Opinion
No. 1-12-0385
09-30-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KERRY MASTERSON, 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. 09 CR 11266 Honorable Vincent M. Gaughan, Judge, Presiding. PRESIDING JUSTICE HOFFMAN delivered the judgment of the court.
Justices Hall and Lampkin concurred in the judgment.
ORDER
¶ 1 Held: The judgment of the circuit court was affirmed where: the defendant's claims of evidentiary errors pertaining to admission of lineup identifications and eyewitness identification expert testimony failed; the trial court's voir dire comments did not constitute reversible error; the trial court did not err in denying use of non-pattern jury instructions regarding witness identification testimony; and the defendant's sentence was not excessive. However, the defendant's mittimus was modified to reflect accurate presentencing credit. ¶ 2 After a jury trial, the defendant, Kerry Masterson, was convicted of first-degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) and sentenced to 58 years' imprisonment. On appeal, she argues that she is entitled to a new trial because: (1) her motion to suppress the lineup 2 identifications should have been granted; (2) potential jurors were improperly admonished during voir dire proceedings; (3) the trial court improperly barred the testimony of her witness identification expert; and (4) the trial court erred in denying her proffered modified jury instruction regarding identification testimony. Additionally, the defendant contends that she received an excessive sentence and that her mittimus should be modified to reflect 925 days of presentencing credit. For the reasons that follow, we affirm the judgment of the circuit court, but we modify the mittimus as requested. ¶ 3 The defendant was charged, along with codefendants Beatrice Rosado and Elvin Payton, with first-degree murder for her participation in a May 14, 2009, robbery of Norton's Sweet Shop in Chicago, which resulted in the shooting death of the store's owner, Michael Norton. According to the State's theory of the case, Rosado rented an apartment above Norton's Sweet Shop in which she resided with her children and Payton. After a rival gang shot Payton in front of the store, Norton advised Rosado that he would not tolerate drug and gang activity in his apartments, and he notified her that he was terminating her lease at the end of May 2009. The State argued that, shortly thereafter, Payton and the defendant planned to rob Norton while Rosado waited nearby in a getaway van. Payton and the defendant then tied up Norton, and Payton shot him in the head on the way out of the store. Payton and Rosado turned themselves into police and implicated the defendant in the crime. Several witnesses also identified the defendant in police lineups as one of the two individuals leaving the store after the crime. The defendant was then arrested in connection with the crime. 3 ¶ 4 On January 27, 2010, defense counsel moved to suppress the lineup identifications of witnesses Regina Evans, Jakeila Tankson, and Lisa Randle, on the basis that the police used suggestive lineup procedures. Defense counsel argued that the police improperly presented females in the lineups, despite the fact that the witnesses told police that they saw a Hispanic male leaving the crime scene. ¶ 5 During the hearing on the motion to suppress, Chicago Police Detective Anthony Noradin testified that he responded to the crime scene and spoke to several witnesses, who told him that two offenders exited the store. One offender was described as a male, light-skinned Hispanic, about 5 feet 7 inches to 5 feet 10 inches tall, and with hair worn in a long ponytail. The second offender was described as a black male in his late 20's. ¶ 6 Detective Noradin was told by Norton family members that Norton had problems with a second-floor tenant's drug and gang activities. He testified that he was told that Norton had evicted the tenant and the separation was not an amicable one. Using that information, he compiled a photo array containing the photo of one of Norton's tenants, Luis Ochoa, from which witness Regina Evans identified Ochoa as somebody resembling the person who exited the store. Photos of the defendant and codefendants were not included in that photo lineup. However, Detective Noradin determined that Ochoa was in North Carolina at the time of the crime, and so, he continued investigating other tenants of Norton's, including Rosado. Detective Noradin included Rosado's photograph in a lineup for witness Luz Ruiz, who identified her as the person she saw outside of the store in a van. Using that information, he learned that Payton was an associate of Rosado, and he used Payton's photo in a lineup from which Evans identified him as one of the individuals leaving the store. 4 ¶ 7 On May 20, 2009, Rosado and Payton turned themselves in to the police. Initially, both denied any knowledge or involvement with Norton's murder. The next day, however, Payton admitted participating in the crime and informed the police that the third individual was also a Hispanic female, named "Kerry" who lived on the 1500 block of Kedvale. Payton identified the defendant from a photograph for the police. According to Payton, the defendant was the mastermind of the robbery and had been the one who shot Norton after they were unable to find any money. Detective Noradin knew that parts of Payton's story did not match the events described by witnesses. For instance, the witnesses had said that the Hispanic male locked the store's door after the black male went inside while Payton stated that the defendant went inside the store and shot Norton while he was outside. Witnesses also saw Payton carrying bags of cigarettes out of the store while he stated that he did not take anything. ¶ 8 Detective Noradin stated that, on May 22, 2009, Rosado, who was being interviewed by different detectives in a room separate from Payton, admitted to her involvement in the crime. She, too, identified the defendant as the third offender. Rosado stated that the defendant and Payton went into Norton's Sweet Shop to rob the store while she waited outside. Detective Noradin testified that Rosado stated that, after the crime, Payton told her that he had to kill the victim because he saw his face. ¶ 9 On May 28, 2009, following the inculpatory statements of Rosado and Payton, Detective Noradin asked Evans to view a physical lineup because he wanted to determine whether the third offender was a male or female. He denied informing Evans that his investigation had led him to a female offender. Upon identifying the defendant, Evans indicated that she was shocked that the offender was female, not a male as she originally thought. Detective Noradin admitted that the lineup Evans viewed contained five females and no males. 5 ¶ 10 Detective Noradin continued testifying that, on May 28, 2009, Tankson viewed a lineup containing four females from which she identified the defendant. Like Evans, Tankson expressed surprise when she realized the offender was female, not male. On June 10, 2009, Randle viewed a lineup containing three females from which she identified the defendant, stating that she realized that the person she saw was actually female, not male. Detective Noradin testified that the three witnesses had no contact with one another during the lineups. ¶ 11 On cross-examination, Detective Noradin admitted that Payton changed his story at least three or four times before admitting to any involvement in the crime and that some details of his version of events could not be confirmed. For example, Payton stated that Rosado, the defendant and he left the scene and checked into the Grand Motel, which had no record of their stay. He also stated that the defendant was armed with a "big revolver," but ballistic evidence showed that a 9 millimeter gun was used in the shooting. ¶ 12 Randle testified that she and Tankson were walking to a nail salon on the south side of North Avenue when she observed a short, stocky, male Hispanic running toward her. The individual was in his 20's and had his hair pulled back in a long ponytail. Randle stated that the person wore a black t-shirt over a long-sleeved white t-shirt and fingerless biker gloves. She testified that she provided this information to police on May 14, 2009. On June 4, 2009, the police contacted Randle and asked her whether she was sure the person she saw was male and whether she observed breasts on the individual. Randle recalled that she said she believed she saw a short, clean-shaven man, but that it was possible it was a female because she paid no attention to the person's chest. On June 10, she was asked to view a lineup. Randle testified that, when three females walked out, she asked Detective Noradin why he was having her view females to which he merely told her to observe the lineup. Randle looked at the three women 6 and asked if they could pull their hair back. Detective Noradin had the women pull their hair back, and Randle identified the defendant. Randle denied that detectives informed her that they suspected a female was involved in the crime. She also denied that they said anything other than "thank you for coming in" after she identified the defendant. Additionally, Randle denied speaking to Tankson about the crime until after both had observed a lineup, and the gist of that conversation centered on their mutual shock that the offender was female. ¶ 13 Evans testified that she and her boyfriend were walking past Norton's Sweet Shop on the night of the murder when she observed someone with a mask locking the door of the store from the inside. Evans knew that the person was not the store's owner, and she called the police to report that it appeared someone was robbing the store. She testified that she and her boyfriend continued walking toward a taco restaurant and then across the street to Church's Chicken. As she looked at Norton's, she noticed a broken window. Evans testified that, when she left Church's Chicken, she saw a male close the door of Norton's and run towards Keating Avenue. She described the person as a slim-build, Hispanic male, about 25 to 30 years old, about 5 feet, 7 inches to 5 feet, 10 inches tall with a long ponytail. Evans further stated that she observed the side of the person's face as he ran all the way down the block to Keating. She then saw a Hispanic woman standing in the Walgreen's parking lot, who was shouting "what the F is taking you so long, and hurry the F up." Evans admitted that, on the night of the murder, she identified Ochoa from a photo lineup that contained only Hispanic males. ¶ 14 Evans testified that, on May 27, 2009, Detective Noradin asked her to view a physical lineup. She denied that he told her that the police suspected a female or that the lineup would contain females. She stated that she was told only to view the lineup and if she saw the offender, pick the person, but if not, pick no one. Upon observing the lineup, Evans asked the detectives 7 to have the women turn to their sides, as that was the view she had of the offender. After the women turned, Evans testified that she stated to detectives, "holy shit, it was a girl." When asked whether detectives asked her about her previous identification of Ochoa, Evans stated that she told them that Ochoa and the defendant had similar appearances and that, in her opinion, the defendant had a masculine appearance. Evans stated that it was the defendant's masculine appearance that confused her. ¶ 15 When Evans was asked whether the police told her that they believed a woman was involved, she said "I guess so, yes." Later, she admitted telling defense counsel in May 2010 that the police told her that the suspect was in the lineup. She testified that the police never told her that the suspect was in the lineup, but explained that she just told that to defense counsel because she was afraid to testify and angry that counsel had disturbed her at her home as she had been sleeping and caring for her newborn. Evans did not recall testifying before the grand jury that she saw a Hispanic female, not a Hispanic male. She stated that she believed that she told the grand jury that she initially told police that she saw a male. ¶ 16 Tankson testified that, while she was walking on North Avenue on the night of the murder, she saw a stocky, Hispanic person running toward her. The person bumped into her and she observed the person for about five or six seconds. She testified that she was able to get a "good look" at the person's body frame, but she did not observe the person's face for a long period of time. Tankson testified that she provided the police with a description of the person on the same day, stating that the person was Hispanic with long, curly hair with colored streaks kept in a ponytail, and wearing a black t-shirt underneath a white t-shirt, fingerless black gloves, blue jeans, and white sneakers. She did not recall exactly whether she described the person as a 8 "Hispanic male in his 20's," but agreed that she described the person initially as a Hispanic male, based on the person's body frame. ¶ 17 Tankson testified that, on May 28, 2009, she identified the defendant from a lineup and that, until she saw the defendant, she did not realize the person she saw was female. Tankson identified her signature on a typewritten statement, prepared by an assistant State's attorney, which stated that she saw a female running out of the store and included a photograph of the defendant wearing a t-shirt with the letters "I hate my girlfriend" on the front. Tankson initially testified that she signed the statement and saw the photo after the lineup but then stated that she did so before the lineup. She also provided confusing testimony as to whether the defendant had the "I hate my girlfriend" t-shirt on during the lineup. Upon further questioning, Tankson clarified that she signed a lineup form before observing the lineup and then afterward, she signed the statement with the photo attached for the assistant State's attorney. She admitted that her memory of the specifics of that day was hazy, but the State refreshed her memory regarding the order of events using the time-stamps on each document. Detective Noradin was recalled to address Tankson's confusing testimony, and he confirmed that he had Tankson sign a lineup advisory form before viewing the lineup. He also denied that he told her that they suspected a female or showing her any photographs of the defendant before the lineup. ¶ 18 Tankson testified that she told the grand jury she saw a Hispanic woman with chubby hips exiting the crime scene. She clarified that the questioning during the grand jury hearing did not address her initial descriptions to police. Tankson denied discussing or conferring with Randle regarding the identification of the defendant. She also denied that the police told her who to pick out from the lineup or that they suspected a female. 9 ¶ 19 The parties stipulated to the following facts: Evans, Tankson and Randle did not tell the grand jury that they initially described the offender as male and that Evans never told the grand jury that she initially identified Ochoa. ¶ 20 On November 1, 2010, the trial court denied the defendant's motion to suppress the lineup identifications. Specifically, the trial court determined that police conduct during the lineups was not overly suggestive or unnecessary, given the unique facts of the case. The court explained that the police were "damned" if they did or "damned" if they did not include men in the lineups. The court further stated that the defense's arguments related to the credibility of the State's witnesses, but not to the admissibility of their identifications. ¶ 21 On December 10, 2010, the defendant filed a motion in limine requesting that the court conduct a hearing to determine the relevance and materiality of her proposed eyewitness expert, Dr. Elizabeth Loftus. The defense sought to admit Dr. Loftus's testimony regarding the effects of external and internal factors on perception, memory, retention and retrieval as those topics related to eyewitness identifications. Defense counsel argued that Dr. Loftus would not testify as to the reliability of any specific identification in the case, but only as to how the brain works to retain information and how suggestibility affects memory. After a hearing on the matter and considering the extensive testimony adduced at the suppression hearing, the trial court denied the motion to allow the testimony of Dr. Loftus. The court stated it did not find the expert testimony material or relevant and that the credibility issues of the identifications, including the misidentification of the offender's gender and the amount of time they observed the offender, were not beyond the ken of the jurors such that the expert's testimony was necessary. The matter then proceeded to trial. 10 ¶ 22 Relevant to this appeal, the trial court made the following statements to potential jurors during voir dire proceedings: "The State has the burden of proving the guilt of the defendant beyond a reasonable doubt and this burden remains on the State throughout the case. The defendant is not required to prove her innocence nor is *** she required to present any evidence on her own behalf. She may rely upon the presumption of innocence. *** The other thing is some of you may have served on civil juries in civil cases. The burden of proof is proof beyond a preponderance. That definition is it's more likely than not the events occurred. If you use a scale, all you have to do is tilt the scale a little bit and that would be preponderance of evidence. Illinois does not define the term reasonable doubt, that is up to the trier of the fact. But if you use a scale you can see it is the highest burden that is placed on any party in a case in the United States, and specifically the State of Illinois. Does anybody have any qualms or problems with that constitutional principal please raise their hand? *** The presumption of innocence also means that [the defendant] does not have to present any evidence on her own behalf. She can rely upon the presumption of innocence. She does not have to prove her innocence. Does anybody have any problem with that constitutional principle? Please raise their hand. Let the record indicate nobody has raised their hand. * * * 11On the other side of that constitutional coin, anybody placed on trial in a criminal case has a constitutional right not to take the stand. If they don't take the stand I will give you an instruction that no inference can be drawn from their silence. All right. Does anybody have any problem with that constitutional principle? Nobody has raised their hand. Ladies and gentlemen, during the trial you might say well, if [the defendant] is innocent why isn't she testifying? All right. That's a human thought and nobody can keep it out of your head. So there is nothing the matter with that. But you have to realize as soon as you realize that thought is in your head that the Constitution says no inference whatsoever can be drawn from her silence if she decides not to testify. Does anybody have any qualms about that constitutional principle please raise their hand? Nobody's raised their hand. Thank you." ¶ 23 The defendant's trial commenced on October 17, 2011, with Brittany Norton, the victim's daughter, testifying that, in early May 2009, she knew that her father had notified Rosado that he was terminating her lease because of gang and drug activity in her unit. Chicago Police Officer Brian Spreng testified that he responded to the initial report of a robbery at Norton's Sweet Shop and discovered the victim's body on the floor. The victim's hands and ankles were tied together. ¶ 24 Randle testified at trial, and her testimony was largely consistent with the testimony she gave during the hearing on the motion to suppress the identifications. In addition, she identified the defendant in the courtroom as the person she saw run out of Norton's Sweet Shop on May 14, 2009. She further stated that, when she identified the defendant during the lineup on June 10, 2009, she was "pretty sure, like a hundred percent sure" that the defendant was the offender. According to Randle, it was during the lineup that she realized that the offender was female, not 12 male as she originally thought. On cross-examination, she admitted that, on June 4, 2009, she told officers that she was about 70% sure that the offender was male. She also admitted that she felt sure the offender was male until the officers questioned her as to her certainty. Randle testified that she saw the offender "up close" for about 5 to 10 seconds as the person ran across the street after bumping into her and Tankson. ¶ 25 Evans' trial testimony also was consistent with her suppression motion testimony, except that she did not recall testifying that Detective Noradin told her that he suspected a woman who was in the lineup. She further clarified that, when she initially identified Ochoa, she was 30% certain, but that she was "75 percent positive" that the defendant was the offender. Evans identified the defendant in the courtroom as the person she saw exiting Norton's Sweet Shop on May 14, 2009. ¶ 26 Like Randle and Evans, Tankson's trial testimony was consistent with her suppression motion testimony, and she, too, provided an in-court identification of the defendant. ¶ 27 Rosado testified that she pled guilty to the murder of Norton and was serving a 22-year sentence. She stated that, in May 2009, she and Payton resided in the second-floor apartment above Norton's Sweet Shop with her kids and another roommate. She acknowledged that Norton was her landlord, but she denied that he notified her in early May that her lease was terminating on May 30, 2009, because of criminal activity on the property. However, she admitted that she moved out of the apartment before May 14, 2009, and that Norton returned her $750 security deposit. Rosado testified that she and the defendant were friends and that the defendant frequently visited her apartment. ¶ 28 Rosado admitted that, on May 14, 2009, she drove her black van near Norton's Sweet Shop while doing some errands and that she picked up Payton from an area behind the Church's 13 Chicken across the street from Norton's store. However, she denied ever seeing the defendant that day. She admitted that, on May 20, 2009, she and Payton turned themselves in to police and that she gave them a recorded statement in which she implicated the defendant. Regarding the statement, she acknowledged that some portions were true, but that the police "tricked" her into implicating the defendant in the crime by informing her that, if she did so, she could go home to her kids. Rosado testified that the police showed her a video of Payton's statement to convince her to implicate the defendant in the crime. While Rosado asserted that her statements to police were all lies, she testified to the veracity of many details contained in her statement. For instance, she testified that it was true that Payton had planned to rob Norton, admitted that he killed him, and that Payton knew that Norton objected to his gang and drug activity. ¶ 29 On cross-examination, Rosado stated that, if Payton, a Latin Styler gang member and former Spanish Cobra gang member, had implicated a fellow Latin Styler in the crime, it was possible that the Stylers may have tried to kill Payton for the $10,000 bounty money that the Cobras had on his life. She also stated that she went along with Payton's videotaped statement implicating the defendant, because she was afraid of him and she wanted to go home to her kids. ¶ 30 In the recorded statement, Rosado admitted that Payton wanted to rob Norton and had asked a few people to help him, including the defendant. Rosado stated that, while in a park with Payton, the defendant called her cell phone, she gave the phone to Payton, and the two discussed the robbery plan. Payton then left the park, and Rosado drove around the area of Norton's Sweet Shop in her van while she waited for him. While driving, she saw the defendant walking from Keating Avenue, where she was fixing her truck. Rosado continued driving around, but she did not see Payton or the defendant when she circled back around. She then saw the defendant exit Norton's store, without anything on her face and with her hair in a ponytail. Next, Payton exited 14 the store and ran toward the alley behind Church's Chicken, where Rosado picked him up in the van. Rosado told police that Payton got in the van with a white plastic bag containing two cartons of cigarettes and that he admitted he killed Norton. After the robbery and murder, Rosado and Payton stayed in a motel at Grand and Cicero and then at a Marriott near the airport. She stated that she next saw the defendant two days later when she came around to talk to Payton, but she did not know what they discussed. According to Rosado, the defendant "looked like a man." ¶ 31 Payton testified that he was serving a 47-year sentence after pleading guilty to Norton's murder and that he had prior felony convictions for drug possession and burglary. He stated that he lived with Rosado in a second-floor apartment above Norton's Sweet Shop and admitted that his behavior caused their eviction. Payton testified that, on May 14, 2009, he went to rob Nortion while Rosado waited nearby in her van. According to Payton, he entered the store while Norton was outside putting a bucket in his car. When Norton re-entered the store, Payton approached him from behind, wrestled him to the ground, threatened him with a 9 millimeter gun, hog-tied him using red and black string or wire, and stole his money. Payton then shot him in the head. ¶ 32 Payton testified that, after he shot Norton, the defendant came inside the store, but "everything was already done" at that point, and he told her that they had to leave and that she came "too late." He admitted that the defendant knew about the robbery and had planned to be a "lookout." He did not recall any details surrounding his contact with the defendant in connection with planning the robbery except that he raised the idea while smoking marijuana with her and Rosado in the early morning hours of May 14, 2009. Payton described the defendant as having her long, curly, dark hair in a ponytail at the time, but he did not recall what she wore or whether 15 she wore a mask. He did not know where the defendant went after they left Norton's, but he said that they entered Rosado's van outside the Church's Chicken, carrying a bag with money and cigarettes from the store. He admitted that he told Rosado that he murdered Norton and that they drove to a hotel. Payton testified that, later that night, he saw the defendant at a restaurant and asked if she was okay after the crime, and she said that she was. He denied giving her any of the money he alleged he stole. Later, on cross-examination, Payton stated that the defendant never definitively agreed to help him with the robbery, but that she just happened to show up at the store as he was finishing the crime. ¶ 33 Payton admitted that he gave a recorded statement to police after turning himself in on May 20, 2009, but he stated that he was drunk and "high on pills" at the time. He did not recall what he said in the statement, but then he remembered that he initially denied any involvement in Norton's murder and asked what crime he could be charged with if there was only one shooter. Payton also recalled that he admitted being inside Norton's Sweet Shop on the day of the murder. ¶ 34 In Payton's recorded statement to the police, he said that the defendant wanted to rob Norton's store and that he agreed to help. According to Payton, the defendant wore a ski mask, entered the store before him, tied Norton up, and then shot him with a "big revolver." He claimed that, when the defendant shot Norton, he had already left the store because he did not find any money. However, at trial, Payton identified photos of the store, showing cash and lottery tickets in plain sight, which were left after the murder. Payton also admitted at trial that he wrote a letter to the court in September 2009, stating that the defendant pulled the trigger. Payton testified that the information in the letter was not true. He also denied testifying during his guilty plea proceeding on September 21, 2009, that the defendant tied up and shot the victim. 16 ¶ 35 On cross-examination, Payton admitted he had been a member of the Spanish Cobra street gang for over a decade and that the Cobras wanted him dead because he joined the Latin Stylers street gang. However, he denied that he would have become a target if he had implicated a fellow Latin Styler in the Norton murder. Despite his gang affiliation admission, Payton denied that he had gang member friends over to Rosado's apartment and denied that he had a tattoo of a diamond under his eye, a noted gang symbol. However, he admitted that, shortly before Norton's murder, he was shot in front of the Sweet Shop. ¶ 36 Various Chicago police officers and Illinois State Police forensic scientists testified that: the police recovered a fired bullet, a cartridge casing, a latent print, a key, a plastic cup, and a pair of glasses from the crime scene; the ballistic tests revealed that the bullet and cartridge came from a Winchester 9 millimeter Luger caliber weapon; the latent fingerprint impressions were unsuitable for comparison; and none of the DNA evidence retrieved from the scene matched with Payton or the defendant, although some matched with the victim. ¶ 37 Chicago Police Detective Donald Falk testified that he interviewed Payton on May 21, 2009, and at the time, he was under the impression the unknown offender was a Hispanic male. However, Payton told him that the shooter was a female by the name of "Kerry[,] I think[,] Heck, Hutchinson, Henderson, something like that." Payton said that "it was me and another girl, that girl might look like a dude to you, but she is not." Detective Falk testified that Payton said that the defendant masterminded the robbery plan, that he agreed to participate, and that the defendant shot Norton after he exited the store. Payton told Detective Falk that the defendant ran toward Keating after the shooting and that he was unaware that she had restrained Norton. When Detective Falk asked for more details about "Kerry," Payton said that she was "Mexican and white" and wore a black shirt, blue jeans, and black gloves. Payton told him that the defendant 17 said that she shot Norton because he recognized her. Detective Falk denied that Payton appeared under the influence of drugs or alcohol at the time he made the statement. He also denied that he showed pictures of the defendant before he made his statement or that he fed Payton details to include in his statement. ¶ 38 On cross-examination, Detective Falk admitted that three witnesses had implicated a Hispanic male, and that he was surprised to hear Payton implicate a female. He also admitted that Payton's story did not seem reasonable, namely that a female could pull a man of Norton's size and stature down to the ground alone. He also did not believe that Payton could not find money around, because police found a considerable amount of cash and lottery tickets in plain sight in the store. At the time of the interview, Detective Falk also knew that a 9 millimeter weapon was involved, and not the revolver that Payton said the defendant used. ¶ 39 Chicago Police Detective Jim Adams, one of the interrogators of Rosado, testified that he never told Rosado who to implicate so she could go home to her kids and denied showing her Payton's confession video before confessing herself. He admitted he showed her Payton's videotaped statement hours after she confessed to show her that Payton "had given up doing the homicide." Detective Adams stated that Rosado cried during the interview and said she knew that Payton planned to rob Norton with the defendant. Rosado said she did not rob people and that she only sold drugs, but she admitted she waited for them with the van. Rosado also said that Payton brought only a bag of two or three cartons of cigarettes after the robbery. In her statement, Rosado said the defendant looked "like a man." He confirmed the remaining details provided by Rosado in her videotaped confession. Detective Adams admitted that Rosado left the interrogation room for 45 minutes to be processed in the booking department, but he denied that she was shown Payton's video during that time. 18 ¶ 40 Detective Noradin testified at trial, and his testimony was consistent with the testimony he provided at the suppression motion hearing. Additionally, he identified security surveillance video depicting a black van in the parking lot near the scene and time of the crime and a man carrying a white bag walking to the van. ¶ 41 Dr. Lawrence Cogan, a Cook County medical examiner, testified to details of the fatal gunshot wounds inflicted upon Norton. The parties also stipulated to the facts that Payton stated under oath in his murder case that the defendant shot Norton just after he exited the store, and that Rosado denied under oath in her case that the police fed her details of the crime and told her that, if she told them what they wanted to hear, she could go home to her kids. ¶ 42 After the State rested its case, the defense presented its case by way of stipulations regarding the previous grand jury testimony of Evans, Tankson and Randle. Stipulations were also entered as to the fact that Luz Ruiz would testify that she heard Rosado threaten to come back and kill Norton if he evicted her and that David Rivera would testify that Norton told him that the tenants in Rosado's apartment had threatened to kill him for evicting them. ¶ 43 During the jury instruction conference, the defense proffered a non-pattern jury instruction regarding eyewitness testimony, which included several statements regarding factors affecting a person's memory and ability to identify an offender. By way of example, paragraph 6 of the proposed instruction states that: "Memory is not recorded, store[d], or played back in the same way as a videotape. Memory is much more of a selective process. People do not recall entire events, but rather reconstruct them. People often preserve pieces of information in their memory and fill in any gaps with information they learn after having formed the original memory." 19 ¶ 44 The State argued that Illinois Pattern Jury Instruction, Criminal, No. 3.15 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 3.15) was appropriate, and the court agreed. ¶ 45 The court thereafter instructed the jury using IPI Criminal 4th No. 3.15 and pattern instructions as to the State's burden of proof and that the defendant's decision not to testify must not be considered in any way in arriving at the verdict. On October 20, 2011, the jury returned a guilty verdict, and on December 8, 2011, the court denied the defendant's motion for a new trial and proceeded to her sentencing hearing. ¶ 46 At the sentencing hearing, the victim's daughter and niece read victim impact statements. The defendant presented Patricia Gee, a family friend, to testify to her character; and, Maria Garibay, a correctional officer, to testify that she was a well-behaved inmate. Additionally, the defendant submitted 12 letters of character from various people and her presentencing investigative report (PSI), which showed that she had a minor criminal history, including two misdemeanor convictions for battery and possession of marijuana. On December 8, 2011, the trial court stated that it considered all the statutory aggravating and mitigating factors and the facts and circumstances of the crime. Based on the totality of the circumstances, the trial court sentenced the defendant to 58 years' imprisonment. The defendant moved for reconsideration of her sentence, and the trial court denied the motion. This appeal followed. ¶ 47 The defendant first contends that the trial court erred in denying her motion to suppress the lineup identifications of Evans, Tankson, and Randle. The defendant argues that the police used overly suggestive procedures in obtaining the identifications, namely through suggestive police questioning of the witnesses as to the gender of the offender and the fact the lineups contained only females. The State counters that, under the unique circumstances of this case 20 where the investigation led to a female offender who looked like a male, the lineup procedures were necessary and not overly suggestive. We agree with the State. ¶ 48 Only where a pretrial identification results from (1) "unnecessarily suggestive" procedures so that (2) there was a substantial likelihood of misidentification, is evidence of that and any subsequent identification excluded by law under the due process clause of the fourteenth amendment. People v. Williams, 313 Ill. App. 3d 849, 859 (2000). In the hearing on the suppression motion, the defendant first must prove that the confrontation was so unnecessarily suggestive and conducive to irreparable misidentification that she was denied due process of law. Id. If the defendant meets her burden, the State then has the burden of establishing that, under the totality of the circumstances, the identification made under suggestive circumstances is nonetheless reliable. Id. The factors, known as the Biggers factors, to be considered in determining reliability include: the opportunity of the witness to view the criminal at the time of the crime; the witness's degree of attention; the accuracy of his prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. Id. (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)). ¶ 49 In reviewing a trial court's ruling on a motion to suppress evidence, we apply the two-part standard of review adopted by the Supreme Court in Ornelas v. United States, 517 U.S. 690, 699 (1996); People v. Luedemann, 222 Ill. 2d 530, 542 (2006). Under this standard, a trial court's findings of historical fact should be reviewed only for clear error, and a reviewing court must give due weight to any inferences drawn from those facts by the fact finder. Ornelas, 517 U.S. at 699. In other words, we give great deference to the trial court's factual findings, and we will reverse those findings only if they are against the manifest weight of the evidence. Luedemann, 21 222 Ill. 2d at 542. "A reviewing court, however, remains free to undertake its own assessment of the facts in relation to the issues and may draw its own conclusions when deciding what relief should be granted." Id. Accordingly, we review de novo the trial court's ultimate legal ruling as to whether suppression is warranted. Id. ¶ 50 We find no error in the trial court's factual finding that the lineup procedures and police conduct were not unnecessarily suggestive, given the unique circumstances of this case. Here, the investigation led the police to a female defendant, and out of necessity, she and other females were presented to the eyewitnesses. There is no conclusive evidence in the record that the police disclosed that their suspect was female before the lineups, and each witness signed a lineup identification form indicating that the offender may or may not be included in the lineup. The fact that the lineups contained only females does not render the lineup overly suggestive. See People v. Jones, 2012 IL App (1st) 100527, ¶ 24 (stating that individuals selected for a lineup need not be physically identical and differences in their appearances go to the weight of the identification, not to its admissibility). As the trial court pointed out, had the police included the defendant in a lineup of all males or mostly males, the defense likely would have made the same suggestiveness argument. ¶ 51 Even if the police lineup could be deemed suggestive, an unnecessarily suggestive lineup does not require per se suppression of the identification. Perry v. New Hampshire, 132 S. Ct. 22 716, 725 (2012). Rather, the court must consider the Biggers factors to determine the reliability of the identification. Jones, 2012 IL App (1st) 100527, ¶ 24 (citing Biggers, 409 U.S. at 199-200)). "These factors are to be weighed against the alleged corrupting circumstances of the identification procedure." Id. Here, the record demonstrates that the witnesses had the opportunity to view the suspect at the time of the crime, including at close range for a few seconds. While the witnesses initially described the offender as male, the remaining details of their description, including height, clothing, and hairstyle, were consistent and accurately described the defendant and also matched the description of the defendant provided by the codefendants. Moreover, the witnesses maintained a high level of certainty at the time of the lineups, which took place within weeks of the crime. Under the overall facts, even if the lineup procedures were deemed overly suggestive, we cannot conclude that the trial court's consideration of the Biggers factors should have resulted in a different ultimate conclusion on the defendant's motion to suppress the identifications. ¶ 52 Next, the defendant asserts that the trial court erred by barring the testimony of Dr. Loftus. In conceding that there is no Illinois authority requiring a reversal of a trial court's denial of the admission of an eyewitness expert's testimony, the defendant urges this court "endorse the use of an expert witness on the science of eyewitness identification, memory, and recollection" so that defendants may put on a complete defense. We decline to do so in this case. 23 ¶ 53 "In Illinois, generally, an individual will be permitted to testify as an expert if his experience and qualifications afford him knowledge which is not common to lay persons and where such testimony will aid the trier of fact in reaching its conclusion." People v. Enis, 139 Ill.2d 264, 288 (1990). Expert testimony addressing matters of common knowledge are not admissible unless the subject matter is difficult to understand and explain. People v. Lerma, 2014 IL App (1st) 121880, ¶ 35. When considering the admission of expert testimony, the trial court should balance the probative value of the evidence against its prejudicial effect to determine the reliability of the testimony. Id. Furthermore, the necessity and relevance of the expert testimony should be carefully considered in light of the facts of the case. Id. We review the trial court's decision to admit evidence, including expert witness testimony, for an abuse of discretion. Id. An abuse of discretion occurs where the trial court's decision is arbitrary, fanciful, or unreasonable. Id. ¶ 54 While we acknowledge that eyewitness identifications have been the subject of significant scientific study, the current law in Illinois is clear in that the trend is to preclude expert testimony on the reliability of eyewitness identification on the ground that it invades the province of the jury as trier of fact. People v. McGhee, 2012 IL App (1st) 093404, ¶ 54, reh'g denied (Feb. 9, 2012), appeal denied, 968 N.E.2d 1070 (2012) (citing Enis, 139 Ill.2d at 286-87 (1990) (citing cases)). The supreme court has also cautioned against "the overuse of expert testimony" and declared that it is "concerned with the reliability of eyewitness expert testimony [citations], whether and to what degree it can aid the jury, and if it is necessary in light of defendant's ability to cross-examine eyewitnesses." Enis, 139 Ill. 2d at 289. ¶ 55 Here, the trial court carefully considered Dr. Loftus's proposed testimony and determined that her opinions were not relevant or material in this particular case and that her opinions did 24 not extend to issues that were beyond the knowledge common to lay persons. The court determined that the subjects to which Dr. Loftus would testify related to the factors, namely the length of time the offender was observed and the initial gender misidentification, that were extensively addressed during the suppression motion hearing and would be addressed during the cross-examination of the witnesses at trial. Under these facts and circumstances, where the trial court conducted a meaningful examination of the proposed testimony, we cannot find that it abused its discretion in refusing to admit the evidence. ¶ 56 We also reject the defendant's argument that the trial court's comments to potential jurors regarding the burden of proof and her right not to testify warrant a new trial. The defendant concedes that she failed to object to the trial court's comments during voir dire proceedings, but she argues that we should review the court's admonishments under the plain-error doctrine. We disagree. ¶ 57 A reviewing court may consider an unpreserved error under the plain-error doctrine where either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence. People v. Glasper, 234 Ill. 2d 173, 203 (2009). First, we do not consider the evidence in this case close, where the State presented three eyewitness identifications of the defendant and the prior statements of two codefendants implicating her in the felony. We note that Payton's trial testimony in which he recanted parts of his prior statement still implicated the defendant in the robbery and was sufficient to sustain her conviction on an accountability theory. See People v. Jones, 86 Ill. App. 3d 278, 282 (1980) (stating that "[a]cting as a lookout is sufficient aiding and abetting to render one accountable for the crimes committed by the more active party"). 25 ¶ 58 Even if we chose to consider the second prong of the plain-error doctrine, we would not find that the trial court committed an error. Regarding the trial court's voir dire comments comparing the burdens of proof used in civil and criminal cases, nearly identical comments by the same trial court judge were not considered to be erroneous. See People v. Johnson, 2013 IL App (1st) 111317, ¶ 54 ("Although we do not condone the reference and comparison to the civil standard, we cannot say that the trial court's comments constitute error, particularly where the court told jurors that reasonable doubt was the highest burden at law and that it was for them to decide what reasonable doubt meant"). ¶ 59 While the defendant relies upon People v. Turman, 2011 IL App (1st) 091019, to support his position, we find the facts of that case distinguishable. In Turman, the deliberating jury sent the trial court a request to define "reasonable doubt," to which the court responded that reasonable doubt was not defined under Illinois law and that it was "for the jury to collectively determine what reasonable doubt is." Turman, 2011 IL App (1st) 091019, ¶ 19. The court held that both prongs of the plain-error doctrine had been satisfied because the evidence in the case was close, and the court's error in advising the jury that it was to collectively determine what the term meant was so serious that it affected the fairness of the defendant's trial. Turman, 2011 IL App (1st) 091019, ¶ 27. Here, the trial court did not define the standard in writing to a deliberating jury in a close case as in Turman. Rather, the trial court properly admonished the potential jurors that the reasonable doubt burden of proof was the highest burden placed on any party, and pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), questioned them as to whether they understood and accepted the principle. See also People v. Thomas, 2014 IL App (2d) 121203, ¶¶ 38-48 (synthesizing case law before and after Turman in concluding the reasoning in Turman to be unpersuasive). 26 ¶ 60 We similarly conclude that the trial court did not err when it advised potential jurors that, even though they may think about the fact the defendant chose not to testify in her defense, the constitution requires them to not consider that fact in rendering the verdict. Considering the entirety of the trial courts comments, the court did not provide potential jurors with an inaccurate statement of the law regarding this constitutional principle. See People v. Williams, 409 Ill. App. 3d 408, 417 (2011) (considering overall admonitions to venire in conjunction with the jury instructions in determining that the jury was sufficiently apprised of Rule 431(b) principles and applied them in rendering its verdict). ¶ 61 The defendant further contends that the trial court erred in denying her request to use her modified jury instruction regarding identification testimony. She argues that IPI Criminal 4th No. 3.15 is inaccurate considering the abundance of scientific evidence pointing to factors beyond those included in it. The State contends that IPI Criminal 4th No. 3.15 accurately reflects the Biggers factors, the well-settled standard used by our courts to review identification testimony, and therefore, a nonpattern instruction was inappropriate. We agree with the State. ¶ 62 "A nonpattern jury instruction should be used if a pattern instruction does not contain an accurate instruction on the subject on which the jury should be instructed." People v. Roberts, 351 Ill. App. 3d 684, 688 (2004); see also People v. Rodriguez, 387 Ill. App. 3d 812, 822, 824 (2008) (noting that Illinois Supreme Court Rule 451(a) (eff. July 1, 2006)) requires trial courts to use a pattern instruction where it is applicable to the facts and the law of the case and correctly states the law; and rejecting the defendant's argument that IPI Criminal 4th No. 3.15 is outdated based on recent scientific research regarding identification testimony). Moreover, the defendant fails to establish that the outcome of his trial would have been different had the jury been instructed regarding scientific evidence in the area of eyewitness identification where the 27 eyewitnesses were thoroughly cross-examined and where the codefendants implicated the defendant in the crime in prior statements to police and in Payton's testimony. People v. Martinez, 389 Ill. App. 3d 413, 416 (2009) (stating that, if the result at trial would not have been different had the proper instruction been given, the error is harmless). ¶ 63 We next reject the defendant's argument that her sentence was excessive. She bases her assertion on the "injustice" of her receiving a sentence 11 years longer than a "far more culpable co-defendant" with a lengthier criminal history and that the lengthy sentence ensures that she "will grow old and die in prison." ¶ 64 The trial courts are afforded great discretion in fashioning an appropriate sentence within the statutory limits. People v. Fern, 189 Ill. 2d 48, 53-54 (1999). "The trial court must base its sentencing determination on the particular circumstances of each case, considering such factors as the defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age." Id. at 53. When considering the propriety of a sentence, the reviewing court must not substitute its judgment for that of the trial court merely because it would have weighed the factors differently. Id. "A sentence within statutory limits will not be deemed excessive unless it is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense." Id. at 54. ¶ 65 Here, the 58-year sentence imposed on the defendant was within the statutory range (730 ILCS5/5-4.5-20(a) (West 2008)). Simply because the defendant fears the term will result in her growing old and dying in prison, we cannot find that the trial court abused its discretion in determining the sentence. The record clearly indicates that the court considered all statutory aggravating and mitigating factors when it rendered the sentence, and we cannot disturb its judgment merely because we may have weighed the factors differently. Furthermore, the fact 28 that Payton and Rosado received lesser sentences does not persuade us to find that the defendant's sentence was arbitrary and unreasonable where they entered negotiated guilty pleas in exchange for their sentences. See People v. Hauschild, 226 Ill. 2d 63, 90 (2007) (stating that "generally, one who proceeds to trial cannot compare his sentence to the sentence imposed on a codefendant who entered a negotiated guilty plea"); People v. Tripp, 306 Ill. App. 3d 941, 954 (1999) ("When a defendant pleads guilty, accepts responsibility for his actions, and ensures the prompt application of justice, it is not error for the trial court to exercise leniency"). ¶ 66 Finally, the State concedes that the defendant's mittimus should reflect 925 days credit for time she spent in custody prior to sentencing. Accordingly, we order that the defendant's mittimus be modified as requested. ¶ 67 Based on the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 68 Affirmed as modified.