in the conviction of defendant, by  a
jury, of the first degree murder of Julio Lagunas, who was killed in  a
drive-by shooting on September 3, 1995. During defendant’s  trial,  the
State  called  four  eyewitnesses  who  identified  defendant  as   the
passenger who shot Lagunas. Three of the four eyewitnesses stated  that
they identified defendant as the gunman  from  a  lineup  conducted  on
August 16, 1996, and the fourth eyewitness stated that  he  had  picked
defendant out of a lineup on September 12,  1997.  The  State  elicited
from all four witnesses that, prior to viewing the  lineup  from  which
they identified defendant, they viewed another lineup  (which  did  not
include defendant) from which they did not  identify  anyone  as  being
the gunman.
      On appeal,  defendant  argued  that  the  trial  court  erred  in
allowing the State to impermissibly bolster  its  case  by  introducing
the witnesses’ nonidentification  testimony.  According  to  defendant,
the State improperly relied upon the  nonidentifications  to  show  how
careful  the  witnesses  were  in  their  ultimate  identification   of
defendant. A majority of the appellate  court  panel  agreed  with  the
defendant’s contentions. Relying upon this  court’s  1990  decision  in
Hayes, 139 Ill. 2d 89, the majority of the  panel  concluded  that  the
State may not bolster a  witness’  identification  of  a  defendant  by
introducing evidence that the witness failed to  identify  anyone  else
during  pretrial  identification  procedures.   The   appellate   court
determined that the nonidentification testimony should  not  have  been
allowed because “it was presented simply to corroborate the  witnesses’
subsequent identification of defendant.” 316  Ill.  App.  3d  at  1154.
Furthermore,  the  panel  determined  that  this  error  could  not  be
considered harmless,  since  the  evidence  in  the  case  was  closely
balanced.  The  appellate  court  majority  noted  that  “none  of  the
eyewitnesses knew defendant or viewed him for a considerable length  of
time,” that there was “no physical evidence linking  defendant  to  the
crime,” that “defendant was not arrested  near  the  scene,”  and  that
“[d]efendant did not confess.” 316 Ill. App. 3d  at  1153-54.  Further,
the appellate court majority observed that  a  “substantial  amount  of
time   [had]   elapsed   between   the   offense   and    the    lineup
identifications,” with three of  the  witnesses  identifying  defendant
almost a year after  the  shooting,  and  another  witness  identifying
defendant two years after the shooting. 316 Ill. App. 3d at  1154.  The
appellate court majority concluded that,  under  these  facts,  it  was
“quite possible that the jury would have returned a  different  verdict
had the nonidentification testimony been excluded.” 316  Ill.  App.  3d
at 1154.
      The majority now reverses the judgment of  the  appellate  court,
and holds that this court  “erred”  in  its  Hayes  decision.  For  the
reasons  fully  set  forth  below,  I  disagree  with  the   majority’s
conclusion.
      In People v. Hayes, 139 Ill. 2d  89  (1990),  the  defendant  was
convicted of  murder  and  armed  robbery.  On  appeal,  the  defendant
alleged that the trial  court  committed  reversible  error  when  four
prosecution  witnesses  were  allowed  to  testify   that,   prior   to
identifying the  defendant,  they  viewed  photographs  of  individuals
other than the defendant and made no identification.  Defendant  argued
that  such  nonidentification  evidence  was  “irrelevant  and   highly
prejudicial” because “testimony that the witnesses viewed  pictures  of
persons other than the defendant and  made  no  identification  was  no
more relevant than  evidence  that  the  witnesses  did  not  view  the
defendant at an athletic event or shopping mall.” Hayes,  139  Ill.  2d
at 137. This court unanimously agreed with  the  defendant’s  assertion
that the nonidentification testimony should  not  have  been  admitted,
holding that it “violated the general rule  that  a  witness,  although
present in court and subject to cross-examination, may not  testify  as
to statements he made out of court for  the  purpose  of  corroborating
his testimony given at trial relative to the same subject.” Hayes,  139
Ill. 2d at 138. Indeed, the general rule of  evidence  cited  in  Hayes
barring, as hearsay, the admission of prior out-of-court statements  to
bolster in-court testimony on the same subject has long been a part  of
this court’s jurisprudence. See, e.g., People  v.  Clark,  52  Ill.  2d
374, 389 (1972); People v. Wesley, 18 Ill. 2d 138, 153-54 (1959);  Lyon
v. Oliver, 316 Ill. 292, 303 (1925); People v. Fox, 269 Ill.  300,  323
(1915); Gates v. People, 14 Ill. 433, 438 (1853). Hayes,  however,  was
the first case in which this court applied this  well-settled  rule  of
evidence to bar a witness’ nonidentification testimony.
      As is noted in Hayes, this  court  has  traditionally  recognized
two exceptions to the general rule that a witness may  not  testify  as
to out-of-court statements  for  the  purpose  of  bolstering  in-court
testimony relative to the same subject. First, it is well settled  that
a prior consistent statement is not barred by the hearsay rule, and  is
therefore admissible, if the statement is offered to rebut a charge  or
inference that the witness is motivated to testify falsely or that  the
witness’ in-court testimony is of recent fabrication. Hayes,  139  Ill.
2d at 138, citing Clark, 52 Ill. 2d at 388-90; see also Lyon, 316  Ill.
at 303; Gates, 14 Ill. at 438. The Hayes  court  determined  that  this
exception did not apply to the facts before it  because  the  defendant
had simply attempted to show that the  witnesses  may  have  mistakenly
identified him, and did not expressly  or  impliedly  allege  that  the
State’s witnesses were motivated to falsely identify  him.  Hayes,  139
Ill. 2d at 138.
      Further, as Hayes made clear, it is well  settled  that  the  bar
against hearsay does not apply where a prior out-of-court statement  is
one of identification. Accordingly, statements with respect to a  prior
identification of the defendant are admissible. Hayes, 139 Ill.  2d  at
138, citing People v. Rogers, 81 Ill. 2d 571, 578-79 (1980);  see  also
725 ILCS 5/115–12 (West 2000). The court  in  Hayes  relied  upon  this
court’s prior decision  in  Rogers,  wherein  the  rationale  for  this
exception was explained: “[B]y the time of  trial,  the  witness’  mind
has become so conditioned that  there  is  little  likelihood  that  he
would not identify the person [defendant] in court *** ‘***  therefore,
it is entirely proper *** to prove that at  a  former  time,  when  the
suggestions of others could not have intervened  to  create  a  fancied
recognition in the  witness’  mind,  he  recognized  and  declared  the
present accused to be the person.’ ”  (Emphasis  omitted.)  Rogers,  81
Ill. 2d at 578-79,  quoting  4  J.  Wigmore,  Evidence  §1130,  at  277
(Chadbourn  rev.  ed.  1972).  The  Hayes  court  determined  that  the
witnesses’ statements that they viewed  photographs  of  persons  other
than the defendant and made no identification were  inadmissible  under
the “identification” exception to the hearsay bar. The court held  that
the statements at issue were not statements of identification;  rather,
they were statements of nonidentification. Hayes, 139 Ill. 2d at 138.
      Accordingly, because the challenged testimony in  Hayes  did  not
fall within either exception to the general rule barring  admission  of
prior  consistent  statements,  this  court   held   that   the   State
“improperly introduced these prior  consistent  statements  to  bolster
the reliability  of  the  witnesses’  subsequent  lineup  and  in-court
identifications of the  defendant.”  Hayes,  139  Ill.  2d  at  138-39.
However,   although   the   Hayes    court    determined    that    the
nonidentification  evidence  was   improperly   admitted,   the   court
concluded that, under the facts before it,  the  evidence  was  not  so
prejudicial that it deprived the defendant of a fair  trial,  as  there
was overwhelming evidence of the defendant’s guilt. Hayes, 139 Ill.  2d
at 139.
      According to the majority opinion  in  the  matter  at  bar,  the
“State asks this court to depart from the precedent set forth in  Hayes
*** [because] in Hayes, this court  was  not  presented  with  evidence
that a witness had viewed photographs or  multiple  lineups  containing
individuals similar in appearance to the defendant.”  Slip  op.  at  6.
The State therefore asserts, and the majority agrees, that  this  court
has not previously been afforded the opportunity to consider whether  a
witness’  failure  to  identify  individuals   similar   to   defendant
demonstrates   the   witness’    reliability,    and    whether    such
nonidentification refutes  the  possibility  that  the  prior  pretrial
identification  was   premised   upon   the   suggestiveness   of   the
identification procedure. Slip op. at 6.
      Contrary to the argument advanced by the State  and  accepted  by
the majority, this  court  has,  in  fact,  previously  considered  and
rejected an argument identical to that raised by the State at bar.  Two
years after this court decided Hayes,  the  principles  of  Hayes  were
unanimously reaffirmed in People v. Jones, 153 Ill. 2d  155  (1992),  a
decision which is conspicuously absent from the majority’s opinion.  In
Jones, the defendant was found guilty of armed robbery  and  aggravated
unlawful restraint. On appeal, the  defendant  argued  that  the  trial
court erred when  it  allowed  the  victim  of  the  crime  to  testify
concerning her nonidentification of the  defendant.  Specifically,  the
victim stated that prior to identifying the defendant in a lineup,  she
had viewed another lineup (which did not  include  the  defendant)  and
failed to identify anyone. Relying upon the  decision  in  Hayes,  this
court determined in Jones that the trial court erred  in  allowing  the
State to introduce evidence of the victim’s  failure  to  identify  the
defendant in a prior lineup. The Jones court  explicitly  rejected  the
argument advanced by the  State  that  the  victim’s  nonidentification
testimony “was necessary to counter the defense’s allegation  that  the
lineup was overly suggestive and that the identification was  therefore
not trustworthy.” Jones, 153 Ill. 2d at 162. Significantly, this  court
concluded that the State’s argument was “simply a fancy  way  to  argue
that it was necessary to corroborate [the  victim’s]  testimony,  which
is precisely what Hayes disallows.” Jones, 153 Ill. 2d at 162.
      Despite the fact that Jones previously presented this court  with
the question of the admissibility of nonidentification evidence in  the
context of multiple lineups, and despite the fact that  this  court  in
Jones  unanimously  upheld  the  principles  of  Hayes   and   rejected
arguments substantially similar to those proffered by the State in  the
case at bar, the majority nevertheless concludes that the argument  now
advanced by the State has merit, and finds “this court’s  determination
in Hayes concerning nonidentification testimony  to  be  flawed.”  Slip
op. at 6.
      Specifically, the majority holds that “this court in Hayes  erred
in finding that nonidentification evidence  was  not  admissible  under
the ‘statement of  identification’  exception  to  the  general  rule,”
causing the majority to “depart from that holding.” Slip op. at  9.  In
arriving at this conclusion,  the  majority  necessarily  violates  the
doctrine of stare decisis by omitting any discussion  of,  or  citation
to, the controlling precedent of Jones. Indeed,  the  majority  opinion
is notable for its complete silence with respect to the application  of
the principle  of  stare  decisis  while  overturning  two  recent  and
unanimous decisions of this court. In addition, the majority  fails  to
make citation to any authority subsequent  to  Hayes  and  Jones  which
would warrant or compel this court to  stray  from  the  principles  of
stare decisis and reevaluate the  well-settled  evidentiary  rules  set
forth in those decisions.
      The doctrine of stare decisis “proceeds from the first  principle
of justice, that, absent powerful countervailing  considerations,  like
cases ought to be decided alike.” 5 Am. Jur. 2d Appellate  Review  §599
(1995); see also Neff v. George, 364 Ill.  306,  308-09  (1936)  (stare
decisis requires this court to follow and apply its own  precedent  and
not disturb settled points of law). The doctrine of stare  decisis  “is
the means by which courts ensure that the law will  not  merely  change
erratically, but will develop in a principled and intelligible  fashion
*** [apart from] the proclivities of individuals.”  Chicago  Bar  Ass’n
v. Illinois State Board of Elections, 161  Ill.  2d  502,  510  (1994).
Indeed, prior to the majority’s opinion at bar, the law  in  this  area
had  in  fact  been  developing  in  a  “principled  and   intelligible
fashion,” as evidenced by our reaffirmation of Hayes in Jones, as  well
as by our appellate court’s consistent application  of  the  principles
of Hayes and Jones in determining  that  the  State’s  presentation  of
negative  identification  evidence  improperly  bolsters   a   witness’
subsequent identification of a defendant and  constitutes  inadmissible
hearsay. See, e.g., People v. Jones,  293  Ill.  App.  3d  119  (1997);
People v. Davis, 285 Ill. App. 3d 1039 (1996); People v.  Biggers,  273
Ill. App. 3d 116 (1995); People v. Berry, 264 Ill. App. 3d 773  (1994);
People v. Berry, 241 Ill. App. 3d 993 (1993).
      It is well settled that  prior  precedent  should  be  overturned
“only on the showing of good cause” (Heimgaertner v. Benjamin  Electric
Manufacturing Co., 6 Ill. 2d 152, 167 (1955)), only where  there  is  “
‘special justification’ ” for the departure  (Chicago  Bar  Ass’n,  161
Ill. 2d at 510, quoting Arizona v. Rumsey, 467 U.S.  203,  212,  81  L.
Ed. 2d 164, 172, 104 S. Ct. 2305, 2311  (1984)),  and  only  where  the
reasons for departure are “compelling” (People v.  Robinson,  187  Ill.
2d 461, 463-64 (1999)). Accordingly, this court has recognized that  it
will not depart from precedent “ ‘merely because the court  is  of  the
opinion that it might decide otherwise were the question a new one.’  ”
Robinson, 187 Ill. 2d at 464, quoting Maki v. Frelk, 40  Ill.  2d  193,
196-97 (1968); see also Prall v. Burckhartt, 299  Ill.  19,  41  (1921)
(it is “indispensable to the due administration of justice,  especially
by a court of last resort, that a question once  deliberately  examined
and decided should be considered  as  settled  and  closed  to  further
argument, and the courts are  slow  to  interfere  with  the  principle
announced by the decision and it may be upheld even though  they  would
decide otherwise were the question a new one”). Indeed, “[i]f  the  law
were to change with each change in the makeup of the  court,  then  the
concept that ours is a government of  law  and  not  of  men  would  be
nothing more than a pious cliche.” People v. Lewis,  88  Ill.  2d  129,
167 (1981) (Ryan, J., concurring).
      The majority has advanced no principled basis,  let  alone  “good
cause,” “compelling reason,” or “special justification,” for  departing
from  the   holding   in   Hayes   and   Jones   that   statements   of
nonidentification do not fall within  the  hearsay  exception  allowing
the admission of prior  statements  of  identification.  The  majority,
tracking the analysis of Justice  Quinn’s  special  concurrence  below,
concludes  that  by  excluding  nonidentification  testimony  from  the
“statements of  identification”  hearsay  exception,  the  Hayes  court
erred  by  construing  that  term  “too  narrowly.”  Slip  op.  at   7.
Specifically, the majority holds that the decision in  Hayes  erred  by
“limiting  ‘statements  of  identification’  to   a   witness’   actual
identification of a defendant,” because, in the majority’s  view,  this
interpretation “mistakenly focuses on the result,” i.e.,  the  ultimate
identification of the defendant, rather than  on  “the  process”  which
preceded the identification. According to the majority,  “the  process”
of identification includes the viewing  of  any  prior  lineups  and/or
photo arrays where no identification of a suspect was  made.  Slip  op.
at 7. It is the majority, however, which has  erred  in  attempting  to
unreasonably stretch the scope  of  the  identification  exception  not
only beyond its plain language, but also beyond its intended purpose.
       Generally,  the  bar  against  admission  of  hearsay   evidence
prevents a witness from testifying to statements he or she made out  of
court for the purpose of corroborating that  witness’  testimony  given
at trial relative to the same subject. An  exception  to  this  general
rule of  inadmissibility  is  made,  however,  when  the  extrajudicial
statements  concern  the  witness’  pretrial  identification   of   the
defendant. It is self-evident that a witness’ statement that he or  she
was  unable  to  identify  a   suspect   is   not   a   “statement   of
identification.” In holding that  the  hearsay  exception  applies  not
only to actual statements of identification, but also to the  “process”
of identification encompassing  lineups  and  photo  arrays  where  the
witness  is  unable  to  make  an  identification,  the  majority   has
performed a judicial sleight of hand. The majority  has  transformed  a
witness’ statement that he or she did not  identify  a  suspect  during
prior   lineups   and/or   photo   arrays   into   a   “statement    of
identification.”
      In addition  to  unduly  stretching  the  hearsay  exception  for
evidence of identification beyond its plain meaning, the majority  also
expands the scope of this exception beyond  its  intended  purpose.  As
stated, this court in Rogers held that the general rule that a  witness
may not testify as to statements he or she made out of  court  for  the
purpose of  corroborating  in-court  testimony  relative  to  the  same
subject does not apply to  statements  of  identification.  The  Rogers
court explained that the justification for holding that evidence  of  a
witness’ pretrial identification of a  defendant  does  not  constitute
impermissible hearsay is premised on the notion that “ ‘it is  entirely
proper *** to prove that at a former  time,  when  the  suggestions  of
others could not have intervened to create  a  fancied  recognition  in
the witness’ mind, he recognized and declared the  present  accused  to
be the person.’ ” (Emphasis  omitted.)  Rogers,  81  Ill.  2d  at  579,
quoting 4 J. Wigmore,  Evidence  §1130,  at  277  (Chadbourn  rev.  ed.
1972). Indeed, as the Rogers court observed, because “by  the  time  of
trial, the witness’ mind  has  become  so  conditioned  that  there  is
little likelihood that he would not identify the person [defendant]  in
court,” it is entirely appropriate to admit evidence  of  the  witness’
prior out of court identification of the defendant to  corroborate  the
witness’ in-court identification. Rogers, 81 Ill. 2d at 578-79.[1]  The
rationale  for  admitting  pretrial  identification  evidence  has   no
application  to  the  admission  of  statements  of  nonidentification.
Accordingly, this court’s decisions  in  Hayes  and  Jones,  exercising
sound reasoning and logic, were correct in  holding  that  evidence  of
nonidentification   did   not   fall   within   the   “statements    of
identification” hearsay exception.
       Advancing  past  the  plain  language   and   purpose   of   the
identification exception to the hearsay rule,  the  majority  concludes
that a witness’  pretrial  identification  of  a  defendant  should  be
viewed as a “process” rather than  as  a  “result.”  According  to  the
majority, the identification  exception  to  the  hearsay  rule  should
allow the admission of statements that the witness failed  to  make  an
identification from a lineup or photo array, if  those  statements  are
relevant to the ultimate  out  of  court  identification  made  by  the
witness. This  result  is  desirable,  the  majority  reasons,  because
allowing evidence with respect to a  witness’  nonidentification  of  a
defendant would ensure  that  a  trier  of  fact  is  not  only  “fully
informed concerning  the  reliability”  of  the  witness’  out-of-court
identification, but is also fully informed with respect to the fact  of
“the suggestiveness or lack thereof in that identification.”  Slip  op.
at 7.  In  other  words,  the  majority  has  determined  that  hearsay
statements of nonidentification may be used to bolster the  reliability
of another hearsay statement–the actual out-of-court identification  of
the defendant. A close analysis of the  majority’s  reasoning  confirms
that it does not provide a principled basis for reaching this result.
      First, the majority notes  that  “when  identifying  a  defendant
from a lineup or photo array, a witness necessarily does  not  identify
the remaining individuals in the lineup or photo array.”  Slip  op.  at
7. The majority finds that this nonidentification is  “crucial  to  the
accuracy of the witness’ identification”  because  the  fact  that  the
witness did not  select  other  individuals  in  a  lineup  becomes  as
important as the fact that the witness did select the  defendant.  Slip
op. at 7. The majority further submits that “it is logical  to  presume
that the more lineups and  photo  arrays  a  witness  views,  the  more
likely that witness’ identification is reliable and is not  based  upon
suggestiveness.” Slip op. at 7.
      I disagree. Evidence that a witness failed to identify a  suspect
prior to the identification of the defendant is  nonprobative  hearsay.
When assessing the reliability  of  an  identification  made  during  a
lineup or after viewing a photo array, the crucial question is  whether
the witness accurately identified the defendant as the  perpetrator  of
the crime. The fact that the witness viewed several  lineups  or  photo
arrays in which  the  witness  did  not  identify  the  defendant  says
nothing  about  the  accuracy  of  the  identification  at  issue.   In
addition,  what   occurred   during   other   pretrial   identification
procedures reveals no information with respect to the influences  which
may have been present  on  the  witness  at  the  time  of  the  actual
identification of the defendant.  For  example,  the  nonidentification
evidence offers no information with respect  to  whether  the  witness’
actual identification of  the  defendant  was  animated  by  suggestive
practices  on  the  part  of   the   police,   whether   the   witness’
identification was  motivated  by  malice  against  the  defendant,  or
whether simple  fatigue  factored  into  the  witness’  identification.
Finally, the admission of nonidentification  evidence  in  the  State’s
case in chief creates a problem of  circular  reasoning,  as  the  only
means to measure the accuracy of the  witness’  “nonidentification”  is
the identification itself, the very fact at issue in the case.
       Although the majority also suggests  that  the  introduction  of
nonidentification evidence will assist the State in  explaining  delays
in identification, the nonidentification  evidence  does  not  mitigate
the fact that a specific amount of time has elapsed after  the  witness
observed  the  perpetrator  of  the  crime  and  the  time   when   the
identification  of  a  defendant  is  ultimately  made.  Admission   of
nonidentification  evidence  may  have  little,  if  any,   effect   in
countering the logical inference that an  identification  made  one  or
two years after the commission of a  crime  is  to  be  viewed  with  a
degree of skepticism.
      The only citation to  authority  made  by  the  majority  in  its
opinion in support of  overruling  Hayes  and  Jones  is  to  the  1972
decision of the United States Supreme Court in  Neil  v.  Biggers,  409
U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375  (1972).  However,  the  High
Court’s decision in Biggers is inapposite to  the  matter  at  bar.  At
issue in Biggers was whether the  procedure  leading  to  the  victim’s
pretrial identification  of  the  defendant  was  “  ‘so  unnecessarily
suggestive and conducive  to  irreparable  mistaken  identification’  ”
that it violated the defendant’s right  to  due  process,  and  thereby
rendered the identification inadmissible. Biggers, 409 U.S. at 196,  34
L. Ed. 2d at 409, 93 S. Ct. at 380, quoting Stovall v. Denno, 388  U.S.
293, 301-02, 18 L. Ed. 2d 1199, 1206, 87 S. Ct. 1967, 1972 (1967).  The
Justices held that in ruling upon a challenge to the type of  procedure
used to secure a pretrial identification, a court must engage in a two-
part inquiry: first, whether the process was impermissibly  suggestive;
and, second, assuming suggestion, whether under  the  totality  of  the
circumstances  the  identification  was  nevertheless   reliable   and,
therefore, admissible. Biggers, 409 U.S. at 199, 34 L. Ed. 2d  at  411,
93 S. Ct. at 382.
      In Biggers, the victim had identified  the  defendant  after  the
police had conducted a “showup,”  which  consisted  of  two  detectives
walking the defendant past the victim. Although  the  Court  held  that
the showup procedure was  suggestive,  it  declined  to  hold  that  it
amounted to a per se violation of due  process.  The  Court  determined
that the pertinent question is  whether,  under  the  totality  of  the
circumstances,  the  victim’s  identification  of  the  defendant   was
reliable even though the confrontation procedure  was  suggestive.  The
Court then listed the  factors  to  be  considered  in  evaluating  the
likelihood of  misidentification,  including  the  opportunity  of  the
witness to view the perpetrator at the time of the crime, the  witness’
degree of attention, the accuracy of the witness’ prior description  of
the perpetrator, the level of certainty demonstrated by the witness  at
the confrontation, and  the  length  of  time  between  the  crime  and
confrontation. Biggers, 409 U.S. at 199-200, 34 L. Ed. 2d  at  411,  93
S. Ct. at 382.
      Applying these factors to the case  before  it,  the  High  Court
found that because there was no substantial likelihood that the  victim
had misidentified the defendant, the victim’s  pretrial  identification
was properly admitted. In the course of their  analysis,  the  Justices
observed that there was a seven-month lapse between the crime  and  the
showup, and that this passage of time “would be  a  seriously  negative
factor in most  cases.”  The  Court,  however,  noted  that  under  the
totality  of  the  circumstances,  the   victim   made   “no   previous
identification,”   that   “she   had   previously   resisted   whatever
suggestiveness  inheres  in  a  showup,”  and  that  her  “record   for
reliability was thus a good one.” Biggers, 409 U.S. at 201, 34  L.  Ed.
2d at 412, 93 S. Ct. at 383.
      Perhaps recognizing that the Biggers decision  is  inapposite  to
the matter before us, the majority acknowledges that  Biggers  provides
only “tacit” approval (slip op. at 8)  for  the  majority’s  conclusion
that nonidentification evidence is admissible under the  identification
exception to the hearsay rule. As stated,  the  question  addressed  in
Biggers was whether the pretrial identification of  the  defendant  was
so suggestive as to increase the  likelihood  of  misidentification  to
such a level that it would violate defendant’s  right  to  due  process
and thereby be inadmissible.  The  question  of  the  admissibility  of
nonidentification evidence was not raised in Biggers,  and  no  mention
of “nonidentification” was made when the Court set forth  the  specific
factors to  be  considered  in  evaluating  the  admissibility  of  the
pretrial identification. In sum, Biggers  neither  holds  nor  suggests
that nonidentification evidence is admissible under the “statements  of
identification” exception to the hearsay rule.  As  a  final  point,  I
further note that the Biggers decision had  been  established  law  for
almost two decades by the time this court decided Hayes in 1990.
      In sum,  the  majority  has  advanced  no  principled  basis  for
overruling  this  court’s  unanimous  and  well-reasoned  decisions  in
Jones, a ruling which the majority neither cites nor discusses  in  its
opinion, and in Hayes. In an effort to achieve a  desired  result,  the
majority has unreasonably stretched  the  identification  exception  to
the hearsay bar to  hold  that  statements  of  nonidentification  also
constitute  “statements   of   identification.”   The   exception   for
“statements of identification” means just that–the plain  language  and
purpose  of  the  exception  requires  that   the   statement   be   of
“identification,” and not the  opposite.  Accordingly,  I  respectfully
dissent.

      JUSTICES FREEMAN and KILBRIDE join in this dissent.
-----------------------

     1In response to this court’s  decision  in  Rogers,  the  Illinois
General Assembly enacted Public  Act  83–367  (Pub.  Act  83–367,  eff.
January 1, 1984), which added section 115–12 to the  Code  of  Criminal
Procedure of 1963 (725  ILCS  5/115–12  (West  2000)).  Section  115–12
codified our ruling in Rogers by creating a statutory exception to  the
hearsay rule that allows for the admissibility of prior  identification
evidence. The statute’s mandate that the  statement  must  be  “one  of
identification  of  a  person  made  after  perceiving  him,”   further
supports the argument that evidence of nonidentification does not  fall
within this hearsay exception.

