2020 IL App (1st) 170659-U
No. 1-17-0659
SIXTH DIVISION October 23, 2020
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).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County, Criminal Division. Plaintiff-Appellee, ) ) v. ) No. 14 CR 20942 ) OTHA CALHOUN, ) Honorable ) Thomas V. Gainer, Jr., Defendant-Appellant. ) Judge Presiding.
JUSTICE GRIFFIN delivered the judgment of the court. Presiding Justice Mikva and Justice Connors concurred in the judgment.
ORDER
¶1 Held: Even if defendant could show that an expert would have formed the opinion based on certain studies that the eyewitness identification testimony of the victim and a bystander was unreliable, his ineffective assistance of counsel claim would nevertheless fail the Strickland test.
¶2 After a bench trial, defendant Otha Calhoun was found guilty of aggravated battery with a
firearm and sentenced to eight years in prison. Defendant appeals, and claims his trial counsel was
constitutionally ineffective for failing to call an expert witness to challenge as unreliable the
eyewitness identification testimony of the victim and a bystander. We affirm. No. 17-0659
¶3 BACKGROUND
¶4 On October 8, 2014, at 3:00 p.m., victim Martese Ross (Ross) watched a fight break out
between his sister and other girls from his house on South Hermitage in Chicago. After one of the
girls pulled a knife, Ross exited his house and got involved. He removed the knife from one of the
girl’s hands and the fight stopped. Ross returned to his house with his sister and tended to her arm,
which was bleeding from multiple stab wounds. When things calmed down, Ross exited his house
to go to the corner store. Before he could close his front door, Ross saw a man in a hoodie with a
gun in his hand standing five or six feet away. The man said, “Motherfuckers jumped on my sister,”
and proceeded to shoot Ross several times in the stomach and the leg. Ross made it into his house
and collapsed. He remained in the hospital for several weeks and survived the shooting after
surgery.
¶5 Ross gave a description of the shooter to a detective at the hospital and later identified
defendant as the shooter in a photo array and physical lineup. A bystander who observed the
shooting, Marshall Barnes (Barnes), independently identified defendant as the shooter in a photo
array and lineup. Defendant was placed under arrest and charged with six counts of attempted first-
degree murder (720 ILCS 5/8-4(a) (West 2014)); id. § 9-1(a)(1)) and one count of aggravated
battery with a firearm (id. § 12-3.05(e)(1)). The matter proceeded to a bench trial on January 4,
2017. The State called the following witnesses: Ross, Barnes, and Detective Christopher Tenton
of the Chicago Police Department (Detective Tenton).
¶6 Ross testified that on October 8, 2014, at 3:00 p.m., he was with his sister at their house on
South Hermitage in Chicago. Ross’s sister got into an argument with a bunch of girls at an
elementary school that was steps away from their house. Ross watched the dispute turn into a
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physical altercation. He saw a girl swinging her arms and observed a girl with a knife. Ross
testified that he took the knife from the girl’s hand and the fight stopped. He and his sister then
went back to the house and Ross helped clean her arm, which was bleeding from stab wounds.
¶7 When his sister was cleaned up, Ross walked outside to go to the corner store. Before he
closed the front door, a man approached him wearing “all black” and a “black hoodie.” Ross
identified defendant in open court as the man who approached him. Ross indicated that defendant
“look[ed] like” the man, but stated that he could not be sure. Ross testified that defendant stood
five or six feet away from him during the encounter and that he could see his nose and his mouth,
but not his eyes. Ross heard defendant say, “Motherfuckers jumped on my sister” and replied,
“Motherfuckers ain’t jumped on your sister.” Ross saw a gun in defendant’s hands and heard six
or seven gunshots. Ross was hit in the stomach and the leg and walked into his house where he
collapsed. His family called paramedics and Ross was taken to Stroger Hospital, where he stayed
for a couple weeks and underwent several surgeries.
¶8 Ross spoke with Detective Tenton at the hospital and at his house, on October 23, 2014,
when he was released. Ross described the shooter as a “guy with a hoodie on, kind of – I would
say I probably a little bit taller than him,” and reviewed and signed a photospread advisory form,
and viewed a photo array. Ross was unable to identify the shooter. Minutes later, Ross viewed
another photo array and positively identified a photograph of defendant as the hooded man who
shot him. On October 27, 2014, Ross identified defendant in a physical lineup at the police station.
He gave a typewritten statement, viewed a photograph of defendant, and reconfirmed that
defendant was the man who shot him. When the State showed Ross the picture of defendant at
trial, however, he testified, “[s]ee, I really don’t want to say it’s that person because I really
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couldn’t see because there was a hoodie on, so I just remember certain features. I really can’t say
who it was if I really didn’t see his face all the way.”
¶9 Barnes, a 65-year-old retired plumber, testified that on October 8, 2014, at 3:00 p.m., he
was sitting in his car near an elementary school waiting for his grandson. He was “dilly-dallying
with [his] telephone” and heard a loud confrontation. He saw four or five girls “pushing and
shoving and arguing,” and observed a white car pull up. Three guys got out of the car. Two of the
guys mingled with the girls and one of them “kind of stay[ed] around the corner a little bit.” An
apartment door opened, and Barnes saw a man step out and take four or five steps to the
confrontation. Barnes testified that the guy who had stayed around the corner stepped out, took out
a pistol, and shot the man who walked out of the apartment three or four times. Barnes identified
defendant as the shooter in open court.
¶ 10 Barnes had “no problem seeing this defendant’s face when he shot the victim” and testified
that after defendant shot the man, he walked directly in front of Barnes’ car. Defendant was so
close he “could have reached out and touched [Barnes’] car.” Defendant had a gun in one hand
and a soda in the other. Barnes could “really could see [defendant] closely.” It was about a minute
between when Barnes first saw the man come to the side of the house until he walked past his car.
¶ 11 Barnes further testified that he met with Detective Tenton on October 23, 2014, and viewed
a photo array. Barnes described the shooter to Detective Tenton as a light-skinned man, kind of
stocky, about six feet tall, wearing a black jersey with some white on the front of it. Barnes
immediately identified defendant as the shooter in the photo array. On October 27, 2014, he viewed
a physical lineup at the police station and again identified defendant as the shooter.
¶ 12 Detective Tenton of the Chicago Police Department testified that he was assigned to
investigate a shooting that occurred on October 8, 2014, on South Hermitage. He arrived at that
location and found six or seven .45 caliber shell casings and a fired bullet. Detective Tenton spoke 4 No. 17-0659
with Barnes on the evening of October 8, 2014, and Barnes described the shooter as a black male,
18 to 20 years old, five feet, ten inches to six feet tall, with a thin build and a dark complexion.
Detective Tenton visited Ross in the intensive care unit of Stroger Hospital eight days after the
shooting. Ross described the shooter as a black male with a medium complexion, five feet, ten
inches to six feet in height, and wearing a dark hooded sweatshirt and dark pants.
¶ 13 Detective Tenton compiled photo arrays based on the information provided and showed
them to Ross and Barnes separately on October 23, 2014. Ross did not identify anyone in the first
photo array, which did not include a photograph of defendant, but made a positive identification
of defendant in the second photo array. Barnes identified defendant as the shooter in the first photo
array he was shown. Both Ross and Barnes picked defendant out of a physical lineup conducted
at the police station on October 27, 2014. Ross met with an Assistant State’s Attorney and gave a
statement indicating that defendant was the person who shot him. The State rested and defense
counsel moved for a directed finding. The motion was denied and the defense rested.
¶ 14 The trial court found the testimony of Ross, Barnes, and Detective Tenton credible, and
determined that Ross’s and Barnes’s eyewitness identification testimony was reliable. Based on
the evidence presented, the trial court found that the State had failed to prove defendant’s specific
intent to kill beyond a reasonable doubt and acquitted him of the offense of attempted first-degree
murder (720 ILCS 5/8-4(a) (West 2014)); id. § 9-1(a)(1)). The trial court, however, found
defendant guilty of aggravated battery with a firearm (id. § 12-3.05(e)(1)). Defendant’s motion for
a new trial was denied.
¶ 15 The trial court held a sentencing hearing on February 7, 2017, and sentenced defendant to
eight years in prison. Defendant moved the trial court to reconsider its sentencing determination.
The motion was denied. Defendant filed a timely notice of appeal on February 17, 2017.
5 No. 17-0659
¶ 16 Defendant argues on appeal that his trial counsel’s failure to call an expert witness to
challenge the reliability of Ross’s and Barnes’s eyewitness identification testimony was
objectively unreasonable and prejudicial. Defendant seeks a new trial.
¶ 17 ANALYSIS
¶ 18 Claims of ineffective assistance, such as the one raised by defendant here, are governed by
the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Albanese,
104 Ill. 2d 504 (1984) (adopting Strickland). To prevail on a claim of ineffective assistance of
counsel, a defendant must demonstrate that (1) counsel’s performance was deficient and (2) the
deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. More specifically, a
defendant must show that counsel’s performance was objectively unreasonable under prevailing
professional norms and that there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Unless
the defendant makes both showings, we cannot conclude that he received ineffective assistance.
People v. Munson, 171 Ill. 2d 158, 184 (1996). If an ineffective-assistance claim can be disposed
of because the defendant suffered no prejudice, we need not determine whether counsel’s
performance was deficient. People v. Graham, 206 Ill. 2d 465, 476 (2003).
¶ 19 The State may carry its burden of proving guilt beyond a reasonable doubt through the
testimony of a single, credible eyewitness, if the witness viewed the offender under circumstances
permitting a positive identification. People v. Smith, 299 Ill. App. 3d 1056, 1061-62 (1998). In a
bench trial, as we have here, the trial judge determines the reliability of an eyewitness’s
identification testimony. People v. Slim, 127 Ill. 2d 302, 307 (1989). The reliability of eyewitness
identification testimony is based upon the totality of the circumstances and a consideration of the
following factors: (1) opportunity for the witness to observe the offender at the scene of the crime,
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(2) the witness’ level of attention at the time of the crime, (3) accuracy of any prior identifications,
(4) the witness’ level of certainty at the “identification confrontation,” and (5) the time between
the crime and the confrontation. Slim, 127 Ill. 2d at 307-08.
¶ 20 Turning to the case at hand, defendant must make several threshold showings before we
address his ineffective assistance counsel claim under Strickland. First, he must show that an
expert witness would have formed the opinion based on the “studies” defendant cites in his opening
brief that the eyewitness identification testimony of Ross and Barnes was unreliable. Second,
defendant must demonstrate that the proposed “expert testimony on ‘mugshot commitment,’ and
on how stress, the presence of a weapon, the ability to identify a stranger, and about the poor
correlation between a witness’ confidence level and the accuracy of their identification” would
have been “relevant and appropriate” based on the facts and circumstances of this case. See People
v. Lerma, 2016 IL 118496, ¶¶ 25-26 (holding that the trial court abused its discretion in refusing
to admit expert testimony on the matter of eyewitness identification that was both “relevant and
appropriate” based on the facts of the case). Defendant cannot make these threshold showings. He
therefore fails to get out of the gate.
¶ 21 As defendant admits in his opening brief, he “cannot rely on an offer of proof to show
exactly how an expert would have testified at his trial.” Therefore, the opinion that Ross’s and
Barnes’s testimony was unreliable, as well as the bases offered for it, are that of defendant and not
an expert. It is at best speculative to conclude that an expert would have viewed the facts and
circumstances of this case and formed an opinion of unreliability based on defendant’s
suppositions about the “stress” of the situation, the “presence of a weapon,” the ability of Ross and
Barnes to “identify a stranger,” the generally “poor correlation between a witness’ confidence level
and the accuracy of their identification,” and the phenomenon of “mugshot commitment,” which
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“occurs when a witness identifies a photo of a person who is then included in a later lineup
procedure.” After all, there is not one, but two eyewitness identifications of defendant as the
shooter in this case, the second of which was made by a disinterested bystander who viewed
the entire transaction as it unfolded from his parked car. Barnes saw defendant take his position
around the corner, testified that he “really could see [defendant] closely,” Barnes had “no
problem seeing this defendant’s face when he shot the victim,” and observed defendant for a
minute. The trial court found Barnes testimony to be positive and credible, and defendant has made
no attempt on appeal to challenge the trial court’s credibility determination as against the manifest
weight of the evidence.
¶ 22 Given the state of the record and defendant’s highly speculative contentions, we cannot
say that an expert witness would have applied the “studies” to the eyewitness identification
testimony of Barnes and Ross and concluded that it was unreliable. It is further unclear whether
the proposed expert opinion of unreliability would have been relevant and appropriate based on
the facts and circumstances of this case. Defendant cites Lerma in support of his argument that the
“expert testimony on ‘mugshot commitment,’ and on how stress, the presence of a weapon, the
ability to identify a stranger, and about the poor correlation between a witness’ confidence level
and the accuracy of their identification” would have been “relevant and appropriate” under the
facts of this case. However, there are factual differences between this case and Lerma that may
have affected the admissibility of the proposed expert testimony.
¶ 23 To be sure, our supreme court in Lerma stated that research concerning eyewitness
identifications was “well settled, well supported, and in appropriate cases a perfectly proper
subject for expert testimony” and held that the trial court erred in refusing to admit expert
testimony on the matter of eyewitness identification because it was both “relevant and appropriate”
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based on the specific facts of the case. Lerma, 2016 IL 118496, ¶¶ 24-26. We heed the holding of
our supreme court. But the record in Lerma contained facts that are not present in the instant record,
and defendant fails to address them.
¶ 24 In Lerma, the victim’s identification of the shooter by the nickname “Lucky” was admitted
at trial under the excited utterance exception to the hearsay rule. Lerma, 2016 IL 118496, ¶ 5. Here,
Ross saw defendant’s nose and mouth from a distance five or six feet, identified him in a photo
array and a physical lineup, and then he testified at trial that defendant “look[ed] like” the man in
a hoodie who shot him. The additional eyewitness to the shooting in Lerma, testified that “she was
with [the victim] on the unlit front steps of [his] Chicago home” when “[a]t approximately 11:20
p.m., a man dressed all in black approached [the victim’s] house, pulled a gun, and began
shooting.” Id., ¶ 6.
¶ 25 Barnes, the second eyewitness to the shooting in this case, did not know the victim, watched
all the events that preceded the encounter between defendant and the victim from his parked car at
3:00 p.m. in the afternoon, and testified that he observed defendant for a minute and “really could
see him closely.” Moreover, the defendant in Lerma was tried before a jury. Here, the case was
tried before a judge. “This court has held that expert testimony is only necessary when the subject
is both particularly within the witness’s experience and qualifications and beyond that of the
average juror’s, and when it will aid the jury in reaching its conclusion.” Lerma, 2016 IL 118496,
¶ 23 (citing People v. Cloutier, 156 Ill. 2d 483, 501 (1993). Learned trial court judges are not
average jurors.
¶ 26 Based on the apparent factual differences between Lerma and this case, which defendant
did not address in his opening brief, it is at best unclear whether the expert testimony on the matter
of eyewitness identification would have been “relevant or appropriate.” Defendant’s arguments on
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appeal are marked by speculation. He has failed to make the threshold showing necessary for us
to consider his ineffective assistance of counsel claim under the Strickland test. Accordingly, the
claim fails. That said, even if defendant could show that an expert witness would have formed an
opinion of unreliability based on the “studies” and the expert testimony as a whole would have
been “relevant and appropriate,” his ineffective assistance of counsel claim would fail under the
prejudice prong of the Strickland test. Graham, 206 Ill. 2d at 476 (ineffective-assistance claims
can be disposed of based on insufficient prejudice alone).
¶ 27 Though defendant is correct that the evidence presented by the State at trial consisted
primarily of the eyewitness identification testimony of Ross and Barnes, it is well-established that
the positive and credible eyewitness testimony of a single witness is sufficient to convict beyond
a reasonable doubt if the witness viewed the offender under circumstances permitting a positive
identification. Smith, 299 Ill. App. 3d at 1061-62. We find based on the totality of the
circumstances in the record, there is no reasonable probability that, but for trial counsel’s alleged
error, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.
¶ 28 The record in this case establishes that on October 8, 2014, at 3:00 p.m., Ross observed a
fight between his sister and other girls at an elementary school next to his house. When a knife
was pulled, Ross exited his house, removed the knife from a girl’s hand, diffused the situation, and
returned to the house with his sister to tend to her stab wounds. Ross cleaned the wounds and left
his house to go to the corner store. Before he could close the door, a hooded man in all black
holding a gun confronted him and stated, “Motherfuckers jumped on my sister.” The man then
shot Ross from five or six feet away, hitting him with bullets in the stomach and the leg. Ross
collapsed on the floor of his house. Ross observed the man’s nose and mouth, and gave his
description to the police, who compiled a photo array of possible offenders. Ross identified
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defendant as the shooter in the second photo array, gave a written statement to an Assistant State’s
Attorney, reaffirmed his identification of defendant, and then identified him again in a physical
lineup. Ross identified defendant at trial indicating that he “look[ed] like” the shooter.
¶ 29 The record further establishes that Barnes, a 65-year old plumber who happened to be at
the crime scene in his parked car waiting to pick up his grandson from elementary school, observed
four or five girls arguing and then fighting. He saw a white car pull up and three guys, including
defendant, get out. Two of the guys approached the girls while defendant “stay[ed] around the
corner a little bit.” Barnes saw an apartment door open, watched Ross exit and saw defendant, who
had stayed around the corner, pull a gun, and shoot Ross three or four times. Barnes had “no
problem seeing this defendant’s face when he shot the victim.” Barnes “really could see
[defendant] closely” and watched defendant walk directly in front of his car. Defendant was so
close to Barnes’s car he could reach out and touch it. About a minute passed between the time
Barnes first saw defendant come to the side of the house until defendant walked past his car.
¶ 30 Barnes gave Detective Tenton a description of defendant on October 8, 2014, and later
identified defendant as the shooter in a photo array and in a physical lineup at the police station.
Barnes also identified defendant as the shooter at trial. Finally, Detective Tenton corroborated the
testimony of Ross and Barnes, indicating that he found shell casings and a fired bullet at the scene,
and that both Ross and Barnes identified defendant and as the shooter in photo arrays and physical
lineups.
¶ 31 The trial court as the finder of fact heard the live testimony of Ross, Barnes, and Detective
Tenton, observed their demeanor and conduct in open court, and found their testimony to be
positive and credible. People v. Glover, 2017 IL App (4th) 160586, ¶ 28 (the trial court is in the
best position to make credibility determinations). We defer to the trial court’s credibility
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determinations as there exists no basis in the record for second guessing them. Based on the record
testimony, the totality of the circumstances, and the factors that bear upon the reliability of
eyewitness identification testimony (see Slim, 127 Ill. 2d at 307-08), we hold that even if defendant
could make the requisite threshold showings, he cannot demonstrate under Strickland that the
admission of an expert’s opinion of unreliability would have changed the result of his bench trial.
Strickland, 466 U.S. at 694. The judgment of the Circuit Court of Cook County is affirmed.
¶ 32 CONCLUSION
¶ 33 Accordingly, we affirm.
¶ 34 Affirmed.