People v. James

2020 IL App (2d) 180822-U

• Court: Appellate Court of Illinois
• Decided: August 17, 2020
• Docket: 2-18-0822
• Status: Unpublished

Opinion

2020 IL App (2d) 180822-U No. 2-18-0822 Order filed August 17, 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

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 17-CF-1923 ) ROBERT DONTRELL JAMES Jr., ) Honorable ) Ronald J. White, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices McLaren and Bridges concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for possession/intent to deliver drugs based on a police officer’s observation of a hand-to-hand drug transaction on a city street in broad daylight was upheld where the officer’s identification of defendant as a participant was reliable based on all the circumstances.

¶2 Defendant, Robert Dontrell James Jr., appeals from his convictions in the circuit court of

Winnebago County on one count of possession with the intent to deliver heroin (720 ILCS

570/401(c)(1) (West 2016)), one count of possession with the intent to deliver cocaine (720 ILCS

570/401(c)(2) (West 2016)), and one count of resisting a peace officer (720 ILCS 5/31-1(a) (West

2016)). He contends that the State did not prove beyond a reasonable doubt that he was the person 2020 IL App (2d) 180822-U

who committed the offenses. Because the in-court identification was reliable and sufficient to

prove that defendant was the perpetrator, we affirm.

¶3 I. BACKGROUND

¶4 The following facts were established at defendant’s February 2018 bench trial. At

approximately 10 a. m. on July 11, 2017, Officer Josh Sims of the Rockford Police Department

was patrolling in his squad car in downtown Rockford. The weather was sunny and clear. As

Officer Sims drove slowly north on Court Street, he saw ahead of him a white male and a black

male walking north on the west side of Court Street. The white male was closer to the street.

¶5 As Officer Sims got closer to the two men, he saw the black male reach into his right front

pocket and hand something to the white male. Officer Sims believed that they were engaged in a

hand-to-hand drug transaction.

¶6 After seeing the exchange, Officer Sims drove past the two men to the first cross street and

made a U-turn in the intersection. As he did so, he continued to observe the two men. He then

parked his squad car just south of that intersection, exited, and approached the two men. He was

about 10 feet from the pair when he exited the squad car. The two men were facing Officer Sims

as he approached on foot.

¶7 When Officer Sims was within 5 to 10 feet of the men, he told them that he wanted to talk

to them. He continued walking toward the men until he was about five feet from them.

¶8 At that point, the black male started stepping backward, while the white male stayed where

he was. As Officer Sims continued to approach, the black male began running. Officer Sims

chased him between two adjacent buildings. As the black male ran between the buildings, he used

his right hand to pull a plastic baggy from his right front pants pocket and tossed the baggy on the

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ground. The black male then climbed over an eight-foot chain link fence. When Officer Sims

realized that his radio was dead, he terminated the chase.

¶9 After ending the chase, Officer Sims retrieved the plastic baggy. Later testing indicated

that it contained several smaller bags of cocaine and heroin. Officer Sims then spoke to the white

male, who had crossed the street, and released him. According to Officer Sims, he looked in the

area where he had spoken to the white male but found no contraband.

¶ 10 Officer Sims then logged the drug evidence at the police station. After doing so, he drove

to a nearby church parking lot to complete his report. As he sat in his squad car writing his report,

Detective Veruchi of the Rockford Police Department arrived. Officer Sims had not requested

that Detective Veruchi meet with him.

¶ 11 According to Officer Sims, Detective Veruchi remarked that he had heard that Officer Sims

was in a foot chase. Detective Veruchi then provided Officer Sims with a possible name of the

black male. The name was defendant’s. Officer Sims then looked on his squad car computer at

mug shots of defendant. According to Officer Sims, the most recent mug shot of defendant

matched the appearance of the black male. He told Detective Veruchi that the person in the mug

shot was the black male. Officers Sims viewed defendant’s mug shot approximately an hour and

a half after the incident.

¶ 12 In his report, Officer Sims described the suspect as being in his 30s, approximately 5 feet

10 inches, and weighing 190 pounds. He was wearing a white tank top and blue jean shorts. The

description in the report was based solely on Officer Sims’s observations during the incident.

¶ 13 Officer Sims identified defendant in court as the black male he chased on July 11, 2017.

When asked if he had any doubt about his identification, he answered that “[w]ithout a doubt that

is the subject.”

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¶ 14 On cross-examination, Officer Sims admitted that he never included in his description

whether the black male had facial hair or what his hair style was. Nor did he mention anything

about the black male having tattoos on his arms. Officer Sims admitted that the description of

defendant provided with the mug shot indicated that defendant was 5 feet 5 inches, 168 pounds,

and 26 years old. He further admitted that he never asked the white male to view a photo lineup

to identify the black male or had the plastic baggy examined for latent fingerprints.

¶ 15 On redirect, Officer Sims explained that the discrepancy between his description of

defendant and defendant’s actual physical characteristics was a matter of his “judgment which

isn’t a hundred percent correct.” When asked if there was any doubt in his mind that defendant

was the black male, Officer Sims answered that he had “no doubt.”

¶ 16 To demonstrate that he had tattoos on his arms, defendant removed his shirt in front of the

judge. He had a T-shirt underneath. The trial court noted that defendant had tattoos on both

shoulders and arms.

¶ 17 On rebuttal, Officer Sims testified that he could not recall seeing any tattoos on defendant.

He did not know whether defendant had any tattoos. He explained that, as he approached

defendant, he was focused on his face. During the chase, he focused on defendant’s hands in case

he had a weapon. Officer Sims admitted on cross-examination that, with his attention drawn to

defendant’s hands for safety purposes, he had the opportunity to see defendant’s right arm.

¶ 18 In ruling, the trial court noted that the dispositive issue was identification of the black male.

The court stated that, in assessing Officer Sims’s testimony, it considered his ability and

opportunity to observe, his memory while testifying, his manner in testifying, any interest, bias, or

prejudice that he might have, and the reasonableness of his testimony in light of all the evidence.

Because the issue was identification, the court carefully observed Officer Sims as he testified.

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¶ 19 The trial court found that the tattoos on defendant’s right arm were “mainly in the inside

and the back of the arm.” The court added that defendant was dark-skinned and that the tattoos

were also dark.

¶ 20 The trial court noted that Officer Sims had a clear, unobstructed view of defendant’s face

from as close as five feet. He further had the opportunity to look at defendant’s most recent mug

shot before identifying him in court. The court further found that it was not unnecessarily

suggestive when Detective Veruchi provided defendant’s name to Officer Sims. The court also

considered the inconsistency between Officer Sims’s initial description and defendant’s actual

physical characteristics. The court found that Officer Sims did not hesitate in his in-court

identification, was certain that defendant was the black male, and never wavered in that

identification. Although the court did not know why Officer Sims never saw defendant’s tattoos,

it noted that he was focused on defendant’s face. Finally, the court reiterated that Officer Sims

had the ability and opportunity to identify defendant from five feet away and that he never hesitated

in his in-court identification. Thus, the court found defendant guilty.

¶ 21 In denying defendant’s motion for a new trial, the trial court stated that, after looking

closely at Officer Sims’s face and listening to his testimony, it believed that the identification was

proper. The court sentenced defendant to two concurrent 12-year prison sentences, 1 and defendant

filed this timely appeal.

¶ 22 II. ANALYSIS

¶ 23 On appeal, defendant contends that Officer Sims’s identification was unreliable, because

of the inconsistencies between the physical description in the police report and defendant’s actual

1 The trial court imposed no sentence on the resisting conviction.

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physical characteristics, the failure of Officer Sims to observe any of defendant’s tattoos, and the

unnecessarily suggestive nature of the pretrial identification based on the mug shot.

¶ 24 When a court reviews the sufficiency of the evidence, it views the evidence in the light

most favorable to the prosecution and determines whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. People v. Lloyd, 2013 IL

113510, ¶ 42. This means that the reviewing court must draw all reasonable inferences from the

record in favor of the prosecution. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). The

reviewing court will not reverse a conviction unless the evidence is so improbable, unsatisfactory,

or inconclusive that it creates a reasonable doubt of the defendant’s guilt. Lloyd, 2013 IL 113510,

¶ 42.

¶ 25 The State bears the burden of proving beyond a reasonable doubt the identity of the person

who committed the charged offense. People v. Lewis, 165 Ill. 2d 305, 356 (1995). It is well

established that a single witness’s identification is sufficient to sustain a conviction if the witness

viewed the accused under circumstances permitting a positive identification. People v. Branch,

2018 IL App (1st) 150026, ¶ 25. When assessing identification testimony, a court must rely on

the factors set out in Neil v. Biggers, 409 U.S 188, 199-200 (1972). Branch, 2018 IL App (1st)

150026, ¶ 25. Those factors are (1) the opportunity the witness had to view the offender at the

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

identification, (4) the level of certainty of the witness at the identification confrontation, and (5) the

length of time between the crime and the identification confrontation. Branch, 2018 IL App (1st)

150026, ¶ 25.

¶ 26 In this case, Officer Sims was the sole identification witness. Thus, his testimony was

sufficient to sustain defendant’s conviction if he viewed defendant under circumstances permitting

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a positive identification. When we consider the five Biggers factors, they collectively support

Officer Sims’s in-court identification.

¶ 27 Officer Sims had ample opportunity to view defendant. The day was clear and sunny, and

nothing obstructed Officer Sims’s view of defendant. Officer Sims walked to within five feet of

defendant, who was facing him. Officer Sims testified that, up until defendant ran, he was focused

on defendant’s face. The first factor strongly supports the identification.

¶ 28 Officer Sims also paid attention to defendant. After seeing defendant hand something to

the white male, Officer Sims was alerted to a possible drug deal. He kept defendant in his view as

he turned his squad car around to face defendant. After he exited the squad car, he remained

focused on defendant’s face as he walked to within five feet of defendant. There is no doubt that

Officer Sims was highly attentive in his observation of defendant. That factor strongly supports

his identification.

¶ 29 We next consider the accuracy of Officer Sims’s prior identification. He originally

described defendant as being 5 feet 10 inches tall, weighing 190 pounds, and being in his 30s.

Defendant was actually 5 feet 5 inches, 168 pounds, and 26 years old. Although Officer Sims’s

original description varied from defendant’s actual height, weight, and age, it was not so disparate

as to alone render his in-court identification suspect. Moreover, the discrepancies were not as

significant considering that Officer Sims’s’ in-court identification was based primarily on his

facial recognition of defendant.

¶ 30 Although defendant points to Officer Sims’s failure to include his tattoos in the original

description, Officer Sims testified that he was focused on defendant’s face as he approached. After

defendant ran, Officer Sims was focused for safety reasons on defendant’s hands. Further, as the

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trial court noted, defendant was dark-skinned and the tattoos were dark. The failure to note the

tattoos did not render Officer Sims’s identification unreliable.

¶ 31 Officer Sims was also very certain about his identification. He testified that he had no

doubt about his identification. Further, the trial court found that Officer Sims never hesitated in

identifying defendant as the perpetrator. Thus, this factor supports the reliability of the in-court

identification.

¶ 32 The final factor also supports the identification. Officer Sims identified defendant from

his mug shot within about an hour and a half after the incident. During that time, Officer Sims

was involved in following up on the incident. That brief period did not render the identification

unreliable. See People v. Green, 2017 IL App (1st) 152513, ¶ 113 (identifications occurring

several months after the crime found reliable).

¶ 33 When we view the Biggers factors collectively, they clearly support the reliability of

¶ 34 Defendant asserts, however, that Officer Sims’s in-court identification was rendered

unreliable by the unnecessarily suggestive viewing of defendant’s mug shot. We disagree.

¶ 35 Only where a pretrial identification is unnecessarily or impermissibly suggestive so as to

produce a very substantial likelihood of irreparable misidentification is evidence of that, and any

subsequent identification, excluded as violating due process. People v. Ramos, 339 Ill. App. 3d

891, 897 (2003). A defendant must first prove that the confrontation was so unnecessarily

suggestive and conducive to irreparable misidentification that he was denied due process. Ramos,

339 Ill. App. 3d at 897. If the defendant meets that burden, then the State must prove that the

identification was independently reliable. Ramos, 339 Ill. App. 3d at 897. The factors relevant to

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determining the independent reliability of the identification are those set forth in Biggers. Ramos,

339 Ill. App. 3d at 897-98.

¶ 36 Here, defendant has not met his burden of proving that Officer Sims’s initial identification

of defendant’s mug shot was so unnecessarily or impermissibly suggestive that it irreparably

harmed his subsequent in-court identification. Although Detective Veruchi provided Officer Sims

with defendant’s name as the possible suspect, there is nothing in the record to indicate that

Detective Veruchi urged or pressured Officer Sims to identify defendant as the perpetrator. Indeed,

there is nothing unnecessarily suggestive about one police officer indicating to another officer the

possible identity of a suspect. Nor was it unnecessarily suggestive for Officer Sims, having been

given defendant’s name as a possible suspect, to look at recent photos of defendant to see if he in

fact was the perpetrator. Although defendant suggests that Detective Veruchi was Officer Sims’s

senior officer, the record does not support that suggestion or otherwise show that Detective

Veruchi had supervisory authority over Officer Sims. Under the circumstances here, we cannot

say that either Detective Veruchi providing defendant’s name as a possible suspect, or Officer

Sims’s viewing of defendant’s mug shot thereafter, was so suggestive that it rendered the in-court

identification unreliable.

¶ 37 Even if Officer Sims’s in-court identification was the product of an unnecessarily

suggestive pretrial identification, it was shown to be independently reliable. As discussed, the

Biggers factors strongly showed that the in-court identification was otherwise reliable. See People

v. Daniel, 2014 IL App (1st) 121171, ¶ 21.

¶ 38 Finally, we note that the trial court closely scrutinized Officer Sims’s testimony. Indeed,

the court emphasized that, because the dispositive issue was defendant’s identity, it looked closely

at Officer Sims and listened carefully to his testimony. After doing so, the court expressly found

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that Officer Sims’s in-court identification was proper. Considering the court’s role as trier of fact,

we cannot conclude that the identification was so unreliable or unsatisfactory that defendant’s

conviction must be reversed. See In re Keith C., 378 Ill. App. 3d 252, 258 (2007) (reliability of a

witness’s identification is a question for the trier of fact); People v. Coleman, 301 Ill. App. 3d 37,

42 (1998) (trier of fact has prerogative to judge credibility of witnesses and resolve conflicts in the

testimony).

¶ 39 III. CONCLUSION

¶ 40 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.

¶ 41 Affirmed.

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