2017 IL App (1st) 122640

SECOND DIVISION January 31, 2017

No . 1-12-2640

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff

- Appellee, ) Cook County )

v. ) ) 0 3 CR 7356 ROBERT ANDERSON , ) ) Honorable Defendant -Appell ant . ) Kenneth Wadas , ) Judg e Presiding.

______________________________________________________________________________ JUSTICE PIERCE deli vered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Mason concurred in the judgment and opinion.

O PINION

¶ 1 Defendant Robert Anderson was convicted of four counts of first degree murder (720

ILCS 5/9 -1(a)(1) (West 2012)) related to the shooting deaths of Moises Reynoso and Robert
Lilligren. Defendant was subsequently sentenced to life in prison. Defendant now app eals and
raises eight issues: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the

trial court erred in admitting hearsay testimony; (3) the trial court erred by precluding defense
counsel from questioning Officer Jeong Park as to whether he would describe defendant as

“ black ” ; (4) the trial court erred when it excluded evidence of defendant’ s prior ac quittal for an
unrelated charge; (5) the trial court erred in denying defendant’ s motion in limine for expert
testimony on eyewitness identifica tion; (6) the trial court abused its discretion in denying1-12-2640

2 defendant’ s motion for new trial in light of alle gedly newly discovered evidence; (7) the
prosecutor’ s remarks in closing argument were prejudicial and denied defendant a fair trial; and
(8) the tr ial court erred in denying his request for a new trial based on his allegations of

ineffective assistance of counsel. For the following reasons, we affirm the judgment of the trial

court.
¶ 2 BACKGROUND
¶ 3 On March 6, 2003, Moises Reynoso and Robert Lilligren were shot to death as they sat in

a vehicle in the parking lot behind Leader Liquors, just north of the intersection of Irving Park

Road and Sacramento Avenue in Chicago.
¶ 4 Shortly before midnight on March 5, 2003, Chi cago p olice o fficer s Paul Sedlacek and
Jeong Park received a call requesting a well

- being check on the attendant of the Clark Gas

Station at the intersection of Sacramento Avenue and Irving Park Road

. The officers arrived at

the gas station in less than a minute. As the officers got out of their car , they heard gunshots
coming from a parking lot on the west side of Sacramento Avenue across from the gas station.
¶ 5 Officer Sedlacek heard five or six shots initially. The shots came from the center of the
parking lot behind Leader Liquors where a silver car was parked. A man, who was later

identified as defendant, was standing near the rear passenger ’s side, next to the trunk, firing
approximately five shots into the ve hicle. Defendant then moved around the back of the vehicle,

stood next to the tire on the driver’s side , and fired one shot at the driver who appeared to be
trying to exit the vehicle. Defendant was 60 to 65 feet away from the officer in a well

- lit area.

T here was a six -foot tall chain link fence between Officer Sedlacek and defendant, but he could
easily see through it. Officer Sedlacek saw defendant’s face but not clearly enough to make an1-12-2640

3 identification. Officer Sedlacek testified defendant was wearing a dark jacket and dark pants.
Reynoso was the driver of that car , and Lilligren was the passenger. ¶ 6 After firing the last shot at Reynoso, defendant ran east along the alley toward the gas

station where the officers were. A chain link fence enclosed the area, and the officers had to find

a hole in the fence so that they could access the alley. The officers also ran east, parallel to
defendant, until they found the opening in the fence, at the far northeast corner of the gas s tation
parking lot. The officers had to run around the mini- mart, which was about 20 feet wide, and

could not see the defendant while he was behind it.
¶ 7 When defendant ran past the officers, he turned his head and looked at them. Officer

Sedlacek was able to see defendant’s face from approximately 10 to 15 feet away for about a

second . Defendant’s hood had fallen from his head when he turned , giving Officers Sedlacek and

Park a full

- frontal view of his face

. There were street light s in the alley. Officer Park also saw the

defendant was wearing gloves and holding a gun in his right hand. Officer Park radioed that

defendant was running eastbound in the alley north of Irving Park Road

. Defendant had a gun in

his right hand. Officer Sedlacek testified that he “ fixated on that gun [and] did not observe his

left hand.” Officer Sedlacek testified that at the time of the shooting, he recognized defendant’s

face but could not remember his name. ¶ 8 The o ffi cers chased defendant east through the alley to Richmond St reet , where

defendant turned north. By the time he turned, defendant was 25 to 30 feet in front of Officer

Sedlacek and about 15 feet ahead of Officer Park , who saw defendant heading east into a

gangway about mid -block on Richmond Street

. When the officers reached Richmond Street, they

heard “ panicked shrieking ” that w as “ [e]xtremely loud, as loud as someone could shriek.” The1-12-2640

4 officers turned around and ran back to where the shrieking came from. When they arrived back

at the sce ne of the shooting they found Roberta Stiles screaming “ my cousin, my cousin.”

Officer Park broadcasted defendant’s description over the police radio as a “ male black,
[wearing] all black

— or all dark clothing.” Officer Park testified that in the “ heat of the moment,

I saw a person wearing all black, running eastbound, carrying a gun. That ’s what I went [with]

on the air. ”
¶ 9 The officers observed Reynoso, the driver of the car, lying on the ground next to the car, bleeding from a gunshot wound to the head. He wa s pronounced dead at the scene. Lilligren,

who was seated in the passenger’s seat of the vehicle, was also bleeding. Officer Sedlacek

testified that he recognized Officer Reynoso from previous interactions.
¶ 10 Chicago police o fficer Joseph Castillo arrested defendant about four minutes after

Officers Park and Sedlacek stopped chasing him. He was apprehended by Officer Castillo after a

foot chase through a gangway and a parking lot. During the chase, Officer Castillo saw

defendant thro w somet hing down, which he recovered and identified as a pair of black gloves.
Along with the gloves, Officer Castillo recovered a checkbook that did not bear defendant’s

name. ¶ 11 Approximately 15 minutes after th e shooting, defendant was placed in a squad car and
brought back to the scene. Officer Sedlacek was instructed to look inside the car to see if he

could identify defendant as the shooter. Officer Sedlacek “looked inside, the offender looked at

me, I said, ‘ Yes, that ’ s the person I saw shoot. ’ ” After Officer Sedlacek identified defendant as
the shooter, defendant vomited in the car. Officer Park viewed defendant in the back of the
police car separately and also identified defendant as the shooter. Defendant again vomited after1-12-2640

5 he was identified as the shooter by Officer Park

. ¶ 12 Officer Sedlacek testified that he recognized the defendant but could not initially recall

his name. He later discovered that he had arrested defendant, along with Reynoso and Terry Hill ,
in an unrelated case in July 2001. Of ficer Sedlacek testified and identified defendant at the trial

for defendant’s unrelated case , which took place a little less than a year before the shooting in

this case. He knew defendant as “Nookie.” Officer Sedlacek also identified photographs of Hill,

who m he knew as “ Terry ,” and a photograph of Jesus Quinones, whom he knew as “Blood.” He

stated he saw defendant, Reynoso, and Hill in the earl y morning hours of July 1, 2001, when he

arrested all of them for aggravated battery in an unrelated incid ent. Officer Sedlacek testified that
during the prior investigation he was face

- to

- face with defendant several times and was within

several feet of defendant for about two hours in a lit police sta tion.
¶ 13 Between the time Officer Sedlacek observed the shooting and the show-up identification

of defendant , he did not report on the radio that the shooter was defendant or that the shooter was

nicknamed “Nookie.” He did not tell the superior officers at the scene that he knew defendant

and had previously arrested him. Officer Park also testified that Officer Sedlacek never indicated

that he knew defendant from a previous arrest

. ¶ 14 In Officer Sedlacek ’s incident report , he listed himself and Officer Park as people who

discovered and reported the crime but did not check the box indicating they witnessed the crime.

Officer Sedlacek wrote that he “ saw an individual standing next to a silver car, firing a handgun

into the vehicle, ” and that person was “a male black in his 20’s wearing a dark jacket. ” The

report did not include the fact that Officer Sedlacek saw the front of the man ’s face as he wa s running past the officers in the alley. The report also did not include that the man was wearing1-12-2640

6 gloves and did not detail that the man was “ wearing a parka with the hood up and fur trim around

the hood.” Officer Sedlacek did not include the information that the man stood near the rear

passenger ’s side tire or that he looked both ways before firing the last shot. The additional

information that defendant had vomited after he was identified as the shooter was also not

included in Officer Sedlacek ’s report.
¶ 15 Officer Castillo testified he was on duty on March 6, 2003. Officer Castillo was working
alone, in uniform, and driving an unmarked squad car. Just after midnight, Officer Castillo heard

a radio call announcing shots fired near the intersection of Sacramento Aven ue and Irving Park

Road. The description given was “ male black in all dark clothing.” He then heard Officer Park

make another radio call stating “731, we lost him in the alley, one block east of the gas station. If

someone can secure our car, well, it ’s th e gas station lot, when we heard the victim screaming. ”

Officer Castillo was only a few blocks away

. He drove down California Avenue to Belle Plaine
Avenue, one block north of Irving Park Road. He stopped, walked west on Belle Plaine A venue

until he reache d the north-south alleyway between California Avenue and Mozart Street , and

walked south through the alley.
¶ 16 Defendant then ran out from an east

- west gangway at 4035 North Mozart Street into the
alley where Officer Castillo was walking. Office r Castillo was approximately 10 feet away from

defendant when he came out of the gangway. Defendant was wearing dark clothing, a “ [b]lack
parka type jacket. ” Defendant fit the description Officer Castillo heard over the radio. Officer

Castillo yelled at defendant to stop and announced “police,” but defendant continued running.

When Officer Castillo first saw defendant , he did not notice if defendant had anything in his

hands.1-12-2640

7 ¶ 17 Officer Castillo chased defendant , who ran onto California Avenue. Defendant ran south
through a parking lot located on the northwest corner of California Avenue and Irving Park Road

and was stopped by another police car

. As the police car was approaching, Officer Castillo saw

d efendant throw a pair of black gloves, which he later recovered

. Officer Castillo then placed

defendant into custody. Officer Castillo also recovered a checkbook that was found next to the
gloves. The checkbook was not in defendant’s name , and Officer Castillo did not see it drop

from defendant ’s hands. Officer Castillo put the gloves and checkbook in his pocket and later

turned them over to the evidence technicians. O fficer Castillo showed Chicago police s ergeant

Rick Nigro the gangway that he saw defendant run out of.
¶ 18 Sergeant Nigro then drove to the scene of the shooting and attempted to retrace

defendant’s steps from the shooting to the gangway. Sergeant Nigro walked east from the scene of the shooting through the alley where the r adio broadcast had reported defendant was running.

He conducted a systematic search of the gangways and alleyways and looked for footprints in the

snow. He searched for approximately one hour and eventually “ saw some footprints on the side

of [a] garage, ” which led him to search for a gun in that area. The garage was located at 4036

North Mozart Street. Serge ant Nigro cl im b ed to the second level of a neighboring porch so he

could see the roof of the garage. From the higher vantage point, he could see “a hole in the

snow” in the middle of the roof. He called for a lad der, climbed on top of the roof, and found a

semiautomatic handgun.
¶ 19 Chicago police forensic investigator Jim Shad ir and his partner , Arthur Oswald , photographed the gun as it was found and then inventoried the weapon. The gun was a black

.40- caliber Be retta model 8040 Cougar F, which h ad a defaced serial number. The gun was in1-12-2640

8 slide lock , which meant that all the bullets that were in the weapon had been expended.
Investigator Shadir also recovered an empty black .40- ca liber Smith and Wesson magazine from

the gun

. There were no latent fingerprints on the gun, the magazine , or the cartridge cases

. ¶ 20 Investigators Shadir and Oswald also processed the scene of the shooting at
approximately 12:53 a.m. Investigator Shadir photographed the crime scene and recovered one

.40- caliber Smith and Wesson cartridge case on the ground in the snow near the driver’s side

door of the vehicle , and five .40- caliber Smith and Wesson cartridge cases on the ground in the

snow near the passenger ’s side of the vehicle . Shadir inventoried the cartridge cases to be

submitted for forensic analysis. While at the scene , he also received a pair of black gloves and a

checkbook from Officer Castillo, which he inventoried for analysis. Investigator Shadir then

went to the hospital where Lilligren was taken and recovered and inventoried Lilligren ’s jacket.
¶ 21 Dr. John Sc ott Denton, former Cook County medical e xaminer, performed an autopsy on
Lilligren and stated that he been shot three times. None of the gunshot wounds were close range.

Dr. Denton concluded that Lilligren was struck by at least two, possibly three , different gunshots

and concluded that the gunshot wound to the back of Lilligren ’s head caused his death. The

manner of death was homicide.
¶ 22 Dr. De nton reviewed the autopsy of Reynoso. Reynoso suffered 11 gunshot wounds.

T hree bullets were recovered from his clothing, and two more bullets were recovered from his
body. Each of the bullets was inventoried. None of the gunshot wounds were at close range. The

first gu nshot wound was located in Reynoso’s chest, on the right side. A second gunshot wound

was located at the left lateral chest, and a third gunshot wound was just below the second at the

left lateral chest. A fourth gunshot wound was located at the right side of Reynoso’s back, just1-12-2640

9 below the shoulder blade. A fifth gunshot wound was located in his back and entered through the

eleventh rib on the right side. A sixth gunshot wound was the result of a bullet that went through

the right chest and exited through the abdomen. A seventh gunshot wound was located in the
right forearm. An eight h gunshot wound was located on the left hand, which had numerous injuries on the palm and fingers, which were classified as defensive wounds. A ninth gunshot
wound, a graze, was located at the left upper arm. A tenth gunshot wound was located at the

back left of Reynoso’s head. This bullet traveled through the scalp, bone, and brain and lodged in

the bone behind the left ear. Dr. Denton determined that Reynoso died from multiple gunshot
wounds, and the manner of death was homicide. The location of the gun relative to the victim s’

bodies could not be determined, only the course the bullet took once it had entered the bodies. It

was Dr. De nton’s opinion that some of the bullets fired at Reynoso may have caused more than

one wound.
¶ 23 Chi cago pol ice forensic investi gator Steven Duffy went to the m edical e xaminer ’s o ffice

on March 6, 2003, and received an envelope containing the bullets recovered from Reynoso’s
body. Investigator Duffy then submitted those bullets for forensic testing.
¶ 24 Fore nsic s cientist Kurt Zielinski specializes in firearms identification for the Illinois State

Police l ab and supervised the testing performed on the recovered firearm, magazine, cartridge
casings, and bullets

. The firearm and magazine were capable of holding 11 bullets, 10 in the
magazine and 1 in the chamber of the firearm. Forensic testing revealed that all six of the

cartrid ge cases found next to the vehicle and all five bullets recovered from the victims ’ bodies

and clothing were fired from the same gun found by Sergeant Nigro on the garage roof.
¶ 25 Forensic s cientist Mary Wong specializes in trace chemistry for the Illinois State Police1-12-2640

10 l ab . Wong tested the black knit gloves for gunshot residue. One glove tested positive for the

presence of gunshot residue. The other glove “ had two unique particles and some consistent
particles ” but not enough to make a positive finding. Defendant ’s coat was tested for gunshot

residue and s amples taken from the cuffs of both sleeves revealed “they both contained particles
of background samples which [led] to a conclusion that the sample areas may not have been in

the vicinity of a discharged firearm ” but the samples taken from the jacket did not test positive

for the unique particles of gunshot residue. Wong testified that the absence of gunshot residue

may have been the result of particles having been removed by activity. Wong stated that wind,
moisture, and friction from brushing up against something could all remove gunshot residue or

prevent it from being deposited. Wong added that a difference in fabric may also account for
gunshot residue being deposited on one item but not another. The absence of gunshot residue

was only on the specific areas tested , and it could not be concluded that there was a complete

absence of gunshot residue on defendant ’s jacket.
¶ 2 6 Lorena Reynoso, Reynoso’s sister, te stified that approximately 10 days before the
shooting, she was home with Reynoso in the evening and there was a knock at the door. She

answered the door and saw defendant with two people she knew as “Blood” and “ Terry .” Lorena

knew defendant by the nickname “Nookie.” Lorena had known defendant for three years and had

lived with him and his family for approximately three months in 2000. Defendant asked Lorena

where Reynoso was. Lorena then had a conversation with Reynoso, after which she returned to

the door and told defendant and the other tw o men that Reynoso was not home, so they left.

Defendant had previously come to the house looking for Reynoso on five to seven separate
occasions, begin ning in November or December 2002. A few of those times defendant came with1-12-2640

11 “ Blo od” and “ Terry. ” Each time defendant came looking for Reynoso, it was approximately 7

p.m. Prior to late 2002, Reynoso and defendant had been friends and spent time togeth er every day. They stopped spending time togethe r around November or December 2002.
¶ 27 Reynoso and Lorena had another brother, Renee, who was also friends with defendant.

Renee also stopped spending time with defendant in November or December 2002. When

defendant came by asking for Reynoso, he did not ask for Renee.
¶ 28 Lorena testified that she did not tell anyone about these visits until January 2005, when

she was interviewed by Assistant State ’s Attorney Brogan and a State ’s Attorney investigator

about an unrelate d case. At the time Lorena was on probation for concealing a fugitive, an ex

boyfriend. Additionally, two of her ex -boyfriends had been charged with murder, one of which

was the fugit ive Lorena was charged with concealing

. ¶ 29 After the State rested, the court denied defendant’s motion for a directed verdict.
¶ 30 Roberta Stiles testified on defendant’s behalf

. Stiles was Lilligren ’s aunt. She testified

that before midnight on March 5, 2003, she saw Lilligren on Irving Park Road near the

intersecti on of Francisco Avenue. She and Lilligren went to a friend ’s house to eat and then went

to the gas station on Irving Park Road

. The attendant was not there , so she went to a payphone to

call the police. Lilligren then went to her friend Rex ’s apartment , located above the rear parking

lot of Leader Liquors. Before they walked up the stairs , Reynoso drove up, parked the car, and
joined them. Stiles, Lilligren, and Reynoso all went to Rex ’s apartment. After a few minutes, she

went to the bathroom, and Lilli gren and Reynoso left. She heard gunshots coming from outside.

When she went outside she saw Reynoso lying face down in the snow outside the open driver’s

side door of his car. She ran to Reynoso, turned him over, and saw that he had a blue cell phone1-12-2640

12 in h is hands. She took the phone. Lilligren was in the passenger side of the car; after she saw
him, she started screaming and became hysterical. She tried to make a call on Reynoso’s cell
phone but could not get the call to go through.
¶ 31 Stiles r an through the alley towards her family ’s home at 4012 North Richmond Street.

She screamed when she arrived at the house, and her mother and brother came out. She did not

remember if there were any police cars around at that time. Officers eventually approached her

when she was in the alley. She did not remember if those were the first officers she spoke to that
night. She went back to the scene with th e officers. She did not remember how long she stayed at

the scene or which officer she gave Reynoso’s cell phone to. She told off icers that she, Reynoso,

and Lilligren were in Rex ’s apartment above the back parking lot. She also spoke with a

detective sometime later but did not remember when. Stiles spoke with defense counsel and his
investigator, Josh Byrne , about a report that Byrne had created. She did not remember if she was given a copy of that report. The report was a written account of an interview of Stiles which she
signed. In that report, she stated she saw Reynoso face down in the snow but did not see anyone running in the alley or any police cars in the area, including in the gas station parking lot. This

in terview took place in January 2008.
¶ 32 Stiles te stified that she did not witness the shooting and did not remember many things
that happened that night. Sergeant David Betz was ta king notes as she talked to him, and sh e told

him that she had been in a bar earlier that night. Stiles testified that she did not remember if she

told Sergeant Betz that she was with Lilligren in the apartment above the parking lot before the
shooting. She stated, “I don’t remember everything. I mean this was almost nine years ago. ” She

added she was not looking at the gas station parking lot when she ran by it. She testified she1-12-2640

13 remembered everything leadin g up to the shooting, but after seeing Lilligren shot in the head,

“ [y]ou ’ re not going to remember who is around, who you ’ re talking to.”
¶ 33 In rebuttal, th e State called Sergeant David Be tz, who testified he spoke with Stiles at the

scene of the shooting at approximately 12:40 a.m., and the conversation took place in a squad car

because of the weather. He stated Stiles had a strong odor of alcohol and cigarettes. She told him

she had been drinking at a bar down the street earlier that night. Stiles told him t hat when she

saw Lilligren she started screaming for the police, and they arrive d immediately. She never told

Be tz she had been in an apartment above Leader Liquors that night, and she did not give him the

names of anyone who lived in that building.
¶ 34 Chicago poli ce d etective Dino Amato also testified in rebuttal. He i nterviewed Stiles at

4:00 a.m. on March 21, 2003. The interview took place at her home with two other detectives

present. Stiles told him that she met up with Lilligren on Irving Park Road , after she had just left

a bar , and they went to the gas station together. She also told Detective Amato that the police

arrived immediately after she found Lilligren shot in the car. She added that she called the police

when she could not find the gas st ation attendant; she then went to Riza Dauti ’s house. She stated

she was there with Lilligren and Reynoso. She went to the bathroom, heard shots fired, and then

went outside and found that Lilligren and Reynoso had been shot. She did not tell the detective s

that she ran down the alley after finding the shooting victims or that she spoke with her family at

her house. Dectective Amato testified that the detectives attempted to find someone in the

apartments above the Leader Liquors parking lot on the night of the shooting but could not gain

access because the entrance door was locked. The State rested.
¶ 35 The jur y found defendant guilty on both counts of first degree murder and sentenced him1-12-2640

14 to life imprisonment. He now appeals.
¶ 36 ANALYS IS
¶ 37 Defendant argues he was not proven guilty of the murders of Reynoso and Lilligren
beyond a reasonable doubt because Officer Sedlacek ’s an d Officer Park ’s identifications were

insufficient to support his convictions beyond a reasonable doubt. Defendant also questions

Officer Sedlac ek’s credibility because he was unable to identify defendant by name at the scene

and in his incident reports.
¶ 38 On appeal, when the defendant challenges the sufficiency of the evidence, the reviewing

court must determine, after viewing the evidence in the light most favorable to the State, whether

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, 319 (1979). A reviewing court affords great

deference to the trier of facts and does not retry the defendant on appeal. People v. Smith , 318 Ill.
App. 3d 64, 73 (2000). “[A] reviewing court must allow all reasonable inferences from the

record in favor of the [ State ].” People v. Cunningham , 212 Ill. 2d 274, 280 ( 2004). A criminal

conviction will not be reversed “unless the evidence is so improbable or unsatisfactory that it

creates a reasonable doubt as to the defendant ’ s guilt. ” People v. Graham , 392 Ill. App. 3d 1001,
1009 (2009)

. ¶ 39 It is within the function of the trier of fact to assess the credibility of the witnesses,

determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in the

evidence. Id. It is not the duty of the trier of fact to accept an y possible explanation that favors

the defendant ’s innocence and “ elevate it to the status of reasonable doubt.” People v. SiguenzaBrito , 235 Ill. 2d 213, 229 (2009)

. A reviewing court will not substitute its judgment for that of1-12-2640

15 the trier of fact. People v. Sutherland , 223 Ill. 2d 187, 242 (2006)

. ¶ 40 Here, defendant alleges that the identification testimony of both Officers Sedlacek and

Park w as insufficient to support his conviction. Illinois applies the following factors to assess

identification testimony : (1) the opportunity the witness had to view the criminal at the time of

the crime; (2) the witness ’s degree of attention; (3) the accuracy of the witness ’s prior
description of the criminal; (4) the level of certainty demonstrated by the witness at the

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

confrontation. Neil v. Biggers , 409 U.S. 188, 199-200 (1972); People v. Slim , 127 Ill. 2d 302,
307-08 (1989). “A single witness ’ identification of the accused is sufficient to sustain a

conviction if the witness viewed the accused under circumstances permitting a positive

identification. ” Slim , 127 Ill. 2d at 307.
¶ 41 With respect to the first and second factor s, the witness ’s opportunity to observe the
offender during the incident and the degree of attention , defendant argues that Officers Sedlacek

and Park would not have enough time, as they were chasing him through the alley, to see his face

and be able to correctly identify him. Defendant adds both officers testified that they were looking at the gun in his hand as they were chasing him. However, both officers testified that as

defendant was running, his hood fell back, allowing them to see an unobstructed view of his face

f rom a distance of 10 to 12 feet away in a well

- lit alley. The y positively identified him only 15 to

20 minutes later. We find Officers Sedlacek and Park had ample opportunities to view defendant ,
and they testified to a degree of detail that would allow th e jury to make a determination as to the
appropriate weight to be given their identification testimony.
¶ 42 Third, we cons ider the accuracy of the witness ’s description of defendant. The officers1-12-2640

16 witnessed defendant, who was armed, kill two people and gave chase. While Officer Park ’s
description of defendant was somewhat general, the description of the fleeing offender given

over the radio was accurate to the extent that it matched the defendant running through th e neighborhood gangways within four minutes of the shooting in close prox imity to the scene

. Fourth, we consider the level of certainty the witness demonstrates in identifying defendant as

the offender. Both officers identified defendant without hesitation shortly after seeing his face in

the alley

. Finally, we consider the amount of time between the commission of the crime and the

identification. As stated, the officers identified defendant about 15 to 20 minutes after the
shooting. After considering all five Biggers factors, we find the officers ’ identification testimony

to be reliable. Officer Sedlacek ’s inability to recall defendant’s name at the scene in no way impugns his credibility or his subsequent identification of defendant

. ¶ 43 Defendant further argues that outside of the identification testimony provided by Officers

Sedlacek and Park , very little evidence linked him to the murder of Reynoso and Lilligren. We
disagree.
¶ 44 Officers S edlacek and Park witnessed the shooting and then chased defendant through the
alley

. During this chase, the officers were able to see a full

- frontal view of defendant’s face in

well

- lit conditions. Officer Sedlacek recognized defendant but did not remember his name. In

less than five minutes, defendant was apprehended four blocks from the scene of the shooting.

The gun used in the shooting was recovered from the roof of a garage located in the path the

shooter took when chased by the police between the scene of the shooting and where defendant

wa s first seen by Officer Castillo. Officer Castillo observed defendant throw a pair of black
gloves on the ground, which later tested positive for gunshot residue. Lorena Reynoso testified1-12-2640

17 that her brother and defendant had been friends, but in the months leading up to the murder,
Reynoso did not want to speak to defendant when he came to his home looking for him.
¶ 45 Defendant was seen running from the area of the shooting and matched the general
description of the offende r. Defendant’s flight from Officer Castillo and the off ic ers who

witnessed the shooting is considered evidence of his guilt. Defend ant was identified as the

shooter less than 15 minutes afterwards. He was wearing clothing that matched the clothing worn by the shooter. The murder weapon was found on the route the shooter took when running from

the scene to where he was first observed by Officer Castillo minutes after the shooting. Viewing

the evidence in the light most favorable to the State , as we must, we find that the totality of the

evidence was more than sufficient to establish defendant’s guilt beyond a reasonable doubt.
¶ 46 Defendant has also attacked the sufficiency of the physical evidence, the lack of

conclusive trace material, the checkbook found alongside the gloves, and the lack of DNA

evidence. The jury resolved the evidence in favor of the State , and we cannot say it was the act

of an irrational jury.
¶ 47 Defendant n ext argues that the trial court erred when it denied his motion in limine to
preclude the State from introducing hearsay evidence that Reynoso was avoiding defend ant. The

trial court denied this motion and ruled that the State could introduce evidence that , after

defendant knocked on Lorena ’s door, Lorena went and spoke with her brother, came back to the
door, and told defendant that her brother was not home.
¶ 48 At trial, Lorena testified that approximately a week and a half before Reynoso ’s death,

she was at home with him when defendant c ame to her door with two other men she knew as

“Blood” and “ Terry .” Defendant asked where Reynoso was. Lorena went back and spoke with1-12-2640

18 Reynoso and then returned to the door and told defendant that Reynoso was not there.
¶ 49 Reviewing courts general ly use an abuse of discretion standard to review evidentiary
rulings rather than review them de novo

. People v. C affey , 205 Ill. 2d 52, 89 (2001 ). Defendant

argues that this court should review this issue using the de novo standard and states “ an appellate

court should review de novo where the trial judge ’s decision ‘involves a legal issue and did not
require the trial court to use its discretion regarding fact -finding or assessing the credibility of

witnesses. ’ ” People v. Aguilar , 265 Ill. App . 3d 105, 109 (1994). This exception to the general

rule of deference applies in cases where “a trial court ’s exercise of discretion has been frustrated
by an erroneous rule of law. ” People v. Williams , 188 Ill. 2d 365, 369 (1999 ).
¶ 50 In People v. Caffey , 205 Ill. 2d 52, 89 (2001), the defendant also requested the reviewing

court to apply a de novo standard to evidentiary rulings regarding hearsay. Our supreme court
rejected this argument and stated,

“ The decision whether to admit evidence cannot be made in isolation. The trial court

must consider a number of circumstances that bear on th at issue, including questions of
reliability and prejudice. [Citation.] In this case, the trial court exercised discretion in
making these evidentiary rulings, i.e. , the court based these rulings on the specific

circumstances of this case and not on a broadly applicable rule. ” Id

. at 89-90.
Here, the trial court based its ruling on the circumstances of the case and therefore, f ollowing
Caffey , we reject defendant ’ s argument th at the trial court ’ s decision to admit the testimo ny of

Lorena should be reviewed de novo , and instead, we will apply the abuse of discretion standard.
¶ 51 “ Evidentiary rulings are within the sound discretion of the trial court and will not be

reversed unless the trial court has abused that discretion.” People v. Reid , 179 Ill. 2d 297 , 3131-12-2640

19 (1997); Caffey , 205 Ill. 2d at 89. An abuse of discretion will be found only where the trial court’s
ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view
adopted by the trial court. Caffey , 205 Ill. 2d at 89; People v. Illgen , 145 Ill. 2d 353 , 364 (1991).
¶ 52 Hearsay is “ a statement, other than one made by the declarant while testifying at the trial
or hearing, offered to prove the truth of the matter asserted. ” Ill. R. Evid. 801(c) (eff. Jan. 1,
2011) . A statement is an oral or written assertion, or non-verbal conduct of a person if it is
intended by the person as an assertion. Ill. R. Evid. 801(a) (eff. Jan. 1, 2011). Assertive conduct,
as well as actual statements, may constitute hearsay. People v. Orr , 149 Ill. App. 3d 348, 362
(1986). A statement that is offered for some other reason, not to prove the truth of the matter
asserted, is generally admissible because it is not hearsay. People v. Hill , 2014 IL App (2d)
120506, ¶ 51.
¶ 53 Defendant argues that th e only purpose of Lorena’ s tes tim ony was to assert that Reynoso
had made a statement to Lorena that he was fearful of the defendant. However, Lorena did not
testify to any statement by Reynoso or that Reynoso made any assertion of fear . She simply
testified, that approximately a week and a half before Reynoso’s death, she was at home with her

brother. Defendant came to her door with two other men she knew as “ Blood ” and “ Terry

. ”
Defendant asked where Reynoso was. Lorena was asked the following questions and gave the
following answers:

“ Q: “ After they asked if [Reynoso] was home, did you have a conversation with
[Reynoso]?”

A: “ Right. ”
Q: “ Aft er that conversation with [Reynoso], did you then talk to [defendant]? ”1-12-2640

20 A: “ Right. ”
Q: “ What did you say to [defendant]?”

A: “ That [Reynoso] wa sn ’t there. ”
Q: “ Did those three individuals then leave at that point?”

A: “ Right. ”
¶ 54 The testimony complained of here is not hearsay, as there is no mention of assertive

conduct by Reynoso, nor does it contain any verbal conversatio n that took place between
Reynoso and Lorena. She did not testify to anything that could be considered assertive conduct,

let alone conduct that could be considered as an assertion offered to prove the truth of some

relevant fact.
¶ 55 The defendant further ar gues that Lorena ’s testimony was prejudicial because the State
offered no further evidence to suggest motive other than this incident. The State is not required
to prove motive in order to convict the defendant of first degree murder. People v. Shack , 396 Ill.
285, 292 (1947). Furthermore, prejudice to the defendant is one of the factors weighed by the
trial court and is taken into consideration with the relevance of the testimony.
¶ 56 The trial court limited the testimony to what Lorena said and did, and the content of her
discussion with Reynoso was not permitted. Therefore, we find that the trial court did not abuse
its discretion in allowing the testimony of Lorena.
¶ 57 Defendant next argues that the trial court erroneously precluded defense counsel from

cross

- examining Officer Park regarding whether o r not he would describe defendant as “ black .”
The following exchange took place during the trial:
“[ Defense counsel ]: If you

— th e defendant over there, the guy you identified. If1-12-2640

21 you were

— if you were going to identify that person for those people right now, would

you —
State : Objection, Judge.

The Court: Sustained.
[ Defense counsel]: —would you say that person was black ?

State : Objection.

The Court: Sustained.
[ Defense counsel]: That ’s how you would describe that person, is black?

State : Objection.

The Court: Sustained.”
¶ 58 Defendant argues that by sustaining the prosecutor’s objections to this line of
questioning, the trial court erred because it precluded him from cross

- examining Officer Park
about the description he gave of the offender whom he later identified to be defendant

. Defendant argues , without elaboration, that his s ixth amendment right to cross- examination was
violated when the court precluded defense co unsel from cross- examining Officer Park as to

whether he would describe defendant as “ black .” Defendant argues that Officer Park ’s response
to this inquiry would go to his credibility and the reliability of his identification. We disagree.
¶ 59 Again, defendant claims that this issue should be reviewed de novo

. For the reasons
already stated, we review this issue for abuse of discretion.
¶ 60 Defendant correctly asserts t hat the sixth amendment to the Constitution guarantees the
right of an accused in a criminal prosecution to be confronted with the witnesses against him.
U.S. Const., amend. VI. Confrontation means “more than being allowed to confront the witness1-12-2640

22 physically. ” Davis v. Alaska , 415 U.S. 308, 315 (1974). This right applies to feder al and state
proceedings. Pointer v. Texas , 380 U.S. 400 (1965).
¶ 61 We recognize defendant ’s sixth amendment right, but note that while a trial court may
not deprive a defendant of the right to question witnesses, it may limit the scope of crossexamination. People v. Frieberg , 147 Ill. 2d 326, 357 (1992). The latitude permitted on crossexamination is left largely to the discretion of the trial court , and its determination will not be
overturned absent a clear abuse of discretion that resulted in manifest prejudice. People v.

Herrera , 238 Ill. App. 3d 284, 290 (1992). Here , defendant was not precluded from crossexamining Officer Park. Defense counsel cross

- examined Officer Park at length. Defendant was merely precluded from pursuing this line of questioning.
¶ 62 While the State did not offer the basis of its objection to this line of questioning, and the

trial court did not give its reason for sustaining those objections, we can determine from the

record before us that the eviden ce defendant was attempting to e licit during Officer Park ’ s cross

examination was not relevant.
¶ 63 Evidence is relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be without
the evidence. Ill. R. Evid 401 (eff. Jan. 1, 2011). Irrelevant evidence is inadmissible. Ill. R. Evid
402 (eff. Jan. 1, 2011). The question seemingly asked to impeach Officer Park ’ s credibility was,

“ If you

— the defendant over there, the g uy you identified. If you were—if you were going to
identify that person for those people right now, would you—” “—would you say that person was

black ,” was asking Officer Park to identify the race of the defendant at the time of the trial. The
admissibility of evidence that is collateral to an issue in a case and that is intended to affect the1-12-2640

23 credibility of a witness rests within the sound discretion of the trial court, and the decision to

exclude certain collateral evidence will not be disturbed absent an abuse of discretion. See
People v. Renslow , 98 Ill. App. 3d 288, 293-94 (1981); People v. Stack , 311 Ill. App. 3d 162,
178-79 (1999).
¶ 64 Officer Park te stified that he “saw him shooting into a car, and he was running with a
gun, and I did my best, gave a description” that described the shooter as “ a ma le ” “dressed in all
black, and he was a male black.” Each individual juror was able to observe defendant’ s appearance in open court and presumably made independent determinations as to whether the
defendant fit the description given at the time of the shooting (“ male black ”). It is within the
function of the trier of fact to assess the credibility of the witnesses, determine the appropriate
weight of the testimony, and resolve conflicts or i nconsistencies in the evidence. People v.

Graha m , 392 Ill. App. 3d 1001, 1009 (2009).
¶ 65 As defendant acknowledges in his brief, the attempted impeachment of Officer Park was complete simply when he admitted his prior description of defendant as “ black ” and looking at
the defendant. Defendant admits on appeal that he is of “ African

- American ancestry ” but appears

to be “ Caucasian or Hispanic.” Defendant argues, “ [e]ither answer Park could have given would
have damaged his credibility: Had he answered that he would describe Anderson as black he
would have appeared to be a liar, and had he answered he would describe Anderson as white or
Hispanic he would have contradicted one of the few details of his prior description.” Although
the court did not permit defense counsel to e llicit testimony from Officer Park regarding his
opinion of defndant’ s race, defendant was not restricted from cross

- examining Officer Park
about the description he relayed over the radio as the events were unfolding. Defendant made his1-12-2640

24 point by hi ghlighting Officer Park ’s radio description as the offender being “ black ” and allowing
the jury to draw their own conclusion as to whether this tended to support a conclusion that
defendant was the offender Officer Park saw that evening. The issue of whether defendant fit the
description Officer Park gave during the incident was addressed by the defendant in opening
statement and thoroughly exhausted during the tri al. The re is no question the jury understood the
point. Therefore, we find that the trial court did not abuse its discretion in precluding Officer

Park from testifying about whether he would, at trial, describe defendant as “ black.”
¶ 66 Defendant also argues that the trial court erred when it precluded defendant from cross

examining Officer Sedlace k about whether defendant was acquitted in a prior case

. Defendant
argues that his sixth amendement right was also violated by this ruling

. ¶ 67 On direct ex amination, Of ficer Sedlacek was asked whether he “ recognized the defendnat

from before. ” Officer Sedlacek responded, “ [y]es, sir. ” When asked what defendant’ s nickname
was, Officer Sedlacek replied, “Nookie. ” On cross -examination, def ense counsel questioned
Officer Sedlacek about how and why he was familar with defendant “ from before. ” Officer

Sedlacek testified that he previously arrested defendant along with Hill and Reynoso in July
2001 for the aggravated battery of a man named Edward Binabi. That trial was held on April 8,
2002, and Officer Sedlacek testified at that trial.
¶ 68 T he State objected and during a dicussion with the court, the defense stated it was
attempting to cross

- examine Officer Sedlacek as to the fact that defendant was acquitted of the

a ggravated battery charge , and the defense wanted to e licit this testimony to establish that

Officer Sedlacek had a motive to falsely identify defendant in this case. The trial court ruled that
the acquittal was not relevant.1-12-2640

25 ¶ 69 Defendant again argues that this issue should be reviewed de novo . However, as we have

stated the review of an evidentiary ruling will be reviewed under the abuse of discretion

standard.
¶ 70 As previously stated, the sixth amendment right to cross

- examination is not without limit.
“A judge may limit the scope of cross- examination , and unless the defendant can show his or her
inquiry is not based on a remote or uncertain theory, a court’ s ruling limiting the scope of

examination will be affirmed. ” People v. Tabb , 374 Ill. App. 3d 680, 689 (2007). “ The
admissibility of evidence rests within the discretion of the trial court, and its decision will not be

disturbed absent an abuse of that discretion.” People v. Pikes , 2013 IL 115171 , ¶ 12.
¶ 71 The fact that defendant was acquitted of the aggravated battery charg e does not alone
suggest that Office r Sedlacek had a motive or bi as to falsely identify defendant as the shooter in

this case. Officer Sedlacek testified about other facts of defendant’s aggravated battery case
during direct examina tion , including that he had previously arrested defendant in 2001, that
Reynoso and Hill were also charged in the same case, and that he testified at the aggravated
battery trial on April 18, 2002. Officer Sedlacek added that he had responded to the scene of an
alleged battery on June 27, 2001 and spoke to the victim and that Chicago Police Detective
Murphy wa s a witness to the altercation. Officer Sedlacek arrested defendant on July 1, 2001,
and had him transported to the police station. While there, Officer Sedlacek sat face

- to

- face with

defendant in a well

- lit room for approximately two hours. Officer Sedlacek testified further on

cross

- examination that he first recognized defendant in this case when he was 10 to 12 feet away

from defendant chasing him in the alley.
¶ 72 In People v. Buckner , 376 Ill. App. 3d 251, 255 (2007), this court examined whether the1-12-2640

26 trial court properly limited cross

- examination for bias where the State ’ s DNA expert was serving
an 18-month supervision for unearned overtime pay, including overtime pay for working on the

defendant’ s case. This court ruled the evidence failed to show that the witness had either the

motiv e or the a bility to falsify her testimony and noted that the proffered “ evidence must give

rise to the inference that the witness has something to lose or gain by testifying.” Id

. ¶ 73 In this case, t he argument proffered by the defendant that because defendant was
acquitted in the aggravated battery case involving Officer Sedlacek, Officer Sedlacek had a

motive to “either consciously or subconsciously” falsely identify defendant is pure conjecture

and did not tend to establish that Officer Sedlacek harbored any bias towards defendant. Notably,
defendant did not deny the arrest or the circumstances surrounding the aggravated battery,
instead choosing to focus on Officer Sedlacek ’s previous arrest of defendant, the time he spent

with him , and how this familiarity should have caused him to identify defendant by name at the

scene. ¶ 74 Officer Sedlacek ’ s te stimony regarding defendant ’ s prior arrest was not elicited by the

State as other crimes evidence. Rather, it was raised by defendant for the first time on cross

examination. The State, on direct examination, merely asked Officer Sedlacek whether he

recogn ized defendant. It was defense counsel that delved further into the circumstances
surrounding that prior meeting. Officer Sedlacek ’ s only role in the prior case was that he arrested
defendant based on the victim’s complaint. This testimony is simply part o f his ordinary duties as
a police office r and without more does not establish grounds to infer bias as a result of an
acquittal. T herefore we cannot say that the trial court abused its discretion in denying

defendant’ s request.1-12-2640

27 ¶ 75 Even if the trial court should have admitted testimony regarding defendant’ s acquittal in
the aggravated battery case, the court ’ s failure to allow this testimony is harmless error. To

determine whether an error is harmless beyond a reasonable doubt we must consider (1) whether
the error contributed to the defendant’s conviction, (2) whether the other evidence in this case
overwhelmingly supported the defendant’s conviction, and (3) whether the excluded evidence
would have been duplicative or cumulative. People v. Blue , 205 Ill. 2d 1, 26 (2001).
¶ 76 The evidence of defendant’s acquittal would not have been cumulative or duplicative. In
addition, as discussed, the other evidence in this case, both physical and circumstantial,
overwhelmingly supports defendant’s conviction. W e also fail to see how the exclusion of
testimony regarding defendant’ s acquittal in an unrelated aggravated battery case would

contribute to his conviction.
¶ 77 Defendant next argues that the trial court erred when it denied his motion in limine to

introduce the testim ony of an expert witness on eyewitness identification. Prior to trial,

defendant moved in limine to allow testimony by Dr. S olomon Fulero, an expert on eye witness
testimony. After arguments, the trial court denied the motion.
¶ 78 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. Lerma , 2014 IL App (1st) 121880,
¶

35 ( Lerma I ) ; People v. Wheeler , 151 Ill. 2d 298, 305 (1992). “In Illinois, generally, an

i ndividual 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 to1-12-2640

28 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. ” ). Relevant
and probative testimony should be admitted, whereas misleading or confusing testimony should

not be admitted. Tisdel , 338 Ill. App. 3d at 468. When determini ng the reliability of an expert
witness, the trial judge is given broad discretion. Enis , 139 Ill. 2d at 290. Therefore, we review

the trial court ’s decision to admit evidence, including expert witness testimony, for an abuse of

that discretion. Becker , 239 Ill. 2d at 234. Arbitrary, fanciful, or unreasonable decisions by the

trial court constitute an abuse of discretion. Id

. ¶ 79 In People v. Lerma , 2016 IL 118496 ( Lerma II ), our supreme court was presented with a

simi lar issue. 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. The female victim dragged the critically wounded male victim into the house. 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. There was testimony that

“ Lucky ” lived across the street from the house where the victims we re shot, one victim had been

friends with “ Lucky ” for years , and “ Lucky ” had been fighting with a member of one of the

victim ’ s family. The two victims were African

- American while the defendant wa s Hispanic. Id

.1-12-2640

29 ¶ 5

. The identification of 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.
¶ 80 The trial court initially denied defendant’s motion in limine seeking to present the
testimony of Dr. Fulero, an expert witness on eye witness identification. Defendant submitted a
detailed motion containing 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. ¶ 8. After 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. ” 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 omitted.) Id . ¶ 10. During the trial, defendant renewed his request for expert
testimony and stated he had secured a different expert who would be able to testify regarding
eyewitness testimony. Id. ¶ 14. The trial court again rejected this motion , citing the same reasons
given in the denial of the first motion. Id. ¶ 16.
¶ 81 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. Dr. Loftus ’s report tracked

the content of Dr. Fulero’ s re port, except in two instances. First, Dr. Loftus stated that he would
not “issue judgments” about whether witnesses ’ memories or assertions were correct and that1-12-2640

30 any part which implied the unreliability of the eyewitness should not be construed as meaning

that the defendant was innocent. Second, Dr. Loftus’s report discussed the issues involved wi th
acquaintance identifications. Id. ¶ 14. The trial court denied the renewed motion stating that his

denial was “consistent with the reasons *** set forth in detai l when [the court] made the ruling
on your similar motion with respect to Dr. Fulero. ” (Internal quotation marks omitted.) Id. ¶ 16.
Defendant was convicted and appealed.
¶ 82 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. Lerma I , 2014 IL
App (1st) 121880. This court found because the trial court “failed to conduct a meaningful
inquiry” (internal quotation ma rks 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. This court stated, “ We also find it difficult to accord the customary
degre e 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.
¶ 83 Our supreme court found the issue to be address ed as “ whether the trial court abused its
discretion in denying defendant’ s request t o allow Dr. Loftus’ s expert testimony on the reliability
of eyewitness identifications. ” Lerma II , 2016 IL 118496, ¶ 24. Bef ore addressing the merits of

the State ’s argument, the Lerma II court recognized that the research concerning ey ewitness

identification is well

- settled and well -supported and “ in appropriate case s a perfectly proper
subject for expert testimony. ” Id

. ¶ 84 The Le rma II court began its analysis by stating that “this is the type of case for which1-12-2640

31 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 . The court held that the
trial court abused its discretion in denying 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 a nd his statement that he would not
include any opinion on the credibility of any witness or identification. Id . ¶ 28.

“ As 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 actua l 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. ”

Id. ¶ 32.
¶ 85 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 . ¶ 33.1-12-2640

32 ¶ 86 We fin d Lerma II distinguishable from the instant case. Here, defendant ’s conviction
does not rest solely on the identification made by Officers Sedlacek and Park. Not only did the
officers see defendant shoot the victims, they chased him through an alley. After they lost sight
of him, another officer saw the defendant who was wearing clothes that matched a radio
broadcast that described the shooter, running through a gangway and alley near the shooting, and
defendant was detained four blocks from the shooting only four minutes after it had occurred. In
addition, defendant was seen throwing down a pair of black gloves that later tested positive for

gun shot residue. Additionally, the murder weapon was found on the route between where

Officers Sedlacek and Park chased defendant and wher e Officer Castillo l ater observed him
running. Defendant was then identified separately by both Officer Sedlacek and Officer Park
only 20 minutes after the shooting. The trial court weighed the facts and circumstances of this

case an d correctly concluded that the conclusion to be reached would not “rise or fall on the

identification of two police officers alone.” Unlike Lerma , there was physical and circumstantial

evidence outside of the identification testimony that supported defendant’s conviction.
¶ 87 Furthermore, unlike Lerma , there was no report submitted by Dr. Fulero in this case, nor
did the defense submit a detailed motion containing the proposed testimony of Dr. Fulero or a
summary of the relevance of that testimony to the issues in this case. Instead, the defense
submitted a generalized motion indicating that Dr. Fulero would testify to common
misconceptions regarding eyewitness identifications, the accuracy of eyewitness identifications
and the effect of suggestivity or bi as, how memory effects eyewitness identification, “ factors
associated with verified cases of misidentification and as observed in this particular case ,” and

that “ the eyewitnesses in the present case are not reliable based on the factors in this case.”1-12-2640

33 ¶ 88 Here, the trial court did not abuse its discretion in prohibiting the defense from presenting
expert witness on identification testimony , especially where Dr. Fulero would be commenting on

the “ reliability ” of these witnesses, which is clearly a function of the jury, not a purported expert.
The trial court conducted a meaningful inquiry of the expert witness and the content to which he
would testify at a hearing on defendant’s motion and, in its discretion, denied the motion. The

record shows that the trial court balanced the probative value against the possible prejudice that
may arise from allowing this expert to testify. In addition, the jury was given an instruction on
how to weigh eyewitness identification testimony. Illinois Pattern Jury Instruction s, Criminal,
No. 3.15 (4th ed. 2000). Therefore, we find that the trial court ’ s decision was not arbitrary or

unreasonable and does not amount to an abuse of discretion.
¶ 89 Even if this w as the type of case for which expert eyewitness testimony was relevant and
appropriate, which it is not , the trial court’s denial of defendant’ s request is a harmless error. To

determine whether an error is harmless beyond a reasonable doubt we must consider (1) whether

the error contributed to the defendant’s conviction, (2) wh ether the other evidence in this case
overwhelmingly supported the defendant’s conviction, and (3) whether the excluded evidence
would have been duplicative or cumulative. Blue , 205 Ill. 2d at 26.
¶ 90 While Dr. Fulero’s testimony would not have been cumulative or duplicative, the

exclusion of his testimony cannot be said to have contributed to defendant ’s conviction. As
discussed, the other evidence in this case, both physical and circumstantial, overwhelmingly
supports defendant’s conviction.
¶ 91 Defendant also argues that the trial court erred when it denied his motion for a new trial
where he presented newly discovered evidence that the murders were committed by Jesus1-12-2640

34 Quinones and Angel Rosa.
¶ 92 At the hearing on his motio n for a new trial defendant argued there was new ly discovered

evidence that Jesus “Blood” Quinones and Angel “ JR ” Rosa committed the murders. This
evidence consisted of inculpatory hearsay statements made by Quinones and Rosa admitting to
committing the murders of Reynoso and Lilligren, and exculpating defendant. After an extensive
evidentiary hearing, the trial court denied defendant’s motion for a new trial based on newly

discovere d evidence. The trial court ruled the newly presented evidence was not of such a
conclusive character as to warrant a new trial because the evidence against defendant at trial was
not closely balanced . The trial court further ruled that the evidence allegedly establishing that the

murder s were committed by Quinones and Rosa was not “ newly discovered ” because it was
“known by maybe even the defendant according to one of the witnesses prior to trial,” and
because it could have been discovered prior to trial i n the exercise of due diligence. The trial

court finally noted that this evidence was im material.
¶ 93 Reynoso and Lilligren were murdered on March 5, 2003. Defendant’s trial began on
November 2, 2011. Quinones, also known as “ Blood ,” died in March 2004, and Ro sa , also

known as “ JR ,” died in August 2007.
¶ 94 To warrant a new trial based on newly discovered evidence, the evidence must (1) have
been discovered since the trial, (2) must be of such a character that it could not have been
discovered prior to trial with the exercise of due diligence, (3) must be material to the issue and
not merely cumulative, and (4) must be of such a conclusiv e character that it will likely change

the result on retrial. People v. Gabriel , 398 Ill. App. 3d 332, 350 (2010). The trial court’ s denial
of a motion for a new trial based on newly discovered evidence will be reversed on appeal if the1-12-2640

35 trial court abused its discretion. People v. Villareal , 201 Ill. App. 3d 223, 229 (1990).
¶ 95 Defendant presented the testimony of five witnesses, four of who were his friends and

one who was his sister. All of the witnesses , except his sister, claimed to have heard one or both
of the alleged shooters, Quinones or Rosa, admit to committing the murders of Reynoso and

Lilli gren. Quinones and Rosa, who are now de ceased, were also friends with the defendant.
¶ 96 Anela Pehlivanovic testified that in the summer of 2003, she asked “Blood” what was
going on with defendant’ s murder case , and “ Blood ” said , “ [w] e took care of that anything [ sic ]
nigga.” Anela did not know who the “ we ” “Blood” spoke of referred to and admitted “ we ” could

have meant “Blood” and defendant. Anela also testified the reason she never told defendant what
“Blood” said, even though she visited defendant in prison, was because the “ we ” defendant
referred to may have meant the defendant. This statement did not exclude defendant’ s

par ticipation in the murders and was not conclusive enough to change the result at retrial.
Furthermore, the evidence was known before trial and through due diligence could have been
discovered prior to defendant’ s trial. The trial court properly denied defendant ’s motion
regarding Anela ’ s testimony.
¶ 97 James Jones testified that both “Blood” and “ JR ” confessed to him several months after

the se murders took place. James was contacted by defendant ’ s sister, Susan, after defendant was
convicted. She contacted James because defendant (after he began to proceed pro se post trial)
gave her a list of names of people who may have information. Since defendant knew to ask
James for information regarding the murders, this information could have been discovered before

the trial. The trial court properly denied defendant’s motion regarding James’s testimony.
¶ 98 Mercedes Rodriguez testified that three days after the murders , “Blood” and “ JR ”1-12-2640

36 confessed to committing the murders. Rodriguez visited defendant nine times prior to his trial,

but after both “Blood” and “ JR ” had died, and never told defendant or anyone else about the

confessions . Despite this , she did not come forward until nine and a half years after the murders
took place. Her testimony may also have been discovered through due diligence prior to trial,
and the trial court properly denied defendant’s motion regarding Rodriguez’ s testimony.
¶ 99 The testimony of Irving Gonzalez establishes that all the substance of the purported
testimony from Anela, James , and Rodriguez was known before trial. Gonzalez testified that

“ JR ” confessed to him in August 2007. “ JR ’s” confession involved two shooters, a claim which
is discredited by the eyewitness testimony and the physical evidence in this case. The ballistics

evidence conclusively determined that only one gun was used to commit these murders.

Gonzalez ’s testimony was impeached by the physical evidence and would not have conclusively
changed the outcome of the retrial. Gonzalez further testified that he told one of defendant’ s

attorne ys , defendant, and defendant’ s wife of the alleged confession. Defendant ’ s sister also
heard Gonzalez tell defendant’s attorney about the alleged confession, and she then informed the
defendant. Therefore, this was not newly discovered evidence but was evidence known before
the trial occurred. The trial court properly denied defendant’s motion regarding Gonzalez’ s testimony.
¶ 100 Defendant ’ s sister , Susan , states that she never heard anyone confess , but she did hear

Gonzalez tell defendant ’s attorney tha t “Blood” and “ JR ” confessed , and she was “ pretty sure ”
she told defendant about this the next time she visited him in jail. She visited defendant about 20
times in 2009 and in 2011, right before defendant’ s trial.
¶ 101 Each of the four witnesses claim that the murders of Reynoso and Lilligren were1-12-2640

37 confessed to and committed by two people, yet the eyewitness testimony and physical evidence
definitively disproves this assertion. Therefore, in each instance the trial court w as correct in
concluding that the evidence would not have conclusively changed the result of the retrial
because none of the alleged confessions by “ Blood ” or “ JR ” tended to negate defendant’ s participation in the murder.
¶ 102 The trial court properly denied d efendant ’s motion for a new trial based on newly
discovered evidence. Here, the evidence defendant could have been discovered prior to trial
through due diligence and was not of such a conclusive character that it would likely change the

result on retrial. The evidence presented by the five witnesses that came forward would not have
likely changed the outcome of the trial in light of the entirety of the evidence presented.
¶ 103 Defendant also argues that all of the above testimony would be admissible based on

e ither Chambers v. Mississippi , 410 U.S. 284 (1973), or Illinois Rule of Evidence 804(b)(3) (eff.
Jan. 1, 2011). Under Chambers , there are four factors used to evaluate admissibility. The four
aspects of a hearsay statement which tend to make the statement admissible are: (1) it was made
spontaneously to a close acquaintance shortly after the crime occurred, (2) it was corroborate d by
other evidence, (3) it was self- incriminating and against declarant ’ s interest, and (4) there wa s adequate opportunity for cross- examination of the declarant. Chambers , 410 U.S. at 300-01. The

Chambers factors are merely guidelines to admissibility; the presence of all four factors is not
required. People v. Tenney , 205 Ill. 2d 411, 435 (2002).
¶ 104 Defendant argues that Rodriguez’ s testimony satisfies three of the four Chambers factors

and should be admissible. We disagree . Her testimony was not corroborated by other evidence,
and there is not an adequate opportunity to cross-examine either Quinones or Rosa, thus making1-12-2640

38 her hearsay testimony unreliable even if Quinones allegedly told her days after the murder that

he and Rosa had committed the murders.
¶ 105 Un der Illinois Rule of Evidence 804(b)(3) (eff. Jan. 1, 2011) , a statement of an

unavailable declarant is admissible if it is a :

“ statement which was at the time of its making so far contrary to the declarant ’ s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the declarant against another, that a
reasonable person in the declarant ’s position would not have made the statement unless
believing it to be true. A statement tending to expose the declarant to criminal liability
and offered in a criminal case is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement. ”

While bo th alleged declarants are unavailable, there are no “ corroborating circumstances [ to ]
clearly indicate the trustworthiness of the statements. ” Id

. ¶ 106 We find that the trial court did not abuse its discretion in denying defendant’s motion for

a new trial base d on the testimony provided during the hearing. The testimony of all the

witnesses could have been discovered before trial and was not so conclusive a s to change the

outcome of the trial.
¶ 107 Next, defendant argues that the prosecutor deprived defendant of a fair trial when he
made prejudicial comments during closing argument. Specifically, defendant claims that the
prosecutor accused defense counsel of being “very good” at “trying to confuse the witnesses
about case reports and supplemental reports and all th is stuff ,” that defense counsel tried to
“distort as much as possible,” that defense counsel was “exaggerating to make it look like1-12-2640

39 reasonable doubt and they couldn’t have seen what they saw” and that the defense “ was just
going to throw it out there anyway .” Regarding Stiles, the State argued that the defense was
“trying to have her sign something so they could argue to you that she didn’ t see the police at

all. ” Lastly, the State accused defense counsel of wanting the police to kill innocent people,
saying that defense counsel, “thinks that the police should be shooting at everybody out there.”
An objection to this last comment was sustained.
¶ 108 Courts allow prosecutors great latitude in making closing arguments. People v. Cisewski , 118 Ill. 2d 163, 175 (1987). A prosecutor may comment on the evidence and all reasonable

inferences from the evidence. People v. Pasch , 152 Ill. 2d 133, 184 (1992). A closing argument

must be viewed in its entirety, and the challenged remarks must be viewed in their context.
People v. Glasper , 234 Ill. 2d 173, 204 (200 9). Argument that serves no purpose but to inflame
the jury constitutes error. Blue , 189 Ill. 2d at 127-28 . Statements will not be held improper if they
were provoked or invited by the defense counsel’ s argument. People v. Kirchner , 194 Ill. 2d 502,
553 (2000).
¶ 109 There is a conflict regarding the correct standard for reviewing a prosecutor ’ s remarks
during argument. People v. Daniel , 2014 IL App (1st) 121171, ¶ 32. In People v. Wheeler , 226
Ill. 2d 92, 121 (2007), and People v. Sims , 192 Ill. 2d 592, 615 (2000), our supreme court
suggested that we should review this issue de novo . In People v. Hudson , 157 Ill. 2d 401, 441
(1993), however, the court suggested that we should review this issue for an abuse of discretion.
We need not take a position in this case, as defendant’ s claim fails under either standard.
¶ 110 The above complained of comments from the prosecutor were made during rebuttal
argument, were invited by defense counsel’s closing argument, and were a reasonable response1-12-2640

40 to defense counsel’ s arguments . The defense asserted that the police were lying for their own
convenience so that they did not have to perform a proper police investigation. The prosecutor’ s

comment about defense counsel thinking “ that the police should be shooting at everybody out

there ” was ultimately sustained

. These remarks were also provoked by defendant’s closing
argument. Defense counsel questioned Officer Sedlacek ’ s and Office r Park ’ s credibility by
stating:
“Two guys who, for the l ife of me to this day, if, in fact, they saw what they claim they
saw, how do you not shoot this guy? How do you not fire one shot at a guy that you just
saw kill two people? And Sedlacek said, you know, I’m not a killer. Well, you know,

you ’ re a pol iceman who you’ve just witnessed, according to you, a double murder, and

you ’re within 10 feet of this guy as he’s carrying a gun and he turns in your direction and
you don’t fire off a shot. Think about that, ladies and gentleman. Does that make sense ?
Neither one of these guys. Neither one.”
¶ 111 Viewing the prosecutor’ s closing argument in toto , we find that the prosecutor’ s comments were not prejudicial and did not deprive defendant of a fair trial.
¶ 112 We also reject defendant ’ s argument that the State attempted to define reasonable doubt
and shift the burden of proof to the defendant. The State commented that the burden of proof was

not “some kind of Everest that we have to scale. ” Defense counsel ’s objection to this remark was

sustained. The State also argued that there was “no other explanation” of the gunshot residue
evidence, and an objection to this statement was overruled. The State further added that

defendant was the “unluckiest man in the world.”
¶ 113 In People v. Thompson , 2013 IL App (1st) 113105, ¶¶ 86-94, this court held the State’ s1-12-2640

41 comment that the reasonable doubt standard was not a “ mystical magical burden ” was not error.
The first remark made by the State regarding the burden of proof was sustained by the trial court.
The argume nt that there was “no other explanation” for the gunshot residue evidence does not

sh ift the burden to the defendant. T he prosecutor was merely highlighting unimpeached evidence

that had been admitted . Furthermore, claiming the defendant was the “unluckies t man in the

world ” was invited by the defense closing argument claiming defendant was at the wrong place
at the wrong time and falsely identified. These comments do not amount to unfair prejudice to

the defendant.
¶ 114 Defendant next asserts the State committed prejudicial error by arguing, “ [c] ounsel talks
about, well, why we didn’t do a lineup. It’s not fair to Robert Anderson. Well, there is a reason
why, and you heard that reason during the trial. Because what if it’ s the wrong guy? Because

what if it ’ s the wrong guy? What do we say to the victim’ s family then? Well, sorry, we did a
whole lineup.” The defense then objected and was overruled. The State continued, “ We did a
whole lineup and it took us about three hours or a couple hours to get the lineup together, but you
know what, it wasn’t him and, sorry, we didn’ t catch him that night. ” This argument was in

direct response to defendant’ s argument that show-up identifications were flawed and unreliable.
The prosecution was merely emphasizing that show-up identifications are done in emergency
situations when a suspect is caught quickly after an offense to confirm his identity by a witness,
because if the witness states that the suspect was not the offender , the police can quickly begin
searching for the cor rect offender. The prosecution was demonstrating the consequences of using
a traditional lineup under the circumstances of this investigation. These co mments were not
inflammatory or prejudicial.1-12-2640

42 ¶ 115 Finally, defendant asserts he was prejudiced by the State a rguing that a guilty verdict was
the only way to make defendant “ accept responsibility for what he did that night, ” and they

should “ tell him that his murdering days are over. ” The trial court sustained the objections to

these remarks.
¶ 116 These rebuttal comm ents, similar to our view of the other claimed improper prosecutorial
comments, did not unfairly prejudice defendant when viewed in context and in their totality.
Most of the comments were invited by the defense closing, and none were so prejudicial to den y

defendant a fair trial.
¶ 117 Defendant claims the trial court erred in denying his motion for a new trial because he
received ineffective assistance of trial counsel. Defendant specifically contends trial counsel was
ineffective for failing to ask for a limi ting instruction in regard to evidence of defendant’ s prior
arrest, failing to introduce DNA evidence, and failing to make a be tter offer of proof for the

eye witness expert t estimony.
¶ 118 To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1)

counsel ’ s performance was deficient and (2) counsel ’ s actions resulted in prejudice to the

defendant. Strickland v. Washington , 466 U.S. 668, 687 (1984); People v. Evans , 209 Ill. 2d 194,
220 (2004). Under the first prong, a defendant m ust demonstrate that his attorney ’ s performance
fell below an objective standard of reasonableness. Evans , 209 Ill. 2d at 220. Under the second
prong, prejudice is shown where there is a reasonable probability that the result would have been

different but for counsel ’ s alleged deficiency. Id . Failure to satisfy either prong of the Strickland
test precludes a finding of ineffective assistance of counsel. Strickland , 466 U.S. at 697.
¶ 119 In analyzing the first claim, that trial counsel was ineffective for failing to ask for a1-12-2640

43 limiting instruction in regard to evidence of defendant’ s prior arrest, we find defendant suffered
no prejudice. There is not a reasonable probability that the result of the trial would have been
different had the jury received an instruction stating that defendant’ s aggravated battery case
should only be considered to suggest that Officer Sedlacek h ad a motive to falsely identify

defendant. The more effective, but unsuccessful, use of this arrest was defense counsel’ s ability
to present the jury with facts tending to diminish the police officer ’s ide ntification testimony

because the previous contact with defendant would indicate that he should have recognized

defendant at the time of the incident and his arrest. The a cquittal was not the important point: it

was the officer ’s purported familiarity with the defendant that defense counsel skillfully brought
before the jury.
¶ 120 Defendant next asserts counsel was ineffective by failing to introduce DNA evidence.

Defendant has likewise failed to establish that he suffered prejudice as a result of defense

counsel’ s failure to introduce this evidence or that it was not simply trial strategy.
¶ 121 Defendant claims he was excluded as a DNA donor to the gloves that tested positive for
gunshot residue. However, this is not the case. Dr. Reich interpreted the DNA evidence as
excluding defendant from the DNA found on one of the two gloves. H e was not excluded as a
donor on the other. The State could have rebutted this conclusion through presenting the
conclusions of the Illinois State Police DNA report, which did not exclude defendant as a donor
of the DNA found on both gloves. Dr. Reich also testified it was possible that defendant wore
both gloves.
¶ 122 However, Dr. Reich, the DNA expert, testified at the hearing for a new trial and admitted
that he extensively cut and pasted his reports. The trial court found Dr. Reich to be one of the1-12-2640

44 most “ incredible experts ” it had ever seen testify. The defense attor ney also testified at this
hearing and stated that once he realized the State was not going to introduce DNA evidence and
that Dr. Reich had credibility issues, he made a strategic decision no t to introduce the DNA

evidence and instead argue that the State’s failure to introduce DNA evidence was a weakness in

their case. The record, in our view, supports the finding that defense counsel’ s failure to
introduce this evidence was a valid trial strategy and not unreasonable. See People v. Orange , 168 Ill. 2d 138, 153 (1995) (noting that a decision which involves a matter of trial strategy will
generally not support a claim of ineffective representation).
¶ 123 Lastly, the eyewitness testimony expert was not excluded because of an inadequate offer
of proof from defense counsel. The trial court, exercising its discretion, made this decision after
looking at the entirety of the evidence presented and the probative and prejudicial value of the
proffered testimony. The eyewitness and physical evidence, while some of it circ umstantial,
supported defendant’s conviction. Therefore, defendant was not prejudiced by the arguments
counsel made in defendant’s offer of proof in support of allowing expert eyewitness testimony.
¶ 124 CONCLUSION
¶ 125 Based on the foregoing, we affirm the jud gment of the trial court.
¶ 126 Aff irmed.