Illinois Official Reports 

Appellate Court

People v. Macklin, 2019 IL App (1st) 161165

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

DERRICK MACKLIN, Defendant-Appellant.

District & No. First District, Second Division 

Docket No. 1-16-1165

Filed

Rehearing denied

March 5, 2019

April 4, 2019

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 11-CR-18763; the 

Hon. Luciano Panici, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Michael J. Pelletier, Patricia Mysza, and Richard Connor Morley, of 

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

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

Clare Wesolik Connolly, and Adam Sammarco, Assistant State’s 

Attorneys, of counsel), for the People.

Panel PRESIDING JUSTICE MASON delivered the judgment of the court, 

with opinion.

Justices Lavin concurred in the judgment and opinion.

Justice Hyman dissented, with opinion.
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 OPINION 

¶ 1 Following a 2016 bench trial, defendant, Derrick Macklin, was convicted of armed robbery 

involving the personal discharge of a firearm causing great bodily harm (720 ILCS 

5/18-2(a)(4) (West 2010)) and sentenced to 40 years’ imprisonment. The only argument 

Macklin raises on appeal is that the State did not sustain its burden to prove him guilty beyond 

a reasonable doubt because the eyewitness testimony implicating him should not have been 

believed by the trial judge. Related to this claim, Macklin argues that his trial counsel rendered 

ineffective assistance by not presenting an expert witness to support his defense that the 

eyewitness identifications were unreliable. Finding no error, we affirm. 

¶ 2 Macklin was charged with six counts of attempt first degree murder, five counts of armed 

robbery, one count of aggravated battery, one count of armed habitual criminal, two counts of 

aggravated discharge of a firearm, and four counts of aggravated unlawful restraint, all arising 

out of an incident occurring on October 2, 2011, and involving two victims, Jose Gomez and 

Wilfredo Garcia. 

¶ 3 At about 10:30 p.m. on October 2, Gomez and his nephew, Garcia, were walking in the 

vicinity of 156th Street and Central in Harvey. As they were walking, a white car with four 

passengers approached from behind and stopped next to them. Three men got out of the car and 

walked toward Gomez and Garcia. The driver remained in the car and eventually drove off 

without the others. 

¶ 4 The area was well lit with streetlamps, including one near Gomez and Garcia and another 

near the car. All three men wore dark sweatshirts and baseball caps with the hoods pulled up 

over the caps. Their faces were not covered. The man in the middle of the three men, later 

identified as Macklin, was taller than the others, and Gomez and Garcia were able to see his 

face. When he was about 12 feet away from Gomez and Garcia, Macklin pulled out a gun and 

said, “your money or you die” and fired a single shot toward them. The gunshot struck Garcia 

in the right hand and he fell to the ground facedown. The other two men took over $150 in cash 

and identification cards from Gomez’s pockets, as Macklin pointed the gun at Gomez and 

Garcia. They also took Garcia’s wallet. The three men fled on foot. 

¶ 5 After the men left, Gomez found that he still had his cell phone and called 911. Police 

officers responded to the call. Gomez spoke English in the 911 call and with the officers. The 

record does not contain the police report or any description of the offenders Gomez gave to 

police. Garcia cannot speak or read English so he not did speak to the responding officers 

directly. It is unclear whether he communicated with the officers through Gomez. 

¶ 6 Garcia’s right hand was bleeding from a through and through gunshot wound, and an 

ambulance took him to the hospital. He remained in the hospital overnight and was transferred 

to another hospital the next day. He has permanent scarring from the wound and loss of feeling 

in one of his fingers. 

¶ 7 Macklin was arrested on October 10, 2011, as a result of another incident involving shots 

fired at another location in Harvey. He was charged and convicted of being an armed habitual 

criminal in connection with that incident. See People v. Macklin, 2016 IL App (1st) 140697-U.

¶ 8 The day after Macklin’s arrest, Gomez and Garcia went to the police station to view a 

lineup. Detective Andrew Wallace, who speaks a little Spanish but is not fluent, met them at 

the station. Before the lineup, Gomez signed a lineup advisory form and saw that Garcia signed 
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one as well. Gomez was able to read the English-language advisory form. He explained the 

form to Garcia. A Spanish-speaking officer, whose name Wallace could not recall, also 

explained the form to Garcia (although, according to Garcia, Gomez was not present at the 

time). Gomez and Garcia were notified that (i) the suspect may or may not be in the lineup, (ii) 

they were not required to make an identification, and (iii) they should not assume that the 

person administering the lineup knew which person was the suspect. 

¶ 9 Garcia, and then Gomez, separately viewed the lineup and both identified Macklin as the 

person who had robbed them and shot Garcia. Macklin sat in a different position in each 

lineup. Garcia was “70 percent sure” of his identification. Garcia did not tell Gomez who to 

identify before Gomez viewed the lineup. When Gomez viewed the lineup, he identified 

Macklin. Gomez was “100 percent sure” of his identification. Nobody told Gomez to choose 

Macklin; instead, he recognized Macklin from the incident. While only Macklin wore braids in 

the lineup, that did not affect Gomez’s identification because it was based on “[h]is eyes and 

mouth,” which Gomez recognized.

¶ 10 Before trial, defense counsel filed a motion to suppress the lineup identifications on the 

ground that the composition of the lineup was suggestive. In particular, counsel contended that 

Macklin was the only person in the lineup wearing a white T-shirt and who had braids. No 

testimony was taken at the hearing and counsel relied only on the lineup photos to argue that 

they were suggestive. Defense counsel never argued that the offender was described as having 

braids so there was no issue that Macklin’s hairstyle was not suggestive. Focusing on 

Macklin’s claim that his lineup attire was suggestive, the court inquired what information 

regarding the offenders’ attire had been described by the victims. Both defense counsel and the 

State agreed that the victims had described the men as wearing black hoodies and baseball 

caps. The court responded, “So in the lineup, there are no black hoodies and no baseball caps.” 

Noting that Macklin’s white T-shirt did not make it more likely that he would identified since 

he was not described as wearing a white T-shirt at the time of the incident, the court found that 

the lineup was not suggestive and denied the motion to suppress. At no point during the 

hearing did the State indicate that the only description given by the victims was that the 

offenders were wearing black hoodies and baseball caps. 

¶ 11 The State presented the testimony of Gomez, Garcia, and Wallace at trial. Macklin elected 

not to testify and did not present any evidence. 

¶ 12 Following closing arguments, the court found Macklin guilty of all charges but attempted 

first degree murder. Since it was undisputed that Garcia had been shot, the court found that the 

only issue was the reliability of the victims’ identification of Macklin. Although both Gomez 

and Garcia had testified through an interpreter at trial, the court noted that Gomez understood 

and spoke English. The court found Gomez credible, consistent, and unimpeached. The court 

noted that Garcia expressly denied being told who to identify. The court stated that while there 

was evidence that Garcia had been only 70% certain in his identification, “Gomez is 100 

percent sure. He never wavered.” In other words, Garcia and Gomez “were both sure of one 

thing, that [Macklin] was the guy that shot” Garcia. 

¶ 13 In his posttrial motion, Macklin challenged the sufficiency of the evidence and the denial 

of his motion to suppress identification testimony. At the motion hearing, defense counsel 

argued in relevant part that the testimony of all three witnesses was not credible, and in 

particular Garcia “had difficulty actually identifying [Macklin] as the shooter” and “said in 
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court in testimony that he was 70 percent sure at first that it was [Macklin] that indeed shot 

him.” The court denied the posttrial motion.

¶ 14 Following a sentencing hearing, the court sentenced Macklin to 40 years’ imprisonment for 

the armed robbery of Garcia involving the personal discharge of a firearm proximately causing 

great bodily harm. The convictions on all other counts merged into the armed robbery 

conviction. 

¶ 15 As noted, Macklin raises no claim of trial error other than the trial court’s decision to credit 

the eyewitness identifications of him as the assailant. 

¶ 16 A person commits armed robbery when he (1) knowingly takes property from another by 

the use of force, or by threatening imminent use of force and (2) in committing that offense, he 

personally discharges a firearm proximately causing great bodily harm to another. 720 ILCS 

5/18-1(a), 18-2(a)(4) (West 2010). Macklin does not challenge that an armed robbery occurred 

but argues that the State failed to prove he was the perpetrator. 

¶ 17 On a claim of insufficient evidence, we must determine whether, taking the evidence in the 

light most favorable to the State, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. People v. Gray, 2017 IL 120958, ¶ 35. It is 

the responsibility of the trier of fact to weigh, resolve conflicts in, and draw reasonable 

inferences from the testimony and other evidence, and it is better equipped than this court to do 

so as it heard the evidence. Id.; In re Jonathon C.B., 2011 IL 107750, ¶ 59. We do not retry a 

defendant; that is, we do not substitute our judgment for that of the trier of fact on witness 

credibility or the weight of evidence. Gray, 2017 IL 120958, ¶ 35. Contradictory evidence or 

minor or collateral discrepancies in testimony do not automatically render a witness’s 

testimony incredible, and it is the task of the trier of fact to determine if and when a witness 

testified truthfully. Id. ¶¶ 36, 47. A conviction will be reversed only where the evidence is so 

unreasonable, improbable, or unsatisfactory that a reasonable doubt of the defendant’s guilt 

remains. Id. ¶ 35. When a finding of guilt depends on eyewitness testimony, we must decide 

whether the trier of fact could reasonably accept the testimony as true beyond a reasonable 

doubt. Id. ¶ 36. 

¶ 18 We recite variations of the above well-established precepts in every case involving a claim 

that the evidence was insufficient to convict. As familiar as they are, they are vital rules of law 

that govern the respective roles of the trial and appellate courts in all cases. In cases where the 

State is able to present not only eyewitness testimony, but also physical evidence connecting 

defendant to a crime such as shell casings matching a weapon recovered in defendant’s 

possession, DNA evidence, or an inculpatory statement, these principles are easy to apply. In 

contrast, in cases like this where the evidence is sufficient, but not overwhelming, those 

standards become more difficult to apply and it is tempting to second-guess a trial judge’s 

determination of the sufficiency of the evidence or witness credibility. Under such 

circumstances, the true measure of a court’s fidelity to the rule of law is its acknowledgement 

of the difficult decision the trial judge was called upon to make, but recognition of the duty the 

law imposes to afford that decision deference. We do not share our dissenting colleague’s 

“grave and serious doubt” about the eyewitness identifications in this case. 

¶ 19 We also do not “rubber stamp” credibility determinations, and when identifiable factors 

undermining those determinations exist, it is appropriate to conclude that a court or jury acted 

unreasonably in accepting a witness’s testimony. See People v. Coulson, 13 Ill. 2d 290, 296 

(1958) (rejecting trial court’s credibility determination where victim’s testimony that men who 
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robbed him accompanied him to his home and permitted him to go inside alone with promises 

that he would not call the police “taxes the gullibility of the credulous”); People v. Wright, 147 

Ill. App. 3d 302, 321 (1986) (disbelieving alleged rape victim’s testimony that defendant 

dragged her by her wrist for nearly four hours when there was no evidence of swelling, 

soreness, bruises, or tenderness to her wrist); People v. Hernandez, 312 Ill. App. 3d 1032, 1037 

(2000) (reversing defendant’s conviction based on eyewitness identification by witness who 

only saw back of shooter’s head and a glimpse of the shooter’s profile from 90 feet away). But 

given the foregoing framework that guides every case we consider, the circumstances that lead 

us to conclude that no reasonable person could have accepted a witness’s testimony should 

naturally be few and far between. This is not one of those cases. 

¶ 20 Context is critical when referencing authorities referring to the identification of strangers 

as “ ‘proverbially untrustworthy.’ ” United States v. Wade, 388 U.S. 218, 228 (1967) (quoting 

Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and 

Laymen 30 (1927)). Many courts questioning the reliability of eyewitness identifications have 

done so in cases where the identifications were made under suggestive conditions. For 

example, State v. Lawson, 291 P.3d 673 (Or. 2012), and State v. Henderson, 27 A.3d 872 (N.J. 

2011) are not wholesale indictments of the reliability of eyewitness identifications. Rather, 

both Lawson and Henderson dealt with suggestive identification and lineup procedures and the 

effect such suggestiveness has on a witness’s identification of the defendant. See Lawson, 291 

P.3d at 679-80 (victim was unable to pick defendant out of photo array at hospital shortly after 

she was shot and again one month later, but despite her lack of recollection of the hospital 

interview, five weeks after the incident she believed defendant was the assailant; victim later 

shown newspaper reports of the crime with photographs of the defendant as well as other 

photographs of the defendant and was taken to court before trial so she could observe him in 

person); Henderson, 27 A.3d at 879-81 (when interviewed by police immediately after murder, 

eyewitness told police a false story and later changed his story when confronted by police; in 

viewing photo array, witness did not initially pick out defendant’s photograph, claiming to be 

unsure, but when shown the photo array again after police told him not to be afraid and that 

they would take care of him, selected defendant’s photo). Here, in contrast and as we discuss 

below, Macklin’s lineup was not suggestive, and he does not pursue his contention on appeal 

that it was. Leaving aside whether a Spanish-speaking officer translated the advisory form for 

Garcia (both Garcia and Wallace testified that she did) or whether that officer should have been 

present in the room when Garcia viewed the lineup, the record does not reveal that suggestive 

procedures contributed to Garcia’s identification of Macklin. And there is absolutely no basis 

to contend that there was anything suggestive about Gomez’s identification. 

¶ 21 As recognized in Lawson, “the scientific research is ‘probabilistic’—meaning that it cannot 

demonstrate that any specific witness is right or wrong, reliable or unreliable, in his or her 

identification.” 291 P.3d at 685. While we respect our dissenting colleague’s views, we do not 

share his approach to evaluating the eyewitness testimony in this case. 

¶ 22 It is well-settled that a valid conviction may be based on a positive identification by a 

single eyewitness who had ample opportunity to observe. In re M.W., 232 Ill. 2d 408, 435 

(2009). A trier of fact assesses the reliability of identification testimony in light of all the facts 

and circumstances including (1) the witness’s opportunity to view the offender at the time of 

the offense, (2) the witness’s degree of attention at the time of the offense, (3) the accuracy of 

any previous description of the offender by the witness, (4) the degree of certainty shown by 
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the witness in identifying the defendant, and (5) the length of time between the offense and the 

identification. Id.; People v. Joiner, 2018 IL App (1st) 150343, ¶ 47. These are often referred 

to as the Biggers factors. Joiner, 2018 IL App (1st) 150343, ¶ 47 (citing Neil v. Biggers, 409 

U.S. 188 (1972)). No single Biggers factor by itself conclusively establishes the reliability of 

identification testimony; instead, the trier of fact must consider all the factors. Id.

¶ 23 The Biggers factors are applied identically at the trial and appellate levels. Trial judges 

employ them all the time in cases where the identity of the defendant is at issue. Accordingly, 

when the trial judge here found the victims’ and, in particular, Gomez’s positive identification 

of Macklin sufficient to sustain the State’s burden of proof, he was not merely finding that the 

victims were generally credible; rather, he was finding those identifications reliable under 

Biggers. We perform the same function on review without, of course, the advantage of being 

able to see and hear the witnesses. 

¶ 24 Here, after “carefully examin[ing] the record evidence” (People v. Cunningham, 212 Ill. 2d 

274, 280 (2004)) and taking the evidence in the light most favorable to the State, we conclude 

that a rational trial judge could convict Macklin of armed robbery based on the eyewitness 

identifications. In other words, this is simply not a case in which “only one conclusion may 

reasonably be drawn from the record” that is contrary to the conclusion drawn by the trier of 

fact. Id. The testimony of both Gomez and Garcia was largely consistent. Although Macklin 

points to certain discrepancies between their accounts of the robbery (Gomez testified that the 

two other men took his money and identification, while Garcia said Macklin did; Gomez 

estimated that he was able to see Macklin for “three to five minutes” while Garcia estimated he 

saw him for “three seconds” and while he was facedown on the ground), both consistently 

testified that the area was well lit, they were able to see Macklin, whose face was not covered, 

as he approached them, and that Macklin shot Garcia in the hand from about 12 feet away. We 

disagree with Macklin’s contention that Gomez and Garcia gave inconsistent accounts of 

whether Macklin said anything as he approached them. Gomez testified that as he approached, 

Macklin said, “your money or your life.” Garcia, on the other hand, was never asked whether 

Macklin said anything; he was instead asked on cross-examination whether, as the men 

approached, they said anything among themselves: (1) “And these individuals, the car that you 

saw, you didn’t hear them make any conversation[ ] between them when they got out of the 

car, is that correct?” and (2)“And when that shot was fired, again there was no conversation 

between the person that fired that shot and the two individuals on the side?” And in any event, 

Garcia did not understand English, so his failure to recount anything Macklin said would be 

unsurprising. Ultimately, the effect of any discrepancies in the victims’ accounts of the 

robbery, which defense counsel explored on cross-examination and stressed in closing, 

presented a credibility determination for the trial court, which it is inappropriate to 

second-guess. 

¶ 25 Macklin’s argument regarding the reliability of the victims’ identification of him in the 

lineups rests primarily on the assumption that the only description of the offenders given to 

police was that they wore black hoodies and baseball caps. But, as noted, the record does not 

disclose what description Gomez gave police at the time of the robbery because Macklin has 

not included the police report in the record. It is axiomatic that it is improper to draw an 

inference in favor of a defendant based on material missing from the record. See People v. 

Urdiales, 225 Ill. 2d 354, 419 (2007) (any doubt that arises from an incomplete record on 

appeal will be resolved against the appellant). But even though we do not know what 
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contemporaneous description of the offenders Gomez gave to police, Macklin argues and the 

dissent presumes it consisted only of “black hoodies and baseball caps,” a description that 

“applies to tens of thousands of black men in Chicago on any given day” (infra ¶ 69).1 Again, 

indulging this presumption favoring Macklin runs counter to the principles that govern our 

review. 

¶ 26 Macklin mischaracterizes the suppression hearing when he argues that the State conceded 

that a generic description of black hoodies and baseball caps was the only thing police had to 

go on. Rather, as to the clothing the offenders wore, the State merely confirmed the description 

of the offenders’ clothing given by the victims, which, in turn, led to the trial court’s finding 

that the white T-shirt Macklin wore during the lineup was not suggestive. Gomez was never 

asked at trial what description he gave to police, and the details of Macklin’s appearance that 

Gomez testified he observed at the time of the robbery—his eyes, nose, mouth, and facial hair, 

consisting of a small beard and moustache—were all brought out on cross-examination. 

¶ 27 Macklin contends that Gomez “embellished” his description of the shooter with details he 

learned by observing Macklin at trial. Macklin did not advance this argument in the trial court, 

and it is based both on a mischaracterization of Gomez’s trial testimony and yet another 

assumption in Macklin’s favor, not borne out by the record, about what Macklin looked like at 

the time of trial. Gomez testified that when he saw Macklin in the lineup, he recognized the 

face he saw when Macklin robbed him, including his eyes, nose, mouth, and facial hair. In fact, 

the lineup photos in the record show that at the time of the lineup, 10 days after the robbery, 

Macklin had a moustache and small beard. However, the record does not disclose what 

Macklin looked like at the time of trial and, in particular, whether he still had facial hair, an 

identifying feature—along with hairstyle—that a defendant can change before trial in an effort 

to make an in-court identification less likely. See People v. Irwin, 2017 IL App (1st) 150054, 

¶ 14 (based on defendant’s photograph taken at the time of his arrest and the description of him 

at trial, court concluded that defendant had cut his long hair); People v. Clark, 335 Ill. App. 3d 

758, 767 (2002) (defendant grew beard before trial; not improper for State in closing to 

comment on defendant’s attempt to change his appearance). So there is plainly no basis for 

assuming that Gomez “embellished” his description of Macklin by observing him at trial.

¶ 28 Further, even if we assume that the entirety of the description was of three AfricanAmerican males wearing black hoodies and baseball caps, Gomez’s certain identification of 

Macklin as the offender would be sufficient to sustain the conviction. See People v. Tomei, 

2013 IL App (1st) 112632, ¶¶ 51, 52 (business owner’s description of “two white males” 

wearing a “dark cap” and “heavy jackets” sufficient to sustain conviction given that owner 

made a positive identification of defendant and testified that he recognized defendant’s face). 

A general or imprecise description by a witness does not necessarily render the witness’s 

identification unreliable. People v. Williams, 2015 IL App (1st) 131103, ¶ 75; People v. Miller, 

254 Ill. App. 3d 997, 1009 (1993). “It has consistently been held that a witness is not expected 

or required to distinguish individual and separate features of a suspect in making an 

 

1We may take judicial notice that police did not arrest Macklin because he was wearing a black 

hoodie and a baseball cap and looked like “tens of thousands of black men in Chicago on any given 

day” (infra ¶ 69) but, rather, because about a week after he robbed Gomez and shot Garcia, he was 

caught fleeing the scene of a shots fired call while in possession of two firearms. Macklin, 2016 IL App 

(1st) 140697-U, ¶ 27. 
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identification. Instead, a witness’ positive identification can be sufficient even though the 

witness gives only a general description based on the total impression the accused’s 

appearance made.” People v. Slim, 127 Ill. 2d 302, 308-09 (1989); see also Lawson, 291 P.3d 

at 687-88 (recognizing, based on eyewitness identification research, that “[c]ontrary to a 

common misconception, there is little correlation between a witness’s ability to describe a 

person and the witness’s ability to later identify that person”).

¶ 29 Gomez’s trial testimony that he identified Macklin in the lineup with “100 percent” 

certainty based on his eyes, mouth and facial hair, which he was able to observe during the 

robbery, is sufficient even if there was nothing particularly distinctive about those facial 

features that would have prompted him to separately describe them to police. Indeed, if all 

Gomez and Garcia “really” saw was three men in dark hoodies and baseball caps, it is a 

remarkable coincidence that they both separately picked Macklin out of lineups in which he sat 

in different positions. To paraphrase a theme prosecutors often invoke in closing arguments, 

Macklin must be the unluckiest man on the face of the earth to have not one, but two 

eyewitnesses mistakenly, separately, and independently identify him as the perpetrator. 

¶ 30 Analysis of the Biggers factors does not undermine the reliability of the eyewitness 

identifications of Macklin. Gomez and Garcia certainly had an adequate opportunity to view 

Macklin as he approached them as there was sufficient artificial lighting and Macklin’s face 

was not covered. Gomez also had the opportunity to view Macklin during the robbery, which, 

for purposes of this appeal, we will assume lasted seconds rather than minutes. The dissent 

dismisses the opportunity Gomez had to observe Macklin, characterizing it as “mere seconds.” 

Infra ¶ 88. But if you count it out (as in “one, one thousand, two, one thousand, three, one 

thousand”), it is apparent that the trial judge was entitled to credit that as a sufficient 

opportunity to observe Macklin. While Garcia testified he fell facedown after he was shot, he 

also testified he glanced up at Macklin while he was on the ground. Both victims were paying 

attention to the three men as they approached, and there is no suggestion that they focused only 

on the gun Macklin pulled out. Because we have no contemporaneous descriptions in the 

record, we cannot say, as Macklin urges, that a lack of detail undermines their reliability. 

Gomez was certain in his identification of Macklin; Garcia, less so. And the lineups were 

promptly conducted 10 days after the robbery. See Slim, 127 Ill. 2d at 313 (interval of 11 days 

between robbery and identification of defendant “not significant”); People v. Green, 2017 IL 

App (1st) 152513, ¶ 113 (“reviewing courts have found identifications reliable where nearly 

three months or more elapsed between the crime and the witness’s identification”).

¶ 31 The dissent dismisses Gomez’s certainty in his identification of Macklin as this factor has 

been “roundly criticized,” citing another opinion this writer authored. Infra ¶ 77; see People v. 

Starks, 2014 IL App (1st) 121169, ¶ 72. But, of course, context is everything. Starks involved a 

jury trial and a defendant’s claim that the trial court erroneously refused to permit him to 

present expert testimony on the issue of the reliability of eyewitness identification. Given the 

developing body of law regarding the fallibility of eyewitness testimony and the recognition 

that, in appropriate cases, expert testimony may assist a jury in evaluating such testimony, we 

found that the trial court abused its discretion in dismissing out of hand defendant’s proffered 

eyewitness expert. Id. We neither directed the trial court to admit expert testimony nor did we 

reject a witness’s expression of certainty as an appropriate factor in the reliability analysis. The 

cited comments in Starks have no application here in a case involving a bench trial and where 

no expert witness testimony was proffered. 
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¶ 32 Moreover, the dissent conflates an eyewitness’s degree of certainty at the time of initial 

identification with certainty at the time of trial, disregarding any distinction. Here, Macklin’s 

trial took place four years after the robbery, so it stands to reason that the victims’ in-court 

identification of Macklin at trial is correspondingly less relevant. But recent research has 

recognized a distinction between the reliability of lineup and in-court identifications and 

concluded that expressions of certainty at the time of initial identification are a relevant 

indicator of accuracy. See John T. Wixted & Gary L. Wells, The Relationship Between 

Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18 Psychol. Sci. Pub. 

Int. 10, 55 (2017) (concluding that “According to the available data, the relationship between 

confidence and accuracy for an initial ID from an appropriately administered lineup is 

sufficiently impressive that it calls into question the very notion that eyewitness memory is 

generally unreliable. *** [W]hen pristine testing procedures[2]

 are used, an initial ID made 

with high confidence is highly indicative of accuracy.”). Although there were arguable 

irregularities in connection with Garcia’s viewing of the lineup (relating to explanation of the 

advisory form and the presence of a Spanish-speaking officer in the viewing room), there were 

none with respect to Gomez. Accordingly, there is no basis to dismiss out of hand his 100% 

certainty in identifying Macklin. See id. at 13 (noting that most wrongfully convicted 

defendants exonerated by DNA who were misidentified by an eyewitness were, at the outset of 

the investigation, identified with low confidence (citing Brandon L. Garrett, Convicting the 

Innocent: Where Criminal Prosecutions Go Wrong (2011))). 

¶ 33 Additionally, as noted, the fact that Gomez and Garcia both identified Macklin as the 

armed robber, after separately viewing a lineup in which he sat in different positions, enhances 

and corroborates the accuracy of their respective identifications. Against this evidence, 

Macklin notes and the dissent finds “troubling” discrepancies in the testimony of Gomez, 

Garcia, and Wallace regarding the admonishments and advisory forms preceding the lineups. 

Again, these same arguments were made to Macklin’s trial judge. And in light of the 

unequivocal testimony of Gomez and Garcia that nobody told them who to choose in the 

lineup, we consider (as did the trial court) the discrepancies to be merely collateral and not 

fatal to the reliability of their identifications of Macklin. 

¶ 34 We acknowledge studies and decisions cited by Macklin that have called into question the 

reliability of eyewitness identifications. See, e.g., People v. Lerma, 2016 IL 118496, ¶ 24. That 

said, each case must be judged on its own facts, and nothing in this case compels us to reject 

the identifications that formed the basis of Macklin’s conviction. Stated another way, we 

cannot view the evidence in the light most favorable to the State, as we must, and conclude that 

no reasonable trial judge could have believed the eyewitness identifications of Macklin. 

¶ 35 Macklin also contends that trial counsel was ineffective for not presenting an expert 

witness to support his defense that the eyewitness identifications were unreliable. 

 

2Wixted and Wells list five factors for “pristine” lineup conditions: (1) “[i]nclude only one suspect 

per lineup,” (2) “[t]he suspect should not stand out in the lineup,” (3) “[c]aution that the offender might 

not be in the lineup,” (4) “[u]se double-blind testing,” and (5) “[c]ollect a confidence statement at the 

time of the identification.” Wixted, supra, at 20. The only thing the record here does not reveal is 

whether the person in the room with Gomez and Garcia knew Macklin was the suspect; all other lineup 

conditions were met. 
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¶ 36 A defendant’s claim that trial counsel failed to render effective assistance is governed by a 

two-pronged test: the defendant must establish that (1) counsel’s performance fell below an 

objective standard of reasonableness and (2) the defendant was prejudiced by that 

performance. People v. Brown, 2017 IL 121681, ¶ 25. Prejudice is a reasonable probability that 

the result of the proceeding would have been different absent counsel’s error, and a reasonable 

probability is in turn a probability sufficient to undermine confidence in the outcome of the 

proceeding. People v. Peterson, 2017 IL 120331, ¶ 79. The decision whether to call a 

particular witness is a matter of trial strategy left to counsel’s discretion, and thus generally not 

a proper basis for an ineffectiveness claim. Id. ¶ 80. A strategy is not unreasonable merely 

because it proved unsuccessful. Id. ¶ 88. Representation is not constitutionally defective unless 

the strategy was so unsound that counsel failed to conduct meaningful adversarial testing of the 

State’s case, or so irrational that no reasonably effective counsel in similar circumstances 

would use that strategy. Id. ¶ 80.

¶ 37 Macklin places great weight on Lerma, in which our supreme court held that the trial court 

abused its discretion in excluding a defense expert witness on the reliability of eyewitness 

identification when the only evidence against the defendant was identification by two 

eyewitnesses, one of whom did not testify and was not subject to cross-examination. 2016 IL 

118496, ¶ 26. The Lerma court found that “research concerning eyewitness identification[ ] 

*** is well settled, well supported, and in appropriate cases a perfectly proper subject for 

expert testimony.” Id. ¶ 24. It found an abuse of discretion in “the trial court denying 

defendant’s request to present relevant and probative testimony from a qualified expert that 

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

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

which rose “to the level of both arbitrary and unreasonable to an unacceptable degree.” Id.

¶ 32. 

¶ 38 We note first that Lerma had not been decided at the time of Macklin’s trial; it was decided 

shortly after the trial concluded. The Lerma court acknowledged that expert witnesses on the 

reliability of eyewitness testimony were being routinely excluded at the time, at least partly 

due to skepticism expressed by the supreme court and repudiated in Lerma itself. Id. ¶ 24 

(citing People v. Enis, 139 Ill. 2d 264, 286-87, 289 (1990)). Lerma recognized “the dramatic 

shift in the legal landscape concerning the use of identification expert testimony.” (Emphasis 

added.) People v. Ortiz, 2017 IL App (1st) 142559, ¶ 42. Representation based on the law 

prevailing at the time of trial is adequate, and counsel is not incompetent for failing to correctly 

predict that the law will change. People v. English, 2013 IL 112890, ¶ 34. 

¶ 39 Further, the issue in Lerma—whether the trial court abused its discretion in rejecting 

proffered expert testimony—is manifestly different than the issue presented here, i.e., whether 

defense counsel’s performance fell below an objectively reasonable standard based on the 

failure to call an expert witness at trial. The finding that “research concerning eyewitness 

identification[ ] *** is well settled, well supported, and in appropriate cases a perfectly proper 

subject for expert testimony” (Lerma, 2016 IL 118496, ¶ 24) does not, standing alone, support 

the conclusion that trial counsel here was per se ineffective for not presenting such expert 

testimony or that expert testimony is required in every case. For example, counsel is entitled to 

consider as a matter of trial strategy that the designation of an eyewitness expert by the defense 

will likely be met with a counterdesignation by the State, which would highlight and bolster 

the accuracy of the eyewitness identification. In any event, the argument that trial counsel 
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failed to conduct meaningful adversarial testing of the State’s case is refuted by counsel’s 

pretrial motion to suppress identification testimony and extensive cross-examination and 

argument at trial. 

¶ 40 Finally, Lerma involved a jury trial while Macklin elected a bench trial. As the Lerma court 

stated, “expert testimony is only necessary when the subject is both particularly within the 

witness’s experience and qualifications and beyond that of the average juror’s, and when it 

will aid the jury in reaching its conclusion.” (Emphases added.) Id. ¶ 23. We do not find a 

reasonable probability that the presentation of an expert witness on the reliability of eyewitness 

testimony in this bench trial would have had any impact on the outcome of the proceedings. 

¶ 41 Accordingly, the judgment of the circuit court is affirmed. 

¶ 42 Affirmed. 

¶ 43 JUSTICE HYMAN, dissenting: 

¶ 44 The question itself is troubling: Did the victims correctly identify Macklin as one of the 

offenders? The testimony of the victims and the case law raise grave and serious doubt. 

¶ 45 “ ‘What is the worth of identification testimony even when uncontradicted? The 

identification of strangers is proverbially untrustworthy. The hazards of such testimony are 

established by a formidable number of instances in the records of English and American 

trials.’ ” United States v. Wade, 388 U.S. 218, 228 (1967) (quoting Felix Frankfurter, The Case 

of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen 30 (1927)). This is one of 

those instances, and so I respectfully dissent. 

¶ 46 Before proceeding, I feel compelled to respond to the majority’s characterizations of my 

views. The majority begins its analysis with a discussion of the standard of review in cases 

implicating reasonable doubt. The discussion focuses on the appellate court’s deference to the 

trier of fact and its limited role on review of challenges to the sufficiency of the evidence. But, 

the majority’s focus on what appellate justices must not do conveniently disregards discussion 

of what appellate justices must do.

¶ 47 Especially in criminal cases, each member of the appellate panel has been entrusted with a 

solemn responsibility—to ensure that justice has been done to the appellant. This includes 

“carefully examin[ing] the record evidence” to determine whether the State has proven its 

case. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). Although we accord the trial court’s 

conclusion about the sufficiency of the evidence great deference, it “is not conclusive and does 

not bind [us].” Id.

¶ 48 To that end, we cannot unmoor the standard of review from the underlying substantive 

question—whether the State proved every element of the offense beyond a reasonable doubt. 

The reasonable doubt standard provides a direct corollary to the presumption of innocence and 

“plays a vital role in the American scheme of criminal procedure.” (Internal quotation marks 

omitted.) Jackson v. Virginia, 443 U.S. 307, 315 (1979). It holds the State to its burden to 

muster sufficient evidence to allow the fact finder “to reach a subjective state of near certitude 

of the guilt of the accused.” Id. The standard presupposes a rational trier of fact who uses 

reason to apply the standard to the evidence. Id. at 317. We must similarly view the evidence 

rationally (see Cunningham, 212 Ill. 2d at 280), and the standard of review neither deprives an 

appellate court of its ability to reason nor divests it from the use of common sense. 
- 12 - 

¶ 49 Applying this framework to identification cases, we view the evidence to determine 

whether the five factors enunciated in Neil v. Biggers, 409 U.S. 188 (1972), have been met. 

People v. Slim, 127 Ill. 2d 302, 307-08 (1989). The primary goal when assessing the Biggers 

factors involves avoiding “ ‘a very substantial likelihood of irreparable misidentification.’ ” 

Biggers, 409 U.S. at 198 (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). In 

service of that goal, we ultimately consider whether identification is reliable. See In re 

Christian W., 2017 IL App (1st) 162897, ¶ 83 (“The linchpin of this five-factor test is the 

reliability of the eyewitness identification.” (Internal quotation marks omitted.)).

¶ 50 If, based on the record, I concluded that Gomez and Garcia were incredible enough to be 

unworthy of any belief whatsoever, I would advocate for reversal without analysis of the 

Biggers factors. See id. ¶ 85 (collecting cases reversing on sufficiency of identification without 

considering Biggers). An analysis of the Biggers factors supposes the witness’s testimony to 

be generally credible. See id. ¶¶ 83-85. In other words, a Biggers analysis does not depend on a 

subjective reevaluation of the trial court’s credibility determination; rather, it requires an 

objective view of the evidence supporting or, here, not supporting, each factor. 

¶ 51 Ultimately, the majority misapplies the reasonable doubt standard to identification 

testimony. It is unquestionably the job of the fact finder to determine the credibility of the 

witnesses, and we defer to those findings. See, e.g., People v. Siguenza-Brito, 235 Ill. 2d 213, 

228 (2009) (trier of fact determines credibility of witnesses). Our job entails careful review of 

the credible evidence to determine whether it establishes proof of every element beyond a 

reasonable doubt. See Cunningham, 212 Ill. 2d at 280 (noting, appellate court must “carefully 

examine the record evidence” and “if only one conclusion may reasonably be drawn from the 

record, a reviewing court must draw it even if it favors the defendant”). We need not question 

the veracity or good faith of Gomez and Garcia. The cases and the academic literature, as I will 

discuss, explain that eyewitnesses, even credible eyewitness, make mistakes. Accepting that 

Gomez and Garcia testified honestly, their testimony does not prove Macklin’s identity as the 

offender beyond a reasonable doubt. 

¶ 52 The majority is concerned that my approach would operate to “second-guess” the trial 

court’s findings of credibility and guilt, in essence disregarding the standard of review. Supra 

¶ 18. Not so. Our disagreement can be reduced to a difference in approach. The majority looks 

to the lineup and trial identifications and assures itself that any infirmities in those 

identifications have been ameliorated. I look to the fleeting nature of the offense coupled with 

the inherent distraction caused by being shot and witnessing a relative being shot and find no 

assurances about the reliability of the identifications. I remain faithful, as I must, to the 

standard of review and reach a different conclusion—that Macklin’s conviction, based 

exclusively on problematic eyewitness testimony, is unreasonable. 

¶ 53 Gomez and Garcia had a few seconds to view the men who robbed them. In that instant, 

one of the men pulled a gun and shot Garcia. At the end of it all, the only description they could 

give police was of three black men wearing black hoodies and baseball caps. Given this 

cursory and generic description, the fleeting nature of the offense, and the inherent distraction 

caused by the firing of a weapon, one might ask: How then can we rely solely on Gomez’s and 

Garcia’s assurance that they were certain, by the time of trial, of Macklin as the shooter? I am 

unwilling to place substantial reliance on inherently malleable testimony. See People v. 

Fountain, 2016 IL App (1st) 131474, ¶ 159 (Hyman, J., dissenting). 
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¶ 54 As troubling is Garcia’s treatment during the lineup procedure. Garcia spoke “Spanish 

only” and was unsure whether any Spanish-speaking officers were present at the lineup. He 

figured out the purpose of the lineup based on piecing together the few words he knew and the 

“signs” that suggested he should identify the shooter. Gomez, also present for the lineup 

procedure, explained the English-language lineup advisory form to Garcia in Spanish and the 

purpose of the lineup, which he understood as intending Garcia to see if he recognized the 

person who committed the crime. The officer responsible for conducting the lineup insisted a 

Spanish-speaking officer was present but could not recall who. That officer also did not give a 

Spanish-language advisory form to either Gomez or Garcia, even though one was available. 

¶ 55 In light of the questionable conditions surrounding Gomez’s and Garcia’s initial 

observation of the offenders, coupled with the problems attendant to the lineup procedures, I 

cannot agree with the majority’s conclusion that the identifications possessed sufficient 

reliability to amount to proof beyond a reasonable doubt. 

¶ 56 Whenever I am called on to review the issue of reasonable doubt, I take heed of the 

cautionary words of United States Supreme Court Justice John Marshall Harlan II: “I view the 

requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a 

fundamental value determination of our society that it is far worse to convict an innocent man 

than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., 

concurring). This case presents just the sort of situation that Harlan’s admonition evokes.

¶ 57 The Biggers Factors 

¶ 58 Macklin has not challenged the continued vitality of the Biggers test (see Biggers, 409 U.S. 

at 199-200; Slim, 127 Ill. 2d at 307-08), but I remain skeptical of many aspects of that analysis. 

People v. Starks, 2014 IL App (1st) 121169, ¶¶ 85-93 (Hyman, P.J., specially concurring, 

joined by Pucinski, J.); see also Fountain, 2016 IL App (1st) 131474, ¶¶ 151-60. The majority 

suggests that I have gone out of my way to issue “wholesale indictments of the reliability of 

eyewitness identifications.” Supra ¶ 20. The majority overstates my position to criticize it. 

True, I share the same concerns about some of the Biggers factors that have been recognized by 

courts in other states (e.g., State v. Henderson, 27 A.3d 872, 904-05 (N.J. 2011); State v. 

Lawson, 291 P.3d 673, 695 (Or. 2012)). Nonetheless, Macklin has not questioned Biggers, and 

the majority frames its analysis by Biggers. So, in addition to explaining my concerns about the 

continuing utility of some Biggers factors, I also have analyzed them as they currently exist 

and explained why each exposes a disturbing lack of reliability under the facts before us. 

¶ 59 Again, Biggers serves as a litmus test for affirmance, not reversal. Christian W., 2017 IL 

App (1st) 162897, ¶¶ 82-85. In other words, to affirm in an identity case, we must be satisfied 

that the Biggers factors have been met, but we can reverse for “other reasons independent of 

the five-factor test, such as inconsistencies and discrepancies in the overall testimony” of the 

eyewitnesses. Id. ¶¶ 84-85. 

¶ 60 Opportunity to Observe 

¶ 61 Illinois courts repeatedly describe a victim’s opportunity to observe an offender as “the 

most important” of the Biggers factors. E.g., People v. Wehrwein, 190 Ill. App. 3d 35, 39 

(1989); People v. Moore, 115 Ill. App. 3d 266, 270 (1983). 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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¶ 62 Garcia and Gomez disagree on whether the offense lasted three seconds (Garcia) or three to 

five minutes (Gomez). The majority assumes the encounter lasted only seconds. In so doing, 

the majority tacitly calls into question the reliability of Garcia’s and Gomez’s accounts. This 

court has previously remanded for the trial court to consider the presentation of expert 

identification testimony where, under stressful conditions, a witness had no more than a few 

seconds to observe an offender. Starks, 2014 IL App (1st) 121169, ¶ 72. Confronted with a 

similar scenario, the majority concludes that Garcia and Gomez had a sufficient opportunity to 

observe their attackers. The majority also tries to convey the length of several seconds by 

asking the reader to count out the seconds (“one, one thousand, two, one thousand, three, one 

thousand” (supra ¶ 30)) as if the dramatic surrounding circumstances did not exist. It is not 

only that Gomez and Garcia had a fleeting view of the offenders. Their attention was pulled in 

several directions—they watched the car the offenders got out of drive away, there were three 

attackers, one brandished a gun, and Garcia was shot. We are not confronted with a scenario 

where Gomez and Garcia had “three one thousands” to stare at the shooter uninterrupted and 

distraction and stress free. 

¶ 63 Given the brevity of the encounter and that Macklin’s conviction hinges entirely on the 

identification, this factor exposes a lack of reliability. But see People v. Herrett, 137 Ill. 2d 

195, 204-06 (1990) (affirming where witness only had “several seconds” to observe attacker 

but other circumstantial evidence, including proceeds of robbery, confirmed defendant’s 

identity). Gomez’s and Garcia’s opportunities to observe were insufficient to support 

Macklin’s identification as the shooter.

¶ 64 Degree of Attention 

¶ 65 Not only did Gomez and Garcia have a fleeting view of their attackers, one of the attackers 

brandished and fired a gun. We do not consider whether they focused only on the gun; we 

consider whether the overall stress of the crime “contribute[d] to the unreliability of [their] 

testimony.” In re J.J., 2016 IL App (1st) 160379, ¶ 30 (citing People v. Lerma, 2016 IL 

118496, ¶ 26). The presence of a gun tends to “focus [a victim] on weapons rather than the 

offender’s face.” Id. (citing People v. Allen, 376 Ill. App. 3d 511, 525 (2007)). The 

phenomenon of “weapon focus” has been amply documented. E.g., Henderson, 27 A.3d at 

904-05. When a weapon is absent, identification becomes significantly more reliable. Id. at 

905. 

¶ 66 In J.J., the victim was still able to be “detailed and descriptive,” and video of the incident 

corroborated many of the ancillary details she remembered, minimizing the effect of the gun’s 

presence. 2016 IL App (1st) 160379, ¶ 30. But, Garcia’s and Gomez’s fleeting visual views 

yielded not a single pertinent facial or physical or distinct indicator of identification other than 

race, clothing, and a differential in height of one of the offenders. See Henderson, 27 A.3d at 

905 (brief interaction exacerbates weapon focus). Additionally, we are not confronted with a 

situation involving the mere presence of a gun; one of the offenders fired the gun and injured 

Garcia. This becomes particularly relevant because, after being shot, Garcia fell to the ground 

facedown, abbreviating his ability to observe the offenders. 

¶ 67 In an encounter lasting just seconds, during which witnesses are fired at by a gun-wielding 

assailant, the likelihood of a reliable identification drastically diminishes. The vagueness of 

Gomez’s and Garcia’s initial descriptions of the offenders, at the most crucial point of 

observation for purposes of identification, confirms their inability to focus on details and 
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undermines the evidentiary value of all their later identifications of Macklin. See Nat’l 

Research Council, Identifying the Culprit: Assessing Eyewitness Identification 55 (2014), 

https://nap.edu/read/18891 [https://perma.cc/DA9N-HZA3] (“weapon focus is a real-world 

case in point for eyewitness identification, in which attention is compellingly drawn to 

emotionally laden stimuli, such as a gun or a knife, at the expense of acquiring greater visual 

information about the face of the perpetrator”). 

¶ 68 Prior Description 

¶ 69 A witness’s prior description of an offender, even if brief, must be specific. See J.J., 2016 

IL App (1st) 160379, ¶ 32. Here, that description offers nothing more than the presence of 

three black men wearing black hoodies and baseball caps, one taller than the other two. This is 

an exceedingly nonspecific description that would not even support reasonable suspicion to 

arrest Macklin. See Florida v. J.L., 529 U.S. 266, 268, 272 (2000). Descriptions at this level of 

generality weigh against a finding of reliability. People v. Simmons, 2016 IL App (1st) 131300, 

¶ 95. The description easily applies to tens of thousands of black men in Chicago on any given 

day. 

¶ 70 The majority takes issue with the sufficiency of the record regarding the initial description 

of the offenders and yet, at least two times, accepts that Garcia and Gomez first described their 

attackers only as three men in black hoodies and baseball caps. In the statement of facts (supra

¶ 4), the majority’s description of the offense includes: “All three men wore dark sweatshirts 

and baseball caps with the hoods pulled up over the caps.” In its description of the suppression 

hearing (supra ¶ 10), the majority acknowledges that the parties agreed “the victims had 

described the men as wearing black hoodies and baseball caps.” (Emphasis added.) The 

majority faults Macklin for failing to include the police report in the record and criticizes me of 

indulging a presumption in Macklin’s favor based on evidence that is not before us. Supra

¶ 25. Inexplicitly, the majority discounts the affirmative representations made by an assistant 

state’s attorney that the only description given to police was of three men in black hoodies and 

baseball caps. That representation most certainly is in the record, and the majority offers no 

reason that we cannot rely on it. I would find the record supports concluding that Gomez and 

Garcia gave only a generic description to the police. 

¶ 71 In a puzzling detour, the majority drops a footnote and takes “judicial notice” of a decision 

in a different case to explain that Macklin was not arrested because he matched the description 

given to the police by Gomez and Garcia. Supra ¶ 25 n.1 (citing People v. Macklin, 2016 IL 

App (1st) 140697-U, ¶ 27). Never mind that the circumstances of Macklin’s arrest are nowhere 

in the record before us. That aside, the majority’s reference to another case involving Macklin 

is at best irrelevant and at worst a sidelong attempt to portray Macklin as an unsympathetic 

criminal. 

¶ 72 The majority’s citation to Macklin’s other case is irrelevant primarily because the issue 

before us is not whether the officers had received a sufficient identification to locate and arrest 

him or whether they arrested him based on the descriptions given. At this juncture, we are only 

concerned with Gomez’s and Garcia’s descriptions to the extent they give us a basis to evaluate 

their ability to observe and compare their initial descriptions with their later ones. See J.J., 

2016 IL App (1st) 160379, ¶ 32 (noting, prior description increases reliability where it is 

specific). I simply cannot see the point in citing Macklin’s other case when the reason for his 

arrest has no bearing on the reliability of Gomez’s and Garcia’s identifications. 
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¶ 73 Even under the majority’s view of the record this factor does not favor the State. See 

People v. Green, 2017 IL App (1st) 152513, ¶ 111 (third factor does not apply at all when no 

prior description given). In other words, accepting the majority’s assertion that there is nothing 

in the record providing Gomez’s and Garcia’s prior descriptions (there is), this factor would 

drop out of the analysis entirely.

¶ 74 I also am troubled because, contrary to the majority, I find well supported Macklin’s 

argument that Gomez “embellished” his description after later observations of him. Even if 

unintentional, Gomez augmented his description at trial from a man in a black hoodie and 

baseball cap to include the offender’s eyes, nose, mouth, and small beard and moustache. We 

should be particularly suspicious of descriptions that improve with time, as memory rarely 

works that way. See Henderson, 27 A.3d at 907. The majority attempts to draw a distinction 

because Gomez’s additional descriptors of Macklin arose at the time of the lineup as opposed 

to trial. Supra ¶ 27. The majority points out that it is quite easy for defendants to change their 

appearance at trial in an attempt to frustrate an in-court identification. That makes no 

difference here, where nothing in the record suggests Macklin’s appearance had changed. 

Gomez’s description spectacularly advanced in detail and became sharper and more vivid at 

trial; whether the specifics came from observing Macklin during the lineup or in the 

courtroom, Gomez’s description somehow blossomed when compared to what it was at the 

time of the incident. 

¶ 75 In all, the generic description combined with its inexplicable and expansive improvements 

weighs heavily in finding Gomez’s and Garcia’s identifications as unreliable.

¶ 76 Level of Certainty 

¶ 77 The reliability of a witness’s certainty about his or her identification has been roundly 

criticized in this court and elsewhere. E.g., Starks, 2014 IL App (1st) 121169, ¶ 72 (describing 

“the weak correlation between a witness’s confidence in his or her identification and its 

accuracy”); id. ¶¶ 85-89 (Hyman, P.J., specially concurring, joined by Pucinski, J.) (collecting 

cases). As I have observed, the most confident witnesses are still wrong 20% to 30% of the 

time. Fountain, 2016 IL App (1st) 131474, ¶ 159. Witness confidence is influenced both by 

overestimation of the amount of time that a witness observed an offender and by inadvertent 

feedback from officers during identification procedures. Id. Many jurisdictions that have 

reconsidered this aspect of their Biggers factors equivalents have drastically altered the way 

they do so. E.g., Henderson, 27 A.3d at 920-22; Lawson, 291 P.3d at 695. 

¶ 78 The majority seeks to diminish the persuasive value of cases like Henderson and Lawson

because those courts analyzed suggestive identification and lineup procedures as opposed to 

the sufficiency of the evidence. Supra ¶¶ 20-21. The problem for the majority is that so did 

Biggers, the case from which we derive the test. See Biggers, 409 U.S. at 190 (noting 

certiorari was granted to determine “whether the identification procedure violated due 

process”). Without question, we apply Biggers to sufficiency claims in Illinois (Slim, 127 Ill. 

2d at 307-08), and there is no principled reason that a critique of Biggers in one context would 

not equally apply to all others. 

¶ 79 Any distinction between this case and cases like Lawson and Henderson, to which the 

majority refers, does not affect my argument. As the court in Lawson explained, the scientific 

literature divides the factors used to determine identification reliability into two groups: 

system variables and estimator variables. 291 P.3d at 700. The first group, system variables, 
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“refer[s] to the circumstances of the identification procedure itself that generally are within the 

control of those administering the procedure.” Id. They include factors like blind 

administration of the procedure, preidentification instructions, lineup construction, 

simultaneous versus sequential lineups, showups, multiple viewings, suggestive questioning, 

cowitness contamination, and suggestive feedback. Id. at 705-11. It is self-explanatory that 

these factors would only apply to a claim of a suggestive lineup procedure, and it is telling that 

Biggers itself does not employ them. 

¶ 80 But, the second set of factors—the estimator variables—are concerned with 

“characteristics of the witness, the perpetrator, and the environmental conditions of the event 

that cannot be manipulated or adjusted by state actors.” (Emphasis added.) Id. at 700. They 

include stress, witness attention, duration of exposure, environmental viewing conditions, 

witness characteristics and condition, description, perpetrator characteristics, speed of the 

identification, level of certainty, and memory decay. Id. at 700-05. As the court in Lawson took 

care to clarify, these factors do not depend on any claim that law enforcement used suggestive 

identification procedures because these factors are immune from manipulation. Notably, the 

five factors used in the Biggers decision come from this subset of factors described in Lawson. 

Again, I do not see how a critique of this set of factors would not be applicable to all contexts in 

which a defendant challenges his or her identification because these factors apply regardless of 

the behavior of law enforcement personnel. 

¶ 81 For that same reason, the majority’s attempt to distance itself from comments made in 

Starks is unpersuasive. The majority correctly notes that Starks was decided in a different 

context than a reasonable doubt challenge. But, the conclusion in Starks—that it was an abuse 

of discretion to disallow expert testimony on eyewitnesses—was supported by the court’s 

conclusion that jurors may not understand that a witness’s certainty cannot be trusted. 2014 IL 

App (1st) 121169, ¶ 72. The underlying premise is the same in either context. The entire point 

of presenting expert testimony on the science related to eyewitness fallibility is to aid the jury 

in their consideration of a defendant’s guilt beyond a reasonable doubt; if jurors are entitled to 

information about the scientific criticism of the Biggers factors, we can rely on the same 

criticism in our consideration of a reasonable doubt challenge. Indeed, the case relied on by the 

majority in Starks for the proposition, State v. Guilbert, 49 A.3d 705, 721 (Conn. 2012), itself 

cites Henderson, 27 A.3d 872, as the leading case in this area. Starks, 2014 IL App (1st) 

121169, ¶ 72. 

¶ 82 Accepting the factor of witness certainty as it is, however, still provides no assurance of 

reliability. Contrary to the majority’s assertion that I have simply dismissed Gomez’s certainty 

“out of hand” (supra ¶ 31), I find it alarming and illuminating that Gomez said he was 100% 

sure of his lineup identification and at the same time also vastly overestimated the amount of 

time he had to observe the offenders. The majority picks and chooses what it accepts. 

¶ 83 Besides, Garcia was 70% sure of his identification immediately after the lineup and then it 

suddenly jumped to 100% sure later. The circumstances that surround Garcia’s increased 

assuredness greatly heighten doubt and confusion. Problematic conduct during lineups should 

give anyone pause before accepting an identification as reliable. See Fountain, 2016 IL App 

(1st) 131474 ¶¶ 162-65 (Hyman, J. dissenting); see also People v. Delamota, 960 N.E.2d 383, 

391 (N.Y. 2011) (expressing skepticism about lineup procedures because, among other 

concerns, family member with prior exposure to perpetrator had to translate for witness). 
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¶ 84 Garcia spoke “Spanish only.” Detective Wallace, who spoke “very limited” Spanish, knew 

that both Gomez and Garcia spoke little English. There was a Spanish-speaking officer 

available to conduct the lineup, but Wallace could not recall his or her name. Garcia could not 

remember if there was a Spanish-speaking officer and Gomez testified that there was none. 

Instead, Gomez, who could read English sufficiently, had to translate the lineup advisory form 

into Spanish and read it to Garcia. On cross-examination, Garcia could not remember when or 

if he signed the form. Spanish-language lineup forms were available, but Wallace did not use 

them. Equally distressing, Gomez had to explain the purpose of the lineup procedure in 

Spanish so that Garcia could understand that he was there to identify the person who 

committed the crime. With this understanding of the lineup procedure, Garcia’s shifting level 

of certainty casts the reliability of his identification into greater—not less—doubt. 

¶ 85 As a final point, the majority finds it “a remarkable coincidence that [Gomez and Garcia] 

both separately picked Macklin out of lineups in which he sat in different positions.” Supra

¶ 29. Remarkable? The phenomenon of exonerations based on faulty identifications, even 

where multiple witnesses identified the same person or the evidence was otherwise thought to 

be overwhelming, has been well documented. E.g., District Attorney’s Office for the Third 

Judicial District v. Osborne, 557 U.S. 52, 98-99 (2009) (Stevens, J., dissenting, joined by 

Ginsburg and Breyer, JJ.) (“DNA evidence has led to an extraordinary series of exonerations, 

not only in cases where the trial evidence was weak, but also in cases where the convicted 

parties confessed their guilt and where the trial evidence against them appeared 

overwhelming.”); Kansas v. Marsh, 548 U.S. 163, 208-10 (Souter, J., dissenting, joined by 

Stevens, Ginsburg, and Breyer, JJ.) (citing examples and noting, “[m]ost of these wrongful 

convictions and sentences resulted from eyewitness misidentification, false confessions, and 

(most frequently) perjury”). Even the briefest perusal of cases at the Innocence Project reveals 

that what the majority describes as “remarkable” is eminently possible. E.g., Stephan Cowans, 

The Innocence Project, https://www.innocenceproject.org/cases/stephan-cowans/ (last visited 

Feb. 19, 2019) [https://perma.cc/5VDD-TWPU]; Cody Davis, The Innocence Project, https://

www.innocenceproject.org/cases/cody-davis/ (last visited Feb. 19, 2019) [https://perma.cc/

R79D-DZQM]. What is truly remarkable is reliance on highly suspicious witness certainty 

coupled with the victims’ patently insufficient opportunity to view the offenders. 

¶ 86 Time Between Offense and Identification 

¶ 87 The only factor that arguably weighs in favor of reliability is the time between the offense 

and the lineup identifications. Gomez and Garcia viewed lineups 10 days after the offense, a 

time frame on par with others endorsed by Illinois courts. See Simmons, 2016 IL App (1st) 

131300, ¶ 97 (approving time gap of up to two weeks) (citing People v. Williams, 221 Ill. App. 

3d 1061, 1068 (1991) (approving time gap of 10 days to two weeks)). 

¶ 88 Despite Illinois cases suggesting otherwise, the reality is that an interval of 10 days before 

a lineup can alter and impair a person’s memory. See Lawson, 291 P.3d at 705 (“An aspect of 

memory decay that is less well known, however, is that decay rates are exponential rather than 

linear, with the greatest proportion of memory loss occurring shortly after an initial 

observation, then leveling off over time.”). It is not likely that Gomez’s and Garcia’s original 

description of three men in black hoodies and baseball caps would dramatically improve with 

the passage of time, whether a few days or 10 days. That the identification did dramatically 

intensify indicates an extreme risk of misidentification. See id. Accordingly, with mere 
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seconds to view the offenders under stressful conditions, we have firm reason to doubt the 

retained accuracy of a 10-day-old identification. See Nat’l Research Council, supra ¶ 67, at 99 

(duration of exposure and degree of attention may enhance effect of interval between 

observation and identification). 

¶ 89 Conclusion 

¶ 90 In the eyes of the majority, “the true measure of a court’s fidelity to the rule of law is its 

acknowledgment of the difficult decision the trial judge was called upon to make, but 

recognition of the duty the law imposes to afford that decision deference.” Supra ¶ 18. In my 

eyes, the true measure of our fidelity to the rule of law is a court’s willingness to consistently 

apply the most fundamental constitutional precept in a criminal case: a conviction is not to be 

had except on proof beyond a reasonable doubt. We must never erode that most crucial of 

procedural protections in service to a deferential standard of review. 

¶ 91 We need a continued conversation, from the bench and elsewhere, to explore the utility of 

the Biggers factors as our understanding about eyewitness identifications continues to evolve. 

But, I must emphasize again that my disagreement with the majority is primarily connected to 

the facts here, not academic disagreements about Biggers. A reviewing court may use common 

sense and engage in a searching evaluation of the record. Cunningham, 212 Ill. 2d at 280 (“The 

reviewing court must carefully examine the record evidence while bearing in mind that it was 

the fact finder that saw and heard the witnesses.”). The two witnesses viewed their attackers for 

mere seconds: traumatic and tense seconds. One of the offenders pulled a gun and shot one of 

the victims. Immediately after the offense, the only description the two victims could offer was 

of three men in black hoodies and baseball caps. Ten days later, relying on fleeting glimpses of 

the offenders, the victims identified Macklin in a lineup muddled by cross language confusion. 

¶ 92 The court must consider all of the Biggers factors together along with the surrounding 

circumstances. Simmons, 2016 IL App (1st) 131300, ¶ 89. Not one Biggers factor weighs in 

favor of finding Gomez’s and Garcia’s identifications reliable. 

¶ 93 I conclude that a reasonable fact finder could not find Macklin guilty based on the 

identification before us and would reverse.