FOURTH DIVISION

										MARCH 31, 2003

No. 1-98-0393

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

									) Circuit Court of

		Plaintiff-Appellee,				) Cook County

									)

		v.							) No. 96 CR 22999

									)

MELVIN TISDEL,							) The Honorable

									) Stanley Sacks,

		Defendant-Appellant.			) Judge Presiding.

	JUSTICE GREIMAN delivered the opinion of the court:

	The facts of this case have been set forth in detail by our

appellate court opinion, People v. Tisdel, 316 Ill. App. 3d 1143 (2000), and the supreme court's decision People v. Tisdel, 201 Ill. 2d 210 (2002).

	Following a jury trial defendant, Melvin Tisdel, was

convicted of first-degree murder and sentenced to 35 years in

prison.  We reversed defendant's conviction on the ground that

the trial court should not have allowed the State's witnesses to

testify concerning nonidentification lineups.  We believed that

this error was not harmless and could have had a significant

impact on the jury's consideration.

	Thereafter the supreme court reversed our decision and

determined that the fact some of the eyewitnesses had viewed

prior lineups which did not include the defendant and failed to

 identify anyone as the perpetrator was relevant in demonstrating the reliability of their subsequent identifications.  Tisdel, 201 Ill. 2d at 220-21.

	The supreme court also entered a supervisory order directing

us to consider those issues raised by defendant but not reached

in the appellate court's earlier opinion.

	In the initial appeal, defendant raised issues that we did

not address relating to (1) the prejudice resulting from the

State's continued reference to defendant's codefendant (although

the codefendant was not tried in the same case and no objections

were made); (2) allowing pictures of lineups identifying the

defendant to go to the jury during deliberation; and (3) a

challenge to the effectiveness of trial counsel pursuant to

Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

	Additionally, defendant raised the issue of the trial

court's exercise of its discretion in not allowing an expert

witness to testify as to the latest scientific research regarding

eyewitness testimony.

	In that regard, we observed in our earlier opinion that

numerous studies in the area of eyewitness psychology indicate

that there is significant potential for eyewitness error and that

jurors have misconceptions about the abilities of eyewitnesses. 

See 19 Am. Jur. Proof of Facts 2d Pretrial Identification 435 (1979 & Supp. 2000).  There are two types of eyewitness identification expert testimony.  The first dispels myths or

attacks commonsense misconceptions about eyewitness

identifications, such as the effects of stress and weapon focus

on the accuracy of identifications.  The second provides the jury

with useful information about the kinds of mental factors

involved in the identification process, such as the effect of

time on the reliability of identifications, the forgetting curve,

and problems with cross-racial identifications.  W. Wolfson,

"That's the Man!"  Well, Maybe Not: The Case for Eyewitness Identification Expert Testimony, 26 Litig. 5, 6 (2000).  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. 

Normally, expert testimony that is probative and relevant should

be allowed.  People v. Sargeant, 292 Ill. App. 3d 508 (1997).  The trial court must also determine whether the proffered

testimony would confuse or mislead the jury.  We realize that

other jurisdictions have formulated guidelines for trial courts

to follow when considering whether to allow such testimony.  See,

e.g., State v. Moon, 45 Wash. App. 692, 726 P.2d 1263 (1986) (listing as factors the identification of the defendant is the

principal issue at trial, the presentation of an alibi defense

and little or no other evidence linking the defendant to the

crime).  However, a trial court's decision to allow or exclude

eyewitness identification expert testimony must be made on a case-by-case basis.  Even where cross-examination of an

eyewitness and an instruction are sufficient, allowing expert

testimony may still be helpful to the trier of fact.

	Defendant contends that Dr. Loftus's testimony should have

been admitted because it would have aided the jury in reaching a

more informed decision as to the credibility of the eyewitness

testimony.  We find that the trial court properly exercised its

discretion under People v. Enis, 139 Ill. 2d 264 (1990). The record shows that the judge considered the reliability and

potential helpfulness of the testimony, balanced the proffered

testimony against cases in which this court has upheld the

exclusion of such evidence, and found that the testimony would

not assist the jury.   See United States v. Hall, 165 F.3d 1095, 1106 (7th Cir. 1999).  Additionally, the record establishes that defense counsel thoroughly cross-examined all of the eyewitnesses

and that the trial court instructed the jury on the reliability

of eyewitness identification.  However, the trial court would not

have abused its discretion had it allowed the testimony, given

the facts of this case.

	Next the defendant suggests that reference by the

prosecution to Mark Robinson, the driver of the motor vehicle in

which defendant was a passenger, "was irrelevant and directed the

jury's attention away from a proper investigation of Mr. Tisdel's

guilt."

	We should first note that this issue has been waived by

		defendant's failure to object at trial or set out the alleged

		error in his posttrial motion.  People v. Enoch, 122 Ill. 2d

176 (1988).  It is difficult to imagine that such a reference

seduced the jury from its proper obligations.  It is also

difficult to argue that this, if an error, rises to the level of

plain error.  Usually plain error is employed where there is a

breakdown of the adversarial process and the evidence is closely

balanced, or where the rights of a defendant have been affected. 

People v. Keene, 169 Ill. 2d 1 (1995).

	Plain error is a limited and narrow exception to the waiver

rule, which may be invoked only where the evidence is so closely

balanced that it might be said that the jury's verdict may have

resulted from the error, or the error is so substantial that it

deprived the defendant of a fair trial.  People v. Coffee, No. 86975, October 18, 2001, 2001 WL 1243638; citing People v. Herrett, 137 Ill. 2d 195, 209-10 (1990).  People v. Carlson, 79 Ill. 2d 564, 576-77 (1980).

	The State argues that the evidence here is not closely

balanced and that the testimony of four eyewitnesses established

defendant as the individual with a handgun and as the person who

fired a shot killing the victim.

	As we pointed out in our prior opinion, in denying the

defendant's motion for a new trial or judgment notwithstanding

the verdict, the trial court stated that he "would have weighed

the evidence differently and that he was not personally convinced based on the evidence that defendant was proven guilty beyond a

reasonable doubt."  Tisdel, 316 Ill. App. 3d at 1152.

	Assuming arguendo that the evidence was clearly balanced,  

it is difficult to understand what prejudice, if any, the

defendant suffered.  The few comments relating to the driver of

the motor vehicle in which defendant was a passenger related to

the context of the crime and did not relate to the identity of

defendant.  It cannot be said that the jury's verdict may have

resulted from this evidence.  In any event, defendant waived this

issue.

	Defendant suggests that the trial court erred in allowing

certain exhibits to go to the jury during its deliberation.  The

particular exhibits are photos of lineups that each of three

witnesses, during their testimony, marked by placing an "X" over

the head of the defendant as he appeared in the lineup photo and

then initialing the bottom of the exhibit.

	It is clear that, generally, admitting such photos and

allowing them to make their way into the jury room is within the

trial court's discretion and will not be overturned absent an

abuse of such discretion.  People v. Greer, 79 Ill. 2d 103 (1980); People v. West, 294 Ill. App. 3d 939 (1998).

	Defendant argues that allowing such material to be given to the jury gave undue weight to the identification of defendant in

a case where his identity has particular relevance since several

witnesses did not identify defendant until some time after the commission of the crime.

	Defendant cites People v. Mims, 204 Ill. App. 3d 87 (1990), in support of his position.  However, that case is easily

distinguished on the facts, since it dealt with an unsigned,

paraphrased confession that was given to the jury rather than a

photo in a lineup.  It is clear that each of the witnesses could

and did identify defendant as the "shooter" during his testimony. 

It is difficult to imagine that the photo identification had any

greater impact than the direct identification of defendant during

the witnesses' testimony. 

	Lastly, defendant challenges the effectiveness of trial

counsel and suggests that defendant was denied his sixth amendment rights to adequate counsel under Strickland and People v. Albanese, 104 Ill. 2d 504 (1984).

	In a Strickland argument, defendant must show that counsel fell below a standard of reasonableness and there is a

"reasonable probability" that, but for counsel's unprofessional

errors, the result of the proceedings would have been different. 

Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

	Defendant asserts that counsel's performance was below that

standard in that she did not object when the State presented

nonidentification testimony regarding defendant and did not

object to the testimony regarding codefendant Robinson, the

driver of the motor vehicle.

	As to the first argument, our supreme court put that matter

to rest in considering this case on appeal and allowing such

testimony.  Tisdel, 201 Ill. 2d at 213-16.  

	As to the issue regarding the codefendant, we have indicated

here that even if defendant's counsel had made an objection, we

would have affirmed the trial court's ruling with respect to such

objection.  Moreover, a review of the record demonstrates that

defendant was more than adequately represented.  Defendant's

counsel presented motions to quash arrest, motions to suppress

evidence, a motion to provide testimony for an expert regarding

identification, and finally a motion to exclude identification

testimony.

	The record further evidenced vigorous cross-examination of

the witnesses with respect to identification, the presentation of

other witnesses, and a thorough closing argument, as well as

appropriate posttrial motions.

	Although defendant did not prevail, he appears to have had

more than competent counsel.

	For the foregoing reasons, the judgment of the circuit court

is affirmed.

	Affirmed.

	THEIS, J., and QUINN, J., concur.