Opinion
1-20-0916
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. COREY DAILEY, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 18 CR 1453501 Honorable Erica L. Reddick, Judge Presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court. Justices Lampkin and Rochford concurred in the judgment.
ORDER
REYES PRESIDING JUSTICE
¶ 1 Held: Affirming the judgment of the circuit court of Cook County where the evidence was sufficient to find defendant guilty of two counts of armed robbery, the evidence was properly admitted and considered by the trial court, and defense counsel was not ineffective.
¶ 2 Following a bench trial in the circuit court of Cook County, defendant Corey Dailey was found guilty of two counts of armed robbery. The trial court merged count two into count one and sentenced defendant to 15 years in the Illinois Department of Corrections (IDOC) and a six- year firearm enhancement for a total of 21 years' imprisonment. On appeal, defendant argues: (1) the State failed to prove him guilty beyond a reasonable doubt where his conviction was based on unreliable identification testimony and there was insufficient proof he used a firearm during the commission of the robberies; (2) the circuit court improperly allowed identification of defendant from surveillance stills not taken at the scene of the robberies; and (3) he received ineffective assistance of counsel. For the reasons set forth below, we affirm.
¶ 3 BACKGROUND
¶ 4 Defendant was charged by way of indictment with two counts of armed robbery with a firearm (720 ILCS 5/18-2 (a)(2) (West 2018)). Defendant was alleged to have knowingly taken property from Matthew Shimmel (Shimmel) and Michael Olson (Olson) while threatening the use of imminent deadly force.
¶ 5 The State presented the following evidence at the bench trial. Shimmel testified that on August 29, 2018, at 9:30 a.m. he was standing under the Chicago Transit Authority (CTA) bus shelter near the Green Line at Garfield when three individuals exited the train station and approached him. Shimmel described these individuals as three young African-American men. One of those individuals, who Shimmel identified in court as defendant, had "braids or dreads that were colored" and was wearing a shoulder bag. These three individuals joined Shimmel in the bus shelter, standing three abreast between Shimmel and the street before suddenly turning to face Shimmel. Defendant then opened the shoulder bag he was wearing and Shimmel was able to observe a semiautomatic handgun with a blue slide. Shimmel testified that defendant stood "about a foot or a foot and a half" away from him and asked, pointing at the firearm, "Do you know what this is? Do you see what this is?" Defendant reached into his bag and handled the firearm, although he did not remove it from the bag. Shimmel testified that one of the other individuals pulled him at the waist and then removed his wallet, phone, headphones, and keys from his pockets. According to Shimmel, the encounter lasted "a minute or two" in its entirety. After his items were removed, one individual stayed near him at the bus shelter while the other two, including defendant, walked away to rob another person. Shimmel testified that he, however, did not turn around to view the other robbery. After the three individuals left, Shimmel testified he walked to the Green Line station with the other victim and they reported the robbery.
¶ 6 Shimmel further testified that on September 6, 2018, he viewed a photo array administered by a detective. He was informed that the offender might not be pictured in the photo array and signed the photo array advisory form. The photo array, which was admitted into evidence, consisted of headshots of six individuals. Each of these individuals had a dark complexion, braids or dreads, and some had red colored hair. Shimmel identified an individual in the photo array as the gunman. The State then presented Shimmel with State's exhibit 3, which consisted of three images taken on a CTA Green Line platform on August 29, 2018. Defense counsel objected to Shimmel identifying defendant in those images as it would be improper lay opinion testimony. The trial court overruled the objection and allowed the State to ask Shimmel if he recognized anyone in exhibit 3. Shimmel testified he recognized the individual in the middle and far right photograph as "the man with the gun who robbed me."
¶ 7 On cross-examination, Shimmel testified that his "eyes were darting around between the firearm and the three individuals" during the encounter. Shimmel also admitted that he did not hear the exact phrase defendant said to him when pointing at the firearm as he had been wearing headphones and listening to a podcast.
¶ 8 Olson testified that on August 29, 2018, at 9:30 a.m. he was standing about 20 feet from the bus shelter outside of the Garfield Green Line station, watching something on his phone. One other person was waiting at the same bus stop. Two individuals, including defendant who he identified in court, approached him as he waited for the bus. Olson testified he recognized the individuals as he had ridden with them in the same Green Line train car a few minutes earlier. Defendant then stood two-and-a-half feet from him, removed a black, semiautomatic firearm with a blue slide from a shoulder bag, and pointed the firearm in his direction. The other individual then commanded Olson to hand over his phone and wallet. Initially Olson resisted, at which point the unarmed individual instructed defendant to shoot Olson. Olson then relented and the individuals took cash, credit cards, and his phone from his pockets. Olson testified that after the three offenders left through a vacant lot, he and Shimmel went to the Green Line station to report the robbery.
¶ 9 Olson further testified that on September 6, 2018, the police came to his school and presented him with a photo array. He was informed that the perpetrator may not be represented in the photo array and signed a photo array advisory form. Olson testified he made an identification of the gunman and signed the photo array. After making the identification, Olson was shown additional images identified as State's exhibits 3 and 6. Exhibit 3 consisted of three images taken on a CTA Green Line platform. Olson testified he recognized the clothing worn by the individual in the second and third image as the same clothing worn by the gunman, which consisted of a "flashy" shirt with a gold emblem and a shoulder bag. Exhibit 6 consisted of three images taken of the Green Line platform at 9:28 a.m. on August 29, 2018. When asked by the State whether he recognized anyone in exhibit 6, defense counsel objected, and the trial court overruled the objection. Olson testified he recognized defendant in two of the three images. When asked if there was anything identifiable about defendant that he recognized, Olson testified that he recognized the shoulder bag and the gold emblem on his shirt.
¶ 10 On cross-examination, Olson testified that he was wearing headphones when defendant approached and so he did not hear anything at first. Olson also admitted he did not inform the detective that the gunman had red dreadlocks and tattoos when he initially described the offenders.
¶ 11 Detective Kevin Brazel (Detective Brazel) of the Chicago Police Department testified he was assigned to investigate the robberies. On September 2, 2018, he received emails from the Oak Park Police Department which the State introduced as exhibits 7, 8, and 9. Detective Brazel described each of the exhibits as follows: "This first one, which is nine, is a Seeking to Identify from Oak Park PD with two suspects from a robbery on the CTA train. The second one, No. 8, is a notification letting me know the possible suspect, a tentative ID. Then the third one [No. 7] is a lookout from CTA. This was my investigation." Based on this information and other information he obtained from the CTA, Detective Brazel began his preliminary investigation by interviewing Shimmel and Olson to obtain a description of the offenders. According to Detective Brazel, upon reviewing the video from the CTA Green Line stop and the photographs provided by Oak Park Police Department, he determined that the suspect in his case matched the description. Accordingly, he constructed a photo array "involving the suspect that they [the Oak Park Police Department] tentatively ID'd." Detective Brazel testified that the individual who had been tentatively identified was named Corey Dailey, the defendant.
¶ 12 Detective Brazel further testified that on September 6, 2018, he had Detective Raymond Verta independently administer separate photo arrays to Shimmel and Olson. Both victims identified defendant's photograph in the photo arrays as the gunman. Thereafter, Detective Brazel presented Shimmel and Olson with photographs that had been taken on the CTA platform on August 29, 2018 (exhibits 3 and 6). Regarding exhibit 3, both victims identified the shoulder bag from the photographs and informed Detective Brazel that was the individual who had the firearm. As to exhibit 6, Detective Brazel testified that Shimmel identified the individual wearing the black shirt with a gold emblem and shoulder bag as the gunman.
¶ 13 On cross-examination, Detective Brazel testified that the weapon used in the robberies was never recovered nor were any of the victims' belongings. Detective Brazel further testified that there was no videotape of the robberies. In addition, neither witness informed him that the weapon was fired or that the slide on the weapon had been pulled back.
¶ 14 The State requested that the trial court admit into evidence their exhibits, including those exhibits relevant to this appeal, exhibits 3, 6, 7, 8, and 9. Defense counsel objected to exhibit 3 as irrelevant but the trial court overruled that objection. Regarding exhibits 8 and 9, defense counsel did not object to their admission; however, she did object to the writing included on those exhibits which set forth the details of a different robbery. Hearing no objection from the State, the trial court struck the writing included on exhibits 8 and 9.
¶ 15 The State rested and defendant moved for a directed finding, which was denied. The defense then rested without offering any evidence.
¶ 16 After hearing closing arguments from the parties, the trial court found defendant guilty of two counts of armed robbery. In rendering this ruling, the trial court found that Shimmel and Olson "testified clearly, credibly, neither witness was impeached, each - and the Court was persuaded by the in-court testimony, identifications." The trial court went on to note that while the efforts of Detective Brazel "in showing exhibits other than the photo lineups were helpful to the detectives in their investigation[, ]it was the in-court identification as well as each witness separately identifying defendant in the photo array that was most convincing to the court." The trial court was further persuaded by Shimmel and Olson's identifications of defendant from photo arrays, as the photos in the array only depicted faces, and not clothes. This, as well as the circumstances under which Shimmel and Olson observed the defendant, convinced the court of the reliability of their identifications, and that the witnesses were not, as defendant argued, making an identification based on clothing. Further, the court found that both witnesses had an opportunity to observe the firearm, and that both provided the same identifying details about the weapon, which was a sufficient basis to conclude that defendant had been armed. Based on those findings, the trial court found defendant guilty.
¶ 17 Defendant presented a motion for a new trial in which he argued, in pertinent part, that the identifications made of him utilizing the CTA still images were improper. The trial court agreed that any identification of defendant in the CTA still images was improper, stating "And for [the witness] to say it looks like the individual or that it appears to be the individual *** I agree, they simply cannot." The trial court, however, stressed that the identification testimony based on the CTA still images was not considered and, instead, its judgment was based upon the victims' "credible and unimpeached testimony" and in-court identifications. The trial court thus denied the motion.
¶ 18 A sentencing hearing was conducted, and after the parties presented mitigating and aggravating evidence, the trial court merged count two into count one and sentenced defendant to the minimum sentence for armed robbery of 15 years' imprisonment with an additional 6-year firearm enhancement for a total of 21 years in IDOC. This appeal follows.
¶ 19 ANALYSIS
¶ 20 On appeal, defendant argues: (1) the State failed to prove him guilty beyond a reasonable doubt where his conviction was based on unreliable identification testimony and there was insufficient proof he used a firearm during the commission of the robberies; (2) the circuit court improperly allowed identification of defendant from surveillance stills not taken at the scene of the robberies; and (3) he received ineffective assistance of counsel. We address each issue in turn.
¶ 21 Sufficiency of the Evidence
¶ 22 Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt where his convictions were based on the unreliable identification testimony of Shimmel and Olson. Defendant further asserts that the State failed to meet its burden of proof that he possessed a firearm during the commission of the offense. Defendant maintains that for these reasons, the evidence presented by the State was insufficient to sustain his convictions.
¶ 23 The State responds that a positive identification of a defendant by a single witness is sufficient to sustain a conviction, provided the witness had an opportunity to view the defendant under conditions permitting a positive identification. The State maintains that Shimmel and Olson both had an adequate opportunity to observe defendant under conditions permitting a positive identification and, therefore, defendant's convictions should be affirmed.
¶ 24 When reviewing the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); People v. Martin, 2011 IL 109102, ¶ 15. On review, all reasonable inferences from the evidence are drawn in favor of the State. Jackson, 443 U.S. at 318-19; Martin, 2011 IL 108102, ¶ 15. The reviewing court will not retry the defendant or substitute its judgment for that of the trier of fact on questions involving the weight of the evidence, conflicts in the testimony, or the credibility of witnesses. People v. Jackson, 232 Ill.2d 246, 280-81 (2009).
¶ 25 The reviewing court must carefully examine the record evidence while bearing in mind that it was the fact finder who observed and heard the witnesses. People v. Cunningham, 212 Ill.2d 274, 280 (2004). Testimony may be found insufficient under the Jackson standard but only where the evidence compels the conclusion that no reasonable person could accept it beyond a reasonable doubt. Id. The fact finder's decision to accept testimony is entitled to great deference but is not conclusive and does not bind the reviewing court. Id. Only where the evidence is so improbable or unsatisfactory as to create reasonable doubt of the defendant's guilt will a conviction be set aside. People v. Hall, 194 Ill.2d 305, 330 (2000).
¶ 26 Defendant here was convicted of armed robbery. A person commits armed robbery when he knowingly takes property from the person or presence of another by the use of force or by threatening the imminent use of force and he carries on or about his person or is otherwise armed with a firearm. 720 ILCS 5/18-1, 18-2 (a)(2) (West 2018). Defendant challenges the reliability of Shimmel and Olson's identifications and whether the State proved he utilized a firearm in the commission of the offense. We first examine the reliability of the identifications of defendant.
¶ 27 Reliability of the Identification of Defendant
¶ 28 Where identification is the main issue, the State must prove beyond a reasonable doubt the identity of the individual who committed the charged offenses. People v. Lewis, 165 Ill.2d 305, 356 (1995). In assessing identification testimony, Illinois courts utilize a five-factor test established in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). People v. Slim, 127 Ill.2d 302, 307 (1989). The factors are "(1) the opportunity the victim had to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification confrontation." Id. at 307-08.
¶ 29 Defendant first challenges Shimmel's and Olson's testimonies identifying him as the gunman. Defendant maintains that their opportunities to view the perpetrator were compromised as the gunman stood mere feet away from them and the robberies only lasted one or two minutes. According to defendant, this limited amount of time did not provide an adequate opportunity for Shimmel and Olson to view the gunman.
¶ 30 When considering the first factor-whether a witness had an opportunity to view the offender at the time of the offense-courts look to" 'whether the witness was close enough to the accused for a sufficient period of time under conditions adequate for observation.'" People v. Corral, 2019 IL App (1st) 171501, ¶ 77 (quoting People v. Carlton, 78 Ill.App.3d 1098, 1105 (1979)). Here, each witness had the opportunity to view defendant's face for at least one or two minutes, in broad daylight, with defendant standing only a few feet away. While defendant maintains that such a short period of time is insufficient for a reliable identification, this court has found that witnesses had sufficient opportunity to view an offender in even shorter periods. See People v. Petermon, 2014 IL App (1st) 113536, ¶ 32 (holding identification reliable where "the entire incident took less than a minute."). Defendant further argues that Shimmel's testimony that his eyes shifted between the handgun and the faces of the offenders suggests that his opportunity to view defendant was less than one or two minutes. Yet, even if this were true, it would not mean that Shimmel was deprived of the opportunity to view defendant's face at close proximity and in good lighting. See People v. Macklin, 2019 IL App (1st) 161165, ¶ 24 (witness had sufficient opportunity to observe offender while being made to lie face down on the ground). Therefore, it is not unreasonable to conclude that both witnesses had a good opportunity to view defendant and this factor weighs in favor of the State.
¶ 31 In regard to the second Biggers factor, the witness's degree of attention at the time of the offense, the testimony was clear that both Shimmel and Olson demonstrated a high degree of attention. Initially, we observe that the evidence at trial established that this offense occurred in broad daylight at 9:30 a.m. Shimmel testified that he became wary of the three people who approached him as soon as they stood side-by-side in front of him. Then, when they turned around, Shimmel immediately knew that they were going to rob him. And while Shimmel testified that his eyes were darting back and forth, he was able to observe and recall defendant's description, the handgun, and the offenders' movements. Similarly, Olson testified that while he was not initially paying attention to defendant as he approached him, as soon as he looked up from his cellular phone he viewed defendant pointing a black semiautomatic handgun with a blue slide at him. He then was able to see defendant's face as the other offender took his personal belongings. Defendant suggests that "weapon focus" would have made the witnesses less likely to notice other features of the robbery. Illinois courts have found sufficient attention in cases where witnesses were confronted with a weapon as were Shimmel and Olson. See People v. Luellen, 2019 IL App (1st) 172019, ¶¶ 67-71 (witness who deduced presence of a weapon from bulge under suspect's clothing had sufficient attention for identification); People v. Blankenship, 2019 IL App (1st) 171494, ¶ 29 (in spite of weapon pointed at her, witness was able to identify offender and give clear account of events). Thus, we conclude that this factor also weighs in favor of the State. See People v. Malone, 2012 IL App (1st) 110517, ¶ 32 (eyewitness had a high degree of attention prior to when the defendant brandished a handgun in an armed robbery). ¶ 32 As to the third Biggers factor, the accuracy of the witness's prior description of the defendant, the testimony established that both victims identified defendant as a young African-American man in their initial report to the police. Even though their description was general, this court has previously rejected claims that the brevity of a witness's description undermines his identification testimony. See People v. Barnes, 364 Ill.App.3d 888, 894 (2006). Thereafter, both victims identified defendant in the photo arrays as having colored braids or dreads. Defendant, who was a young African-American male with colored braids or dreads at the time of the offense, met that description. See Slim, 127 Ill.2d at 309 (a witness's positive identification can be sufficient even though the witness gives only a general description based on the total impression the accused's appearance made). We further observe that the witnesses independently identified defendant as the shooter in the photo arrays, thereby corroborating each other's testimonies.
¶ 33 The fourth Biggers factor goes to the witness's level of certainty at the subsequent identification. Both victims identified defendant accurately in photo arrays that were independently administered to them. Detective Brazel corroborated their identifications of defendant and copies of the photo arrays demonstrating where the victims marked defendant's image were admitted into evidence. The trial court found that the victims' identifications of defendant in the photo arrays were particularly impactful and credible. Accordingly, the evidence demonstrates that both victims identified defendant definitively in the photo arrays. See People v. Green, 2017 IL App (1st) 152513, ¶ 112 (the eyewitness never wavered in his degree of certainty that the defendant was the shooter, despite not identifying the defendant until three months after the shooting).
¶ 34 The final Biggers factor, the length of time between the crime and the identification confrontation, also weighs in favor of the State. Here, the victims were presented with the photo arrays including defendant's image 8 days after the offense. Courts have found identifications to be reliable even where they were made a considerable time after the crime. See Malone, 2012 IL App (1st) 110517, ¶ 36 (identification reliable where made a year and four months after crime); People v. Rodgers, 53 Ill.2d 207, 213-14 (1972) (identification made two years after the offense); People v. Simmons, 2016 IL App (1st) 131300, ¶ 97 (an eight-day window of time between the crime and witness identification weighs in favor of the State).
¶ 35 After weighing each factor, we conclude Shimmel and Olson viewed the gunman under circumstances permitting positive identifications. We observe that generally, the trier of fact decides the weight that an identification deserves, and the less reliable the trier of fact finds the identification to be, the less weight the trier of fact will give it. People v. Rodriguez, 387 Ill.App.3d 812, 829 (2008). Here, the trier of fact had the opportunity to determine the credibility of the witnesses and the weight to be given to their testimony. Jackson, 232 Ill.2d at 281. The trial court weighed the evidence and found that Shimmel's and Olson's identifications were reliable. We cannot say, when viewed in the light most favorable to the State, that the identifications of defendant as the gunman were insufficient, and we will not substitute our judgment for that of the trial court.
¶ 36 Armed with a Firearm
¶ 37 Defendant also challenges the sufficiency of the evidence that he was armed with a firearm, asserting that there was no evidence the object he carried was not a "toy gun" or a "replica gun." Defendant asserts that the only evidence he was armed with a firearm was the testimony of Shimmel and Olson and that "a conviction cannot be reliable when it relies so heavily on the eyewitness identification of a firearm."
¶ 38 Under section 18-2(a) (2) of the Criminal Code (Code), the State must prove that the defendant committed a robbery (720 ILCS 5/18-1 (West 2018)) while he carried a firearm "on or about his or her person or [was] otherwise armed with a firearm." 720 ILCS 5/18-2(a)(2) (West 2018). For purposes of this offense, a firearm is defined in section 1.1 of the Firearm Owners Identification Card Act (FOID Act), in pertinent part, as "any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas." 430 ILCS 65/1.1 (West 2018); see also 720 ILCS 5/2-7.5 (West 2018); People v. Wright, 2017 IL 119561, ¶ 71. This provision of the FOID Act specifically excludes, among other items, any pneumatic gun, spring gun, paint ball gun, or BB gun. See 430 ILCS 65/1.1 (West 2018).
¶ 39 Under this broad definition of "firearm," unequivocal testimony that the defendant held a firearm constitutes circumstantial evidence sufficient to establish the defendant was armed within the meaning of the statute. People v. Fields, 2017 IL App (1st) 110311-B, ¶ 36. Similarly, courts have consistently held that eyewitness testimony that the offender possessed a firearm, combined with circumstances under which the witness was able to view the weapon, is sufficient to allow a reasonable inference that the weapon was actually a firearm. People v. Davis, 2015 IL App (1st) 121867, ¶ 12. Consequently, the State need not present an actual firearm in order for the trier of fact to find the defendant possessed one. See People v. Washington, 2012 IL 107993, ¶ 36; People v. Clark, 2015 IL App (3d) 140036, ¶ 24.
¶ 40 We are guided by our supreme court's recent decision, People v. McLaurin, 2020 IL 124563. In McLaurin, the defendant was convicted of being an armed habitual criminal following a bench trial. Id. ¶ 1. The evidence at the bench trial established that a Chicago police sergeant observed the defendant leaving an apartment building carrying a silver handgun. Id. ¶ 4. She was approximately 50 feet away and nothing obstructed her view. Id. The defendant then entered a van which proceeded to drive away. Id. After the sergeant called for back up the van was stopped by the police. Id. The defendant and two other men were ordered out of the vehicle. Id. ¶ 5. The sergeant was asked by another police officer to identify a handgun that had been recovered at the scene. Id. She described the item as" 'the same color [and] size of the handgun I saw the gentlemen enter the van with.'" Id. Another Chicago police officer testified he was among the police officers who stopped the van. Id. ¶ 7. The officers patted down the three occupants of the van, including the defendant, but no weapon was recovered. Id. The police officer then looked underneath the van and observed a 9-millimeter chrome handgun on the ground and retrieved the weapon. Id. ¶ 8. The weapon was inventoried, but not offered into evidence at trial. Id. The officer further testified that he did not observe anyone throw the weapon and the weapon was not fingerprinted. Id. ¶ 9.
¶ 41 The appellate court reversed the defendant's conviction, holding that the evidence was insufficient to prove that he possessed a firearm as defined by the statute, an element of the convicted offense. Id. ¶ 17. The appellate court found that the sergeant's testimony that she observed the defendant in possession of an item that she believed to be a firearm, standing alone, was not sufficient to sustain the defendant's conviction. Id.
¶ 42 Our supreme court reversed the appellate court's decision, finding that the sergeant's unimpeached testimony was that she observed the defendant exit the apartment building carrying a silver handgun, her view was unobstructed, she followed the van until it was pulled over by other officers, and she confirmed that the weapon recovered was the same color and size as the weapon she observed in defendant's hand when he entered the van. Id. ¶¶ 33, 34. While the defendant argued before the court that the sergeant's testimony was insufficient where she was unable to describe the item in a meaningful way, our supreme court observed that "a rational trier of fact could infer from the testimony presented in this case that defendant possessed a firearm[.]" Id. ¶ 35.
¶ 43 The court went on to observe that the trial court highlighted that the sergeant observed the defendant" 'in plain daylight come out of a building [and] walk near her vehicle holding a firearm.'" Id. ¶ 36. The trial court also found that the sergeant testified" 'clearly and plainly and without impeachment that she saw a firearm, and that the defendant was the person holding that firearm.'" Id. The trial court further emphasized that the sergeant was familiar with handguns and relied on the police officer's testimony that a loaded firearm was recovered. Id. ¶ 37. Accordingly, our supreme court found that the State's evidence was sufficient to prove beyond a reasonable doubt that the defendant possessed a firearm. Id. ¶ 38.
¶ 44 Here, the evidence was similarly sufficient for the trial court to find beyond a reasonable doubt that defendant possessed a firearm. Shimmel unequivocally testified that defendant approached him and was one-and-a-half-feet from him when defendant opened the shoulder bag to reveal a black semiautomatic firearm with a blue slide. Shimmel also testified that defendant drew his attention to the weapon by asking, "Do you know what this is? Do you know what this is?" Defendant then reached into the shoulder bag and handled the weapon while another individual removed Shimmel's personal property. Olson similarly testified that defendant approached him and pulled a black, semiautomatic firearm with a blue slide from a shoulder bag. Defendant stood two-and-a-half feet away from him and pointed the weapon at Olson. When Olson refused to cooperate with the robbery, another offender directed defendant to "shoot him." Detective Brazel testified that no weapon related to the offense was recovered.
¶ 45 The evidence demonstrates that both victims viewed the firearm from close range as it was handled by defendant. Both victims also described the firearm in the same manner-a black semiautomatic with a blue slide. Shimmel's and Olson's unequivocal testimony identifying the object did not reflect speculation or conjecture. Cf. People v. Laubscher, 183 Ill.2d 330, 335-36 (1998) (observing that "conjecture and speculation" are insufficient); People v. Ross, 229 Ill.2d 255, 277 (2008) (rejecting the subjective approach to determining whether a weapon was "dangerous" under the prior version of the armed robbery statute). Moreover, both victims' unequivocal identifications of the firearm indicate that they had sufficient opportunity to observe it. See People v. Jackson, 2016 IL App (1st) 141448, ¶ 16. We further note that Shimmel's and Olson's testimony as to the language used by defendant and his co-offenders implied that the weapon was indeed a firearm. Specifically, Shimmel testified that defendant asked him, "Do you know what that is?" while directing his attention toward the object. Olson testified that defendant pointed the weapon at him and when he did not comply with their instructions the co-offender instructed defendant to "shoot him." Taken together, this evidence sufficiently demonstrates beyond a reasonable doubt that the object held by defendant during the robberies was a firearm.
¶ 46 Defendant relies on Ross to argue that an eyewitness identification of a firearm must be based on the objective nature of the firearm. Defendant claims that the evidence in Ross was insufficient because "the prosecution based the armed robbery charge on the subjective feelings of the victim" who described the object as "small, portable, and concealable." However, our supreme court in Ross actually considered whether the evidence was sufficient to prove that the "gun" used by the defendant qualified as a "dangerous weapon." Ross, 229 Ill.2d at 227. The facts of Ross established that the arresting officer drove the victim back to where the crime had occurred. Id. at 258. The victim spotted the defendant, who was then taken into custody by police. Id. The arresting officer testified that, as he approached the defendant, he observed him throw some items into a bush. Id. An officer retrieved the weapon, though it was not offered into evidence. Id. The officer, however, described the weapon as a "4.5 BB caliber gun with a three inch barrel." Id. The inventory sheet in the record listed the gun consistently with the officer's testimony. Id. The victim described the gun as "a black, very portable gun," which was "small and something you can conceal." Id.
¶ 47 As observed by our supreme court in McLaurin, "This court in Ross specifically acknowledged that' our cases conclude that the trier of fact may make an inference of dangerousness based upon the evidence.'" McLaurin, 2020 IL 124563, ¶ 28 (quoting Ross, 229 Ill.2d at 276). The Ross court concluded that the evidence presented at the defendant's bench trial was insufficient to support an inference that the "gun" the defendant possessed when he committed the robbery was a dangerous weapon. Ross, 229 Ill.2d at 276-77. The evidence established that the "gun" was actually a small BB gun with a three-inch barrel. Id. Moreover, there was no evidence that the weapon was either loaded or brandished as a bludgeon, and there was no evidence regarding its weight or composition. Id. at 277. Therefore, our supreme court found that the evidence precluded a finding that the "gun" used by the defendant was a dangerous weapon. Id.
¶ 48 In contrast, the question here is not whether the firearm was a "dangerous weapon" but whether the victims' testimony was sufficient to establish that defendant was in possession of a firearm. Neither Shimmel nor Olson testified that the weapon brandished by defendant was a "pneumatic gun, spring gun, paint ball gun, or B-B gun." 430 ILCS 65/1.1 (West 2018). Instead, both consistently testified that it was a black semiautomatic firearm with a blue slide. While the weapon was not removed from the shoulder bag when it was directed toward Shimmel, he could see directly into the shoulder bag and had an opportunity to view the weapon. Defendant did remove the weapon from the shoulder bag when he pointed it at Olson. Accordingly, Olson not only had an opportunity to view this weapon as it was being pointed at him, but a co-offender directed defendant to shoot Olson if he did not obey them. The two eyewitnesses' consistent testimonies along with their opportunities to view the weapon support the trial court's conclusion that defendant was in possession of a firearm during the commission of the robbery. See Wright, 2017 IL 119561, ¶¶ 76-77.
¶ 49 Defendant further argues in passing that "there have been instances of BB guns or toy guns being mistaken as real firearms in several cases throughout the country." In support of this argument defendant relies on several out-of-state cases. See Penley v. Eslinger, 605 F.3d 843, 845 (11th Cir. 2010) (police officer shot student after mistaking a plastic lifelike pistol for a real firearm); Nance v. Sammis, 586 F.3d 604, 607 (8th Cir. 2009) (police officers mistook a toy gun for a real gun and shot the individual when he did not place the toy gun on the ground). These cases, however, are not binding on this court. See People v. Fern, 240 Ill.App.3d 1031, 1039-40 (1993) ("In construing our own State laws, we are not bound by Federal court decisions other than, in appropriate cases, those of the United States Supreme Court ***."). We observe that no evidence presented at defendant's trial suggested that the weapon he threatened Shimmel with and then pointed at Olson was anything but a firearm. See Jackson, 2016 IL App (1st) 141448, ¶ 18. Accordingly, we find the State's evidence was sufficient to prove beyond a reasonable doubt that defendant was armed with a firearm when committing the offenses.
¶ 50 Lay Opinion Testimony
¶ 51 Defendant next contends that the trial court erred when it allowed Shimmel and Olson to identify defendant from still images taken from a CTA surveillance video (exhibits 3 and 6) where they did not have any personal knowledge of the events depicted in the still images. Defendant maintains that this constitutes improper lay opinion testimony and that this testimony "invaded the province of the trier of fact because the witnesses were in no better position than the trial court to make the identification."
¶ 52 In response, the State argues that the still images were properly admitted as prior identification evidence and any identification of defendant using these photographs was not improper where Shimmel's and Olson's encounters with defendant provided them with a reliable basis on which to identify him. The State asserts that, regardless, any error as to the admission of the still images was harmless where the trial court explicitly stated that its findings of guilt were entirely independent of the CTA images.
¶ 53 We first set forth our standard of review. The trial court's decision to admit lay opinion identification testimony is reviewed for an abuse of discretion. People v. Thompson, 2016 IL 118667, ¶ 52. Such an abuse occurs when the trial court's ruling is fanciful, unreasonable, or when no reasonable person would adopt the trial court's view. People v. Taylor, 2011 IL 110067, ¶ 27.
¶ 54 In Thompson, our supreme court held that lay witness identification testimony is admissible if" (a) the testimony was rationally based on the perception of the witness and (b) the testimony is helpful to a clear understanding of the witness's testimony or a determination of a fact in issue." Thompson, 2016 IL 118667, ¶ 50. Such "testimony is helpful where there is some basis for concluding the witness is more likely to correctly identify the defendant from the surveillance recording than the jury." Id. A showing of sustained contact, intimate familiarity, or special knowledge of the defendant is not required. Id. Instead, "the witness must only have had contact with the defendant, that the jury would not possess, to achieve a level of familiarity that renders the opinion helpful." Id.
¶ 55 To determine whether the testimony is helpful, courts view the totality of the circumstances and consider: (1) the witness's general familiarity with the defendant; (2) the witnesses' familiarity with the defendant at the time the recording was made or where the witness observed the defendant dressed in a manner similar to the individual depicted in the recording; (3) whether the defendant was disguised in the recording or changed his/her appearance between the time of the recording and trial; and (4) the clarity of the recording and extent to which the individual is depicted. Id. The existence of one or more of these factors indicates there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury. Id. ¶ 49. Moreover, it has often been held that the extent of a witness's opportunity to observe the defendant goes to the weight to be given the testimony, not its admissibility. Id. "The absence of any particular factor, however, does not render the testimony inadmissible." Id. ¶ 51. However, even admissible evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." (Internal quotation marks omitted.) Id. ¶ 54.
¶ 56 Our review of the record reveals that the trial court did not admit any lay opinion identification testimony based off of the CTA still images. During Shimmel's testimony defendant objected to Shimmel identifying him from the CTA images. The trial court overruled the objection but specified that Shimmel may testify if he "recognized anyone" from the CTA images. Shimmel testified he did recognize someone. The State then asked a follow-up question and Shimmel responded, "I recognize that individual to be the man with the gun who robbed me on the day of the incident." Shimmel further testified that that is how the gunman appeared on August 29, 2018, the day the robbery occurred. Olson testified that he recognized the clothing and shoulder bag as represented in the CTA still images and further testified that defendant was wearing the same clothing and shoulder bag during the robbery. Accordingly, no lay opinion identification testimony was admitted via the CTA still images.
¶ 57 In addition, when issuing its findings the trial court very clearly stated that it did not consider the victims' testimony as it related to the identity of the defendant as he appeared in the CTA still images. See People v. Felton, 2019 IL App (3d) 150595, ¶ 47 ("Unlike a jury, a trial judge is presumed to know the law and to apply it correctly."). Instead, the trial court stressed the importance of the victims' in-court identifications of defendant along with their independent identifications of him in the photo arrays. Notably, the trial court observed that the photo arrays consisted entirely of headshots of individuals with dreads that were a color other than black. The photo arrays were thus focused on the faces of the individuals depicted therein. Furthermore, both Shimmel and Olson independently identified defendant from the photo arrays (and in court) as the individual who was carrying the firearm during the robbery. We further observe that the trial court, in rendering its determination surrounding the identifications of defendant, contrasted the images in the photo array to those gathered by the CTA, noting that the CTA images did not include a clear image of the individual's face. Then, in its ruling on defendant's motion for a new trial, the trial court again stated that its ruling was based on the credible and unimpeached testimony of the victims regarding the robbery, the photo arrays, and the in-court identifications and not any identification testimony regarding the CTA still images. Importantly, even the trial court itself noted that the consideration of such identification testimony regarding the CTA still images would be improper. See id. Accordingly, based on the record before us, we conclude that even if error occurred, the error was harmless where the trial court did not consider testimony in which the victims stated that defendant appeared in the CTA still images.
¶ 58 In reaching this conclusion we have considered People v. Sykes, 2012 IL App (4th) 111110, a case which defendant maintains is analogous to the case at bar. We disagree. In Sykes, the defendant was charged with the theft of $100 from a cash register and the theft was captured on surveillance video. Id. ¶ 5. At trial, the loss prevention manager testified by narrating the contents of the surveillance video and identifying the defendant as the individual who took the $100. Id. When the State played the surveillance video for the jury, the quality was lacking and the State asked the loss prevention manager a series of questions regarding his view of the original videotape. Id. ¶ 9. The loss prevention manager testified that when he initially viewed the videotape he could clearly see that it was the defendant and he could also view the $100 being taken from the cash register. Id. The loss prevention manager, however, did not personally view the defendant remove any money from the cash register. Id. ¶ 10.
¶ 59 After considering the defendant's argument under the plain-error doctrine, the reviewing court reversed the defendant's theft conviction finding the evidence was closely balanced. Id. ¶ 55. According to the Sykes court, if not for the loss prevention manager's improper testimony concerning events of which he had no personal knowledge and comments made by the State during closing arguments which improperly bolstered that testimony, the jury may not have convicted the defendant. Id. The Sykes court noted that the loss prevention manager testified regarding discrepancies he noted between the original tape (which he viewed on the VCR the surveillance tape was recorded on) and the videotape played for the jury. Id. The reviewing court found that the only issue the jury needed to determine was whether the defendant removed money from the cash register, and therefore the witness was in no better position than the jury to determine whether or not it was the defendant who removed the money. Id. ¶ 42. Thus, as the loss prevention manager was in no better position, based on the video admitted into evidence and published to the jury, to determine whether the defendant removed money from the register, the court determined that his opinion testimony invaded the province of the jury. Id.
¶ 60 In the case at bar, however, unlike the video in Sykes, the still images did not depict the crimes at issue and was additional evidence presented to the trier of fact. Shimmel and Olson, the eyewitness victims to the offenses, testified as to defendant's identity using the personal knowledge they gleaned during the robberies themselves. Shimmel and Olson also separately identified defendant in photo arrays and in-court. The testimony presented in this case was not one where the victim's identification testimony "invaded the province of the jury." In fact, the trial court expressly disregarded any identification testimony made solely from the CTA surveillance images. Accordingly, we find Sykes inapplicable to the case at bar.
¶ 61 Ineffective Assistance of Counsel
¶ 62 Lastly, defendant asserts that he received ineffective assistance of counsel as defense counsel failed to object to inadmissible hearsay evidence that was introduced to prove defendant guilty of armed robbery. Specifically, defense counsel failed to object to three exhibits (nos. 7, 8, and 9) associated with an unrelated robbery that Detective Brazel relied on in creating the photo arrays presented to Shimmel and Olson. Defendant maintains that these images presented evidence of other crimes and did not fit within the investigatory procedure exception to the hearsay rule.
¶ 63 In response, the State asserts that the exhibits and the accompanying testimony of Detective Brazel properly supplied the necessary explanation for why defendant's photograph was included in the photo array and shown to the victims.
¶ 64 Claims of ineffective assistance of counsel are resolved under the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Brown, 2017 IL App (1st) 142197, ¶ 46; People v. Albanese, 104 Ill.2d 504 (1984) (adopting Strickland). Under Strickland, the defendant must establish both: (1) that his counsel's conduct was deficient, i.e., fell below an objective standard of reasonableness; and (2) that he was prejudiced as a result of that conduct. People v. Hardy, 2020 IL App (1st) 172485, ¶ 28. It is the defendant's burden to satisfy both prongs of Strickland and failure to satisfy either precludes a finding of ineffectiveness. People v. Cherry, 2016 IL 118728, ¶ 24. If the defendant cannot establish prejudice, we need not separately analyze whether counsel's conduct was unreasonable. See People v. Evans, 186 Ill.2d 83, 94 (1999) (" [I]f the ineffective-assistance claim can be disposed of on the ground that the defendant did not suffer prejudice, a court need not decide whether counsel's performance was constitutionally deficient.").
¶ 65 We initially note that this case proceeded as a bench trial. It is well established that the risk of prejudice is generally presumed to be less in a bench trial. People v. Carrasquillo, 2020 IL App (1st) 180534, ¶ 68. In particular, our case law differentiates the impact of other-crimes evidence in a jury or a bench trial. Significantly, "[t]he prejudicial effect of other-crimes evidence is almost exclusively discussed in terms of impact on a jury." (Emphasis in original.) Felton, 2019 IL App (3d) 150595, ¶ 47. On the other hand, in a bench trial, there is a rebuttable presumption that the trial court considers evidence only for proper purposes. See People v. Jones, 2017 IL App (1st) 143403, ¶ 36 (the trial court, "as the trier of fact, is presumed to know the law and to have considered only competent evidence in making a determination on the merits."); Felton, 2019 IL App (3d) 150595, ¶ 47 ("Unlike a jury, a trial judge is presumed to know the law and to apply it correctly."). "To rebut this presumption, the record must affirmatively show that the trial court actually used the evidence improperly." Jones, 2017 IL App (1st) 143403, ¶ 36. Generally, this rule barring other-crimes evidence is "based on the belief that the introduction of the evidence may over-persuade a jury to convict a defendant only because the jury believes the defendant is a bad person deserving punishment." People v. Nash, 2013 IL App (1st) 113366, ¶ 24. In a bench trial, however, this fear is assuaged as it is presumed that the trial court considered the other-crimes evidence only for the limited purpose for which it was introduced. Id.
¶ 66 Based on the record before us, we conclude that defendant has not demonstrated he was prejudiced by the admission of exhibits 7, 8, and 9 where the trial court stated it would not consider the other crimes evidence contained within those exhibits. Specifically, exhibit 7 consists of a "Lookout Bulletin" describing the armed robberies at issue in this case. It includes three still images taken from the Green Line platform at 9:28 a.m. on August 29, 2018. None of the faces of the individuals in the images is visible; however, the strap of a shoulder bag can be seen. Exhibit 7 thus does not include any "other-crimes evidence" as defendant maintains on appeal. Exhibit 8 is a document from the Oak Park Police Department that consists of five images taken on a CTA platform on July 31, 2018, at 1:52 a.m. The images are of two individuals with the front and side of their faces visible in four of the five images. It also contains a written description of an armed robbery that took place on the Blue Line at 1:50 a.m. on July 31, 2018. Exhibit 9 is another document from the Oak Park Police Department regarding the same July 31, 2018, robbery. It consists of two images, one of two individuals standing next to each other with their faces visible, and a headshot of one of those individuals (the same headshot used in the photo arrays and identified as the gunman by Shimmel and Olson). Exhibit 9 includes an identification of defendant by name, but states that there is no probable cause to arrest him and seeks more information regarding the identity of the other individual in the photograph. The language regarding the other crimes in exhibits 8 and 9, however, was stricken pursuant to defense counsel's request. The record thus reveals that the trial court did not consider exhibits 7, 8, and 9 as other-crimes evidence and therefore defendant cannot be prejudiced in that regard.
¶ 67 We further observe that other-crimes evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. People v. Pikes, 2013 IL 115171, ¶ 14. It is evident from the record that the trial court admitted these exhibits to explain the course of Detective Brazel's investigation and defendant admits that these exhibits were properly presented by the State under this exception. Accordingly, we conclude that defendant has failed to meet his burden to demonstrate he was prejudiced by defense counsel's failure to object to the admission of these exhibits. Therefore, defendant's claim of ineffective assistance of counsel fails. See Evans, 186 Ill.2d at 94.
¶ 68 CONCLUSION
¶ 69 For the reasons stated above, the judgment of the circuit court of Cook County is affirmed.
¶ 70 Affirmed.