                                       2019 IL App (1st) 171501


                                                                           FIRST DISTRICT
                                                                           FOURTH DIVISION
                                                                           March 29, 2019


No. 1-17-1501


                                                               )    Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,                           )    Circuit Court of
                                                               )    Cook County
                Plaintiff-Appellee,                            )
                                                               )
v.                                                             )    No. 15 CR 401601
                                                               )
PEDRO CORRAL,                                                  )
                                                               )    Honorable
                Defendant-Appellant.                           )    Vincent M. Gaughan,
                                                               )    Judge Presiding.


       JUSTICE REYES delivered the judgment of the court, with opinion.
       Presiding Justice McBride and Justice Gordon concurred in the judgment and opinion.


                                            OPINION

¶1     Following a jury trial, defendant Pedro Corral was found guilty of first degree murder

and personally discharging a firearm in connection with the shooting death of the victim,

Giovanni Galindo. Subsequently, the trial court sentenced defendant to a term of 31 years in the

Illinois Department of Corrections. In sentencing defendant, the trial court exercised its

discretion pursuant to section 5-4.5-105(b) of the Unified Code of Corrections (730 ILCS 5/5-

4.5-105(b) (West 2016)) and did not impose the 25-year firearm enhancement based on the

jury’s finding that defendant personally discharged a firearm causing the victim’s death.

¶2     Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a
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reasonable doubt, (2) the trial court erred in denying his motion to suppress identification, (3) the

trial court erred in limiting the defense expert from testifying on her opinion regarding the

eyewitness’s identification of defendant as the shooter, and (4) the sentence imposed by the trial

court was excessive and failed to follow the dictates of Miller v. Alabama, 567 U.S. 460 (2012).

For the reasons that follow, we affirm the judgment of the circuit court.

¶3                                       BACKGROUND

¶4     Defendant was charged with multiple counts of first degree murder, armed robbery, home

invasion, and residential burglary arising from the September 5, 2014, shooting death of Galindo.

Prior to trial, defendant filed a motion to suppress the identification made by Jose Vargas of

defendant as the shooter. Vargas was an eyewitness to the offense. In the motion, defendant

argued that the lineup was unduly suggestive because it consisted of only three other participants

and there was a large age disparity between them.

¶5     At the suppression hearing, the defense presented the testimony of Detective Roger

Murphy, who testified that on November 6, 2014, he assisted in conducting a lineup which

included defendant and three other individuals. Because the lineup contained only four

individuals, Detective Murphy obtained permission from his supervisor to conduct the lineup.

Vargas had previously identified the shooter as a “younger male Hispanic,” so Detective Murphy

filled the lineup with three other individuals he believed resembled defendant. Two of the

individuals were 17- and 19-year-old Hispanic males. The third individual was a 30-year-old

police officer, who Detective Murphy requested participate in the lineup because there were not

any other individuals in custody who resembled defendant. Detective Murphy testified that all of

the individuals had medium to slim builds. Detective Murphy further testified that Vargas signed

the lineup advisory form and was not informed that the individual he had previously identified in



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a photo array (defendant) would be in the lineup.

¶6        The defense rested, and the State presented the testimony of Detective Brian Daly.

Detective Daly testified that he was assigned to investigate the death of the victim. On November

6, 2014, he was inside the room while the lineup was being conducted, and he allowed defendant

to pick his position in the lineup.

¶7        After hearing arguments, the trial court denied the motion to suppress the identification,

finding the lineup was not overly suggestive. The trial court found that the detectives complied

with procedures, including obtaining approval from a superior officer to conduct a four-person

lineup.

¶8        Prior to trial, the State filed a motion in limine seeking to preclude defendant’s

identification and memory expert, Dr. Kimberly McClure, from testifying as to her opinion on

whether Vargas’s identification of defendant was reliable. The trial court precluded the defense

expert witness from testifying about the reliability of Vargas’s identification itself and how that

relates to defendant’s guilt or innocence. The trial court, however, did allow the expert witness to

testify regarding the factors that can affect the reliability of an eyewitness identification

generally and the presence or absence of those factors in the case. In so ruling, the trial court

explained that an expert witness could not testify as to the credibility of another witness.

¶9        The trial commenced in January 2017 with the State presenting the following evidence.

Vargas, who was 22 years old at the time of the trial, testified that at 2 p.m. on September 5,

2014, he received a text message from his friend Luis Alfaro. The message indicated Alfaro

wanted to purchase a half-pound of cannabis. Vargas contacted Galindo regarding the purchase.

Galindo informed Vargas the price for a half-pound of cannabis was $2300 and Vargas would

receive $100 from that sale. Vargas texted Alfaro with the details of the sale, and Alfaro



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responded that a 16-year-old would actually be purchasing the cannabis. Thereafter, Vargas

received a phone call from a number he did not recognize. Vargas was initially surprised by the

voice he heard on phone because he expected it to be from a 16-year-old; however, the voice on

the phone sounded like that of a full-grown male. The individual on the phone was later

identified by Vargas as Anthony Guedes.

¶ 10   At 4:26 p.m., Vargas texted Guedes asking him where they were. Guedes responded

almost immediately with his location. Vargas went to the alley behind a convenience store where

he observed a dark colored TrailBlazer. Guedes exited the front passenger seat of the TrailBlazer

and the 16-year-old exited the back seat. They entered Vargas’s vehicle. Guedes sat in the front

passenger seat, and the 16-year-old sat in the back seat. Vargas turned around and greeted the 16-

year-old. According to Vargas, he had a full view of the 16-year-old’s face.

¶ 11   Vargas identified the 16-year-old as defendant in court. Initially, Vargas pointed to

another 16-year-old in the gallery who “looked like” defendant. Because a screen was blocking

his view, the court requested that Vargas step down from the witness stand and move to the

middle of the courtroom, at which time Vargas noticed defendant and identified him as the

shooter. On cross-examination and redirect, Vargas maintained his in-court identification of

defendant as the shooter.

¶ 12   Vargas continued to testify that, after Guedes and defendant entered his vehicle, he drove

three blocks to Galindo’s house with the TrailBlazer following him. Vargas testified that, while

Guedes and defendant seemed “all right,” Vargas was suspicious and continually checked his

rearview mirror to keep his eye on defendant. During the drive, defendant was quiet and kept his

head down. Not three minutes later, Vargas arrived at Galindo’s residence, and they exited the

vehicle. Vargas noticed defendant walk to the TrailBlazer, obtain a small roll of money, and then



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walk back toward him. It was raining, so defendant had the hood of his sweatshirt over his head,

but Vargas could still view defendant’s face. 1 Vargas informed Galindo they had arrived, and

Galindo instructed him to park in the alley. Vargas, Guedes, and defendant entered Vargas’s

vehicle again, and Vargas parked in the alley next to Galindo’s garage. Vargas, Guedes, and

defendant exited the vehicle and proceeded to knock on the basement door. Galindo answered

the door, and the four individuals stood in the vestibule. Upon entering the vestibule there was

another threshold leading to a basement apartment that was under construction. Four Mason jars

filled with cannabis were on top of a washing machine that was in the vestibule. Vargas testified

that the area where they stood was narrow and, from where he was standing, he had a clear view

of Guedes but could only view defendant’s shoes and part of defendant’s sweatshirt.

¶ 13    Galindo handed a Mason jar to Guedes. Guedes opened the jar and removed some

cannabis. Guedes handed the cannabis to defendant, who indicated it was “good.” Defendant

then handed the cannabis back to Guedes, who placed it back in the Mason jar and closed the lid.

Guedes attempted to negotiate a lower price for the cannabis, and Galindo held firm on his price.

Guedes then turned to defendant and instructed him to pay Galindo. At that moment, Vargas

viewed defendant’s hand extend and heard the sound of a handgun being “clock[ed] back.”

Vargas then noticed a handgun in defendant’s left hand. Vargas testified he froze in disbelief as

he observed defendant point the handgun toward Galindo. Galindo then lunged toward defendant

and Guedes. According to Vargas, he “could see for like a split second” Guedes and Galindo

“kind of tumbling one over another and fighting.” Vargas then turned and ran toward the back of

the basement apartment.

¶ 14    As Vargas ran he heard three to five gunshots, the sound of a Mason jar breaking, and


        1
            The record indicates that this was the only time defendant had the hood of his sweatshirt over
his head.
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then there was silence. Vargas waited a few moments before approaching Galindo. Vargas called

911 but did not tell the truth regarding what had occurred. Instead, Vargas informed the 911

dispatcher that he was walking in the alley when he heard gunshots and found Galindo injured.

Shortly thereafter, the paramedics and detectives arrived. Vargas spoke with the detectives and

relayed to them the same version of the story he had provided to the 911 dispatcher.

¶ 15   Although Vargas admitted he initially lied to the detectives, he testified he “tr[ied] to give

them the best possible description” of the offenders. Vargas described defendant as “a younger

16, 17-year-old male, short hair, wearing dark colored clothing, possibly black jeans and a dark

colored hoodie as well.” Ultimately, Vargas provided the detectives his cell phone number and

was allowed to leave.

¶ 16   Five days later, Vargas voluntarily went to the police station where he was informed that

the detectives had recovered information from Galindo’s cell phone, which included his text

messages to Vargas regarding the drug transaction. Confronted with this information, Vargas

told the detectives the truth of what occurred. He gave the detectives consent to search his cell

phone and identified Alfaro from a photo array. On September 16, 2014, Vargas also identified

Guedes from a photo array. Over a month later, on October 23, 2014, Vargas identified

defendant from a photo array. In regards to the photo array, Vargas testified he identified

defendant within five seconds and had no doubt that defendant was the shooter. Thereafter, on

November 6, 2014, Vargas identified defendant in a physical lineup within “two seconds” of

viewing him.

¶ 17   On cross-examination, Vargas testified that while he had Guedes’s cell phone number he

did not provide it to the detectives. He also could not recall if he deleted text messages from his

phone that were sent and received between September 1, 2014, and September 8, 2014. Vargas



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further testified that he received six phone calls from Guedes between 5:30 p.m. and 5:58 p.m.

on the evening of September 5, 2014. Guedes’s phone records indicated these calls were as few

as 24 seconds in length and as many as 75 seconds in length. Vargas could not recall these

conversations.

¶ 18    On redirect, Vargas testified that Guedes called him after the shooting occurred but he

did not take any of these calls. According to Vargas, he was speaking with the detectives at the

time these phone calls were made. He further clarified his testimony that he did not observe

defendant touch the Mason jar.

¶ 19    A series of text messages that were exchanged between Vargas and Alfaro and between

Vargas and Guedes were admitted into evidence and published to the jury.

¶ 20    Abdalla Abuzanat, an evidence technician for the Chicago Police Department, testified

that on September 5, 2014, he was assigned to process a crime scene in the 6200 block of South

Kilpatrick. Abuzanat observed Galindo on the floor directly inside the basement door. There was

also broken glass, marijuana, cartridge casings, and blood on the floor. Abuzanat photographed

and took video of the scene. Abuzanat recovered six cartridge cases. He also observed blood near

the entrance of the exterior door, the door frame, and where the victim was lying. He also

collected pieces of broken glass and the Mason jar lid. On cross-examination, Abuzanat testified

that blood was discovered on the bottom of the door at the top of the stairs that led to the first

floor apartment. The photographs taken by Abuzanat were admitted into evidence and published

to the jury.

¶ 21    Caryn Tucker, a firearm and toolmark expert employed by the Illinois State Police

Division of Forensic Services, testified that she analyzed the eight bullets recovered from the

victim’s body and the six cartridge casings and determined that they were all fired from the same



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firearm. The weapon was unknown because she was never provided with a weapon to compare

with the bullets and casings.

¶ 22   Kenan Hasanbegovic, a forensic scientist for the Illinois State Police, testified that he

conducted DNA analysis on five blood samples recovered from the scene. He received DNA

standards from the victim, Alfaro, Guedes, and defendant and compared those standards to the

blood samples recovered. The DNA from the five samples matched that of the victim.

¶ 23   Dr. Latanja Watkins, an assistant medical examiner employed by the Cook County

Medical Examiner’s Office, testified that she performed the autopsy on Galindo. She observed

eight bullet wounds on Galindo’s body: four in his back, one to his side, one to his right arm, one

to his abdomen, and one to the back of his right leg. According to Dr. Watkins, there was no

evidence of close-range firing, which she defined on redirect as being in a range of less than

three feet. Dr. Watkins opined that Galindo’s cause of death was multiple gunshot wounds and

the manner of death was homicide. On cross-examination, Dr. Watkins testified that the wound

path for all but one of the eight bullets was downward; only the gunshot wound to the abdomen

had a “slightly upward path.”

¶ 24   John Gorski, a latent fingerprint analyst for the Illinois State Police, testified that he

discovered two latent fingerprints suitable for comparison from the lid of the Mason jar. One of

the latent fingerprints matched the fingerprint of Gloria Valdez (the victim’s girlfriend); the other

matched the fingerprint of Guedes. On cross-examination, Gorski testified that he did not

discover defendant’s fingerprints on any of the items he examined in this case.

¶ 25   Detective Murphy testified that on September 5, 2014, at 5:11 p.m. he was assigned to

the homicide investigation involving the death of Galindo. When he arrived at the scene at

5:30 p.m. he observed Galindo on the floor of the vestibule surrounded by broken glass and six



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cartridge casings. Detective Murphy then interviewed Vargas, who provided him with a

description of two individuals. According to Detective Murphy, Vargas described them as two

male Hispanics, one who was “husky, about 30, black hair with some specks of gray in it, and a

beard. The other one he said was a young, thin Hispanic, about 16 or 17” with black clothing.

Vargas also provided Detective Murphy with his cell phone number.

¶ 26   Galindo’s cell phone was recovered and examined. Detective Murphy read text messages

between the victim’s cell phone and another phone number indicating they were trying to set up

a marijuana deal with a third party. Detective Murphy later determined that the phone number

belonged to Vargas. Detective Murphy then interviewed Vargas again on September 10, 2014,

and Vargas provided him with the information that was later consistent with Vargas’s testimony.

Vargas also gave Detective Murphy consent to search his cell phone. He also provided Detective

Murphy with Guedes’s and Alfaro’s cell phone numbers. Subsequently, Detective Murphy

interviewed Alfaro, who provided him with Guedes’s name. On September 16, 2014, Detective

Murphy created a photo array with Guedes’s photograph and presented it to Vargas, who

“immediately” identified Guedes as the “husky” individual. Guedes was subsequently arrested in

Kissimmee, Florida, in January 2015.

¶ 27   Detective Murphy continued his investigation into the third individual identified as the

shooter. On October 22, 2014, Detective Murphy had a conversation with Officer Slepski 2 of the

Cook County Sheriff’s Police Department regarding the remaining individual he was seeking to

identify. Officer Slepski provided him with the nickname of an individual who went by “Flaco”

and e-mailed him a photograph of “Flaco.” The photograph, which was introduced into evidence

and published to the jury, was an image of a group of individuals with the one identified as

“Flaco” wearing a black basketball jersey with gold trim with no hat. The following day,
       2
           Officer Slepski’s full name does not appear in the record.
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Detective Murphy spoke with Officer Vin 3, another officer who worked with Officer Slepski,

who provided him with defendant’s legal name as the individual in the photograph. Detective

Murphy discovered defendant’s photograph in the police database and created a photo array of

five individuals including defendant using defendant’s physical characteristics as a guide.

According to Detective Murphy, there was no requirement at that time regarding the number of

photographs that were to be included in a photo array. On October 23, 2014, Detective Murphy

presented Vargas with the photo array. Out of the five individuals pictured, Vargas

“immediately” identified defendant as the shooter within “seconds.”

¶ 28   On November 6, 2014, defendant was placed in custody, and a physical lineup was

conducted. After running a search of those individuals in custody who matched defendant’s

description, Detective Murphy could find no suitable individuals for the lineup. Accordingly,

Detective Murphy obtained two Hispanic male volunteers from the neighborhood, a 17-year-old

and a 19-year-old, to participate in the lineup. A 30-year-old male Hispanic police officer also

participated. According to Detective Murphy, Vargas identified defendant in the lineup

“immediately.”

¶ 29   On cross-examination, Detective Murphy testified that no fingerprints, blood, or DNA

belonging to defendant were discovered at the crime scene. He also testified that Vargas did not

receive any phone calls while he was being interviewed. Moreover, Detective Murphy did not

discover any of the phone calls from Guedes in Vargas’s phone. Detective Murphy further

testified that in the course of his investigation he obtained the phone records of Vargas, Alfaro,

and Guedes. In examining those records, defendant’s phone numbers (two phone numbers were

attributed to defendant) were not found in any of those records. In addition, there were no calls to

or from Vargas, Alfaro, or Guedes from defendant’s parents’ phone numbers. Detective Murphy
       3
           Officer Vin’s full name does not appear in the record.
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also testified that, while he retrieved defendant’s cell phone, it was missing the “SIM card” and

therefore he did not submit the cell phone to the Regional Forensics Computer Laboratory for

analysis.

¶ 30   The State rested and defendant moved for a directed verdict, which the trial court denied.

The defense then presented the following testimony.

¶ 31   Dr. Kimberly McClure testified as an expert in the field of eyewitness identification

without objection. Dr. McClure testified she reviewed the grand jury testimony, videotaped

interviews of Vargas, the police reports, the photo array, and lineup, as well as Vargas’s trial

testimony. Dr. McClure testified that even under optimal circumstances, i.e., where “a person has

all the time in the world to view, the person is not under any duress or stress, [and] the person

has an immediate opportunity to identify the person that they saw,” there is only “67 to 70

percent” accuracy in those identifications.

¶ 32   Dr. McClure opined that the factors that tend to reduce the reliability of an eyewitness

identification were present in the case. Regarding Vargas’s degree of attention during his

encounter with defendant, Dr. McClure testified that, according to Vargas’s grand jury

testimony, the encounter commenced as something “routine and not very memorable.” She

further testified that Vargas’s focus of attention “seemed to be on the older adult male that was

involved. *** It seemed as if the younger male involved said maybe a hand[ ] full of words at

most, was pretty peripheral and not central to the interactions with Mr. Vargas and that would

lead me to believe that the older adult male would be the center of Mr. Vargas’s attention.”

¶ 33   Dr. McClure also testified regarding a “phenomenon called inattentive blindness.”

According to Dr. McClure, “inattentive blindness” is where “we can interact with someone and

we can see that person clearly, and it seems as if we are processing information about them but



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in fact we are not really processing information that’s related to the person’s face or how she or

he might look and how we might subsequently be able to recognize them.”

¶ 34   Dr. McClure also testified regarding “weapon focus” and that it was present in this case.

According to Dr. McClure, “[s]tress does impact what we are able to remember about an

experience as does when there’s a weapon present.” Dr. McClure explained that when a weapon

is present, the observer’s focus turns to the weapon: “One explanation for the weapon focus

effect is most likely we attend to things that are most threatening to us.” Thus, when an

observer’s focus is solely on a weapon, the observer does not process any additional cues that

would subsequently assist in making an identification.

¶ 35   Dr. McClure further testified that the delay in time of identifying an individual “is going

to decay any memory traits of anything you many have in anything you encoded or anything you

have processed.” Dr. McClure also discussed the “intervening variables” between the event and

the actual identification that can impact memory. According to Dr. McClure, intervening

variables “impact and change memory because we don’t just witness the event and never talk

about it again. *** We might tell our friends[, we] might tell our family members. Each time we

are retrieving that information it has the potential to change how we remember that experience

and how we remember the individual[ ] involved. It is not uncommon *** for these intervening

events to actually get incorporated into memories. We call that the misinformation effect.”

¶ 36   Specifically addressing the 48-day delay between the shooting and Vargas being

presented with the photo array, Dr. McClure testified that it is a “very long time” in terms of

memory. Dr. McClure noted that after 72 hours there is a detrimental effect on memory and it

“drops off quickly, very fast. After 72 hours, 40 to 50 percent is a ballpark figure that I am

pulling from my recollection.”



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¶ 37   Dr. McClure also discussed the lineup administration guidelines of the Department of

Justice. Dr. McClure explained that these federal guidelines were created to protect an innocent

suspect who simply looks like the person the witness observed from being identified as a

perpetrator. In regards to photo arrays, the federal guidelines recommend a minimum of five

fillers, for a total of six photographs in the array. This creates a 16.6% chance that any given

member of the array would be selected. These fillers should be selected based upon the

eyewitness’s description of the perpetrator. When the description lacks identifying characteristics

like tattoos or scars, then it is important to ensure the photographs of the individuals in the array

match the basic features of the eyewitness’s description. In regards to lineup procedures, the

guidelines recommend a minimum of four fillers, for a total of five individuals in the lineup.

¶ 38   Dr. McClure also explained that the guidelines recommend a double-blind procedure be

employed where the detective who is administering the photo array or lineup does not know who

the suspect is or where the suspect is placed and ideally should not have any knowledge of the

case at all. Dr. McClure testified that these procedures are recommended because those

administering the array or lineup “give off subtle cues and when our memory is maybe unreliable

or a little faulty and we are not certain about things we look to cues in our environment that sort

of lead us.” These cues can be unintentional or intentional. In this case, Detective Murphy, who

was the lead detective and therefore not an independent administrator, conducted the photo array

and lineup. Dr. McClure further testified that it was problematic that defendant was the only

individual who appeared in both the photo array and the lineup. According to Dr. McClure, one

cannot be sure that Vargas’s identification of defendant was because “he was actually there

during the event or was it because he was the only person that was also in the photographic

lineup.”



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¶ 39   On cross-examination, Dr. McClure testified she was not compensated for her testimony

apart from her travel and accommodation expenses and that this was the first time she had

testified as an expert in eyewitness identification. She did not interview anyone involved with the

case in preparing her opinion in the case, only documents and videotaped interviews of Vargas.

Dr. McClure testified she did not review the Chicago Police Department guidelines for

administering photo arrays and lineups, only the federal guidelines. She was also unaware of

how Detective Murphy presented Vargas with the photo array.

¶ 40   Dr. McClure explained that her statistic that 67 to 70% of eyewitness identifications are

reliable was based on social cognitive experiments that are not oftentimes involving actual

crimes. According to Dr. McClure, the studies, however, do attempt to mimic the stressors

eyewitnesses to crimes would experience. Dr. McClure testified that “most of the time people are

pretty accurate” when describing basic features such as gender, ethnicity, and general

physicality.

¶ 41   Dr. McClure further testified that memories related to traumatic experiences can be

retained over time and that an individual’s memory can increase during a traumatic event.

According to Dr. McClure, however, there is an upper limit to an individual’s ability to retain

memories when under duress. Once an individual’s ability to cope with the stress is exceeded

then his memory deteriorates.

¶ 42   Dr. McClure also testified that when one is questioned over a period of time there is not

an increase in accuracy in memory, but an increase in confidence. This means that someone can

be confident in his memory because he has had “retrieval fluency,” i.e., he has practiced

retrieving it and told a story to himself and others for so long that he is confident he is correct

when in fact nothing has happened to affect the individual’s accuracy. To this end, Dr. McClure



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further testified that while repeating a memory during an interview can “lock in an accurate

memory” that only occurs where there is no misleading information or misinformation provided

during the interview, because that misinformation can also be incorporated into the memory

leading to “irretrievable effects.”

¶ 43   On redirect examination, Dr. McClure testified that “almost any opportunity [to view] is

not quality opportunity [to view] when we are talking about processing information into

memory.” In this case, Vargas seemed as if he “wasn’t really paying attention to the young

perpetrator” and that the “young perpetrator *** seemed to be sort of a secondary character in

the interactions up until the point where there was actually the weapon pulled.”

¶ 44   Dr. McClure also testified that Vargas had the opportunity to go over the details of the

event with detectives and the state’s attorneys several times. In that vein, Dr. McClure testified

that eyewitness confidence or certainty is not a good indicator of accuracy and that the retrieval

process can actually inflate confidence “[s]o people appear as if they are more confident about

what they saw but they are not any more accurate about what they experienced.”

¶ 45   Rosalva Corral, defendant’s mother, testified that on September 5, 2014, she went to

work at 8:30 a.m. That evening a family barbeque was planned at her brother-in-law’s residence

in the Pilsen neighborhood. Her brother-in-law, Juan Corral; his wife, Angelica Corral; their two

children, Andres and Michael; and she; her husband; and her two children, including defendant,

were to be in attendance. After lunchtime, Rosalva spoke with defendant over the telephone and

instructed him to be ready for Ruben Quiroga, defendant’s cousin, to pick him up after 3 p.m.

Rosalva testified after she finished work at 4:30 p.m. her husband picked her up from the train

station and they ran errands. She then dropped her husband off at home and went to pick up

defendant around 9 p.m. When she arrived, Juan, Angelica, their children, and her children were



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there. The children were playing video games, and the adults were in the kitchen. She left with

defendant sometime after 10 or 11 p.m. and returned home. She further testified she did not

know anyone named Anthony Guedes and that no one in her family was related to someone

named Anthony Guedes.

¶ 46   On cross-examination, Rosalva testified that September 5, 2014, was the Friday after

Labor Day and her son was not in school that day because she was intending to move to Chicago

and had not enrolled him. She further testified that prior to her testimony she spoke with

Angelica and Juan about what they did on September 5, 2014, together in a group.

¶ 47   Ruben Quiroga testified that on September 5, 2014, he was working construction in

Chicago from 7 a.m. to 3 p.m. He picked up defendant from defendant’s residence in the 7600

block of LeClaire Avenue in Burbank, Illinois, around 4:30 or 4:45 p.m. and took him to

Angelica and Juan’s house in Pilsen for a barbeque. They arrived in Pilsen at 5:30 or 5:40 p.m.

Ruben stayed to have a taco and left at 6 p.m. Ruben testified defendant was present at the

barbeque the entire time he was present. On cross-examination, Ruben testified that prior to his

testimony he spoke with his relatives about picking defendant up on September 5, 2014.

¶ 48   Angelica Corral, defendant’s aunt, testified that on September 5, 2014, she was at work

from 8 a.m. until 2 p.m. After work she went home because she was having people over for a

barbeque. Ruben brought defendant over, and defendant went to her sons’ room and only came

out for food. On cross-examination, Angelica testified that Ruben dropped off defendant at 5:30

p.m. and left around 6 p.m., after her husband came home. She further testified she could recall

the events of September 5, 2014, because her son was to have gone back to college that day but

instead left the following day.

¶ 49   Defendant testified as follows. On September 5, 2014, he was 16 years old and resided in



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Burbank, Illinois. That afternoon he was at home. He did not attend school because he had not

enrolled, as his parents were planning on moving to Chicago. Shortly after he woke up, his

mother called to tell him to be ready for Ruben to pick him up. At 4 p.m. Ruben picked him up

from the house, and they drove to his aunt’s residence in Pilsen to attend the barbeque.

According to defendant, it was his cousin Andres’s last day home before going to college. When

he arrived at his aunt’s house, his aunt, uncle, and two cousins were there. He went to his

cousin’s room and stayed there until 9 p.m., when his mother picked him up.

¶ 50   When presented with a photograph of Guedes, defendant indicated that he did not know

him and was not friends with him. When asked whether he knew anyone named Guedes,

defendant responded that he knew an Isaiah Guedes who he used to play baseball with before he

moved away. According to defendant, Isaiah Guedes was his same age.

¶ 51   On cross-examination, defendant testified that he never knew anyone with the name

Anthony Guedes. Defendant further testified that when he was arrested on November 6, 2014, he

was interviewed by Detective Murphy in the presence of defendant’s father. The prosecutor then

presented defendant with a portion of this videotaped interview and asked whether his response

to the question, “do you know Guedes” was “Anthony, yeah.” Defendant responded that he did

not hear that and could not recall being asked whether he knew Guedes. When asked whether he

was called “Flaco,” defendant responded that his grandmother called him by that name as did his

childhood friends. When asked what time Ruben picked him up on September 5, 2014, defendant

responded that it was not “4:00 exactly. I said within that hour, yeah.” He could not recall the

weather conditions at the time.

¶ 52   On redirect, defendant testified that Detective Murphy did not present him with a

photograph of Guedes during the interview. He also testified that Detective Murphy did not refer



                                              17
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to Guedes as “Anthony.”

¶ 53   The defense rested, and the State called Detective Murphy in rebuttal. Detective Murphy

testified that there was light rain at 4:45 p.m. on September 5, 2014. At 5 p.m. the rain became

heavy and lasted for three to five minutes. Light rain was intermittent shortly after 5 p.m.

Detective Murphy further testified that in the course of his investigation of this offense he

obtained a surveillance video from a business located in the 6300 block of South Keating. The

surveillance video revealed that at 4:58 p.m. on September 5, 2014, there was heavy rain that

cleared up at 5:04 p.m.

¶ 54   Detective Murphy also testified regarding his interview of defendant on November 6,

2014. According to Detective Murphy, he asked defendant whether he knew Guedes, and

defendant responded, “Anthony, yeah.”

¶ 55   On cross-examination, Detective Murphy clarified that he did not ask defendant if he

knew Anthony Guedes, only “Guedes” and that the interview terminated shortly thereafter.

Detective Murphy further testified that he wrote in his report that defendant said he knew

“Anthony Tony Guedes” and that Tony Guedes was in quotes “[b]ecause that was what Guedes

was known by his nickname or informal name was Tony.”

¶ 56   Defendant testified in surrebuttal that he had not viewed the videotape of the November

6, 2014, interrogation until it was played in court. He further testified that, when asked “do you

know Guedes,” his response was, “I think, yeah.”

¶ 57   After closing arguments and jury instructions, the jury deliberated and found defendant

guilty of first degree murder and that he personally discharged a firearm that proximately caused

Galindo’s death.

¶ 58   Following defendant’s unsuccessful motion for a new trial, the trial court conducted a



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sentencing hearing. The State presented evidence in aggravation, which included the testimony

of Galindo’s mother, Sharon Lachcik, who expressed the emotional consequences she has

suffered as a result of her son’s death.

¶ 59   In mitigation, defendant presented the testimony of numerous witnesses. The first witness

was Michael Donovan, the Catholic chaplain for the Archdiocese of Chicago who testified he

met defendant while volunteering at the juvenile detention center. Donovan testified that he

observed defendant mature over the years and that he has potential for increased rehabilitation.

¶ 60   Sister Sarah Nunez testified that she met defendant while she was volunteering at the

juvenile detention center. Sister Nunez testified that when defendant was first incarcerated he

was scared and nervous; she observed him “settle into the system recognizing that he had some

deep thinking to do and he little by little started to speak more and more about the deep

appreciation that he had, especially for his family.” Sister Nunez also testified that defendant

acknowledged he made “some choices that weren’t great in his life but that he really wanted to

step forward and make better on all the issues in his life that he had left aside.”

¶ 61   Defendant’s mother, Rosalva, also testified in mitigation. According to Rosalva,

defendant loves his family and has matured since his imprisonment.

¶ 62   Defense counsel then requested, “based on his age at the time of the crime that you

exercise your discretion and not imposing [sic] the 25 years, additional to the 20 that is the

minimum on this particular case.” Defense counsel argued that defendant had taken 19 courses

while detained, received 14 merit certificates, and obtained very good grades in his classes.

Defense counsel also referenced a letter from Cardinal Cupich in support of defendant and

maintained that defendant has “already developed and starting [sic] to rehab, starting to grow up

and become a person who is conscious about society and conscious of what he needs to do in



                                                  19
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order to be a successful and good citizen while in custody.”

¶ 63   In response, the State argued that “the most important factor” in sentencing defendant

was his age and referenced the Miller factors. The State maintained that there was no indication

that defendant had diminished capacity and could not appreciate the consequences of using a

handgun and shooting someone eight times. The State also pointed to the fact there was no

evidence of “outside pressure” on defendant during the offense. Defendant also has a loving

family and was able to participate in his defense. The State expressly stated it was not seeking a

life sentence or a de facto life sentence. Instead, the State requested the trial court balance

defendant’s age and circumstances with the seriousness of the offense.

¶ 64   Defendant then made a statement in allocution. Defendant apologized to Galindo’s family

for their loss, professed his innocence, and requested the trial court have mercy on him.

¶ 65   The trial court then rendered the following sentence:

               “I have listened to the presentation of evidence, the arguments of the attorneys

       and Mr. Corral. And also taken into consideration the new statute which deals with young

       people under eighteen years of age and the United States Supreme Court [decision] in

       Miller versus Alabama and Morris and other Illinois Appellate court cases.

               ***

               Looking at this case here for sentencing, I am impressed with Mr. Corral’s

       concern for Gino’s family. I understand what he said, that he doesn’t—he does [sic] in

       effect disappointed with the jury but respects the system itself.

               I have looked at the outstanding things that he has done while being in juvenile

       detention. It is just a shame that these things don’t take place without some catastrophe

       happening, that people wake up and see what’s going on in life.



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               Considering the United States Supreme Court case and our other courts that have

       said, youth is the most important factor here. We have seen witnesses testify as to Mr.

       Corral’s progress as far as his potential for rehabilitation.

               First off, under these circumstances, I am not going to—there is an enhancement,

         if you kill somebody during the commission of a first degree murder and you do it with

         a firearm and cause the death of that individual, then the sentence there, which is an

         enhancement is 25 years to natural life.

               It is more serious a sentence than the first degree murder itself. I don’t understand

       the logic. I am not going to impose the enhancement because of the factor [sic] that have

       been presented because of the change for rehabilitation.

               Looking at the impetuosity that occurred during the event, certainly nobody

       [would] condone this event. It was wrong. So the enhancement will not be applied.

               To the sentencing on first degree murder, I am looking at the statutory factors in

       mitigation, statutory factors in aggravation and non-statutory factors in mitigation along

       with the new statute and the case law that applies at this time.

               At this time, I am going to sentence Mr. Corral to 31 years in the state

       penitentiary. Three years MSR.”

This appeal followed.



¶ 66                                        ANALYSIS

¶ 67   On appeal, defendant maintains that (1) the State failed to prove him guilty beyond a

reasonable doubt, (2) the trial court erred in denying his motion to suppress identification, (3) the

trial court erred in limiting the defense expert from testifying on her opinion regarding the



                                                 21
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eyewitness’s identification of defendant as the shooter, and (4) the sentence imposed by the trial

court was excessive and failed to follow the dictates of Miller. We address each argument in

turn.

¶ 68                                  Sufficiency of the Evidence

¶ 69    Defendant first contends that the State failed to prove him guilty beyond a reasonable

doubt where the only evidence linking him to the crime was the identification testimony of

Vargas which was not credible and unreliable. Defendant further asserts that the State failed to

meet its burden of proof where Vargas identified defendant after viewing a suggestive photo

array and lineup and defendant presented an unrebutted alibi. Defendant maintains that for these

reasons, the evidence presented by the State was insufficient to sustain his conviction.

¶ 70    The State responds that a positive identification of a defendant by a single witness is

sufficient to sustain a conviction, provided the witness had an opportunity to view the defendant

under conditions permitting a positive identification. The State maintains that because Vargas

viewed defendant for 30 minutes prior to the shooting he had an adequate opportunity to observe

defendant under conditions permitting a positive identification and defendant’s conviction should

be affirmed.

¶ 71    When reviewing the sufficiency of the evidence, the relevant inquiry 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. Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979); People v. Martin, 2011 IL 109102, ¶ 15. On review, all

reasonable inferences from the evidence are drawn in favor of the State. Jackson, 443 U.S. at

318-19; Martin, 2011 IL 108102, ¶ 15. The reviewing court will not retry the defendant or

substitute its judgment for that of the trier of fact on questions involving the weight of the



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evidence, conflicts in the testimony, or the credibility of witnesses. People v. Jackson, 232 Ill. 2d

246, 280-81 (2009).

¶ 72   The reviewing court must carefully examine the record evidence while bearing in mind

that it was the fact finder who observed and heard the witnesses. People v. Cunningham, 212 Ill.

2d 274, 280 (2004). Testimony may be found insufficient under the Jackson standard but only

where the evidence compels the conclusion that no reasonable person could accept it beyond a

reasonable doubt. Id. However, the fact a jury did accept testimony does not guarantee it was

reasonable to do so. Id. Reasonable people may on occasion act unreasonably. Id. Therefore, the

fact finder’s decision to accept testimony is entitled to great deference but is not conclusive and

does not bind the reviewing court. Id. Only where the evidence is so improbable or

unsatisfactory as to create reasonable doubt of the defendant’s guilt will a conviction be set

aside. People v. Hall, 194 Ill. 2d 305, 330 (2000).

¶ 73   Defendant here was convicted of first degree murder. A person commits first degree

murder if, in performing the acts that cause a death, he or she either intends to kill or do great

bodily harm to the victim or another individual, knows that the acts will cause the victim’s or

another’s death, or knows the acts create a strong probability of death or great bodily harm to the

victim or another. 720 ILCS 5/9-1(a)(1) (West 2016). Defendant, however, does not contest the

elements of the offense but instead challenges the reliability of Vargas’s identification as well as

his credibility. We first examine the reliability of Vargas’s identification of defendant.



¶ 74                   Reliability of Vargas’s Identification of Defendant

¶ 75   Where identification is the main issue, the State must prove beyond a reasonable doubt

the identity of the individual who committed the charged offenses. People v. Lewis, 165 Ill. 2d



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305, 356 (1995). In assessing identification testimony, Illinois courts utilize a five-factor test

established in Neil v. Biggers, 409 U.S. 188, 199-200 (1972); People v. Slim, 127 Ill. 2d 302, 307

(1989). The factors are “(1) the opportunity the victim had 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 victim at the identification

confrontation; and (5) the length of time between the crime and the identification confrontation.”

Slim, 127 Ill. 2d at 307-08.

¶ 76   Prior to applying the Biggers factors, we observe that the jury was also presented with the

expert testimony of Dr. McClure on the subject of eyewitness identification reliability. When a

defendant appeals his conviction arguing the evidence was insufficient, it is our duty to examine

all of the evidence presented in the light most favorable to the State, not just the evidence

presented by the State. See Jackson, 443 U.S. at 319. Thus, our analysis will encompass not only

the evidence presented by the State but also the evidence presented by the defense, including the

expert testimony.

¶ 77   Defendant first challenges Vargas’s testimony identifying him as the shooter. Defendant

maintains that prior to the shooting Vargas’s attention was focused on Guedes and Vargas had a

limited opportunity to view the younger offender. When considering whether a witness had an

opportunity to view the offender at the time of the offense, courts look to “whether the witness

was close enough to the accused for a sufficient period of time under conditions adequate for

observation.” People v. Carlton, 78 Ill. App. 3d 1098, 1105 (1979). While Dr. McClure testified

that viewing a person’s face over 30 minutes was a brief period of time and that Vargas’s

attention was focused on Guedes, the jury was also presented with evidence that Vargas had the

opportunity to view defendant’s face consistently for those 30 minutes. Vargas testified he first



                                                24
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viewed defendant’s face when he exited the backseat of the TrailBlazer and entered Vargas’s

vehicle. Vargas then turned around and greeted defendant. During the three-block ride to

Galindo’s residence, Vargas testified he viewed defendant in the rearview mirror. Upon reaching

Galindo’s residence, Vargas viewed defendant’s face as he walked from the TrailBlazer back

toward him. The evidence established that defendant did have a hood over his head at this time

because it was raining, but the fact defendant wore a hood over his head does not necessarily

mean Vargas could not observe defendant’s face. See People v. Green, 2017 IL App (1st)

152513, ¶ 109 (eyewitness had a sufficient opportunity to view the defendant’s face despite the

fact the defendant was “wearing a sweatshirt with his hood up”). Moreover, the record indicates

that this was the only time defendant was wearing the hood up over his head. Thereafter,

defendant reentered Vargas’s vehicle, and they drove to the alley. Defendant then followed

Vargas to the basement of Galindo’s residence. While Vargas testified he could not view

defendant’s face during this portion of their encounter, the evidence demonstrates he had ample

opportunity to view defendant’s face prior to the drug deal.

¶ 78   In regards to the second Biggers factor, the witness’s degree of attention at the time of the

offense, the testimony was clear that Vargas was focused on defendant in the minutes leading up

to the shooting. Although Dr. McClure testified that Vargas’s focus was primarily on Guedes,

such testimony does not imply Vargas was not paying attention to defendant. In fact, Vargas

testified in detail regarding defendant’s demeanor and mannerisms during the drive to Galindo’s

residence and his behavior during the drug deal. See People v. Malone, 2012 IL App (1st)

110517, ¶ 32 (eyewitness had a high degree of attention prior to when the defendant brandished a

handgun in an armed robbery).

¶ 79   As to the third Biggers factor, the accuracy of the witness’s prior description of the



                                                25
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defendant, the testimony established that Vargas initially identified defendant as a thin 16- to 17-

year-old Hispanic male wearing dark colored clothing. Defendant, who was a thin 16-year-old at

the time of the offense and is a male Hispanic, met that description. See also Slim, 127 Ill. 2d at

309 (a witness’s positive identification can be sufficient even though the witness gives only a

general description based on the total impression the accused’s appearance made).

¶ 80   The fourth Biggers factor goes to the witness’s level of certainty at the subsequent

identification. Vargas testified that he indentified defendant as the shooter within 3 seconds of

viewing the photo array and between 5 to 10 seconds upon viewing the lineup. Detective Murphy

corroborated this account when he testified that Vargas identified defendant in the photo array

and lineup “immediately.” Accordingly, the evidence demonstrates that Vargas identified

defendant definitively in the photo array as well as in the lineup. See Green, 2017 IL App (1st)

152513, ¶ 112 (the eyewitness never wavered in his degree of certainty that the defendant was

the shooter, despite not identifying the defendant until three months after the shooting).

¶ 81   The final Biggers factor, the length of time between the crime and the identification

confrontation, also weighs in favor of the State. Here, Vargas was presented with the photo array

including defendant’s image 48 days after the offense, and his identification of defendant in the

lineup occurred 14 days thereafter. Courts have found identifications to be reliable even where

they were made a considerable time after a crime. See Malone, 2012 IL App (1st) 110517, ¶ 36

(identification reliable where made a year and four months after crime); People v. Rodgers, 53

Ill. 2d 207, 213-14 (1972) (identification made two years after the offense). Even in the face of

Dr. McClure’s testimony that memory significantly diminishes over time, the jury concluded that

Vargas’s identification of defendant as the shooter was accurate. See Jackson, 443 U.S. at 319

(“Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher



                                                26
1-17-1501


of the evidence is preserved through a legal conclusion that upon judicial review all of the

evidence is to be considered in the light most favorable to the prosecution.” (Emphasis in

original.)).

¶ 82    After weighing each factor, we conclude Vargas viewed the shooter under circumstances

permitting a positive identification. We observe that “[n]ormally, the jury decides the weight that

an identification deserves, and the less reliable the jury finds the identification to be, the less

weight the jury will give it.” People v. Rodriguez, 387 Ill. App. 3d 812, 829 (2008). Here, the

jury had the opportunity to determine the credibility of the witnesses and the weight to be given

to their testimony. Jackson, 232 Ill. 2d at 281. The trial court weighed the evidence and by their

verdict found that Vargas’s identification was reliable. We cannot say, when viewed in the light

most favorable to the State, that the identification of defendant as the shooter was insufficient,

and we will not substitute our judgment for that of the trial court and the jury in regard to the

reliability or weight of the identification.

¶ 83                                     Vargas’s Credibility

¶ 84    Defendant maintains that Vargas’s testimony is not credible because he lied to the 911

dispatcher, did not tell the truth to the detectives after the shooting, did not inform the detectives

that Guedes was calling him on the same day, and he identified the wrong person in the

courtroom.

¶ 85    The arguments set forth by defendant are a general attack on the credibility of Vargas.

Minor inconsistencies in the testimony between witnesses or within one witness’s testimony may

affect the weight of the evidence but do not automatically create a reasonable doubt of guilt.

People v. Adams, 109 Ill. 2d 102, 115 (1985). The trier of fact must judge how flaws in parts of a

witness’s testimony, including inconsistencies with prior statements, affect the credibility of the



                                                 27
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whole. Cunningham, 212 Ill. 2d at 283. The trier of fact may accept or reject all or part of a

witness’s testimony. Id.

¶ 86   Here, Vargas was forthcoming in his testimony that he did not tell the 911 dispatcher or

the detectives at the scene of the offense that he was present when the shooting occurred. Vargas

also admitted that he did not come forward with the truth until the detectives informed him that

they obtained his text messages to Galindo implicating him in the drug deal. The jury had before

it this testimony, and it was in their purview to judge Vargas’s credibility. See id.

¶ 87   Moreover, the jury was present when the alleged misidentification of defendant in the

courtroom occurred. Defendant insists that Vargas did not identify him but another 16-year-old

Hispanic male that “looked like” defendant. Our review of the record reveals, however, that

Vargas’s view of the defense table was blocked by a screen and that, as the State asked him if he

could identify the shooter in court, they instructed Vargas to “[s]tand up if you have to, if

anything is blocking your view” and to “get down if you have to get down to get a better view

from the screen.” The trial court also instructed Vargas to go to the middle of the courtroom to

better observe the whole courtroom. Once Vargas stepped down from the witness stand he had a

full view of the courtroom, whereupon he identified defendant as the shooter. The jury observed

this entire exchange and Vargas’s identification of defendant, and it was for the jury to determine

his credibility. We can find no substantial discrepancies in his testimony that warrant reversal on

this basis. See id. at 284 (nothing in the record demonstrated that the entirety of the witnesses’

testimony was unworthy of belief).

¶ 88                                   Alibi Testimony

¶ 89   Lastly, defendant asserts that his alibi was strong and unimpeached. According to

defendant, the evidence he presented demonstrated that on September 5, 2014, he was at home



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until his cousin picked him up around 4:30 p.m. They then drove to his aunt’s residence in

Pilsen, arriving at 5:30 p.m. His aunt testified that defendant remained at her home until 9 p.m.,

when his mother picked him up. Defendant maintains that his testimony along with that of his

mother, cousin, and aunt are all consistent with one another and that it accounts definitively for

his whereabouts at the time the shooting occurred.

¶ 90   Viewing all of the evidence in the light most favorable to the State, as we must, the

evidence in this case sufficiently established that defendant participated in the shooting of

Galindo at approximately 5 p.m. on September 5, 2014. Although defendant presented an alibi

defense, we note that the trier of fact is not obligated to find the testimony of alibi witnesses to

be more credible than the testimony of the State’s witnesses, especially where the alibi witnesses

are related to the accused and possess an obvious bias. See, e.g., People v. Gabriel, 398 Ill. App.

3d 332, 342 (2010); People v. Mullen, 313 Ill. App. 3d 718, 729 (2000). Furthermore, the jury

was presented with testimony from defendant’s mother, cousin, and aunt wherein they admitted

that they had discussed the events of September 5, 2014, “as a group.” In addition, the weight to

be given alibi evidence is a question of credibility for the trier of fact, and there is no obligation

on the trier of fact to accept alibi testimony over positive identification of an accused. Slim, 127

Ill. 2d at 315. We reiterate that a reviewing court should not substitute its judgment for that of the

trier of fact. Jackson, 232 Ill. 2d at 281. Here, the jury heard the evidence and inconsistencies

that defendant relies on to support his challenge to the sufficiency of the evidence and concluded

that defendant was the individual who shot and killed Galindo.

¶ 91   In sum, defendant’s challenge to the sufficiency of the evidence essentially asks this court

to substitute our judgment for that of the jury and resolve the conflicts apparent in the evidence

in his favor, which we cannot do. People v. Rodriguez, 2012 IL App (1st) 072758-B, ¶ 45.



                                                 29
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Moreover, physical evidence and a motive for the shooting were unnecessary to corroborate an

eyewitness account. See People v. Herron, 2012 IL App (1st) 090663, ¶ 23 (“[b]ecause the trial

court found [the witness’] identification and testimony to be credible, the lack of physical

evidence had no bearing on [the defendant’s] conviction”); see also People v. Agnew-Downs,

404 Ill. App. 3d 218, 228 (2010) (motive is not an essential element of the crime). Considering

the record in the light most favorable to the State, we are unable to conclude that the jury’s

finding is so improbable that it creates reasonable doubt as to defendant’s guilt.

¶ 92                           Motion to Suppress Identification

¶ 93    Defendant asserts it was an error for the trial court to deny the motion to suppress pretrial

identification evidence. Defendant maintains that the photo array and lineup were “highly

suggestive” because defendant appeared to be substantially younger than all of the other fillers

and Detective Murphy conducted the photo array and lineup with insufficient fillers. Defendant

further argues that the new statute regulating lineup identification procedures (725 ILCS 5/107A-

2(a)(1), (f)(3) (West 2016)) would have precluded the photo array and lineup procedures used

here.

¶ 94    The State maintains that the trial court properly denied the motion to suppress where

defendant failed to meet his burden to prove the identification was impermissibly suggestive.

The State further argues that the new statute does not apply to defendant’s case where it became

effective on January 1, 2015, after the events of this case occurred.

¶ 95    When challenging the propriety of a pretrial identification procedure, the defendant bears

the burden of proving that the procedure was unnecessarily suggestive and created a substantial

likelihood of misidentification. People v. Lawson, 2015 IL App (1st) 120751, ¶ 39. The State

may rebut defendant’s showing by “clear and convincing evidence that the witness is identifying



                                                 30
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the defendant based on his or her independent recollection of the incident.” People v. Brooks,

187 Ill. 2d 91, 126 (1999). Courts look to the totality of the circumstances when reviewing a

claim of an unnecessarily suggestive identification. Lawson, 2015 IL App (1st) 120751, ¶ 39.

The reviewing court may also consider the evidence presented at trial as well as the suppression

hearing. Id. Where the challenged identification procedure is a photo array or lineup, individuals

selected for the array or lineup need not be physically identical. People v. Allen, 376 Ill. App. 3d

511, 521 (2007). Differences in the appearances of the participants go to the weight of a

witness’s identification, not to its admissibility. People v. Jones, 2012 IL App (1st) 100527, ¶ 24.

A trial court’s factual determination that an identification procedure was not unduly suggestive

should not be reversed unless it is against the manifest weight of the evidence. People v. Gaston,

259 Ill. App. 3d 869, 876 (1994).

¶ 96   We first turn to consider defendant’s contention that section 107A-2 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/107A-2 (West 2016)) supports his conclusion that the

photo array and lineup procedures employed in this case were suggestive. Section 107A-2, which

was enacted by the Illinois legislature on January 1, 2015, governs identification procedures. Id.

The statute sets forth standards and protocols to be utilized by law enforcement officers during

their investigative identification endeavors and mandates that only one suspected perpetrator

may be included in a given lineup (id. § 107A-2(f)(3)(A)), that at least five fillers be included in

a photo array (id. § 107A-2(f)(3)(C)), and that the suspected perpetrator be placed in a different

position in a physical lineup or photo array for each eyewitness called upon to make an

identification (id. § 107A-2(f)(4)). Although there is no dispute that the identification procedures

employed in the instant case did not comport with some of the aforementioned statute’s

mandates, the statute was not in effect when the witnesses in this case were shown photo arrays



                                                31
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and viewed lineups in 2014. Given that the statute did not govern the lineup procedures utilized

in this case, it does not inform our review of defendant’s challenge to the propriety of those

procedures. See People v. Moore, 2015 IL App (1st) 141451, ¶ 21, overruled on other grounds

by People v. Hardman, 2017 IL 121453.

¶ 97   Furthermore, our review of the record reveals that the trial court’s determination that the

identification techniques utilized in this case were not unduly suggestive is not against the

manifest weight of the evidence. First, nothing in the record indicates that the photo array

presented to Vargas was suggestive. The photos are all the same size and possess similar clarity.

In addition, all of the men in the photo array appear to be in the same age range and possess

similar complexions, eye colors, and nearly identical short hairstyles. No tattoos are visible in

any of the pictures.

¶ 98   Our review of the lineup, however, is not so straightforward. At the suppression hearing

Detective Murphy testified that he utilized two “kids” from the surrounding neighborhood (ages

17 and 19) in the lineup because he was having difficulty finding individuals in custody who met

the description of the shooter. To that end, he also utilized a fellow officer to participate in the

lineup. While all three fillers were Hispanic males with dark hair and dark eyes, the officer,

however, happened to be 30 years old and was heavyset. The disparity in the continuity between

the two neighborhood kids, the officer, and defendant is obvious. Thus, defendant was

essentially one of only three individuals who met Vargas’s previous description of the shooter.

Defendant, however, does not present us with any argument or authority that a three-person

lineup is unduly suggestive and instead argues that the State failed to prove by clear and

convincing evidence that Vargas’s identification of defendant as the shooter was based solely on

his independent recollection of the events leading up to shooting.



                                                32
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¶ 99    Even if a defendant can meet his or her burden and prove that a lineup was suggestive,

the State may overcome this showing by clear and convincing evidence that the eyewitness

identified the defendant based on his or her independent recollection of the incident. Brooks, 187

Ill. 2d at 126. We have already determined that Vargas identified defendant based upon our

weighing of the Biggers factors. Our review of the record reveals that Vargas identified

defendant as the shooter based on what he observed and not on any suggestive procedures

employed by the police. See id. at 132. Accordingly, we conclude the trial court did not err in

denying defendant’s motion to suppress. See People v. Underwood, 263 Ill. App. 3d 780, 786

(1994) (concluding “a possibly suggestive procedure” did not require reversal where the

eyewitness made a positive identification of the defendants).

¶ 100                                Expert Opinion Testimony

¶ 101 Defendant next asserts that the trial court erred in limiting Dr. McClure from testifying

regarding her opinion of Vargas’s identification of defendant. Defendant maintains that the

Illinois Supreme Court in People v. Lerma, 2016 IL 118496, found that the use of eyewitness

identification experts should be permitted in order to aid the trier of fact in understanding the

potential flaws of eyewitness identifications and that Illinois Rule of Evidence 704 (eff. Jan. 1,

2011) allows experts to give opinions on ultimate issues of fact. Accordingly, defendant

concludes the trial court abused its discretion when it did not allow Dr. McClure to testify

regarding her ultimate opinion that Vargas’s identification was unreliable.

¶ 102 In response, the State argues that the trial court’s limitation of Dr. McClure’s testimony

was in accordance with Lerma. In addition, the State contends that if the trial court had allowed

Dr. McClure to opine directly on Vargas’s testimony, the expert would have usurped the jury’s

role as arbiter of Vargas’s credibility and allowed one testifying witness to comment directly on



                                                33
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the credibility of another.

¶ 103 We begin our analysis with basic standards of review applicable to evidentiary issues.

The admission of evidence is within the sound discretion of a trial court, and a reviewing court

will not reverse the trial court absent a showing of an abuse of that discretion. People v. Hall,

195 Ill. 2d 1, 20-21 (2000). An abuse of discretion occurs where the trial court’s decision is

arbitrary, fanciful, or unreasonable or where no reasonable person would agree with the position

adopted by the trial court. People v. Illgen, 145 Ill. 2d 353, 364 (1991). Decisions of whether to

admit expert testimony are reviewed using this same abuse of discretion standard. People v.

Caffey, 205 Ill. 2d 52, 89 (2001); People v. Reid, 179 Ill. 2d 297, 313 (1997).

¶ 104 A criminal defendant’s right to due process and a fundamentally fair trial includes the

right to present witnesses on his or her own behalf. People v. Wheeler, 151 Ill. 2d 298, 305

(1992). “In Illinois, generally, an individual will be permitted to testify as an expert if his

experience and qualifications afford him knowledge which is not common to lay persons and

where such testimony will aid the trier of fact in reaching its conclusion.” People v. Enis, 139 Ill.

2d 264, 288 (1990). Expert testimony addressing matters of common knowledge is not

admissible “unless the subject is difficult to understand and explain.” People v. Becker, 239 Ill.

2d 215, 235 (2010). In addressing the admission of expert testimony, the trial judge should

balance the probative value of the evidence against its prejudicial effect to determine the

reliability of the testimony. Enis, 139 Ill. 2d at 290. Furthermore, the necessity and relevance of

the expert testimony should be carefully considered in light of the facts of the case. Id; People v.

Tisdel, 338 Ill. App. 3d 465, 468 (2003) (“Trial courts should carefully scrutinize the proffered

testimony to determine its relevance—that is, whether there is a logical connection between the

testimony and the facts of the case.”).



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¶ 105 Relying on our supreme court’s recent decision, Lerma, defendant maintains the trial

court abused its discretion when it did not allow Dr. McClure to testify regarding her ultimate

opinion of whether or not Vargas’s testimony was reliable. In Lerma, the defendant was

convicted of first degree murder after the evidence established that defendant, known as

“Lucky,” approached the front steps of a home, where he shot two people. Lerma, 2016 IL

118496, ¶ 5. The female victim dragged the critically wounded male victim into the house. Id.

The male victim, in the presence of his father (who came onto the scene after hearing gunshots

and his son’s screaming) and the female victim, stated that “Lucky” shot me. Id. There was

testimony that “Lucky” lived across the street from the house where the victims were shot, one

victim had been friends with “Lucky” for years, and “Lucky” had been fighting with a member

of one victim’s family. Id. The identification of the defendant as the shooter was established

through the testimony of the surviving victim and the father of the deceased victim about the

dying declaration of the decedent. Id. ¶¶ 5-6.

¶ 106 The trial court initially denied defendant’s motion in limine seeking to present the

testimony of Dr. Solomon Fulero, an expert witness on eyewitness identification. Id. ¶ 8.

Defendant submitted a detailed motion containing Dr. Fulero’s proposed testimony, consisting of

a summary of the relevance of that testimony to the issues in that case and a detailed report

authored by Dr. Fulero. Id. After its examination, the trial court denied this motion, finding that

the eyewitnesses who identified “Lucky” knew him prior to the shooting and therefore were less

likely to “misidentify someone they have met or know or [have] seen before than a stranger.”

(Internal quotation marks omitted.) Id. ¶ 10. The trial court also found that because the

eyewitnesses knew the defendant, Dr. Fulero’s testimony was irrelevant and “ran the risk” of

“operating as his opinion on the credibility” of the eyewitnesses. (Internal quotation marks



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omitted.) Id.

¶ 107 During trial, after the State had presented the eyewitness testimony, defense counsel

renewed his motion to call an identification expert. Id. ¶ 14. Because Dr. Fulero had since passed

away, defense counsel tendered a report authored by Dr. Geoffrey Loftus, an expert in the field

of human perception and memory, in support of his renewed motion. Id. Dr. Loftus’s report

tracked the content of Dr. Fulero’s report, except in two instances. Id. First, Dr. Loftus stated that

he would not “issue judgments” about whether witnesses’ memories or assertions were correct

and that any part that implied the unreliability of the eyewitness should not be construed as

meaning that the defendant was innocent. Id. Second, Dr. Loftus’s report discussed the issues

involved with acquaintance identifications. Id. The trial court denied the renewed motion, stating

that its denial was “consistent with the reasons *** set forth in detail when [the court] made the

ruling on your similar motion with respect to Dr. Fulero.” (Internal quotation marks omitted.) Id.

¶ 16. The defendant was convicted and appealed.

¶ 108 On appeal, this court reversed the trial court’s ruling denying the admission of expert

testimony of the matter of eyewitness identification and remanded the case. People v. Lerma,

2014 IL App (1st) 121880, ¶ 40. The appellate court found, because the trial court “failed to

conduct a meaningful inquiry” (internal quotation marks omitted) into the proposed testimony of

Dr. Loftus, instead relying on its reasons for denying the admission of Dr. Fulero’s testimony, it

committed reversible error. Id. ¶ 37. The reviewing court stated, “We also find it difficult to

accord the customary degree of deference to the trial court’s discretion in this case because the

trial court, in relying on its prior ruling, explained itself with little more than a series of

conclusions based on its personal belief.” Id. ¶ 38. The State appealed.

¶ 109 The issue before our supreme court was “whether the trial court abused its discretion in



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denying defendant’s request to allow Dr. Loftus’s expert testimony on the reliability of

eyewitness identifications.” Lerma, 2016 IL 118496, ¶ 24. Prior to addressing the merits of the

State’s argument, the court recognized that the research concerning eyewitness identification is

well settled and well supported and “in appropriate cases a perfectly proper subject for expert

testimony.” Id.

¶ 110 Our supreme court then acknowledged that “this is the type of case for which expert

eyewitness testimony is both relevant and appropriate” given that the only evidence of the

defendant’s guilt was the eyewitness identifications made by two witnesses. Id. ¶ 26. There was

no physical evidence and no confession or other incriminating statements. Id. The court found

that the trial court abused its discretion in denying the defendant’s request to admit Dr. Loftus’s

expert testimony, finding the trial court’s reasoning to be troublesome and stating, “even if [the

trial court’s reasoning] is defensible as to Dr. Fulero’s expected testimony, it is not defensible as

to Dr. Loftus’s expected testimony,” where Dr. Loftus’s report addressed two important issues

not addressed by Dr. Fulero: the acquaintance identification and his statement that he would not

include any opinion on the credibility of any witness or identification. Id. ¶ 28. The supreme

court observed,

       “[a]s discussed above, what we have in this case is the trial court denying defendant’s

       request to present relevant and probative testimony from a qualified expert that speaks

       directly to the State’s only evidence against him, and doing so for reasons that are both

       expressly contradicted by the expert’s report and inconsistent with the actual facts of the

       case. A decision of that nature rises to the level of both arbitrary and unreasonable to an

       unacceptable degree, and we therefore find that the trial court’s decision denying

       defendant’s request to admit Dr. Loftus’s expert testimony was an abuse of discretion.”



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        Id. ¶ 32.

¶ 111 The court further found that the error was not harmless because “there [was] no question

that the error contributed to the defendant’s conviction,” it could not “be said that the other

evidence in the case overwhelmingly supported the defendant’s conviction,” and “the excluded

testimony from [the expert] was neither duplicative nor cumulative of other evidence, as the jury

in this case heard precisely nothing in the nature of expert eyewitness testimony.” Id. ¶ 33.

¶ 112 Here, unlike the facts of Lerma, the defense was not prohibited from introducing the

testimony of Dr. McClure. Indeed, the trial court’s denial of the State’s motion in limine

regarding Dr. McClure’s expert testimony followed the dictates of Lerma. See id. ¶ 28. Dr.

McClure testified at trial regarding the Biggers factors and applied those factors to the materials

she reviewed in preparation for her testimony. The only testimony Dr. McClure was excluded

from presenting was her own opinion as to whether or not Vargas’s identification of defendant as

the shooter was reliable. Notably, in Lerma, Dr. Loftus also indicated he would not “issue

judgments” about whether the witnesses’ memories or assertions were correct and that any part

that implied the unreliability of the eyewitness should not be construed as meaning that the

defendant was innocent. Id. ¶ 28.

¶ 113 While the express issue of whether an eyewitness expert could ultimately opine on the

reliability of another witness’s identification of an offender was not discussed in Lerma, under

Illinois law, it is generally improper to ask one witness to comment directly on the credibility of

another witness. People v. Kokoraleis, 132 Ill. 2d 235, 264 (1989); People v. Henderson, 394 Ill.

App. 3d 747, 753-54 (2009). This is because “[q]uestions of credibility are to be resolved by the

trier of fact.” Kokoraleis, 132 Ill. 2d at 264.

¶ 114 Thus, in this case the trial court did not abuse its discretion when it prohibited the defense



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from presenting Dr. McClure’s opinion regarding the reliability of Vargas’s identification. The

record demonstrates that the trial court balanced the probative value of this proposed testimony

against the possible prejudice that may arise from allowing Dr. McClure to testify in this regard

and determined that, while Dr. McClure’s testimony as an eyewitness expert was warranted, she

would be limited in opining on Vargas’s identification of defendant as being either reliable or

unreliable. We observe that “[a] trial court is not required to allow an expert to render an opinion

on every conceivable question simply because such expert is qualified to do so.” People v.

Cloutier, 156 Ill. 2d 483, 502 (1993). Given the facts of this case, the trial court properly limited

Dr. McClure’s testimony, as such testimony could constitute direct, adverse comment on

Vargas’s credibility. See Becker, 239 Ill. 2d at 236 (one basis for exclusion is the impropriety of

asking one witness to comment directly on the credibility of another). In doing so, the trial court

correctly left the issue of whether the State established the identification of the shooter to the

jury. See People v. Jordan, 282 Ill. App. 3d 301, 307 (1996). Therefore, based on the record

before us, we find that the trial court’s decision was not arbitrary or unreasonable and does not

amount to an abuse of discretion. See People v. Anderson, 2017 IL App (1st) 122640, ¶ 88 (“the

trial court did not abuse its discretion in prohibiting the defense from presenting an expert

witness on identification testimony, especially where [the expert witness] would be commenting

on the ‘reliability’ of these witnesses, which is clearly a function of the jury, not a purported

expert”). We therefore conclude that the trial court did not err in prohibiting Dr. McClure from

testifying and rendering her opinion as to the reliability of Vargas’s identification, especially

where such testimony “is clearly a function of the jury, not a purported expert.” Id.

¶ 115 In so concluding, we find defendant’s argument that Dr. McClure should have been

allowed to testify pursuant to Illinois Rule of Evidence 704 (eff. Jan. 1, 2011) unpersuasive. Rule



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704 provides that “[t]estimony in the form of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Id. In

support of his position, defendant relies on two cases: People v. Hope, 137 Ill. 2d 430 (1990),

and People v. Ward, 61 Ill. 2d 559 (1975). Defendant maintains that in Hope an “expert witness

[was] allowed to testify about a defendant’s intoxication in relation to whether he acted

intentionally in shooting a police officer.” While this statement is true, it is also a misleading

argument. In Hope, there was no question before our supreme court regarding the propriety of

the expert’s testimony and whether the trial court erred in allowing the expert to testify regarding

the defendant’s intent when committing the offense. See People v. Anderson, 112 Ill. 2d 39, 43-

44 (1986) (a reviewing court is generally confined to consider only those issues raised by the

appellant). Accordingly, our supreme court offered no guidance in that case that would aid in our

determination here.

¶ 116 In regards to Ward, defendant argues that the expert in that case was “allowed to testify

about [the] defendant’s sanity at the time of the commission” of the offense. The issue in Ward,

however, was not whether the expert could testify regarding the defendant’s sanity but whether a

report authored by a different doctor and relied upon by the expert to reach his conclusion could

be admitted into evidence. Ward, 61 Ill. 2d at 565. The issue on appeal in Ward is thus inapposite

to the issue in this case.

¶ 117 Having failed to cite any authority for his position that Rule 704 allows an eyewitness

expert to opine regarding the reliability of the identification of another witness, we reiterate our

conclusion that the trial court did not abuse its discretion. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1,

2017).

¶ 118                                   Sentence Excessive



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¶ 119 Finally, defendant maintains that his sentence was excessive where the trial court did not

consider the Miller factors and made only a “passing reference regarding age and potential

rehabilitation.” In response, the State asserts that the trial court expressly considered the Miller

factors and sentenced defendant well within the statutory guidelines and his sentence is thus not

excessive.

¶ 120 The trial court has broad discretionary powers in imposing a sentence, and its sentencing

decisions are entitled to great deference. People v. Alexander, 239 Ill. 2d 205, 212 (2010). “A

reviewing court gives great deference to the trial court’s judgment regarding sentencing because

the trial judge, having observed the defendant and the proceedings, has a far better opportunity to

consider these factors than the reviewing court, which must rely on the ‘cold’ record.” People v.

Fern, 189 Ill. 2d 48, 53 (1999). In determining an appropriate sentence, relevant considerations

include the nature of the crime, the protection of the public, deterrence, and punishment, as well

as the defendant’s rehabilitative prospects. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998). “[T]he

trial court is in the best position to fashion a sentence that strikes an appropriate balance between

the goals of protecting society and rehabilitating the defendant.” People v. Risley, 359 Ill. App.

3d 918, 920 (2005). Accordingly, the reviewing court “must not substitute its judgment for that

of the trial court merely because it would have weighed these factors differently.” People v.

Stacey, 193 Ill. 2d 203, 209 (2000).

¶ 121 “It is well settled that a trial judge’s sentencing decisions are entitled to great deference

and will not be altered on appeal absent an abuse of discretion.” People v. Jackson, 375 Ill. App.

3d 796, 800 (2007); People v. Snyder, 2011 IL 111382, ¶ 36. Here, defendant was convicted of

first degree murder with the jury specially finding that he discharged a firearm causing Galindo’s

death. The sentencing range for first degree murder is 20 to 60 years. 730 ILCS 5/5-4.5-20(a)



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(West 2016). Due to the jury’s finding that he discharged a firearm causing Galindo’s death,

defendant was also eligible for a 25-year firearm enhancement. Id. § 5-8-1(a)(1)(d)(iii). Because

of his age at the time he committed the offense (16 years old) and his potential for rehabilitation,

the trial court declined to impose the 25-year firearm enhancement, as allowed by statute, and

sentenced defendant to 31 years’ imprisonment, well within the statutory guidelines. See id. § 5-

4.5-105(b) (the trial court “may, in its discretion, decline to impose any otherwise applicable

sentencing enhancement based upon possession of a firearm, possession with personal discharge,

or possession with personal discharge that proximately causes great bodily harm, permanent

disability, permanent disfigurement, or death to another person”); see Jackson, 375 Ill. App. 3d

at 800 (“A sentence which falls within the statutory range is not an abuse of discretion unless it is

manifestly disproportionate to the nature of the offense.”).

¶ 122 Defendant argues that, in sentencing defendant, the trial court did not properly apply and

consider the Miller factors. In Miller, the Supreme Court found that a sentence of life without

parole is unconstitutional for juvenile offenders if the sentence is mandatory. Miller, 567 U.S. at

470. The Court reasoned that minors are constitutionally different from adults for sentencing

purposes, being more impulsive and vulnerable to negative influences and peer pressures than

adults, and further lack fully formed character so that their actions do not necessarily indicate

irreversible depravity. Id. at 471-77. The Court, however, continued to allow such sentences

when they were based on judicial discretion. Id. at 479. The Court made Miller’s holding

retroactive in Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 736 (2016), and also

instructed that states could remedy a Miller violation by allowing juvenile offenders with

mandatory life sentences to become eligible for parole. Id. at ___, 136 S. Ct. at 736. “So far, the

Supreme Court has reserved these rulings for the most severe punishments: death or life



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imprisonment.” People v. Evans, 2017 IL App (1st) 143562, ¶ 11.

¶ 123 In People v. Holman, 2017 IL 120655, our supreme court expressly adopted a framework

for evaluating whether a sentencing court’s imposition of a life sentence on a juvenile offender

complied with Miller:

               “Under Miller and Montgomery, a juvenile defendant may be sentenced to life

       imprisonment without parole, but only if the trial court determines that the defendant’s

       conduct showed irretrievable depravity, permanent incorrigibility, or irreparable

       corruption beyond the possibility of rehabilitation. The court may make that decision

       only after considering the defendant’s youth and its attendant characteristics. Those

       characteristics include, but are not limited to, the following factors: (1) the juvenile

       defendant’s chronological age at the time of the offense and any evidence of his

       particular immaturity, impetuosity, and failure to appreciate risks and consequences;

       (2) the juvenile defendant’s family and home environment; (3) the juvenile defendant’s

       degree of participation in the homicide and any evidence of familial or peer pressures that

       may have affected him; (4) the juvenile defendant’s incompetence, including his inability

       to deal with police officers or prosecutors and his incapacity to assist his own attorneys;

       and (5) the juvenile defendant’s prospects for rehabilitation.” Holman, 2017 IL 120655,

       ¶ 46 (citing Miller, 567 U.S. at 477-78).

¶ 124 We observe that defendant does not argue that his sentence is unconstitutional and

constitutes a de facto life sentence under Miller—indeed, based upon the sentence rendered he

will be released at age 47. Instead, defendant merely argues that the trial court failed to consider

defendant’s youth and its attendant circumstances when sentencing defendant. The record reveals

otherwise.



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¶ 125 At the sentencing hearing the trial court engaged in a step-by-step analysis and

consideration of the factors expressed in Miller and Holman. The trial court first inquired about

defendant’s age at the time of the offense. Defense counsel replied that defendant had “just

turned 16 years old.” Defense counsel then argued that, “because he was of young age and the

case law and medical evidence in the case that when you are that young, your frontal lobe have

[sic] not developed. Frontal lobes are what cause[ ] judgment” and that defendant had an

“enormous potential for rehabilitation.” Defense counsel, however, raised these points as part of

a general argument and did not present any evidence as to how it applied specifically to

defendant. Defense counsel and the State then argued the Miller factors in presenting their

arguments regarding defendant’s sentence. See Holman, 2017 IL 120655, ¶ 49 (a key feature of a

juvenile’s sentencing hearing is that the defendant had the “opportunity to present evidence to

show that his criminal conduct was the product of immaturity and not incorrigibility” (citing

Montgomery, 577 U.S. at ___, 136 S. Ct. at 736)). The trial court had before it evidence of

defendant’s age, his ability to appreciate the consequences of firing a weapon eight times, and

defendant’s home environment. In regards to defendant’s degree of participation in the homicide,

the trial court heard the testimony from the witnesses and reviewed the documentary evidence

that demonstrated defendant was the shooter. The trial court was not presented with any

testimony or evidence regarding familial or peer pressure that would have affected defendant or

that he was incompetent in any way. Moreover, there was no evidence presented regarding

defendant’s environment or other relevant influences. Unlike the facts of Miller, there was no

evidence in this case that defendant had no control over his environment or that he was unable to

extricate himself from any peer pressure. See Miller, 567 U.S. at 478. Lastly, defense counsel

presented vast evidence regarding defendant’s potential for rehabilitation, all of which the record



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demonstrates the trial court considered.

¶ 126 In sentencing defendant to 31 years’ imprisonment, the trial court declined to impose a

sentence based on firearm enhancement. The trial court then explained the Supreme Court’s

decision in Miller, using it, as well as Illinois state cases discussing Miller, as a guide during

sentencing. Specifically, the trial court stated it was impressed with the progress defendant made

during the pendency of this case and expressed that if defendant had applied himself in such a

manner prior to the shooting, Galindo might still be alive. Such a statement reflects the trial

court’s acknowledgement that defendant has matured since the offense occurred. Finally, the trial

court encouraged defendant to “keep up the progress that you are doing” and “[s]omeday, you

are still going to be relatively young and you can make a real positive impact on the community

yourself.” This statement demonstrates an understanding of the Miller and Holman factors

because, by sentencing defendant to 31 years’ imprisonment, defendant would still be able to

have a productive life upon his release. It is clear from the record that the trial court took into full

consideration defendant’s youth, its attendant circumstances, and the factors set forth in Holman

when sentencing defendant well within the statutory range. Accordingly, we affirm defendant’s

sentence. See People v. Croft, 2018 IL App (1st) 150043, ¶ 32.

¶ 127                                      CONCLUSION

¶ 128 For the reasons stated above, defendant’s conviction and sentence are affirmed.

¶ 129 Affirmed.




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