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                                Appellate Court                           Date: 2019.06.03
                                                                          13:42:15 -05'00'



                     In re N.A., 2018 IL App (1st) 181332



Appellate Court    In re N.A., a Minor (The People of the State of Illinois, Petitioner-
Caption            Appellee, v. N.A., Respondent-Appellant).



District & No.     First District, First Division
                   Docket No. 1-18-1332



Filed              December 24, 2018
Rehearing denied   January 28, 2019



Decision Under     Appeal from the Circuit Court of Cook County, No. 18-JD-00049; the
Review             Hon. Stuart F. Lubin, Judge, presiding.



Judgment           Affirmed.


Counsel on         James E. Chadd, Patricia Mysza, and Jonathan Pilsner, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Veronica Calderon Malavia, and Kathryn A. Schierl, Assistant State’s
                   Attorneys, of counsel), for the People.



Panel              JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
                   Justices Pierce and Walker concurred in the judgment and opinion.
                                             OPINION

¶1       Respondent N.A. was adjudicated delinquent of armed robbery (720 ILCS 5/18-2(a)(2)
     (West 2016)) and sentenced to three years’ probation. On appeal, he challenges the
     sufficiency of the robbery victim’s eyewitness identification testimony and the effectiveness
     of his trial counsel. We affirm.

¶2                                         BACKGROUND
¶3        On December 9, 2017, at around 8:10 p.m., victim Cynthia Lett backed her car into her
     garage. Her nine-year-old daughter, A.Y., sat next to her. As the victim opened her car door,
     two men walked into the garage and positioned themselves on either side of her car. Still
     seated, she looked up and saw the man’s face. He pointed a gun at her and demanded her to
     “hand over everything.” She gave the man her purse and cell phone. The two men left, and
     the victim called the police.
¶4        On January 8, 2018, Chicago police detective Spiro Kaldis went to the victim’s home and
     showed her two photo arrays. She signed a photo advisory form indicating that that she did
     not want to be audio or video recorded and understood she had no obligation to identify
     anyone. The victim identified respondent N.A. in the first photo array as the man who robbed
     her at gunpoint on the night of December 9, 2017. She did not identify anyone in the second
     photo array.
¶5        Two days later, on January 10, 2018, the State filed a petition for adjudication of
     wardship against respondent. He was 17 years old when the alleged offense was committed.
     The petition charged him with one count of armed robbery (id.), one count of aggravated
     robbery (id. § 18-1(b)(1)), one count of robbery (id. § 18-1(a)), and one count of theft (id.
     § 16-1(a)(3)). Respondent did not file a motion to suppress the identification, and his case
     proceeded to trial.
¶6        The State called two witnesses at trial. The first witness, victim Cynthia Lett, testified
     that she and her daughter attended a birthday party on December 9, 2017, and returned home
     around 8:10 p.m. She backed her car into the detached garage behind her house, and as she
     opened the driver side door to get out, two men walked into the garage. They took positions
     on either side of the car.
¶7        The victim looked up at the man from her seated position. He stood two feet away on the
     other side of her car door. Because the door was ajar, the car’s dome light activated. A “dim”
     garage light had turned on, and there was some additional “ambient lighting from the alley.”
     The victim testified that she “immediately” saw the man had a gun. It was a “small
     pistol-type gun,” dark in color, and he held it “close to his body.” From her vantage point, the
     gun was pointed “pretty much to [her] face.”
¶8        He was African-American and wore a “nondescript,” “dark colored sweatshirt” with the
     hood on, but she could see his face and “short hair.” After he demanded “give me
     everything” and “don’t move,” the victim surrendered her purse and cell phone. The two men
     left. The victim called the police.
¶9        Police arrived at the victim’s house, and she gave them a description of the two men. She
     described them as very “nondescript” because of the dark clothing, they appeared to be 20



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       years old, and she guessed that their heights were between 5 feet, 10 and 11 inches. A month
       later, she met with Detective Kaldis at her house.
¶ 10       The victim testified that, on January 8, 2018, Detective Kaldis showed her two sets of
       photographs. Before viewing the photographs, she signed a photo lineup advisory form
       indicating that she did not want to be audio or video recorded. The victim understood she did
       not have to identify anyone. She identified respondent in the first set of photographs as the
       man who robbed her on the night of December 8, 2017. She did not identify anyone from the
       second set.
¶ 11       On cross-examination, the victim testified that her focus during the robbery was directed
       at respondent’s gun. She indicated that the alleged robbery lasted five to seven minutes and
       that respondent did not speak with an accent when he voiced his demands. On
       recross-examination, the victim testified that she had “no problem at all” seeing respondent’s
       face or identifying him in court. She testified, “I was able to get a really good look at the guy
       when it was happening because his face was so close to me. So then, when I saw the photo
       lineup, you know, I knew the photos that were absolutely not the person. And so, you know,
       when I identified that person, I was certain.”
¶ 12       The State called Detective Kaldis as its second witness. He testified that he went to the
       victim’s house on January 8, 2018, to show her two photo arrays he had prepared. He was an
       independent administrator, meaning that he had “no knowledge of the case or who the
       suspect may be in the photo array.” The first photo array he showed the victim contained a
       photograph of respondent. The victim identified respondent in the first photo array, circled
       his photograph, and initialed it. She had no difficulty identifying respondent but could not
       identify the other offender from the second photo array.
¶ 13       On cross-examination, Detective Kaldis testified that he did not video or audio record the
       victim during the identification procedure. He was not equipped with a body camera when he
       went to her house. Detective Kaldis testified that, if the victim consented to a video
       recording, he would have taken her to the police station, as he did not have the means record
       the victim at her home. The State rested its case.
¶ 14       Respondent called only one witness: arresting officer Sean Markham. Officer Markham
       testified that he arrested respondent and, during the process, learned that he was born in
       Ghana. When asked whether respondent spoke with an accent, Officer Markham testified,
       “he could have an accent, yeah,” “[if] he spoke right now, I could probably hear an accent.”
       The defense rested its case.
¶ 15       The record indicates that the victim’s daughter, A.Y., who sat on the passenger side of
       the car during the robbery, was shown two photo arrays on the same day her mother
       identified respondent. The lineup advisory form signed by A.Y. indicated that she did not
       make a positive identification of the armed robber but instead stated that four individuals
       looked like or may have been the offender who approached her mother. Respondent’s
       counsel did not present A.Y. as a witness or elicit any testimony regarding her
       nonidentification at trial.
¶ 16       The trial court found that “based on the victim’s adequate opportunity to observe
       [respondent] at the time of the robbery” the State had proven the armed robbery (id.
       § 18-2(a)(2)) beyond a reasonable doubt. The trial court merged the remaining counts,
       entered a finding of best interest in wardship, and sentenced respondent to three years’


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       probation. He appeals his delinquency adjudication.

¶ 17                                             ANALYSIS
¶ 18        The issues on appeal are (1) whether the victim’s eyewitness identification testimony was
       sufficient to sustain respondent’s delinquency adjudication beyond a reasonable doubt and
       (2) whether respondent’s trial counsel was ineffective.
¶ 19        The sum total of the State’s evidence in this case was the victim’s eyewitness
       identification. Respondent challenges that identification as unreliable and insufficient to
       support his delinquency adjudication beyond a reasonable doubt. In the alternative, he asks
       us to grant him a new trial because his counsel’s failure to elicit any testimony about A.Y.’s
       nonidentification was objectively unreasonable and prejudicial. We address each argument in
       turn.
¶ 20        The reasonable doubt standard applies to delinquency proceedings. In re J.J., 2016 IL
       App (1st) 160379, ¶ 20. Therefore, we review the sufficiency of the evidence presented at
       respondent’s trial in the light most favorable to the State and answer the question of whether
       any rational trier of fact could have found the identity of the perpetrator and the essential
       elements of armed robbery beyond a reasonable doubt. In re Christian W., 2017 IL App (1st)
       162897, ¶ 24; 720 ILCS 5/18-1, 18-2(a)(2) (West 2016) (a person commits armed robbery
       when he knowingly takes property from the person or presence of another by the use of force
       or by threatening the imminent use of force and carries on or about his person or is otherwise
       armed with a firearm during the robbery).
¶ 21        It is not our function to retry respondent or substitute our judgment for that of the trial
       court on questions of witness credibility, the appropriate weight to give the testimony,
       reasonable inferences to be drawn from the evidence, or evidentiary inconsistencies. People
       v. Wheeler, 226 Ill. 2d 92, 114 (2007); People v. Jackson, 2017 IL App (1st) 142879, ¶ 23;
       People v. Ross, 229 Ill. 2d 255, 272 (2008). The trial court’s findings are, however, not
       conclusive, and respondent’s delinquency adjudication will not stand if the evidence is so
       unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of his guilt.
       People v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009).
¶ 22        A single eyewitness identification of the accused is sufficient to sustain a conviction if
       the witness viewed the accused under circumstances permitting a positive identification.
       People v. Davis, 2018 IL App (1st) 152413, ¶ 55. A vague or doubtful identification will not
       suffice. Id. Illinois courts look at the totality of the circumstances and consider the following
       factors to determine whether an eyewitness identification is reliable: (1) the witness’s
       opportunity to view the suspect during the commission of the offense, (2) the witness’s
       degree of attention, (3) the accuracy of any prior descriptions provided, (4) the witness’s
       level of certainty at the time of the identification procedure, and (5) the length of time
       between the crime and the identification. People v. Slim, 127 Ill. 2d 302, 307-08 (1989); Neil
       v. Biggers, 409 U.S. 188, 199-200 (1972).
¶ 23        Respondent argues that the victim’s identification is unreliable. In his brief, however,
       respondent goes further and takes aim at all eyewitness identifications. He suggests that the
       Illinois Supreme Court has “cast doubt” on the reliability of eyewitness identifications and
       contends that the legislature shares a similar “skepticism” evidenced by its enactment of
       section 107A-2 of the Criminal Code of 1963 (Lineup Statute) (725 ILCS 5/107A-2 (West
       2016)), which governs the procedure by which lineups are conducted. Circling back to his

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       case, respondent argues that the Biggers factors are no longer the “end-all-be-all of assessing
       identification testimony” and urges us to find that Detective Kaldis’s noncompliance with the
       Lineup Statute further undercuts the reliability of an already unreliable eyewitness
       identification.
¶ 24        We start with the Biggers factors, as our precedent clearly requires. See Slim, 127 Ill. 2d
       at 307. The victim’s testimony showed that she had an ample opportunity to view respondent
       during the commission of the offense. She had “no problem at all” seeing his face from
       where she sat in her car and got a “really good look at the guy when it was happening
       because his face was so close to me.” Respondent stood two feet away from the victim. The
       encounter lasted “five to seven minutes.”
¶ 25        Respondent contends that the lighting conditions were inadequate because the garage
       light was “dim.” But there is simply no evidence that the lighting conditions (or respondent’s
       hooded sweatshirt) obstructed the victim’s view or prevented her from seeing respondent’s
       face. All the testimony is, frankly, to the contrary. The victim was not impeached, and the
       trial court found her testimony to be credible. See People v. Johnson, 2018 IL App (1st)
       150209, ¶ 18 (the trier of fact is best equipped to judge the credibility of witnesses). The trial
       court’s determination as to the first Biggers factor stands.
¶ 26        The victim’s degree of attention during the robbery was not “particularly weak,” as
       respondent contends. To be sure, the victim did testify that her “focus” during the robbery
       was on respondent’s gun, but on redirect examination she clarified her testimony and
       indicated she was able to see respondent’s face while focusing on his gun. We cannot
       consider respondent’s scholarly article on “weapon focus” (or his reference to an article on
       the unreliability of “cross-racial” identifications), as the trial court was not afforded the
       opportunity to consider that information and heard no argument based upon it. See In re
       Ronald J., 2017 IL App (4th) 160855, ¶ 22 (delinquency proceedings are not exempt from
       the forfeiture doctrine, and an issue not raised in the trial court is deemed forfeited on
       appeal). Accordingly, respondent’s arguments based upon those articles are forfeited.
¶ 27        The victim’s prior description of respondent does not undercut the trial court’s finding.
       The victim testified at trial that she described respondent to police as a nondescript,
       20-year-old who stood between 5 feet, 10 to 11 inches, in height. Respondent argues that this
       description was inaccurate and unacceptable given respondent’s age of 17 at the time of the
       offense and height of five feet, seven inches. He places particular emphasis on the victim’s
       use of the word “nondescript” and her failure to include respondent’s short hair and lack of
       facial hair in her initial description of respondent.
¶ 28        The victim was not required to describe the physical characteristics of the offender to
       police with pinpoint accuracy. Slim, 127 Ill. 2d at 308-09 (a witness may give a general
       description based on his or her total impression of the suspect’s appearance and is not
       expected, or required, to distinguish individual and separate features of the suspect in making
       an identification). Our review of the record indicates that the victim’s use of the word
       “nondescript” was a reference to respondent’s dark clothing, not his facial or other physical
       features.
¶ 29        Furthermore, the trial court was aware that the victim ventured a guess as to respondent’s
       exact height and failed to provide an initial description of his hairstyle to police. The trial
       court addressed these issues within its province and resolved them against respondent. See id.
       at 308 (“[v]ariances between a witness’ trial testimony and pretrial statements raise questions

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       of credibility which the trier of fact must assess in making a determination of guilt”). We
       defer to the trial court’s decision.
¶ 30       As for the victim’s level of certainty at the time she viewed the photo arrays and
       identified respondent, she testified to being “certain” of her identification and “knew the
       photos that were absolutely not the person.” Detective Kaldis testified that the victim had no
       problem making the identification. Respondent argues that an eyewitness’s confidence when
       identifying an offender is not conclusive of accuracy. But whether or not his argument rings
       true is immaterial, as respondent failed to present this argument to the trial court. In re
       Ronald J., 2017 IL App (4th) 160855, ¶ 22. The argument is forfeited.
¶ 31       As respondent requests, we do not “easily brush off” the fact that a month lapsed between
       the identification and the armed robbery. However, we have upheld positive identifications
       involving considerably longer lapses in time. See People v. Malone, 2012 IL App (1st)
       110517, ¶ 36 (identification was reliable despite lapse in time between crime and
       identification of one year and four months). We therefore see no reason to upend the trial
       court’s determination as a result of the lapse in time here.
¶ 32       Respondent urges this court to look beyond the Biggers factors and recognize that our
       supreme court has moved away from them. He supports his argument with People v. Lerma,
       2016 IL 118496, ¶ 24, and accurately quotes the case to show that the court’s view of expert
       testimony on the reliability of eyewitness identifications has changed (“we not only have
       seen that eyewitness identifications are not always as reliable as they appear, but we have
       also learned, from a scientific standpoint, why this is often the case”). However, we do not
       see how Lerma, which held that the trial court erred when it denied the respondent’s request
       to present expert testimony on the reliability of eyewitness identifications where the State’s
       case hinged on the identification testimony of two eyewitnesses, applies to his case.
       Respondent did not call, or attempt to call, an expert witness at trial. Accordingly, if Lerma
       changed the legal framework of eyewitness identification, respondent made no attempt to
       benefit from it at trial.
¶ 33       Respondent argues that Detective Kaldis violated the Lineup Statute and, as a result, the
       victim’s identification is entitled to “less weight.” The Lineup Statute governs the manner
       and means by which law enforcement conducts lineups. See 725 ILCS 5/107A-2 (West
       2016); see also id. § 107A-0.1 (the term lineup includes a photo array). A video record of all
       lineup procedures must be made unless it is not practical or the eyewitness refuses. Id.
       § 107A-2(h). If making a video record is not practical or the eyewitness refuses, an audio
       record shall be made, if practical. Id. § 107A-2(h)(1)(B). The Lineup Statute identifies the
       following as “consequences” of noncompliance: (1) the trial court can consider
       noncompliance as a factor in adjudicating a motion to suppress an eyewitness identification
       or any other motion to bar an eyewitness identification, and (2) when warranted by the
       evidence at trial, the trial court must instruct the jury that it may consider noncompliance to
       assist in its weighing of the identification testimony of the eyewitness. Id. § 107A-2(j).
¶ 34       The State argues that the lineup form signed by the victim indicated her unwillingness to
       be video or audio recorded and, therefore, this is a nonissue. But, as respondent points out,
       the Lineup Statute contains no language that would allow an eyewitness to refuse an audio
       recording. See id. § 107A-2(h)(1)(B). The State’s argument is therefore misplaced, and
       absent any argument as to why an audio recording of the photo array procedure was not
       practical under the circumstances, we are left with sheer noncompliance.

                                                  -6-
¶ 35       Detective Kaldis testified that he did not audio or video record the identification
       procedure or bring any recording devices to the victim’s house. The only testimony related to
       the practicability of recording the identification procedure was Detective Kaldis’s statement
       that “if [the victim] wanted to record it, we would have went to Belmont and Western and
       done it in the ERI room.” Given technological advancements, the portability of recording
       devices, and law enforcement’s use of body cameras, we see no reason why Detective Kaldis
       could not have made an audio record as the Lineup Statute requires. But the violation had no
       effect on the reliability of the victim’s identification.
¶ 36       Respondent was not tried before a jury, and he failed to file a motion to suppress or bar
       the victim’s identification. Accordingly, Detective Kaldis’s noncompliance was
       inconsequential. Nevertheless, the trial court was fully informed of the fact that an audio
       recording was not made. We presume the trial court considered this fact when it assessed the
       credibility of the victim and Detective Kaldis and adjudicated respondent delinquent of
       armed robbery (720 ILCS 5/18-2(a)(2) (West 2016)). See People v. Howery, 178 Ill. 2d 1, 32
       (1997) (trial court is presumed to know the law and apply it properly when the record
       contains no strong affirmative evidence to the contrary).
¶ 37       We hold that the totality of the circumstances and Biggers factors favor the State and
       support the trial court’s finding that the victim’s identification was reliable. Viewed in the
       light most favorable to the State, the victim’s testimony was sufficient to support
       respondent’s delinquency adjudication beyond a reasonable doubt. The victim had an
       unobstructed view of respondent’s face and his gun from a distance of two feet for a period
       of five to seven minutes. She was “certain” respondent was the man who robbed her at
       gunpoint and took her purse and cell phone, and she “had no problem at all” picking
       respondent out of the photo array or identifying him in court. Despite respondent’s arguments
       to the contrary, the basic legal principle that a single eyewitness identification of the accused
       under circumstances permitting a positive identification is sufficient to convict remains fully
       intact. In re M.W., 232 Ill. 2d 408, 435 (2009). We have one such identification here.
¶ 38       Respondent’s remaining argument is that his counsel was ineffective. He argues that his
       counsel’s failure to elicit any testimony regarding A.Y.’s nonidentification at trial (either
       from A.Y. or Detective Kaldis) was objectively unreasonable and caused him to suffer
       prejudice.
¶ 39       Section 1-5(1) of the Juvenile Court Act of 1987 grants minors the right to be represented
       by counsel in juvenile proceedings. 705 ILCS 405/1-5(1) (West 2016). They also have a
       constitutional right to counsel. People v. Austin M., 2012 IL 111194, ¶ 74. Illinois courts
       apply the well-known standard outlined in Strickland v. Washington, 466 U.S. 668, 687-88
       (1984), to gauge the effectiveness of counsel in juvenile proceedings. In re Alonzo O., 2015
       IL App (4th) 150308, ¶ 19. Our duty here is to determine whether trial counsel’s failure to
       call A.Y. as a witness at trial or elicit any testimony about her nonidentification fell below
       the standard outlined in Strickland.
¶ 40       In order for respondent to receive a new trial on the basis of ineffective assistance of
       counsel, he must show that (1) his counsel’s representation fell below an objective standard
       of reasonableness and (2) a reasonable probability exists that, but for the error, the result
       would have been different. In re Charles W., 2014 IL App (1st) 131281, ¶ 32. To establish
       the second prong, respondent must show that his counsel’s deficient performance rendered


                                                   -7-
       the result of the trial unreliable or the proceeding fundamentally unfair. People v. Evans, 186
       Ill. 2d 83, 93 (1999).
¶ 41        We find that respondent has failed to overcome the strong presumption that counsel, as a
       matter of sound trial strategy, decided not to present A.Y. as a witness at trial in order to
       deprive the State of an opportunity to drive home the fact the victim’s nine-year old daughter
       sat next to her as she was robbed at gunpoint. See id. (to satisfy the deficient performance
       prong of Strickland, the respondent must overcome the strong presumption that any
       challenged action or inaction may have been the product of sound trial strategy and prove
       that counsel made errors so serious that he or she was not functioning as the “counsel”
       guaranteed by the sixth amendment). Counsel would have also run the risk of an in-court
       identification. Accordingly, respondent has not met the high bar that counsel’s performance
       was deficient in this respect.
¶ 42        Respondent has also not shown that counsel’s failure to elicit testimony from Detective
       Kaldis regarding A.Y.’s nonidentificaton deprived him of a fair trial. See People v. Smith,
       195 Ill. 2d 179, 188 (2000) (to satisfy the prejudice prong of Strickland, the respondent must
       show that counsel’s deficient performance rendered the result of the trial unreliable or the
       proceeding fundamentally unfair). Such testimony, had it been elicited, would have
       (1) corroborated the victim’s testimony that her daughter’s “eyes were more so on [the other
       offender], and my eyes were on the other guy with the gun” and (2) strengthened a positive
       identification by a witness who was “certain” that her armed robber, who stood two feet
       away for five to seven minutes, was the same person she picked out of a photo array and
       identified in court. See People v. Beals, 162 Ill. 2d 497, 506-07 (1994); People v. Romero,
       2018 IL App (1st) 143132, ¶ 130. Given the strength of the victim’s eyewitness identification
       testimony and the trial court’s determination that it was credible, respondent has not shown
       the prejudice necessary to prevail on his claim of ineffective assistance of counsel.

¶ 43                                        CONCLUSION
¶ 44      Accordingly, we affirm.

¶ 45      Affirmed.




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