Opinion
No. 1-12-0216
02-28-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. COREY LONG, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 10 CR 591
The Honorable
Thomas M. Davy,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Rochford and Justice Hall concurred in the judgment.
ORDER
¶1 HELD: The show-up identification and additional supporting evidence were sufficient to uphold defendant's conviction. Defendant received effective assistance of counsel. ¶2 Following a bench trial, defendant, Corey Long was convicted of armed robbery without the use of a firearm and sentenced to six years' imprisonment. On appeal, defendant contends: (1) the State failed to prove him guilty beyond a reasonable doubt where the complainant's identification was insufficient to support his conviction; and (2) his counsel was ineffective for failing to file a motion to suppress the complainant's suggestive identification and failing to investigate and present materials to discredit the suggestive identification testimony. Based on the following, we affirm.
¶3 FACTS
¶4 On December 1, 2009, at approximately 9:50 p.m., the victim, Charles Reed, was robbed by two men, one of whom appeared to be armed with a handgun. Approximately 10 minutes later, defendant was apprehended two blocks from the scene of the crime by police who were investigating an unrelated domestic incident. The detaining officers were informed that defendant may have been involved in an armed robbery. As a result, defendant was transported to the scene of the armed robbery for a show-up identification. Defendant remained in the police vehicle and the victim did not identify him as the assailant. The police vehicle carrying defendant then left the area, but returned for a second show-up identification. At the second show-up, defendant exited the vehicle and the victim immediately identified defendant as the assailant. ¶5 At trial, Reed testified that, at the time in question, he was walking to his home near 73rd Street and Euclid Avenue in Chicago, Illinois. Reed noticed two men in a vehicle in the "quiet" neighborhood. Reed testified that one of the men was "in the trunk" of the vehicle and the other looked to be retrieving something from the back seat. As Reed walked past, the men pushed him against a chain-link fence at gun point. The men instructed Reed to avert his eyes and to not look at the assailants' faces. The man with the weapon, which he described as a "mini-machine gun," pointed the gun at the victim, while the man without the handgun, later identified as defendant, stripped Reed of the contents of his pockets. Reed looked at the ground and the assailants' shoes. Defendant took the following items from Reed's pockets: his phone, his school work, and his wallet containing $5-$6 and his transportation card. While being robbed, Reed noticed defendant's jacket and shoes. According to Reed, "out of fear, [he] didn't want to look up as [he] was being robbed." Reed described defendant's jacket as blue with straps at the shoulder and a rip on the back. Reed described defendant's shoes as black gym shoes. Reed further stated that he suffered an injury to his eye during the robbery when the man with the handgun hit him with the gun for attempting to "look up." Reed testified that his vision was blurred as a result, but it "soon faded away." After emptying Reed's pockets, defendant instructed him to "run and don't look back." Defendant and the other assailant ran in the opposite direction. Reed called the police. ¶ 6 Approximately nine to ten minutes after placing the call, the police arrived at Reed's house. Reed provided the police with a description of the offenders, including defendant's jacket and shoes. According to Reed, the police brought defendant to his home "moments later" and Reed identified defendant by his shoes and jacket. Reed elaborated that he participated in two show-up identifications. According to Reed, he was "afraid" during the first identification so he "just peeked in the car." During the second identification, Reed was surrounding "by [his] family and everybody else *** to comfort [him]." When the police instructed defendant to exit the vehicle, Reed "immediately noticed [defendant's] shoes." He also noticed defendant's jacket. Reed testified that he recognized defendant. Reed said the items taken from his pockets were never recovered. ¶ 7 On cross-examination, Reed testified that he provided the police only with an approximate height of the offenders, specifically noting that he did not give exact measurements. Instead, Reed testified that one of the offenders was taller than the other and one held a gun. Reed approximated that the second police car bearing defendant arrived 15 to 20 minutes after the initial police vehicle arrived. During the first identification, Reed did not positively identify defendant. According to Reed, he "wasn't sure" because it was dark outside and defendant remained seated inside the police car. Reed again testified that he recognized defendant during the second identification by his shoes and jacket. Reed described the vehicle the offenders were near as "somewhat of a taxi car or police officer car." Reed testified that the car was blue. Reed denied that the police brought him to a location where the car was parked on a later date. ¶8 On redirect examination, Reed clarified that he was able to identify defendant during the second show-up because he "clearly recognized [defendant's] face," as well as his shoes and jacket. ¶9 On recross examination, Reed admitted that he only had a "few seconds" to look at defendant's face during the incident. ¶ 10 Sergeant Joseph Mark testified that, on December 1, 2009, at approximately 9:50 p.m., he was in the "field touring the area of 71st" when he received a call regarding an armed robbery. The offenders were described as wearing dark clothing. An offender with a blue jacket was seen running from the scene. Within 5 to 10 minutes, another call was made indicating that an individual was in custody within two blocks of the armed robbery. The description of the individual in custody matched that of one of the offenders involved in the armed robbery. In response, Sergeant Mark notified the detaining officers that the individual in custody may have been involved with an armed robbery. ¶ 11 The defense filed a motion for a directed verdict. The motion was granted as related to the charges involving defendant's use of a handgun. In denying the motion as it related to the remaining charges, the court stated that "the issue [is] of identification." ¶ 12 Defendant testified that, on December 1, 2009, at approximately 10 p.m., he was in the vicinity of 2019 East 73rd Street. Defendant stated that he was going to a friend's house when he observed police officers approaching in their vehicles. Defendant ran. According to defendant, he fled the area "because of an incident that happened with [him] and his girlfriend." The police apprehended defendant and drove around for about 10 to 15 minutes before driving to the scene of a robbery. At the scene, the officers asked the victim to look in the police vehicle. Simultaneously, the police flashed a light on defendant while he was seated in the rear. The victim said defendant was not the offender. ¶ 13 Defendant testified that the police drove from the scene to a nearby parking lot. Once there, a sergeant asked defendant about his car. Defendant testified that he was not involved in the victim's armed robbery. He added that he was wearing a navy blue jacket on the date in question. ¶ 14 On cross-examination, defendant testified that he was brought to the victim for a second viewing, during which time defendant exited the police vehicle. During the viewing, the victim asked defendant where "the other person had gone." Defendant responded that he did not know what the victim was talking about. On the date in question, defendant owned a green Chevy Caprice. He had the keys to the car on his person. Defendant, however, told the police that he did not have a Chevy Caprice, but rather a burgundy Buick, and that the car had been stolen. Defendant testified that he lied to the police and he, in fact, was driving a Chevy Caprice on the night in question. ¶ 15 On redirect examination, defendant testified that he initially fled from the police because he was worried about a physical disagreement that took place between himself and his girlfriend earlier that night. The altercation took place around 9 p.m. and defendant's girlfriend threatened to call the police. Defendant admitted that he fled from the police when they first approached him. Defendant added that he climbed a fence during his attempt to evade the police. Defendant testified that he lied about his car because he "was being stubborn about the situation because they told me there was a robbery going on. They said, [he] robbed somebody. But [he was] thinking to [him]self knowing that [he had not] done anything. [He] was being stubborn about the whole situation. [He] just told them [he] had any type of car." ¶ 16 On recross examination, defendant admitted that his girlfriend never pressed charges against him. ¶ 17 In rebuttal, the State called Detective Gorman. Detective Gorman testified that he interviewed the victim and obtained a description of the offenders. The victim described the individual without the weapon as wearing a "navy coat with like the epaulets on the shoulder." Detective Gorman testified that he could not recall the exact description the victim provided of what the offender was wearing, but he remembered the victim said the offender wore gym shoes. Detective Gorman noted that the victim was very specific in describing what the offender wore. After obtaining the description from the victim, Detective Gorman called the police officers that were transferring defendant to the station after the first show-up and instructed them to return to the scene. Upon defendant's return, he was asked to exit the vehicle. The area was well-lit and defendant's clothing matched the description provided by the victim. The victim identified defendant as one of the offenders "as soon as he saw him when he got out of the car." ¶18 Detective Gorman spoke to defendant about his car. Detective Gorman viewed the car and described it as a Chevy Caprice that was light silver or gray in color. Defendant had the keys to the car on his person. According to Detective Gorman, officers originally responded to the area in question "because there was a domestic call with a man with a gun." The incident, however, was not related to defendant. Detective Gorman testified that the victim described the vehicle at issue as light blue. ¶ 19 The trial court found defendant guilty of armed robbery without a firearm. In so finding, the trial court stated, inter alia:
"The domestic incident that the defendant talked about, presumably took place somewhere other than in a car. So, there is no testimony that's where it took place. So, what earthly reason would the defendant have to change the description of the car he was driving.¶ 20 Following defendant's trial, he obtained new counsel and filed a motion for a new trial. In the motion, defendant argued, inter alia, that his trial counsel was ineffective for failing to file a motion to quash arrest, a motion to suppress the out-of-court identification, and a motion to suppress statements; failing to develop and present evidence of his car and the shoes he wore at the time of his arrest; and failing to call Niea Johnson and Eugene Hayes as witnesses. Defendant additionally alleged that trial counsel fell asleep during trial. Attached to the motion were photographs of defendant's car and shoes, as well as affidavits from Johnson and Hayes and police reports. ¶ 21 On October 7, 2011, and November 4, 2011, hearings were held on the posttrial motion. Defendant testified that, in December 2009, he was working for Four Season Heating Cooling Company. His work attire included black Nike boots, which he was wearing on December 1, 2009. Defendant described his Chevy Caprice as having maroon doors with a green back door, a light blue bumper, a lime green hood, and a maroon fender. Defendant drove the Chevy Caprice on December 1, 2009. Defendant testified that, after work on the date in question, he met Neia Johnson, his girlfriend at the time, at his grandmother's house. The pair engaged in a "fight" and Johnson threatened to call the police. As a result, defendant left and drove his car to "Gene's" house near "73rd and Jeffrey." After parking, defendant walked toward Eugene's house and observed the police approaching the house. In response, defendant "sprinted to the alley." ¶ 22 Defendant further testified that, in preparation for trial, he offered to bring Johnson to his trial attorney's office. Defendant and Johnson met at the attorney's office. According to defendant, he wanted Johnson to testify on his behalf, and she was available to do so; however, his trial counsel advised him that she would not be helpful. Defendant disagreed, but "trusted" his attorney. In addition, defendant notified trial counsel that Eugene Hayes was an available witness, but his counsel never contacted Hayes. Defendant testified that he discussed the color of his vehicle with trial counsel, namely, that it was lime green with maroon doors, and that the victim and the police described the vehicle as being blue and silver or gray, respectively. According to defendant, he requested that trial counsel present evidence of the vehicle's color. Defendant stated that he met with his attorney on two occasions prior to trial, but never discussed trial strategy and was not informed of his rights. Defendant observed trial counsel sleeping in court during trial and continuance dates. Defendant additionally notified trial counsel regarding the circumstances of his arrest in conjunction with the two show-up identifications. ¶ 23 On cross-examination, defendant admitted that the police report described his Chevy Caprice as silver gray with maroon doors. Defendant further stated that his work boots had a hard leather toe, not a steel toe, and an air-cushioned sole like a sneaker. The boots were not photographed by the police on the date in question and were not included in the arrest reports as a means of identification. Defendant admitted that he did not know his footwear would be an issue at trial. Defendant testified that his trial attorney received the affidavits by Johnson and Hayes from his original attorney. Attorney Bonds hired an investigator to obtain the affidavits. According to defendant, he discussed Hayes with his trial attorney, informing trial counsel that Hayes had been arrested for an aggravated unlawful use of a weapon case. Defendant said his trial counsel never attempted to contact Hayes. Trial counsel said Hayes would not be "a good person to go into trial with" because of Hayes' background. Defendant "went along with it." Defendant testified that Hayes never saw defendant on the date in question, but Hayes was aware that defendant was on his way to see him. ¶24 According to defendant, his trial counsel "partially shut" his eyes while sitting in the courtroom before the judge took the bench. Defendant said he thought his trial counsel was ineffective because "he wasn't talking to me about anything, about what was going to go through during trial or anything." Defendant testified, however, that he trusted his trial counsel to represent him. Defendant said his trial counsel listened to defendant's report of the show-up identifications. Defendant admitted his trial counsel returned his phone calls and honored his request for a meeting. Defendant further admitted that his trial counsel informed him that it was his choice to select the type of trial, bench or jury. Moreover, defense counsel repeatedly demanded trial on defendant's behalf. ¶ 25 Linda Long, defendant's mother, testified that, on the date of trial, defendant's trial attorney was asleep when the case was called. The case had to be called a second time to wake trial counsel. ¶ 26 Tyrone Moore, defendant's father, also testified that the trial attorney was asleep on the date of trial when the case was called. Moore, however, stated that the trial counsel was awake during the trial. ¶27 Trial attorney Peter Cleary testified, while he may have "sat in the jury box and closed [his] eyes," he did not sleep during defendant's court appearances. Cleary testified that, after meeting with Johnson, he determined she would not be a good witness for the defense. Cleary shared his opinion with defendant, and defendant agreed. Cleary also reviewed the affidavit submitted by Hayes. Cleary asked defendant to instruct Hayes to call Cleary. Hayes, however, never called Cleary. Cleary had a discussion with defendant regarding Hayes, during which defendant stated that Hayes was unavailable to be a witness. ¶28 Cleary testified that he did not pursue a motion to quash arrest and suppress evidence in this matter because he believed the court would rule there was probable cause to arrest defendant based on his attempt to flee the police by running when he observed the squad car, jumping on a fence, and attempting to climb on to a roof. Cleary said he did not pursue a motion to suppress the identification because he felt the identification was "very weak" and "decided to save that issue for trial" where there was "a stronger standard of proof required." ¶ 29 On cross-examination, Cleary admitted he did not obtain a description of defendant's car other than that provided in the police report prior to trial. The police report, however, indicated that defendant's car was two-toned. Cleary also did not investigate the shoes defendant wore on the night of the armed robbery. Cleary stated that he did not attempt to contact Hayes, adding that it was his "policy" to have a client's suggested witnesses call him to "avoid leaving multiple messages for people who have no interest in being a witness." ¶ 30 The trial court denied the motion for a new trial. In relevant part, the court found trial counsel was not ineffective where a motion to suppress the identification would have been futile based on the trial testimony and the content of the police reports. The trial court noted that "there are cases which hold that a show-up is in fact proper" and that "a single finger identification *** [is] sometimes best to take that to trial rather than*** doing a motion." The trial court also concluded trial counsel was not ineffective for failing to present evidence of defendant's car and shoes. Finally, in regard to Hayes, the court found trial counsel was not ineffective for failing to call him as a witness where it was counsel's practice not to "cold call" witnesses. Moreover, the court found there was no indication in the record that Hayes was in court on the trial date, yet defendant failed to request to commence and continue to secure Hayes as a witness. As a result, the court found defendant acquiesced in proceeding to trial without Hayes.
The only reason would be that he and the other individual were in fact in this car that Mr. Reed observed earlier.
So, say the victim, Mr. Reed, had a short period of time to see the defendant's face. He did give a clothing description. And the clothing description not only included the color of the jacket, the straps of epaulets and the tear in the back of the jacket.
The defendant was arrested a short period of time in a short distance away. After running from the police for what he felt was an investigation into some sort of domestic dispute.
Defendant then lied to the police about the type of car, which would have no relevancy to the domestic dispute."
By way of procedural posture, we note that defense counsel was successful in repeatedly demanding trial and the trial commenced without testimony by the arresting officers.
Detective Gorman's first name does not appear in the record.
Defendant originally was represented by Andre Bonds; however, the State dismissed the charge against him, i.e., armed robbery with a firearm, at the preliminary hearing because Reed did not appear. Subsequently, when the case was indicted, defendant hired trial counsel to represent him.
¶31 DECISION
¶ 32 I. Sufficiency of the Evidence
¶ 33 Defendant first contends the State failed to prove him guilty beyond a reasonable doubt where the primary evidence, namely, the victim's identification, was unreliable and the remaining evidence was insufficient to sustain his conviction. ¶ 34 A challenge to the sufficiency of the evidence requires a reviewing court to determine "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." (Emphasis in the original.) Jackson v. Virginia, 443 U.S. 307, 319 (1979). It is not the reviewing court's function to retry the defendant or substitute its judgment for that of the trier of fact. People v. Evans, 209 Ill. 2d 194, 209 (2004). Rather, it is for the trier of fact to assess the credibility of the witnesses, determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in the evidence. People v. Williams, 388 Ill. App. 3d 422, 429 (2009). In order to overturn a judgment, the evidence must be "so unsatisfactory, improbable or implausible" to raise a reasonable doubt as to the defendant's guilt. People v. Slim, 127 Ill. 2d 302, 307 (1989). ¶35 An individual commits the offense of armed robbery when he knowingly takes property from the person or presence of another by use of force or by threatening the imminent use of force while carrying on or about his person or is otherwise armed with a dangerous weapon other than a firearm. 720 ILCS 5/18-2(a)(1) (West 2010). ¶ 36 Defendant argues the victim's show-up identification was grossly suggestive and, therefore, unreliable. Specifically, defendant maintains that it was inherently suggestive to present him twice in short succession especially where the victim initially failed to make a positive identification. Moreover, defendant asserts that the identification was unreliable because the victim was unable to adequately observe the unarmed offender at the time of the offense. ¶ 37 Illinois courts have long held that immediate show-up identifications near the scene of a crime are proper police procedure. See, e.g., People v. Lippert, 89 Ill. 2d 171, 188 (1982), People v. McKinley, 69 Ill. 2d 145, 152 (1977), People v. Manion, 67 Ill. 2d 564, 570 (1977), People v. Thorne, 352 Ill. App. 3d 1062, 1076 (2004), People v. Ramos, 339 Ill. App. 3d 891, 897 (2003). Defendant cites case law and numerous secondary materials commenting on the likelihood of misidentification from show-up procedures. However, one man show-ups consistently have been upheld when justified by the circumstances. Ramos, 339 Ill. App. 3d at 897 (citing People v. Hicks, 134 Ill. App. 3d 1031, 1036 (1985)). This court has reasoned:
" 'One of the circumstances in which a show-up has been justified by the court is when it is necessary to facilitate a police search for the real offender, and the Supreme Court has consistently upheld prompt identification of a suspect by a witness or victim near the scene of the crime where they foster the desirable objectives of a fresh, accurate, identification, which may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing offender while the trail is still fresh.' " Id. (quoting Hicks, 134 Ill. App. 3d at 1036).Only where a pretrial encounter resulting in an identification is "unnecessarily suggestive" or "impermissibly suggestive" so as to produce "a very substantial likelihood of irreparable misidentification" is evidence of that and any subsequent identification excluded under the due process clause. People v. Moore, 266 Ill. App. 3d 791, 797-98 (1994) (citing Neil v. Biggers, 409 U.S. 188, 196-97 (1972)). ¶ 38 The due process analysis involves two steps: (1) defendant first must prove the confrontation was so unnecessarily suggestive and conducive of irreparable misidentification that he was denied due process; and (2) if defendant satisfies his burden, the State has to establish that the identification is independently reliable. Id. at 798. The factors to be considered in assessing reliability, as announced in Neil v. Biggers, 409 U.S. 188 (1972), include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the witness' level of certainty at the confrontation, and the length of time between the offense and the confrontation. Id. (citing Manson v. Brathwaite, 432 U.S. 98, 116 (1977), and Biggers, 409 U.S. at 199); Slim, 127 Ill. 2d at 307. ¶ 39 We reject defendant's argument that the mere presentation of defendant for two show-ups was inherently suggestive. Our review of the record reveals no evidence that the victim knew defendant was presented during both show-ups. Rather, the victim testified that he "just peeked" inside the dark police car during the first show-up and could not identify the person seated inside. While perhaps ill-advised for the police to conduct multiple show-ups in short succession, the second show-up in this case was conducted because the first show-up failed to provide the victim with an adequate opportunity to view the suspect. The second show-up supported the very purpose behind show-ups, namely, to obtain a timely identification to either immediately release an innocent suspect or resume the search for the fleeing offender while the trail was still fresh. Ramos, 339 Ill. App. 3d at 897. ¶ 40 Even assuming, arguendo, defendant was able to satisfy his burden, the evidence demonstrates the victim's identification was reliable. In reviewing the Biggers factors here, we are reminded that the weight to be given identification evidence is presumptively a question for the trier of fact. Ramos, 339 Ill. App. 3d at 897. The record reveals that the trial court carefully considered the circumstances surrounding defendant's identification, both during its ruling on the motion for a directed verdict and during the ultimate verdict, in finding the identification reliable. ¶ 41 The evidence demonstrated that, at the time of the crime, the victim noticed a pair of individuals near a car as he approached his house on foot. Prior to reaching the house, the two men pushed the victim against a chain link fence. The victim was facing the assailants, one of whom was described as having a "mini machine gun." Prior to reaching into the victim's pockets and robbing him of the contents thereof, defendant instructed the victim to avert his eyes to the ground. The victim complied, noting defendant's black gym shoes. During the armed robbery, the armed assailant struck the victim in the face with his weapon because the victim attempted to raise his eyes from the ground. Although his vision was blurred as a result, the effect was momentary. Therefore, while brief, the victim had sufficient opportunity to view defendant during the armed robbery. Moreover, the victim's testimony demonstrates he was extremely attentive throughout the incident. In addition, when reporting the incident to the police, the victim described defendant's shoes and jacket. Furthermore, though the victim admitted he initially could not identify defendant while sitting within the dark police vehicle, once defendant stepped out of the car, he provided a positive identification without hesitation. The victim recognized defendant, as well as defendant's shoes and jacket. Finally, the victim identified defendant almost immediately, i.e., within approximately 20 minutes of the offense. Therefore, based on all of the circumstances, we agree with the trial court that the identification was reliable. See People v. Herron, 2012 IL App (1st) 090663, ¶¶16-17 (concluding that all of the circumstances, including the identification based in part upon the defendant's gym shoes, established the identification was reliable). ¶ 42 Moreover, even though a single witness' identification is sufficient to support a conviction where viewed under circumstances permitting a positive identification (Herron, 2012 IL App (1st) 090663, ¶15), as was the case here, the additional evidence presented at trial further supported defendant's conviction. Notably, defendant was apprehended approximately two blocks from the scene of the robbery and within approximately ten minutes of commission of the offense. Defendant testified that he fled from the police, even climbing a fence and attempting to reach a rooftop. Defendant admitted that he repeatedly lied to the police about his car at the time in question. Defendant told the police that he drove a Buick when he drove the Chevy Caprice for which he had the keys on his person. The court took note that a Chevy Caprice matched the description provided by the victim of a vehicle resembling a taxi cab or squad car. In sum, we conclude the evidence, when viewed in a light most favorable to the State, was not so "unsatisfactory, improbable or implausible" to raise a reasonable doubt as to defendant's guilt. See Slim, 127 Ill. 2d at 307.
¶ 43 II. Ineffective Assistance of Counsel
¶ 44 Defendant next contends his counsel was ineffective for failing to file a motion to suppress the victim's identification, failing to use exculpatory and impeaching evidence, and failing to investigate a potential defense witness. ¶45 To present a successful claim of ineffective assistance of trial counsel, a defendant must allege facts demonstrating that (1) his counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome of the trial, i.e., that the defense counsel's deficient performance rendered the result of trial unreliable or the proceeding fundamentally unfair. Id. at 694. A defendant must satisfy both prongs of the Strickland test to establish ineffective assistance. People v. Albanese, 104 Ill. 2d 504, 527 (1984). However, if a defendant cannot demonstrate sufficient prejudice, a court need not decide whether counsel's performance was deficient. People v. Evans, 186 Ill. 2d 83, 94 (1999). We review claims of ineffective assistance of counsel on a bifurcated basis where we defer to the trial court's findings of fact unless they are against the manifest weight of the evidence, but make a de novo assessment of the ultimate legal issue of ineffectiveness. People v. Stanley, 397 Ill. App. 3d 598, 612 (2009). ¶ 46 Defendant argues that his trial counsel was ineffective for failing to file a motion to suppress the show-up identification. ¶ 47 To establish prejudice resulting from a failure to file a motion to suppress, a defendant must demonstrate a reasonable probability that: (1) the motion would have been granted; and (2) the outcome of the trial would have been different had the evidence been suppressed. People v. Bew, 228 Ill. 2d 122, 128-29 (2008). A motion to suppress a show-up will be granted under the due process clause where the defendant proves that the confrontation was so unnecessarily suggestive and conducive to irreparable misidentification that he was denied due process of the law. Rodriguez, 387 Ill. App. 3d at 829. As stated, reliability is determined based on the Biggers factors. Id. We have concluded that the victim's identification was reliable and not unnecessarily suggestive or conducive to irreparable misidentification; therefore, defendant cannot establish that the motion would have been granted. Accordingly, defendant cannot satisfy an ineffective assistance claim on the basis of the identification. ¶ 48 Defendant next argues his counsel was ineffective for failing to present photographs of his car to contradict the victim's testimony, failing to impeach the victim with his prior inability to identify defendant's car, failing to impeach the victim's description of defendant's jacket, failing to investigate and present photographs of defendant's shoes, and failing to impeach the victim's description of the offender's height. ¶ 49 To satisfy Strickland, defendant was required to demonstrate he suffered prejudice as a result of the alleged errors. Strickland, 466 U.S. at 687-88. Defendant has not done so here. The trial evidence included numerous descriptions of defendant's Chevy Caprice, ultimately demonstrating that the car was multi-colored. Our review of the photographs attached to defendant's motion for a new trial confirms as much. Pursuant to the photographs, the rear portion of the vehicle appeared gray or silver while the front doors were maroon and the front bumper was blue. Accordingly, while the victim did not testify to the multi-colored nature of the car, his testimony describing the car as light blue was not inaccurate. Defendant, therefore, cannot prove there was a reasonable probability the result of trial would have been different but for counsel's failure to submit photographs of the vehicle, which in fact reveal that at least a portion of the car was as described by the victim. ¶ 50 Turning to defendant's argument regarding his counsel's failure to impeach the victim with portions of the police report, we find the argument meritless. Specifically, contrary to defendant's argument, defense counsel did elicit testimony from Detective Gorman providing that the victim was shown defendant's car. That testimony directly contradicted the victim's testimony. To the extent defense counsel failed to elicit testimony regarding the victim's inability to identify defendant's car, we cannot say defendant suffered resulting prejudice. Review of the record, including the trial court's denial of defendant's posttrial motion, shows that the trial court's finding of guilt was based on the totality of the evidence and not on the victim's description of defendant's car. ¶ 51 In regard to defendant's argument that his counsel was ineffective for failing to impeach the victim with the fact that he did not describe the tear in the jacket when initially speaking to the police, we again conclude that defendant cannot establish he suffered resulting prejudice. While true that the trial court mentioned the tear in the jacket in its findings, it was the trial court's duty to make findings of fact. Williams, 388 Ill. App. 3d at 429 . The trial court had access to the police report that lacked any description of the tear in defendant's jacket, while also having observed the victim's testimony describing the "very prominent" jacket tear. In addition, Sergeant Mark testified that the description provided of the offender included dark clothing and a blue jacket. The trial court made a credibility finding regarding the existence of the tear in the jacket based on the evidence presented. Defendant cannot establish a reasonable probability that, but for counsel's failure to obtain testimony that the victim initially omitted the description to the police, the outcome of the trial would have been different. The victim's identification was based on recognizing defendant himself, as well as defendant's shoes and jacket. Moreover, the trial court's finding was further supported by defendant's testimony describing his flight from the police and his lies regarding his car, in addition to him being found within minutes of and mere blocks from the crime. ¶ 52 Defendant also cannot establish prejudice based on counsel's failure to investigate and present evidence of the boots he wore on the date in question or for failing to impeach the victim's description of the offender's height. In terms of defendant's boots, the victim described the offender as wearing black gym shoes. Defendant testified that he wore black Nike boots on the date in question. Defendant described his boots as having air-cushioned soles like gym shoes without steel toes. The pictures of defendant's boots attached to the posttrial motion reveal strong similarities to a typical black gym shoe, especially considering the fact that the boots were observed at night in December when it is safe to assume defendant was wearing long pants and the full shape of the footwear was not visible. In regard to the alleged height discrepancy, defendant's argument is meritless where there was no testimony by the victim describing the height of the offenders other than that one was taller than the other. Contrary to his argument on appeal, there was no evidence presented regarding defendant's height in relation to the victim's height. ¶ 53 Defendant finally argues his counsel was ineffective for failing to investigate Hayes as a potential defense witness. Case law firmly establishes that the decision whether to call a particular witness is a matter of trial strategy and generally will not support a claim of ineffectiveness. People v. Patterson, 217 Ill. 2d 407, 442 (2005). Defendant, however, asserts that counsel's failure to investigate Hayes as a potential witness foreclosed the possibility that his decision was sound trial strategy. ¶ 54 Defendant mischaracterizes the evidence. At the hearing on defendant's motion for a new trial, defense counsel explained his policy not to place cold calls to witnesses, but rather to have potential defense witnesses contact him. Defense counsel testified that he reviewed Hayes' affidavit and instructed defendant to have Hayes contact counsel. Hayes' affidavit included an inadmissible hearsay conversation between Hayes and defendant regarding defendant's plan on the date in question to go to Hayes' home after an argument with defendant's girlfriend. When Hayes failed to make contact, defense counsel had a conversation with defendant and defendant advised counsel that Hayes would not appear as a witness. Based on the contents of the affidavit, Hayes' failure to make contact, and defendant's response, we conclude defense counsel made a strategic decision not to call Hayes as a witness. Defendant's speculative remarks that Hayes "may have" been able to provide an alibi do not establish that he suffered prejudice as a result of defense counsel's failure to contact Hayes. ¶ 55 In sum, defendant cannot demonstrate that he received ineffective assistance of counsel.
¶56 CONCLUSION
¶ 57 We conclude that the evidence was sufficient to support defendant's conviction and that defendant received effective assistance of counsel. ¶58 Affirmed.