Opinion
No. 1-15-0984
12-26-2017
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDDIE CLEMONS, 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. 12 CR 21385 (03) The Honorable Richard Denis Schwind, Judge Presiding. PRESIDING JUSTICE PIERCE delivered the judgment of the court.
Justices Harris concurred in the judgment.
Justice Mikva specially concurred, in part.
ORDER
¶ 1 Held: Defendant's conviction for armed robbery is affirmed. The circuit court did not admit improper hearsay testimony as to the contents of the nontestifying codefendants' statements to police. Furthermore, the circuit court's failure to comply with Supreme Court Rule 431(b) during voir dire did not amount to first-prong plain error where the evidence of defendant's guilt was not closely balanced. ¶ 2 Following a jury trial, Freddie Clemons was found guilty of armed robbery with a firearm, and was sentenced to 30 years' imprisonment. In this direct appeal, defendant argues that (1) he was denied a fair trial when the State elicited hearsay testimony revealing the substance of the nontestifying codefendants' statement to police identifying defendant as one of the offenders in the armed robbery, and (2) the circuit court violated Supreme Court Rule 431(b) (eff. July 1, 2012) during voir dire by failing to admonish jurors that defendant's decision to not testify could not be held against him, and by failing to ask the jurors whether they understood and accepted the principles set forth in Rule 431(b). For the following reasons, we affirm.
¶ 3 BACKGROUND
¶ 4 The State charged Freddie Clemons, Joseph Bobbitt, and Derrick Shelby with armed robbery with a firearm, armed robbery with a bludgeon, and four counts of unlawful restraint in connection with an October 23, 2012, armed robbery of Aldi supermarket in Streamwood. Shelby pleaded guilty to armed robbery without a firearm in exchange for a nine-year prison sentence. Bobbitt's case was severed from Clemons's, and Bobbitt was found guilty of armed robbery. This appeal only concerns Clemons. ¶ 5 Prior to trial, defendant moved to suppress identification testimony of Alex Valenzuela, Josefina Chavez, Corrin Wimmer, and Ella Villarruel, Aldi employees who witnessed the armed robbery. Defendant argued that the photo array from which the employees identified defendant was suggestive because police showed each witness all of the photos simultaneously rather than sequentially and defendant's photo had a different background from the other photos. Following a hearing, the circuit court denied defendant's motion to suppress. ¶ 6 The circuit court granted defendant's pretrial motion in limine to prohibit the State from eliciting testimony that police put together the photo array after speaking to Bobbitt and Shelby. The circuit court ruled that the State could put on evidence that the police conducted an investigation and after talking to "everybody involved," put together the photo array. ¶ 7 During jury selection, the circuit court admonished potential jurors that the defendant is presumed innocent of the charges against him, that the State must prove defendant's guilt beyond a reasonable doubt, and that the defendant is not required to offer any evidence on his own behalf. The circuit court, however, failed to admonish the potential jurors that defendant's failure to testify could not be held against him. The circuit court asked the potential jurors if they disagreed with any of the principles, but did not ask whether they understood and accepted the principles. ¶ 8 The following facts were established at trial. Alex, Josefina, Corrin, and Ella were working at Aldi on October 23, 2012, at around 9 p.m. when three black men entered the store. Josefina was taking groceries to her car when the men walked into the store. She thought that they looked suspicious, and called 911. One man was wearing a black hoodie with the hood up, another was wearing a White Sox hat, and the third man was wearing a red long-sleeved shirt with khaki pants. After the three men entered, the man in the red shirt immediately walked back outside. The man in the black hoodie asked Alex where he could find Doritos, and Alex directed him to the aisle with nacho chips. Ella was mopping the floor, and the man in the black hoodie asked her where the Doritos were, and she directed him toward the nacho chips. The man in the black hoodie grabbed a bag of chips and took it to a register at the front of the store. He then pulled out a small revolver, pointed it at Alex, and told him to "get down." Corrin was cleaning near the registers when the man in the black hoodie pulled out the gun, and he stared directly at her. He instructed Corrin to open the cash register and get on the ground. ¶ 9 Josefina returned to the store after putting her groceries in the car. When she entered, she saw Alex on the floor and Ella cleaning in an aisle. The man in the black hoodie pointed his gun at Josefina and told her to open as many registers as she could. She saw Corrin on the floor and proceeded to open the registers. Meanwhile, the man in the White Sox hat directed Ella to move toward the front of the store, and told her to get on the ground. Ella saw Alex on the ground and the man in the black hoodie pointing a gun at Josefina. The man in the black hoodie made statements to the effect that they were taking Aldi's money. Corrin heard someone say that they did not want to hurt anyone, they just wanted the money. Alex heard the man in the black hoodie tell the man in the White Sox hat to get the rest of the money. After taking money from the registers, the men left the store. Alex, Josefina, Corrin, and Ella all made in-court identifications of defendant as the man in the black hoodie. They each identified a DVD of the Aldi's security camera footage, which they testified accurately depicted the events of the robbery. ¶ 10 Streamwood police officer Frank Moreno arrived at the scene in response to a 911 call and observed a man in a red long-sleeved shirt and khakis pacing in front of the store. As he approached the man, the man in the black hoodie and another man, whom Moreno described as wearing a white t-shirt carrying a plastic bag, exited the store. The man in the black hoodie and the man in the red shirt ran away. Moreno ordered them to stop, but they did not. There was a physical confrontation when Moreno tried to detain the man in the white t-shirt, during which the man dropped the plastic bag. Moreno detained the man, who was identified as Shelby. A second unit arrived at the scene. Moreno recovered the plastic bag, which was full of money. An employee from a nearby store approached Moreno and handed him additional money that was dropped by the fleeing suspects. Moreno spoke with Alex, Ella, Corrin, and Josefina, who each gave a description of the suspects' clothing. Alex also provided a description of the gun. ¶ 11 Officer Michael Donohue arrived at the Aldi while Moreno struggled with Shelby. Donohue observed two men running, one man in a red shirt and khaki pants and the other in a dark sweatshirt. Donohue pursued the two men in his car and then on foot to the rear of a townhouse at 1503 McKool Avenue, but lost sight of the suspects. Donohue and Officer Vanderlinden searched the area for the suspects. They received a call that a suspect was in the bushes at 1505 McKool Avenue. The officers found and arrested the man in the red shirt, who was identified as Bobbitt. ¶ 12 Officer Patrick Silver testified that he participated in the search around 1505 McKool Avenue. During that search, he recovered rolls of coins and a revolver. A piece of the revolver had broken off, which he also recovered. Streamwood police officer Courtney Stoiber, a patrolman and evidence technician, and her partner, Detective Pagels, investigated the robbery. Stoiber photographed the interior and exterior of the store. She and Pagels viewed the security footage of the incident. Stoiber attempted to recover fingerprints from the scene, but found no fingerprints suitable for comparison. She photographed and inventoried the coins and revolver recovered by Silver. The revolver contained three bullets. The revolver was test-fired and found to be operable. No latent fingerprints were recovered from the bullets found in the revolver. ¶ 13 Streamwood police commander Michael Ziegler testified that he was notified of the armed robbery and that he went to the scene. He spoke to Moreno and learned that Shelby had been taken into custody. He also learned that Bobbitt had been arrested. He learned that there was one offender at large. Ziegler returned to the police station and ordered his detectives to interview the witnesses, offenders, and officers that were at the scene. Detectives Mercado and Page were assigned to speak to the offenders and witnesses. The State then elicited the following testimony:
"Q: Now, once you made that assignment did those detectives do the task that they were assigned?
A: Yes.
Q: After those detectives spoke to those individuals what happened next?¶ 14 During a subsequent sidebar, defense counsel moved for a mistrial. Defense counsel argued that Ziegler's testimony that information obtained from Shelby and Bobbitt led to the inclusion of defendant's photo in the photo array was tantamount to Ziegler testifying that the codefendants provided the information that led to defendant becoming a suspect. Defense counsel further argued that none of the Aldi employees knew defendant's name and did not provide detailed physical descriptions of him. The circuit court denied the motion for a mistrial, but acknowledged that Ziegler's testimony "walks a fine line." ¶ 15 Ziegler testified that he and Detective Cabrales spoke to Josefina, Corrin, and Ella at their homes on October 24, 2012. Each witness was shown a photographic lineup instruction form which included an instruction that the suspect may or may not be included in the photo array. Josefina, Corrin, and Ella each read and signed the form and identified defendant as one of the people that committed the robbery. Each witness was "very certain" of their identification. Alex testified that he went to the Du Page County jail on October 25, 2012, and was shown two in-person lineups. After reading and signing a photographic lineup instruction, police showed him a photo array. Alex identified defendant as the one who pointed a gun at him. ¶ 16 Before Detective Pagels testified, the State argued that Pagels should be permitted to testify that he spoke with Shelby, and that after he spoke to Shelby, defendant became a suspect. The State insisted that this testimony was necessary to avoid the jury thinking that defendant became a suspect "out of thin air." Defense counsel objected, noting that defendant had no way to respond to such testimony and that there was no one to cross-examine since neither codefendant was testifying at trial. The circuit court barred Pagels from testifying about the substance of his conversation with Shelby, but allowed him to testify about the investigative steps he took. ¶ 17 Pagels testified that he learned that Shelby and Bobbitt were in custody. He went to the police station to interview Alex, Ella, Corrin, and Josefina. He showed each of them a photo of the revolver that was recovered. Alex and Josefina identified it as the gun used during the robbery. He then spoke to Shelby. Over defendant's objection, Pagels testified that after speaking to Shelby, defendant was a suspect. Pagels obtained a photo of defendant, and placed it in a six-photo array used by Ziegler and Cabrales. Pagels also testified that he brought witnesses to the Du Page County jail to conduct physical lineups including Shelby and Bobbitt. Pagels obtained an arrest warrant for defendant, but later learned that another police agency had arrested him. ¶ 18 The State rested its case. Defendant did not present any evidence and did not testify. ¶ 19 During closing arguments, the prosecutor, among other things, argued that the police obtained statements from witnesses and then talked to defendant's "buddy, Shelby." Defendant objected, but the circuit court overruled the objection. The prosecutor further argued that "during the course of their investigation, after they speak to Shelby they come out, and now he's a suspect. They get a picture of him." ¶ 20 The jury found defendant guilty of four counts of armed robbery with a firearm. The circuit court merged the counts and sentenced defendant to 30 years' imprisonment. Defendant appeals.
A: We put together a photo lineup or photo array of the suspects that was [sic] outstanding.
Q: And what was that based upon?
A: Information gathered from the information or the interviews [sic] of the offenders."
[Defense counsel]: Objection.
The Court: Sustained. The jury is instructed to disregard that last answer."
Bobbitt appealed his conviction, and his appeal was assigned no. 1-16-0181. --------
¶ 21 ANALYSIS
¶ 22 On appeal, defendant raises two arguments. First, he contends that he was denied a fair trial when the State elicited hearsay testimony revealing the substance of Shelby's statement to Pagels identifying defendant as one of the offenders. Second, he contends that the circuit court failed to properly admonish the jury under Supreme Court Rule 431(b) and that the evidence was closely balanced. We address his arguments in turn. ¶ 23 First, defendant argues that the jury heard the substance of statements made by Shelby to police officers, which identified defendant as one of the offenders. Specifically, defendant argues that Ziegler testified that the detectives put together the photo array based on information gathered from interviews with Shelby and Bobbitt. Defendant further contends that Pagels testified that after he spoke with Shelby, defendant became a suspect. Defendant argues that "the jury was left with one unmistakable conclusion: [defendant's] co-defendant Shelby named [defendant] as the third offender." Defendant contends that the prosecutor compounded the error in closing arguments by stating that police got statements from defendant's "buddy, Shelby," and that defendant became a suspect after police spoke to Shelby. Defendant argues that admission of the contents of the nontestifying codefendants' statements could not be harmless error because the State's evidence was not overwhelming: the only evidence of defendant's guilt was eyewitness identification testimony, which is "fallible," and the photo arrays were suggestive. Defendant concludes that he is entitled to a new trial. ¶ 24 " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ill. R. Evid. 801(c) (eff. Jan. 1, 2011). Hearsay is not admissible except as provided by the Illinois Rules of Evidence. Ill. R. Evid. 802 (eff. Jan. 1, 2011). "[T]estimony by a third party as to statements made by another nontestifying party identifying an accused as the perpetrator of a crime constitutes hearsay testimony and is inadmissible." People v. Lopez, 152 Ill. App. 3d 667, 672 (1987). Additionally, a criminal defendant has a sixth amendment right to confront witnesses against him. U.S. Const., amend. VI. ¶ 25 Out of court statements are not hearsay, however, if they are offered to prove something other than the truth of the matter asserted therein. People v. Banks, 237 Ill. 2d 154, 180 (2010) (citing People v. Simms, 143 Ill. 2d 154, 173 (1991)). A police officer "may testify about his conversations with others, such as victims or witnesses, when such testimony is not offered to prove the truth of the matter asserted by the other, but is used to show the investigative steps taken by the officer." Simms, 143 Ill. 2d at 174. "Testimony describing the progress of the investigation is admissible even if it suggests that a nontestifying witness implicated the defendant." Id. Furthermore, "the confrontation clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' " Banks, 237 Ill. 2d at 182 (quoting Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)). ¶ 26 First, we find that Ziegler's testimony was not hearsay. He testified that he was notified of the armed robbery, and that he went to the scene. At the scene, he "got kind of a general overview of how many subjects [the responding officers] had in custody and what had happened ***." He learned that Shelby and Bobbitt had been arrested, and that there was one suspect at large. Ziegler ordered his detectives to interview the witnesses, offenders, and officers that were at the scene. Detectives Mercado and Page were assigned to speak to the offenders and witnesses. The State then elicited the following testimony:
"Q: Now, once you made that assignment did those detectives do the task that they were assigned?Ziegler's testimony is a description of the investigative steps taken by police, and is not hearsay. At no point in his testimony did Ziegler recount the actual substance of any police conversation with Shelby or Bobbitt. Instead, Ziegler testified that after police assembled the photo array after Mercado and Page spoke with the offenders, witnesses, and officers. This testimony was not improper. See People v. Spears, 169 Ill. App. 3d 470, 478 (1988) ("When a police officer testifies that he had a conversation with an individual and that he subsequently acted thereon, without revealing the substance of the conversation, such testimony is based on the officer's personal knowledge and is competent to show the officer's investigatory procedure."); see also People v. Gacho, 122 Ill. 2d 221, 247-48 (1988) (finding testimony that officers began looking for defendant after speaking to a witness was properly admitted, since the testimony "was not of the conversation with [the witness], but to what [the officer] did and to investigatory procedure."). We find that Ziegler did not testify to the substance of any conversation between police and Shelby or Bobbitt, and therefore his testimony did not contain any inadmissible hearsay. ¶ 27 Next, we find that the Pagels's testimony was not hearsay. Pagels testified that upon arrival at the scene, he learned that Shelby was in custody. He spoke to Moreno, Ella, Josefina, Alex, and Corrin. Moreno had given him a description of the other two suspects. He reviewed the security footage, and later learned that Bobbitt had been arrested. Pagels went back to the police station with Ella, Josefina, Alex, and Corrin, and he spoke with each one of them. He showed Alex and Josefina a photo of a firearm, and they both identified it as the one used during the robbery. The State then elicited the following testimony:
A: Yes.
Q: After those detectives spoke to those individuals what happened next?
A: We put together a photo lineup or photo array of the suspects that was [sic] outstanding.
Q: And what was that based upon?
A: Information gathered from the information or the interviews [sic] of the offenders."
[Defense counsel]: Objection.
The Court: Sustained. The jury is instructed to disregard that last answer."
"Q: Now, Detective, after you had these conversations with the witnesses from the Aldi's [sic], were they released from the police department?
A: They were.
Q: And at that time, did you have a conversation with one of the persons in custody by the name of Derrick Shelby?
A: I did.
Q: And after your conversation with Derrick Shelby, what is the next thing that you did?
[Defense counsel]: Objection
The Court: Overruled.
[A]: Um, the defendant was now a suspect at that point, and I went and retrieved a picture of him from a database.
[Q]: When you said you retrieved a picture of someone from a database, whose picture did you retrieve from the database?¶ 28 Pagels's testimony that after his conversation with Shelby, defendant was a suspect was not hearsay. Pagels did not reveal the substance of any conversation he had with Shelby. Instead, Pagels's testimony that defendant was a suspect after the conversation with Shelby was offered to establish that Pagels retrieved a photo of defendant for the photo array after the culmination of his interviews with the witnesses, officers, and suspects. His testimony was not offered to show that Shelby identified defendant as a suspect, but instead was offered to show the investigative steps taken by police. This testimony was not hearsay and was not improper, even if a jury might infer that Shelby made statements implicating defendant in the crime. Spears, 169 Ill. App. 3d at 478; Gacho, 122 Ill. 2d at 247-48. ¶ 29 Defendant relies on People v. Johnson, 116 Ill. 2d 13 (1987), People v. Jura, 352 Ill. App. 3d 1080 (2004), and People v. Armstead, 322 Ill. App. 3d 1 (2001), in support of his argument that Ziegler's and Pagels's testimony was improper hearsay. Those cases are distinguishable. In Johnson, the defendant and three codefendants were charged with murder in connection with a shooting death during an armed robbery. The trials were severed, and two of the codefendants did not testify at the defendant's trial. The State elicited testimony from a police officer that the two codefendants named the defendant as the shooter, (id. at 22-23) and during closing arguments, the prosecutor assured the jurors that the nontestifying codefendants identified the defendant as the shooter (id. at 26-27). Our supreme court found that the State's "substantive use of the evidence violated the defendant's confrontation rights under the [f]ederal and [s]tate constitutions." Id. at 28. The court reversed the defendant's murder conviction and remanded for a new trial after finding that the constitutional violations were not harmless. Id. at 28-29. Here, the State never elicited any testimony from either Ziegler or Pagels regarding the substance of any statement made by Shelby. Neither Ziegler nor Pagels testified that Shelby identified defendant as the third suspect in the armed robbery. Johnson is distinguishable. ¶ 30 Jura is also distinguishable. There, the State repeatedly elicited trial testimony from police officers that repeatedly revealed the substance of a radio call describing a person with a gun and a teardrop tattoo on his face. Jura, 352 Ill. App. 3d at 1082-84. We found that the officers' testimony "went beyond explaining the investigative steps taken by testifying to the substance of the radio call, including the description of the offender." Id. at 1086. We reversed defendant's conviction and remanded for a new trial after finding that the admission of the hearsay statements was not harmless error. Id. at 1089-91. Here, as we have explained, neither Ziegler nor Pagels testified to the actual contents of any statement by Shelby. Instead, the officers confined their testimony to their observations and actions taken during the course of their investigation. ¶ 31 Finally, Armstead involved the State's repeated attempts to elicit testimony from a police officer that the victim of a shooting identified the defendant as the shooter, which revealed the contents of the victim's statement to police identifying the defendant as the shooter. Armstead, 322 Ill. App. 3d at 7-8. We found that the officer's testimony was inadmissible hearsay and that the admission was not harmless error because the evidence was closely balanced. Id. at 12-13. Armstead involved "a long series of objected-to and unobjected-to questions" that revealed the substance of the nontestifying witness's statement to police. Id. at 12. Nothing similar occurred here. We therefore find Armstead distinguishable. ¶ 32 In sum, we find that the testimony of Ziegler and Pagels was not inadmissible hearsay because their testimony did not reveal the substance of any statements made by Shelby to the police. Instead, Ziegler's and Pagels's testimony was offered to show the investigative steps taken by police, and to show that defendant became a suspect as a result of those investigatory steps. We therefore find that the circuit court's admission of the officers' testimony did not deprive defendant of a fair trial. ¶ 33 Next, defendant argues that the circuit court's failure to properly admonish the jury under Rule 431(b) warrants a new trial. He acknowledges that he forfeited this issue by failing to object in the circuit court, but argues that the circuit court's error constitutes plain error. ¶ 34 In order to preserve an error for appellate review, a defendant must object to the error and raise the error in a posttrial motion. People v. Belknap, 2014 IL 117094, ¶ 66. The failure to preserve an error for appeal results in forfeiture. People v. Sebby, 2017 IL 119445, ¶ 48. Rule 615(a) permits an appellate court to excuse a defendant's forfeiture and reach the merits of a claim that amounts to plain error. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); Sebby, 2017 IL 119445, ¶ 48. The two instances in which we reach the merits of a forfeited claim are when (1) "a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error," or (2) "a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." Sebby, 2017 IL 119445, ¶ 48 (citing People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)). ¶ 35 The first step under either prong of the plain error doctrine is to ascertain whether there was a clear or obvious error. Id. ¶ 49. The parties on appeal agree that the circuit court failed to admonish the jurors that defendant's decision not to testify could not be held against him, and then failed to ask jurors whether they understood and accepted the principles set forth in Rule 431(b). This was a clear error. People v. Wilmington, 2013 IL 112938, ¶ 32. ¶ 36 Defendant argues that the circuit court's error constitutes first-prong plain error. His argument is consistent with our supreme court's holdings that Rule 431(b) errors are usually only subject to first-prong plain error analysis. Id. ¶ 33 (citing People v. Thompson, 238 Ill. 2d 598, 615 (2010)); Sebby, 2017 IL 119445, ¶ 52. We must therefore determine whether the evidence here was closely balanced such that the circuit court's error threatened to tip the scales of justice against defendant. This requires us to "evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within the context of the case." Sebby, 2017 IL 119445, ¶ 53. ¶ 37 Defendant argues that the evidence was closely balanced because there was no physical evidence linking him to the armed robbery: police did not recover defendant's fingerprints from the Aldi or from the revolver or bullets, and none of the proceeds from the robbery were found on him. He also did not make any statement to police. He contends that the only evidence of his involvement in the armed robbery was the identification testimony of Alex, Josefina, Corrin, and Ella. He argues that eyewitness identifications are "fallible," and that the identifications in this case were the product of a suggestive photo array. Defendant argues that Ziegler and Pagels conducted the photo array identifications with the witnesses, which was suggestive because they might have consciously or unconsciously influenced the witnesses' decisions. He further contends that the officers showed the witnesses the six-photo array simultaneously rather than sequentially, which was suggestive. See United States v. Ford, 683 F.3d 761, 764-65 (7th Cir. 2012) (collecting studies). He also argues that the in-court identifications of defendant were undermined by the suggestiveness of the photo arrays. ¶ 38 Having considered the evidence in this case, we find that it was not closely balanced. Four witnesses unequivocally identified defendant as the third participant in the armed robbery. Each witness identified defendant from the photo array and testified both at the suppression hearing and at trial that they clearly saw defendant's face during the robbery and that defendant was the man in the black hoodie who had the gun during the robbery. The four eyewitness identifications were consistent with one another. Each witness made an in-court identification of the defendant. Furthermore, they each identified the Aldi security camera footage of the robbery, and their testimony was consistent with the events depicted in the footage. There was sufficient evidence presented of defendant's guilt. ¶ 39 Defendant's arguments that the evidence was closely balanced are unpersuasive. Defendant presented no evidence in the circuit court to support his claim that eyewitness identifications are generally fallible. On appeal, he cites to People v. Lerma, 2016 IL 118496 as support for that general proposition, but that proposition alone is insufficient. In Lerma, the issue was whether the circuit court erred in excluding expert testimony regarding the reliability of eyewitness identifications. Id. ¶ 24. Here, defendant never sought to introduce any such evidence. Furthermore, Lerma does not hold that eyewitness testimony is fallible per se, but instead found that expert testimony regarding the scientific reasons why eyewitness testimony is not always reliable has become widely accepted as admissible evidence. Id. Here, defendant presented no evidence to the jury that eyewitness testimony is not always reliable. There is, therefore, no evidence in the record that we can assess in determining the closeness of the evidence presented to the jury. ¶ 40 Next, we do not find that the alleged suggestiveness of the photo arrays increased the likelihood of misidentification of defendant as the offender. First, defendant cites to no evidence in the record to support his claim that Ziegler's or Pagels's involvement in the photo arrays actually affected any of the witness identifications. Defendant did not introduce any evidence regarding the affect an officer with knowledge of the offense might consciously or unconsciously have on a witness during a photo array identification. Furthermore, the circuit court held a hearing on defendant's motion to suppress at which defense counsel examined the witnesses as well as Ziegler and Pagels. Defendant does not identify a single fact adduced at either the suppression hearing or at trial that would suggest that Ziegler's or Pagels's presence affected any witness's identification of the defendant as the offender, or that Ziegler or Pagels influenced any witness's identification of defendant. ¶ 41 Second, defendant's argument that showing a witness a photo array simultaneously rather than sequentially affects the reliability of the identification is premised on studies that are inconclusive. In Ford, the court of appeals found that "[w]itnesses shown a sequential lineup are more likely to compare each person in it only with the memory of the offender, rather than choose whichever person looks the most like what the witness remembers." Ford, 683 F.3d at 764-65. Two years later, the court of appeals observed that "some recent research has called into question the view that sequential presentation of photographs is superior to photo spreads." United States v. Johnson, 745 F.3d 227, 229 (7th Cir. 2014) (citing David G. Dobolyi & Chad S. Dodson, Eyewitness Confidence in Simultaneous and Sequential Lineups: A Criterion Shift Account for Sequential Mistaken Identification Overconfidence, 19 J. Experimental Psychology: Applied 345 (2013)). Defendant did not introduce any expert evidence to support his claim that the manner in which Ziegler and Pagels conducted the photo array identifications might have affected any witness's identification of defendant as the third offender. ¶ 42 After considering all of the evidence, we conclude that the evidence against defendant was not closely balanced and he is therefore not entitled to relief under the first prong of plain error.
A: Freddie Clemons."
¶ 43 CONCLUSION
¶ 44 For the foregoing reasons, the judgment of the circuit court is affirmed. ¶ 45 Affirmed. ¶ 46 JUSTICE MIKVA, specially concurring, in part. ¶ 47 I join in all aspects of this Order, other than the court's conclusion, supra ¶¶ 23-32, that the objected-to testimony from Commander Ziegler and Detective Pagels was properly admitted. That testimony clearly conveyed to the jury the fact that Joseph Bobbit and Derrick Shelby, who had already been arrested at the scene of the Aldi robbery, identified Mr. Clemons as the third participant in that robbery. That testimony was hearsay and its admission violated Mr. Clemons's constitutional right to confront witnesses against him. However, because I agree with the State that the admission of this hearsay was harmless error, I concur fully in the judgment of the court. ¶ 48 The prosecutors in this trial relied on the well-settled understanding that a police officer may testify as to a conversation that the officer had in investigating a crime for the limited purpose of explaining the investigative steps taken by the officer. See People v. Simms, 143 Ill. 2d 154, 173 (1971). However, this "course of investigation" hook is often asked to hold far more weight than it can bear, and this case is a prime example. Of course where, as here, the out-of-court testimony is from a non-testifying co-defendant who identifies the defendant as a participant in the crime, it is necessarily suspect and violates not only the rules against hearsay but also the defendant's constitutionally guaranteed right to confront and cross examine adverse witnesses. Bruton v. United States, 391 U.S. 123, 136 (1968). ¶ 49 In this case, as the court's Order acknowledges, Commander Ziegler testified that the photo array that included Mr. Clemons was put together after the detectives had spoken with the "two offenders," meaning the two suspects that had been arrested at the scene of the robbery. Supra at ¶13-14, 26. Although the jury was instructed to "disregard" that specific information, the trial court refused to grant a mistrial. ¶ 50 This hearsay testimony was echoed by the testimony of Detective Pagels. As the Order acknowledges, the detective testified that, after he spoke with Derrick Shelby, Mr. Clemons was "now a suspect." Supra at ¶¶17,27. The prosecutor then underscored Derrick Shelby's out of court identification of Mr. Clemons by arguing to the jury that the police had talked to Mr. Clemons's "buddy Shelby" and that "after they speak to Shelby they come out, and now he [Mr. Clemons] is a suspect." ¶ 51 As Mr. Clemons's briefing on appeal points out, all that the State had to do was to abide by the parties' agreement that the police would testify that, after talking to all of the witnesses, they put together a photo array that included the defendant. This avoids the obvious implication that Mr. Clemons's co-defendants identified him as the third participant. This case is very similar to People v. Armstead, 322 Ill. App. 3d 1, 11-13 (2001), which is one of the cases cited by Mr. Clemons. There, as here, the State argued that the challenged statement was used to explain the progress of the police investigation. And there, as here, the statement at issue was an out-of-court identification of the defendant as the perpetrator. ¶ 52 However, as the court recognized in Armstead, if a hearsay identification "is supported by a positive identification and other corroborative circumstances, it constitutes harmless error." Id. at 12. In this case, four independent witnesses to the Aldi robbery positively identified Mr. Clemons as a perpetrator, and their description of how the robbery occurred was corroborated by video footage. As the court's Order points out, the testimony of these four witnesses was not only unequivocal but consistent; they each identified Mr. Clemons both in a photo array and in court. Supra at ¶38. ¶ 53 The State recognizes in its brief on appeal that—because Mr. Clemons's constitutional rights are implicated—its burden, if this testimony was admitted in error, is to show beyond a reasonable doubt that the testimony did not affect the outcome of this trial. I join with the majority in rejecting the defendant's arguments challenging the strength of this eyewitness testimony. Supra at ¶¶ 39-41. Therefore, I think that, through these four witnesses, the State has met its burden in this case.