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2021 IL App (1st) 172090 

No. 1-17-2090 

April 26, 2021 

First Division 

IN THE 

APPELLATE COURT OF ILLINOIS 

FIRST DISTRICT 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

) Circuit Court of 

Plaintiff-Appellee, ) Cook County. 

) 

v. ) No. 15 CR 19055 

) 

JASON CONWAY, ) Honorable 

) Charles P. Burns, 

Defendant-Appellant. ) Judge Presiding. 

PRESIDING JUSTICE WALKER delivered the judgment of the court, with opinion. 

Justice Hyman concurred in the judgment and opinion. 

Justice Pierce dissented, with opinion. 

OPINION 

¶ 1 After a bench trial, the trial court found Jason Conway guilty of violating the armed 

habitual criminal statute. 720 ILCS 5/24-1.7 (West 2014). Conway challenges the sufficiency of 

the evidence, and he argues that the trial court erred by (1) giving a police officer’s testimony 

greater weight solely because of the officer’s job, (2) allowing one expert to testify about the 

results of another expert’s test of a swab, and (3) failing to inquire sufficiently into Conway’s 
 

 

 

 

No. 1-17-2090 

posttrial claim that he received ineffective assistance of counsel. We find the evidence sufficient 

to convict. However, we hold that the trial court’s unsupported assertions about the special 

perceptual powers of police officers require reversal and remand for a new trial. 

¶ 2 I. BACKGROUND 

¶ 3 Around noon on November 2, 2015, Chicago Police Officer Donald Story and several other 

officers entered a house on Monroe Street in Chicago. They encountered several Black men and 

women in the house. Officers arrested Conway on the first floor and found car keys in his pocket. 

Story went to the basement, where he saw a purse strap hanging between two mattresses. He pulled 

the strap and found two guns in the purse. Police charged Conway with violating the armed 

habitual criminal statute. 720 ILCS 5/24-1.7 (West 2014). 

¶ 4 Defense counsel filed a motion to suppress the evidence seized in the warrantless search of 

the house on Monroe Street. The trial court denied the motion, in part because Conway did not 

live in the house and therefore had no privacy rights there. 

¶ 5 At the bench trial, Story testified that on November 2, 2015, he stopped his car on Monroe 

Street, and from 150 feet away, he saw a man shoot at a moving car. After the car sped off, the 

shooter, who wore a blue hoodie, opened the door of a car on the street and reached inside before 

going into the house on Monroe Street. A number of officers responded to Story’s call for backup. 

All went into the house the shooter had entered. Story saw the blue hoodie on the floor next to 

Conway. The car keys retrieved from Conway’s pocket fit the car into which Story saw the shooter 

reach. Story identified Conway in court as the shooter. 

¶ 6 Police found seven spent shell casings on the ground in front of the house. A firearms 

expert testified that the casings came out of one of the guns found in the purse Story found in the 

basement of the house on Monroe Street. 

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¶ 7 An officer swabbed Conway’s hands and the blue hoodie and sent the swabs to the lab for 

testing. Scott Rochowicz, an expert on trace chemistry, testified that he did not test the swabs, but 

he reviewed the notes Robert Burke made when Burke tested the swabs. Burke had found gunshot 

residue in one sample labeled as coming from the hoodie and in the sample labeled as control, but 

not in the second sample from the hoodie and not in either sample from Conway’s hands. 

Rochowicz testified: 

A. “[Burke] made notes that it looks like the left back sample along with the 

control sample were not used in the manner in which they were submitted. 

Q. And what does that mean? 

A. Basically it means he believes that those samples may have been switched 

during their use.” 

¶ 8 Rochowicz agreed with Burke’s conclusion that the hoodie bore gunshot residue and 

Conway’s hands did not. 

¶ 9 Defense counsel did not object to testimony about the gunshot residue test. The court 

elicited Rochowicz’s clarification that he did not test the samples, but in accord with standard peer 

review, he read Burke’s notes regarding Burke’s testing. 

¶ 10 The State presented evidence that Conway had two prior convictions for Class 1 felonies 

of possession and delivery of controlled substances. 

¶ 11 The court noted that the case rested largely on the credibility of Story’s eyewitness 

identification of Conway as the shooter. The court stated: 

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No. 1-17-2090 

“The officer, who is a trained police officer, is not a civilian, testified that he 

was in a position to immediately react when the shots were fired and saw the shots 

being fired. ***. 

*** 

*** The officer identified it specifically with regard to the sweatshirt, and 

apparently the sweatshirt does, as I stated earlier, have some tricomponent parts 

that are indicative of coming into contact with gunpowder residue.*** 

*** 

I do find that the officer was not startled, he was not in a situation where his 

perception might have been affected or that he might have been distracted. Again, 

he is a professional. He is a law enforcement official, which I think is something 

that I can take into consideration as compared to an individual who’s never had any 

such training and the dangers of false identification become more concerning then 

with a police officer. That is not a general statement. That is specifically to this 

officer. I believe his testimony is clear, credible, and convincing with regard to 

this.” 

¶ 12 The circuit court found Conway guilty of violating the armed habitual criminal statute. In 

allocution before sentencing, Conway said: 

“[Defense counsel] lied to you, your Honor. *** [W]e supposed to be here to 

hear the motion to reconsider [the denial of the motion to suppress]. They made me 

go to trial. We wasn’t even prepared for trial, your Honor. 

*** 

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*** I don’t know the reason I was pushed into trial. I didn’t get the chance to 

send nobody out to get anything done, your Honor.” 

¶ 13 Conway said his attorney told him that the judge would reconsider the motion to suppress 

during the trial. Conway told his attorney the name of the owner of the house on Monroe Street. 

The court asked counsel what he did with the information, and the attorney answered: “Judge, the 

fact that some lady owned the house I did not think was relevant as to whether he was the 

gentleman that fired the gun outside the house and ran inside of the house.” 

¶ 14 Conway explained that he expected that, on the motion for reconsideration of the denial of 

the motion to suppress, he could assert that he had a right to privacy as a guest in his friend’s home. 

Counsel responded: 

“I would rather consider it after a conviction because for all we know, we 

wouldn’t have to do a motion to reconsider if the court found him not guilty. It 

would be moot. 

So now we file it at the end, hoping the court changes his mind and vacates the 

guilty.” 

¶ 15 The circuit court found that counsel had not provided deficient representation and the court 

would have denied the motion to reconsider if counsel had made such a motion. The court 

sentenced Conway to 14 years in prison. Conway now appeals. 

¶ 16 II. ANALYSIS 

¶ 17 Conway argues on appeal: (1) the evidence does not support the conviction, (2) the court 

showed bias and considered matters outside the record in assessing Story’s credibility, (3) the court 

erred by allowing Rochowicz to testify to Burke’s conclusions, (4) counsel provided ineffective 

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assistance, and (5) the court did not sufficiently inquire into Conway’s posttrial allegations that he 

received ineffective assistance of counsel. 

¶ 18 A. Sufficiency of the Evidence 

¶ 19 Conway emphasizes that Story saw the shooter for only a few seconds from 150 feet away 

and, at that distance, Story could not have seen the shooter’s face clearly. Story saw several Black 

men in the house the shooter entered. Story did not explain what distinguished those men from the 

shooter. Because of the time it took for back up to arrive, the shooter could have hidden the gun in 

the purse, taken off the hoodie, and left by the back door without Story seeing him depart. 

¶ 20 Based on a distant eyewitness identification, the State presented a weak case, and the 

corroborating evidence presents some problems. According to the State, the shooter thought 

clearly enough to take off the hoodie, wash the gunshot residue off his hands, and hide the gun 

between mattresses in the basement, but he sat right next to the hoodie and failed to wash the 

gunshot residue off the hoodie. While we find the State’s characterization of the shooter odd, we 

find that the discovery of the gun, Conway’s proximity to the hoodie, and the testimony that the 

shooter reached into the car for which Conway held the keys suffices as corroboration of the 

eyewitness identification. We find the evidence closely balanced but sufficient to support the 

conviction. 

¶ 21 B. Officer’s Credibility 

¶ 22 Conway argues that the trial judge’s comments show that the judge harbored a pro-police 

bias and based his findings on assertions not supported by any evidence in the record. No evidence 

supports the assertion that police officers have any advantage over other witnesses in identifying 

strangers they have seen once or that officers are less prone to false identifications. See United 

States v. Veal, 182 F.3d 902 (2d Cir. 1999) (expert’s proffered testimony that “police officers are 

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No. 1-17-2090 

not superior eye witnesses” properly excluded as a matter of common sense). The trial judge here 

stated, “He is a law enforcement official, which I think is something that I can take into 

consideration as compared to an individual who’s never had any such training and the dangers of 

false identification ***. That is not a general statement. That is specifically to this officer.” 

¶ 23 We find that no evidence distinguished Story’s ability to make identification from the 

abilities of any other officer. Story’s emphasis on his unobstructed view of the shooter’s face shows 

that he intended the court to rely on his ability to recognize facial features of a person he saw for 

five seconds from 150 feet. Courts have excluded expert testimony on the effect of distance on the 

ability to identify a person, reasoning that “all jurors know that certain factors, such as lighting, 

distance, and duration, may affect the accuracy of identifications.” United States v. Downing, 753 

F.2d 1224, 1242 (3d Cir. 1985); see People v. Enis, 139 Ill. 2d 264 (1990). When courts have 

considered testimony on the effect of distance, experts have stated that “for people with normal 

vision the ability to identify faces begins to diminish at approximately 25 feet” (State v. Cabagbag, 

277 P.3d 1027, 1036 n.11 (Haw. 2012)); “impairments and difficulty in accuracy are apparent 

when the perpetrator is at least 30 yards away from the eyewitness.” State v. Holmes, 2012 WL 

4097296, at *6-7 (Del. Super. Ct. Sept. 19, 2012); and “at about 150 feet away, a witness’s ability 

to correctly identify somebody falls to essentially zero.” Benson v. State, 88 N.E.3d 1078 (Ind. Ct. 

App. 2017) (table). 

¶ 24 Story testified that he knew Conway shot the gun because he saw the shooter’s face from 

150 feet away for five seconds, and Conway, like the shooter, wore blue jeans. Conway also sat 

next to a blue hoodie which Story identified as the hoodie the shooter wore. Story did not notice 

any unique characteristics of the blue jeans the shooter wore. 

¶ 25 The appellate court has outlined the relevant principles: 

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“The right of a defendant to an unbiased, open-minded trier of fact is so 

fundamental to our system of jurisprudence that it should not require either citation or 

explanation. It is rooted in the constitutional guaranty of due process of law [citation], and 

entitles a defendant to a fair and impartial trial before a court which proceeds not arbitrarily 

or capriciously, but upon inquiry, and renders judgment only after trial.” (Internal quotation 

marks omitted.) People v. McDaniels, 144 Ill. App. 3d 459, 462 (1986). 

¶ 26 The judge here relied on his belief that the officer’s training gave him the ability to identify 

facial characteristics from 150 feet away with only a few seconds to observe the face. The judge’s 

comments show that the judge used “an underlying presumption favoring the exercise of 

government power,” (Morgan Cloud, The Dirty Little Secret, 43 Emory L.J. 1311, 1340 (1994)), 

and “work[ed] under the principle that police officers are presumptively trustworthy.” David N. 

Dorfman, Proving the Lie: Litigating Police Credibility, 26 Am. J. Crim. L. 455, 472 (1999). Just 

as “a prosecutor may not argue that a witness is more credible because of his status as a police 

officer” (People v. Clark, 186 Ill. App. 3d 109, 115-16 (1989)), a court cannot find a witness more 

credible solely because of his status as a police officer. No evidence supports the judge’s finding 

that Story’s training gave him a better ability than any other witness to identify a face he saw for 

a few seconds from 150 feet away. 

¶ 27 Hence, there was no evidence in the record supporting the trial judge’s finding that this 

police officer was better equipped than lay witnesses to identify a stranger’s face in seconds from 

150 feet away. Story’s identification belies the reality of human cognition because reliability or 

unreliability hinges initially on witness’s proximity to the perpetrator and the length and conditions 

for sound observation. See People v. Tomei, 2013 IL App (1st) 112632, ¶ 40. 

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¶ 28 We find that the record shows the “judge harbored preconceived notions regarding the 

veracity of the [prosecution] witnesses which led him to reject [the] defense without due 

consideration. We also find that defendant was not afforded a fair and impartial trial.” People v. 

Kennedy, 191 Ill. App. 3d 86, 91 (1989). Just as “a prosecutor may not argue that a witness is more 

credible because of his [or her] status as a police officer” (Clark, 186 Ill. App. 3d at 115-16), a 

trial judge cannot find a witness more credible solely because of his or her status as a police officer. 

¶ 29 The judge’s comments show “an underlying presumption favoring the exercise of 

government power” (Morgan Cloud, The Dirty Little Secret, 43 Emory L.J. 1311, 1340 (1994)), 

and “work[ed] under the principle that police officers are presumptively trustworthy.” David N. 

Dorfman, Proving the Lie: Litigating Police Credibility, 26 Am. J. Crim. L. 455, 472 

(1999). Accordingly, we remand to the presiding judge of the criminal division for reassignment 

and a new trial. Under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), we may, in our 

discretion, direct that this case be reassigned to a new judge on remand. People v. Serrano, 2016 

IL App (1st) 133493, ¶ 45. We exercise that discretion here because of the trial judge’s pronounced 

bias in favor of police testimony. Because of our disposition on this issue, we do not address the 

remaining arguments on appeal. 

¶ 30 III. CONCLUSION 

¶ 31 The trial judge improperly relied on unsupported assertions about the effects of police 

training on the ability to identify a face seen for a few seconds from 150 feet away. Because of the 

trial judge’s pronounced bias in favor of police testimony, we remand the cause to the presiding 

judge of the criminal division of the circuit court, with instructions to assign this case to a different 

judge on remand. 

¶ 32 Reversed and remanded with instructions. 

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¶ 33 JUSTICE PIERCE, dissenting: 

¶ 34 This is essentially a one-witness identification case with circumstantial evidence in support 

of the identification. The eyewitness is a police officer who, while on a surveillance assignment, 

heard gunshots about 150 feet away. He looked in the direction of the gunshots and observed the 

front and side of the shooter’s face; the clothing he was wearing, including a distinctive sweatshirt; 

and the type of weapon fired. He also observed that, after the shooting, the shooter reached into a 

car and then ran into a building. The officer called for assistance, promptly entered the building, 

and found the defendant on the floor with a sweatshirt similar to the one worn by the shooter lying 

at his feet. A firearm tied to shell casings found at the scene of the shooting was found in the 

building, and a search of defendant produced the keys to the car that the shooter reached into after 

the shooting. 

¶ 35 With no other witness to the shooting and no witness offering conflicting testimony, the 

majority finds this evidence sufficient to sustain a conviction. However, it orders a new trial based 

on a fanciful interpretation of the trial judge’s credibility determination of the sole eyewitness. I 

can only conclude that, rather than giving the circuit court’s credibility determination the deference 

to which it is entitled, the majority orders a retrial based on a finding, with no persuasive 

explanation, that an experienced trial judge is biased in favor of a police officer witnesses merely 

because the witness is a police officer. Either the single eyewitness was credible, or he was not. 

Either he saw what he testified to, or he did not. That the witness was a police officer was a fact 

from which a reasonable inference could be drawn that he was trained to make accurate 

observations under stressful circumstances. This does not mean that the observations made were 

per se credible; even a trained professional can be wrong. But the majority’s outcomedeterminative approach is not supported by the record and is simply an end-around on the axiom 

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that, in a bench trial, the trial judge is in the best position to make credibility findings and is 

presumed to know the law. The majority decision here is nothing more than a mechanism for the 

majority to replace the circuit court’s judgment with its own. I cannot agree with the majority’s 

reasoning or conclusions—except that there was sufficient evidence from which the trier of fact 

could conclude that defendant was guilty beyond a reasonable doubt. I respectfully dissent. 

¶ 36 To explain my reasoning, it is necessary to fully state the evidence at the bench trial. A 

review of the testimony shows that Officer Story testified that, at around 11:45 a.m. on November 

2, 2015, he was working as a surveillance officer with a narcotics team when he saw defendant, 

from about 150 feet away, firing a handgun at a car. Officer Story had a clear and unobstructed 

view. He could see the front and left side of defendant’s body and face. He testified regarding 

where defendant was in relation to him at time of the shooting and described the clothes that 

defendant was wearing: a multicolored light blue and “kind of greyish” hoodie and light blue jeans. 

Defendant approached a Pontiac parked in front of 3822 West Monroe Street, opened the door, 

leaned inside, and stepped away. Defendant returned to the Pontiac, reached inside, and then 

entered 3822 West Monroe Street. Officer Story also described the gun that defendant was holding 

as a black semi-automatic handgun. 

¶ 37 When help arrived, Officer Story and the other officers first entered the wrong building but 

then entered 3822 West Monroe Street and saw defendant on the floor wearing a white t-shirt and 

the same jeans he was wearing earlier. The hoodie he was wearing earlier was on the floor near 

his feet. Defendant was arrested, and the keys to the Pontiac were found on defendant. In the 

basement, Officer Story found a purse containing two handguns. One was a .40-caliber pistol with 

an empty magazine that appeared to be the same weapon Officer Story saw defendant shooting. 

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Officer Story recovered seven .40-caliber shell casings outside, which were later identified as 

having been fired from the .40-caliber weapon he recovered. 

¶ 38 A summary of the circuit court’s finding is that 

“[i]t is clear that the shooter ran into the address where the defendant was found ***. 

* * * 

The shooter is inside. The officer sees the shooter run inside that place and the 

police subsequently go into that location. Also it’s clear the gun used in the shooting is 

inside that same residence at 3822 West Monroe. There is no question about that. 

The seven casings on the scene match up with the gun that’s found, the .40-caliber 

gun that’s found inside the address. 

It’s also clear to me that a sweatshirt *** was found inside the same address where 

the defendant was, where the gun was, where the shooter ran into.” 

¶ 39 The court then stated that “it boils down to an ID case” that occurred at 11:45 a.m., during 

“natural sunlight,” and “it does appear that the officer did not have any obstructions in the line 

from where he was to the—where he observed the shooter shoot.” The officer was “about 150 feet 

away,” a “half of a football field.” The court found that: 

“There is corroborative evidence of this, but essentially as argued, this is a single-finger 

case. 

I do find that the officer did have a unique opportunity to view the shooter in this 

matter. I do find that the officer’s testimony with regard to the identity of the shooter was 

in fact clear, credible, and convincing. 

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I do find that the officer was not startled, he was not in a situation where his 

perception might have been affected or that he might have been distracted. Again, he is a 

professional. He is a law enforcement official, which I think is something that I can take 

into consideration as compared to an individual who’s never had any such training and the 

dangers of false identification become more concerning then [sic] with a police officer. 

That is not a general statement. That is specifically to this officer. I believe his testimony 

is clear, credible, and convincing with regard to this.” 

¶ 40 Contrary to the majority’s opinion, the trial judge did not make “unsupported assertions 

about the special perceptual powers of police officers” (supra ¶ 1) or find “that Story’s training 

gave him a better ability than any other witness to identify a face he saw for a few seconds from 

150 feet away” (supra ¶ 26). These unsupported characterizations of the circuit court’s comments 

form the basis of the majority’s thinly reasoned conclusion that the “ ‘[trial] judge harbored 

preconceived notions regarding the veracity of the [prosecution] witnesses which led him to reject 

[the] defense without due consideration.’ ” Supra ¶ 27 (quoting People v. Kennedy, 191 Ill. App. 

3d 86, 91 (1989)). The majority isolates the trial judge’s actual findings to find bias where none is 

evident and without regard for context. As the record shows, the trial judge’s findings were plainly 

based on the evidence before it: that Officer Story was “not startled, he was not in a situation where 

his perception might have been affected or that he might have been distracted.” 

¶ 41 When considering identification testimony, all the circumstances should be considered, 

including the opportunity to observe the offender at the time of the crime, the witness’s degree of 

attention at the time of the crime, the accuracy of the witness’s prior description of the offender, 

the level of certainty at the identification confrontation, and the time between the observation and 

the confrontation. People v. Slim, 127 Ill. 2d 302, 307 (1989). 

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¶ 42 Here, the trial judge found that Officer Story’s testimony was “clear, credible, and 

convincing.” In doing so, the circuit court found that Officer Story—who was a trained police 

officer on a surveillance assignment—looked toward the gunshots and observed the shooter, his 

characteristics, his clothing, and his movements during and after the shooting. In other words, the 

circuit court found that Officer Story was paying attention, a factor that is entirely appropriate to 

consider when evaluating identification testimony. Id. The circuit court did not find that Officer 

Story is better at observing events than a civilian because he is a police officer or that a civilian 

would be unable to make the same observations. The circuit court credited Officer Story’s 

testimony because he observed the shooting while it was happening and testified as to what he 

saw. The circuit court considered Officer Story’s testimony that he saw defendant’s face from the 

front and left side during the shooting and found that testimony—along with the remainder of 

Officer Story’s identification testimony—to be “clear, credible, and convincing.” 

¶ 43 The majority implies that it would be improbable for a person to recognize another person 

from a distance of 150 feet but does little to substantiate that belief, other than relying on quotes 

from expert testimony proffered in different cases from other states. Supra ¶ 23. I fully agree with 

the State that evidence concerning the reliability of eyewitness testimony was not presented for 

the circuit court’s consideration here or that this argument was fully developed in the record and, 

therefore, should not be considered by this court on appeal. See People v. Mehlberg, 249 Ill. App. 

3d 499, 531-53 (1993) (“A reviewing court must determine the issues before it on appeal solely 

on the basis of the record made in the trial court.”). We are a court of review and should generally 

refrain from considering evidence that the circuit court did not have an opportunity to consider 

when making its judgment. Officer Story was fully cross-examined on his identification testimony, 

and the circuit court, having considered all of the evidence, found the testimony “clear, credible, 

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and convincing.” There was nothing arbitrary, capricious, or improbable about Officer Story’s 

testimony, and certainly nothing in the record supports a finding of bias on the part of the circuit 

court in finding that the testimony was credible. The majority implies that the circuit court’s 

finding that Officer Story, a police officer, testified credibly is the same thing as finding Officer 

Story’s testimony credible because he is a police officer. The record reflects that the circuit court 

found Officer Story’s testimony was credible because, as a police officer performing his job, he 

was paying attention to what was happening, he was not distracted, and his perception was not 

affected. Nothing suggests that the trial judge believed Officer Story possessed enhanced 

perceptual powers by virtue of having been trained as a police officer. 

¶ 44 The majority attempts to make a significant point when it states “[n]o evidence supports 

the judge’s finding that Story’s training gave him a better ability than any other witness to identify 

a face he saw for a few seconds from 150 feet away.” Supra ¶ 26. That is not what the trial judge 

found. The trial judge commented that Officer Story “was not in a situation where his perception 

might have been affected or that he might have been distracted” and that, because he was paying 

attention to what was happening, “the dangers of false identification” were diminished in this case. 

Furthermore, if the majority means to say that, in a situation where there are two differing witness 

accounts, the trial judge should not elevate a police officer’s testimony over that of a civilian, that 

is fine. But how is that relevant here, where the focus is solely on the trial judge’s assessment of 

Officer Story’s credibility? The majority sidesteps the issue of whether the trial judge’s finding 

that Officer Story’s testimony was credible was against the manifest weight of the evidence. 

Instead, the majority finds judicial bias where there is none. The majority allows its skepticism of 

Officer Story’s testimony to override our obligation, as a court of review, to pay considerable 

deference to the circuit court’s credibility findings when those findings are based on the evidence 

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presented in the circuit court. The fact that the circuit court did not share the majority’s 

unsubstantiated skepticism is not a valid basis for overturning the circuit court’s finding because 

the circuit court’s finding is not against the manifest weight of the evidence. 

¶ 45 The majority agrees with defendant “that the record shows the ‘judge harbored 

preconceived notions regarding the veracity of the [prosecution] witnesses which led him to reject 

[the] defense without due consideration.’ ” Supra ¶ 28 (quoting Kennedy, 191 Ill. App. 3d at 91). 

But the trial judge’s comments here bear little resemblance to the comments in Kennedy, where 

we faulted the trial judge for being biased and relying on matters outside of the record in making 

his credibility determinations regarding defense witnesses. Kennedy, 191 Ill. App. 3d at 90-91. We 

found: 

“The trial judge classified the defense witnesses as thieves, drug addicts, fornicators and 

welfare recipients. However, nothing in the record supports these classifications. The trial 

judge must have guessed from the witnesses’ clothing and mien that they were thieves, 

drug users, welfare recipients and fornicators. Alternatively, he must have relied on 

information outside of the record in evaluating the witnesses. The trial judge also seemed 

unwilling to believe the testimony of the defense witnesses because of their living 

arrangements and employment status. The defense witnesses apparently lacked credibility 

because the trial judge believed that they were unemployed drug addicts and welfare 

recipients. Also, the witnesses lacked credibility because the trial judge believed that their 

children were born out of wedlock. We are of the opinion that the trial judge harbored 

preconceived notions regarding the veracity of the defense witnesses which led him to 

reject defendant’s alibi defense without due consideration. We also believe that defendant 

was not afforded a fair and impartial trial.” Id. at 91. 

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¶ 46 Here, unlike in Kennedy, the trial judge gave a considered explanation for his credibility 

determination that was based on the evidence before him. The majority fails to point to even a 

single statement from the trial judge that evinced a “preconceived notion” in favor of the State or 

a “pro-police bias,” other than the circuit court’s observation that Officer Story was a police 

officer. I do not agree with the majority that the record supports a finding that the trial judge 

exhibited any bias. Therefore, I would find that defendant is not entitled to a new trial on this basis. 

Rather than encouraging the circuit court to explain its decisions, this decision will cause trial 

judges to make conclusory credibility determinations to avoid unsubstantiated interpretations of 

its findings by a reviewing court. 

¶ 47 For the foregoing reasons, I respectfully dissent. 

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No. 1-17-2090 

Cite as: 

Decision Under Review: 

Attorneys 

for 

Appellant: 

Attorneys 

for 

Appellee: 

No. 1-17-2090 

People v. Conway, 2021 IL App (1st) 172090 

Appeal from the Circuit Court of Cook County, No. 15-CR19055; the Hon. Charles P. Burns, Judge, presiding. 

James E. Chadd, Patricia Mysza, and Gavin J. Dow, of State 

Appellate Defender’s Office, of Chicago, for appellant. 

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan 

J. Spellberg and David H. Iskowich, Assistant State’s Attorneys, 

of counsel, and Sandi Tanoue, law school graduate), for the 

People. 

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