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No. 1-01-0070

JUSTICE GREIMAN delivered the opinion of the court:

At the conclusion of a jury trial, the defendant, Kurt Human, was convicted of one count ofbattery and four counts of aggravated assault. Defendant was sentenced to one year of conditionaldischarge and 30 days in the Cook County Department of Corrections.

The issues presently before the court are (1) whether the trial court abused its discretionwhen it decided not to allow the introduction of the third-party confession of defense witness EricLeeson, (2) whether it was proper for the police to show a single photo of defendant to the victimswhile the victims were in the presence of one another, (3) whether it was proper for the trial courtnot to allow Eric Leeson to take the witness stand for the purpose of exercising his fifthamendment privilege against self-incrimination, and (4) whether the trial court's decision not toallow Eric Leeson to be exhibited to the jury deprived defendant of his due process right to make adefense.

On April 1, 2000, from 7 p.m. until 11 p.m., 16 year-old John Sadler, 14 year-old AmyMorrissey, 13 year-old Katie McCord, 14 year-old Sarah Sabatino and 11 year-old AngelaMorrissey went roller skating at a rink located at 87th Place and Southwest Highway. After rollerskating, they went to Pizza Plus, which is located in the same mall, to get some soda. Atapproximately 11:20 p.m., they left Pizza Plus and began walking home west down 87th Place.

John, Katie and Amy walked in front of Angela and Sarah. As the group walked towardthe corner they observed defendant standing in the parking lot beneath a street light. As the groupwalked closer to defendant, he began to walk in circles. According to the testimony of the entiregroup, they moved to the other side of the street. John testified that he instructed the girls to keepwalking and not look back. Despite John's direction, the girls glanced at defendant. Defendantthen removed a pellet gun from his waistband and began shooting at the group. John testified thathe directed the girls to position themselves behind him so they would not get shot and to runhome. One of the shots struck John on the right side of his head and another grazed the back of hishead. After being shot, John stated that he yelled at defendant and ran home. According to Johnand Amy, no one beside defendant was in the area at the time of the shooting.

John's house is located behind the roller rink at 87th Place and Keeler. The girls ran in theopposite direction toward the Morrissey house, which is less than one block from where theshooting occurred. Angela and Amy both testified that Angela began to cry as she was runninghome and tripped. Amy had to drag Angela to their house. Amy testified that when she turned topick up her sister, she saw defendant calmly walking in their direction like nothing happened. When the girls arrived at the Morrissey house, they banged on the door and screamed. From theporch of the Morrissey house, Katie and Angela testified that they saw a black hat through thefence. The girls testified that they relayed what happened to Mrs. Morrissey and that John calledthe Morrissey house to say that he had been shot. Mrs. Morrissey and John then contacted thepolice.

At trial, Amy, Angela, Katie and Sarah gave nearly identical descriptions of defendant.Each of the girls testified that despite the fact that John told them not to look back and to keeprunning, they each looked back at the shooter. The girls testified that defendant was approximately5'10'', heavy set and dressed in dark clothing, including a black hat with a bill. Furthermore, eachof the girls described the shooter as having an unshaven beard. Due to the bill on the shooter's hat,the girls testified that they could not see his entire face. On cross-examination, Katie wasspecifically asked to describe any additional facial features of the shooter besides his facial hair,but she could not. Similarly, Angela and Sarah specifically indicated in their testimony that theycould only see the lower half of the shooter's face.

Officer Tom Brokop testified on behalf of the State. According to Brokop's testimony,while he was en route to the Morrissey house he did not observe anyone in the area. Brokoptestified that the girls briefly told him what happened and stated that defendant was wearing darkclothing. Brokop further stated that the girls recalled that defendant had a scruffy beard, wasapproximately 5 feet10 inches and somewhat heavy. Brokop then left the Morrissey house andwent to the home of John Stadler.

Brokop testified that he interviewed John and photographed his injuries. Brokop statedthat the projectile that struck John on the side of the head caused a hole, which ultimately left ascar. John gave Brokop a description of defendant's clothing but was unable to give a descriptionof his face. John testified that he could not give a detailed description of the shooter because hewas not wearing his glasses on the night of the incident.

After interviewing the girls and John, Brokop testified that he returned to the police stationwhere he advised Officer James Kouski of the situation. Kouski obtained a photograph ofdefendant from a prior arrest to show to the victims. Brokop testified that he and Kouski decidedto show the victims a photograph of defendant because on two prior occasions defendant wasinvolved in "some neighborhood trouble" with local teenagers.

Officer Frank Hickey testified that one week prior to the incident at bar he responded to acomplaint of kids crossing someone's yard in the vicinity of where the shooting occurred. Hickeystated that when he arrived at the scene, he did not find a complainant or an offender, so he drovearound the area to see if he could find a group of kids. On 87th Place between Keeler and MerrionLane, Hickey testified that he found a group of 4 to 5 teenagers, none of whom are the victims inthe case at bar. While speaking with the teenagers, Hickey testified that the complainant anddefendant drove up. According to Hickey's testimony, defendant asked him what he was going todo about these teenagers crossing people's yards and throwing litter. Hickey testified that heresponded to defendant's question by stating that he had warned the teenagers about crossingpeople's yards. Further, Hickey testified that he looked around and did not see any litter in thearea. Hickey stated that defendant responded to him by stating, "Well, if you are not going to doyour damn job, then I will."

Brokop also testified that they knew defendant lived approximately 50 yards from wherethe incident occurred. Further, at this point, Brokop stated that the officers determined that a pelletgun had been used based on the noise described to them by the female victims and the size of theinjury sustained by John.

Next, the officers returned to the Morrissey house and showed the photograph of defendantto all of the girls at the same time, except for Sarah, who had already returned home. Katie, Amy,and Angela all agreed that the man in the photograph was the shooter. Later, the officers went toSarah's house to show her the photograph. Like the other girls, Sarah also identified the man in thephotograph as the shooter. The officers then showed the photograph to John, who stated that sincehe did not see the shooter's face, he could not state whether the man in the photograph was theshooter.

Next, Brokop testified that he proceeded to the defendant's address. Once Brokop arrivedat the defendant's home, he asked defendant to accompany him to the police station. Brokoptestified that he noticed defendant had a "scruffy beard." Brokop did not have a search warrantand, therefore, did not search defendant's house. A pellet gun was never recovered.

At the close of the State's case, defense counsel moved for a directed finding, arguing thatthe photo identification was highly suggestive, and, therefore, the identification was insufficient. The trial court denied the motion.

Jeffrey Bunting testified on behalf of the defendant. Jeffrey testified that on April 1, 2000,he, Eric Leeson, and Eric's fiancé, Laura, arrived at defendant's apartment at approximately 8:30p.m. At the time of the incident, defendant was married to Kelly Human, who lived with him attheir apartment. Jeffrey testified that defendant went to bed shortly after he, Eric, and Lauraarrived at his apartment. At about 9 p.m. or 9:30 p.m., Jeffrey stated that he, Kelly, Eric, andLaura went into the backyard of the apartment complex where they remained until about 11:30p.m., at which time they left. Jeffrey further testified that for the duration of time that everyone,except for defendant, was in the backyard, he never entered the apartment. Jeffrey stated thatwhile he was in the backyard he never heard any gunshots or screaming. Lastly, Jeffrey testifiedthat he does not know whether defendant owns a pellet gun; however, he knows for certain thatEric owns a pellet gun because he has shot it in Eric's basement.

Laura Beth Minkalis testified that she, along with Eric, her fiancé, and Jeffrey, went todefendant's apartment on the night of April 1, 2000, to visit Kelly. Laura testified that they arrivedat defendant's apartment between 4 p.m. and 6:00 p.m. Upon their arrival, Laura stated that theywent inside and talked for a while and then she, Eric, Kelly, and Jeffrey went to the Jewel. Afterreturning to defendant's apartment at about 8:30 p.m., Laura testified that defendant went to bedwhile she and the others went outside to the backyard to talk. Laura stated that while outside, shewent back into the apartment for about a 45-minute period of time to use the washroom and makesomething to eat. When Laura went back outside, she stated that they decided it was time to leave. Laura testified that she looked at the clock in Eric's car when they were leaving and noted that itwas 11:22 p.m. On the night of the incident, Laura testified that she never heard any gunshots orscreaming. Laura stated that although she knows Eric owns a pellet gun, she has never seen himwith it.

Kelly Leeson testified that she is the sister of Eric Leeson and at the time of the incidentshe was married to defendant. According to Kelly's testimony, on April 1, 2000, at approximately7:30 p.m., Jeff, Eric, and Laura arrived at her apartment. Shortly after their arrival, Kelly testifiedthat defendant, Eric, and Jeff went to a garage in the neighborhood to look at a car while she andLaura went to the grocery store. Kelly stated that she and Laura arrived home before defendant,Eric, and Jeff. When defendant arrived home, Kelly testified that he stated he needed to go to bedbecause he had an early tee time the next morning. According to Kelly, she, Jeff, Eric, and Laurawent out to the backyard to talk. At about 9:30 p.m., Kelly stated, she went back inside and sawthat defendant had fallen asleep on the couch, so she woke him up and told him to go into thebedroom. Kelly testified that she did not see defendant again until approximately 11:30 p.m.,when she went to bed.

Kelly further testified that at some point in the evening Eric and Jeff were standing outsidedefendant's truck for approximately five minutes. Kelly stated that at about 11:20 p.m., she, Laura,Jeff, and Eric went inside to get Eric's car keys and then she walked them out and returned to herapartment. According to Kelly, it was 11:37 p.m. when Eric drove away.

Finally, Kelly testified that at no point throughout the night did she see Jeff, Eric, or Laurawith any type of gun. Further, Kelly stated that defendant does not own any type of gun and thatshe would never allow a gun in her house.

Next, the trial court revisited defense counsel's motion in limine to admit into evidence thethird-party confession of Eric Leeson. Further, defense counsel requested that Eric be exhibited tothe jury. Outside the presence of the jury, Eric was called to testify. When questioned on directexamination, Eric repeatedly invoked his fifth amendment right against self-incrimination. Afterdiscussing the contents of Eric's confession, the trial court found that Eric's confession was totallyuncorroborated by the witnesses' testimony and, therefore, was unreliable. As a result, the trialcourt held that it could not be properly admitted into evidence. The trial court never expresslyruled on defense counsel's request to exhibit Eric to the jury; however, implicit in the trial court'sdecision not to admit Eric's confession is the trial court's decision not to allow Eric to be exhibitedto the jury.

Defense counsel made an offer of proof as to the testimony of Scott and Nancy Leeson,Eric Leeson's parents. Namely, defense counsel stated that Eric's parents would testify that theirson owned a pellet gun on the night in question and that they accompanied Eric when he confessedto the crime at bar in the presence of police officers and assistants State's Attorneys. The Statethen made a counter offer of proof. According to the State, Officer Kouski would testify that onMay 4, 2000, Eric Leeson's attorney allowed Eric to be questioned by police officers and anassistant State's Attorney. The State contended that Eric admitted that at approximately 11 p.m. hesaw kids walking near defendant's house while he was in the backyard alone. Further, the Stateasserted that Kouski would testify that Eric stated that he retrieved a pellet gun from his car andadmitted to shooting at the group of teenagers with the intention of scaring them. Eric allegedlystated that Kelly, Laura, Jeff, and defendant could not verify his conduct because they were not inthe backyard when the shooting occurred.

Defendant testified that on April 1, 2000, after Eric, Jeff, and Laura arrived at hisapartment, he, Eric, and Jeff left to see a car defendant had recently purchased. Defendant testifiedthat when they returned, they watched television for a short while and then, at approximately 8:15p.m., defendant announced that he was going to bed. According to defendant, he fell asleep on thecouch and then went into his bedroom. Defendant further testified that the next occurrence heremembered was Kelly waking him up and telling him that the police were there to talk with him.

Defendant testified that he told the police he did not shoot a pellet gun at anyone. Defendant admitted that on March 25, 2000, he was angry that the police officers were not goingto do anything about the teenagers who walked across the neighbor's lawn and littered, however,defendant denied telling Officer Hickey that he was going to take the matter into his own hands.

Following closing arguments, the jury deliberated and found defendant guilty on all counts. Defendant's motion for a new trial was denied. Defendant was sentenced to one year ofconditional discharge and 30 days in the Cook County Department of Corrections.

The first issue before us is whether the trial court abused its discretion when it decided notto allow the introduction of the third-party confession of defense witness Eric Leeson. Defendantcontends that the trial court erred when it refused to allow testimony that Eric Leeson confessed tothe crime. The State asserts that after considering all the pertinent facts pertaining to admissibility,the trial court properly decided not to admit Eric's confession.

The admission of evidence is within the sound discretion of the trial court and should notbe reversed absent a clear showing of abuse of discretion. People v. Bowel, 111 Ill. 2d 58, 68(1986), quoting People v Ward, 101 Ill. 2d 443, 455-56 (1984). "Generally an extrajudicialdeclaration not under oath, by the declarant, that he, and not the defendant on trial, committed thecrime is inadmissible as hearsay though the declaration is against the declarant's penal interest."Bowel, 111 Ill. 2d at 66, citing People v. Tate, 87 Ill. 2d 134, 143 (1981); People v. Craven, 54 Ill.2d 419, 427 (1973); and People v. Lettrick, 413 Ill. 172, 178 (1952). An exception to this ruleexists where justice requires that the declaration be admitted. Bowel, 111 Ill. 2d at 66, citingLettrich, 413 Ill. at 178.

In Chambers v. Mississippi, 410 U.S. 284, 300-01, 35 L. Ed. 2d 297, 311-12, 93 S. Ct.1038, 1048-49 (1973), the United States Supreme Court held that a declaration against penalinterest is admissible where there is sufficient indicia of trustworthiness in that (1) the statementwas made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statementwas corroborated by other evidence; (3) the statement was self-incriminating and against thedeclarant's interest; and (4) there was adequate opportunity for cross-examination of the declarant. In Bowel, 111 Ill. 2d at 67, the Illinois Supreme Court stated that these four factors are not to beconsidered requirements of admissibility, but rather they are to be regarded simply as indicia oftrustworthiness. These four factors should merely be used as a guideline for determining whether"the declaration was made under circumstances that provide 'considerable assurance' of itsreliability by objective indicia of trustworthiness." Bowel, 111 Ill. 2d at 67, citing Chambers, 410U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49, and Tate, 87 Ill. 2d at 144. "Accordingly, the existence or nonexistence of the four factors present in Chambers is notdeterminative of the issue but, rather, the ultimate decision as to admissibility is determined by thetotality of the circumstances." People v. Jones, 302 Ill. App. 3d 892, 898 (1998); see, e.g., Peoplev. Anderson, 291 Ill. App. 3d 843, 849 (1997); People v. Swaggirt, 282 Ill. App. 3d 692, 700(1996).

In People v. Tenney, No. 88208, slip op. at 19 (April 18, 2002), the Illinois Supreme Courtnoted that other courts have recognized the narrow holding set forth in Chambers. Morespecifically, the court quoted the Seventh Circuit Court of Appeals and a Massachusetts court,stating:

" 'Chambers did not do away with the hearsay rule. The Supreme Court contemplated that the [trial] judge would be a gatekeeper, that unreliable statements could be excluded. *** It did not abolish the hearsay rule on constitutional grounds.' Lee v. McCaughtry, 933 F.2d 536, 538 (7th Cir. 1991). Thus, 'Federal and State courts have expressed the belief that Chambers has not significantly trammeled judicial discretion to exclude unreliable declarations against penal interest.' Commonwealth v. Carr, 373 Mass. 617, 625, 369 N.E.2d 970, 975 (1977).

In People v. Kokoraleis, 149 Ill. App. 3d 1000 (1986), this court loosely applied the test setforth in Chambers, realizing that a determination of whether a declaration is admissible should bebased on a totality of the circumstances. The declarants in Kokoraleis made their statements to anassistant State's Attorney and police officers while in custody. Kokoraleis, 149 Ill. App. 3d at1020-21. The Kokoraleis court held that these statements "were more likely trustworthy becausethey tended to intensify police efforts to prosecute" the declarants. Kokoraleis, 149 Ill. App. 3d at1020-21. Neither of the declarants in Kokoraleis stood to benefit by admitting their roles in theoffense. Kokoraleis, 149 Ill. App. 3d at 1021. Furthermore, the Kokoraleis court noted that ifcalled to testify, both declarants would have invoked their fifth amendment right and elected not totestify. Kokoraleis, 149 Ill. App. 3d at 1023. Despite the unavailability of the declarants, this courtheld "[g]iven the obvious inculpatory character of the statements made by both declarants while incustody to the law-enforcement personnel, these statements are more likely than not to betrustworthy." Kokoraleis, 149 Ill. App. 3d at 1021.

The narrow issue before us is whether Eric's confession was made under circumstances thatprovide considerable assurance of its reliability. For several reasons, we find Eric's confession tobe reliable. First, Eric was accompanied to the courthouse by his parents and his attorney wherehe confessed in the presence of an assistant State's Attorney and police officers. Second, Eric'sconfession was corroborated by other evidence offered at trial. At trial, Kelly, Jeffrey and Lauraeach testified that they did not know where Eric was at all times throughout the night. Additionally, Jeffrey and Laura testified that Eric owned a pellet gun. The testimony of Kelly,Jeffrey, and Laura leaves open the possibility that Eric was in fact the shooter. We note that whiletrial counsel asserted that Eric and defendant resemble one another, the State's witnesses viewedEric on the day of his confession and they said he was not the shooter. Third, it is readily apparentthat Eric did not stand to benefit from his statements. Eric's statement was self-incriminating andagainst his penal interest. " 'No credible argument could be made that making that declaration wasnot against his penal interest.' " Tenney, slip op. at 20, quoting People v. Rice, 166 Ill. 2d 35, 47(1995) (Harrison, J., dissenting, joined by Bilandic, C.J., and McMorrow, J.).

For these reasons, our facts show overwhelmingly that Eric could be charged for the crimeat bar. Indeed, we can infer that Eric came forward in 33 days so that defendant's charges wouldbe dismissed. Thus, we find that the circumstances under which Eric confessed, coupled with theself-incriminating nature of his statements, makes his confession reliable.

The second issue before the court is whether it was proper for the police to show a singlephoto of defendant to the victims while the victims were in the presence of one another.Defendant asserts that the identifications made by the victims were so suggestive that they createda substantial likelihood of misidentification. The State contends that defendant has waived anyobjection to the admissibility of the out-of-court identifications. Further, the State argues that theevidence of defendant's guilt was overwhelming where the testimony of the five victims was clearand consistent and was corroborated by additional evidence at trial.

In the case at bar, Amy, Katie, and Angela were simultaneously presented with a singlephotograph of defendant and from this photograph each of the girls identified defendant as theshooter. The police officers then went to Sarah's house and showed her defendant's photograph. Sarah identified defendant as the shooter. Next, the officers proceeded to John's house. LikeSarah, John was alone when he was shown defendant's photograph, however, John told the officersthat he could not identify the shooter from the photograph.

A review of the record shows that the victims each gave similar descriptions of the shooter. More specifically, Amy, Katie, Angela, Sarah, and John all testified that they told the police thatthe shooter was approximately 5 feet 10 inches' and somewhat heavy. The girls also stated thatthey told the police that the shooter had an unshaven beard and that it was difficult to see his entireface because he was wearing a baseball hat. Additionally, the girls testified that defendant wasdressed in dark clothing. The most vague description of the shooter was given by John, becausewhen the incident occurred, he was not wearing his glasses, and, therefore, had a difficult timeseeing the shooter.

The crux of defendant's argument is that the victims should not have been shown a singlephoto show-up. According to defendant, the display of a single photo gave rise to an unreliableand suggestive identification. The State contends that irrespective of whether a single photo show-up was proper, the in-court identifications were sufficient to sustain defendant's conviction. TheState argues that each of the victims who identified defendant in court had a clear view ofdefendant at the scene of the shooting and, thus, an independent basis exists for each of thevictims' pre-trial identification of defendant.

It is well settled that to properly preserve an issue for review, both a trial objection and awritten posttrial motion raising the issue are required. People v. Ward, 154 Ill. 2d 272, 293 (1992),quoting People v. Enoch, 122 Ill. 2d 176, 186 (1988). In the case at bar, defendant did not file apretrial motion to suppress the identification of defendant. Further, at trial, defendant did notobject to the admission of testimony regarding the out-of-court identifications by the victims. Therecord shows that defendant contested the out-of-court identifications by the victims only insofaras defense counsel made a motion for a directed finding arguing that the identification wassuggestive. The trial judge denied defendant's motion, noting that the issue of suggestiveness onlywent to the weight to be given to the evidence. The record also reflects that defendant made anoral motion for a new trial. The record is devoid of a written motion for a new trial. In his oralmotion, defendant argued that the trial court erred in admitting evidence of the out-of-courtidentifications. The State responded by arguing that defendant should have challenged theidentifications prior to trial. Defendant's motion for a new trial was denied.

Since defendant failed to object to the admissibility of the evidence of the out-of-courtidentifications prior to or at the time of the admission into evidence, this issue has been waived onappeal.

The third issue for examination is whether it was proper for the trial court not to allow Ericto take the witness stand for the purpose of exercising his fifth amendment privilege against self-incrimination. In the case at bar, Eric stated, outside of the presence of the jury, that he wouldclaim his fifth amendment privilege if he was called to testify. This issue involves an evidentiaryruling and since evidentiary rulings are within the discretion of the trial court, the trial court'sruling will not be disturbed absent an abuse of discretion. People v. Hoffstetter, 203 Ill. App. 3d755 (1990).

This court has repeatedly held that it is improper for a party to call a witness whom it hasreason to believe will invoke his fifth amendment privilege before the jury; therefore, a trial judgedoes not err when he precludes calling such a witness. People v. Nally, 134 Ill. App. 3d 865, 869-70 (1985), citing People v. Myers, 35 Ill. 2d 311, 334 (1966); People v. Crawford Distributing Co.,78 Ill. 2d 70 (1979); People v. Cvetich, 73 Ill. App. 3d 580 (1979). In People v. Cedillo, 142 Ill.App. 3d 849, 852 (1986), over the defendant's objection, the court barred a witness from testifyingbecause the witness indicated that, if called to testify, he would invoke his privilege against self-incrimination. The appellate court affirmed the ruling of the trial court. Cedillo, 142 Ill. App. 3d at852.

Similarly, in People v. Hammond, 196 Ill. App. 3d 986, 992-93 (1990), the trial court judgeinstructed the jury to disregard any testimony given by a witness who stated that he would invokehis fifth amendment privilege if he was asked certain questions. The Hammond court found nomaterial difference between striking testimony involving the invocation of the fifth amendmentright and barring such testimony beforehand. Hammond, 196 Ill. App. 3d at 993. The courtspecifically stated that "in this instance, the witness' invocation of his constitutional privilegeinured to the benefit of the defendant." Hammond, 196 Ill. App. 3d at 993-94. In other words, theHammond court found that the jury could have concluded that the witness, by simply invoking hisfifth amendment right, rather than the defendant, was guilty. Hammond, 196 Ill. App. 3d at 994. The appellate court found "no reversible error either in the procedure followed or in the orderstriking [the witness'] testimony." Hammond, 196 Ill. App. 3d at 994.

In consideration of the controlling, Illinois case law governing this issue, there is no needfor us to address State v. Bumgarner, 299 N.C. 113, 261 S.E.2d 105 (1980), an out-of-state case. Further, People v. Izquierdo, 262 Ill. App. 3d 558 (1994), another case cited to by defendant, is noton point with the facts at hand. In Izquierdo, 262 Ill.App.3d at 563, the appellate court held that"[i]t is reversible error for a prosecutor to force a witness to assert his fifth amendment privilege ifeither the State makes an obvious attempt to build its case out of inferences arising from theprivilege or where the witness' refusal to testify added critical weight to the State's case." SeePeople v. O'Dell, 84 Ill. App. 3d 359, 373 (1980). It is clear from the holding in Izquierdo that theposture of Izquierdo differs from the posture of the case at bar and, therefore, is inapplicable. Inthe case at bar, Eric was called to the witness stand by the defense, not by the prosecution. Moreover, unlike in Izquierdo, there are no allegations that the prosecution was attempting to treatEric as a hostile witness in hope of furthering its theory of the case.

The case law of the State of Illinois clearly indicates that in a situation such as the one atbar, the witness should not be called to testify if he is going to invoke his fifth amendmentprivilege against self-incrimination. Inviting such a witness to testify before the jury only serves tomislead the jury. Thus, we hold that since Eric plainly stated that he would invoke his fifthamendment right if called to testify, the trial court did not err in barring him from testifying.

The fourth issue before us is whether the trial court's decision not to allow Eric to beexhibited to the jury deprived defendant of his due process right to make a defense. It wasspecifically called to the attention of the trial court judge that Eric and the defendant resembledone another and that, due to their resemblance, defense counsel wanted to exhibit Eric to the jury. The trial court judge never expressly ruled on whether Eric could be exhibited to the jury;however, implicit in the trial court's ruling that the Eric's confession could not be admitted intoevidence was the trial court's decision not to allow Eric to be exhibited to the jury. After all,without the introduction of the confession into evidence, there would be no probative value inexhibiting Eric to the jury.

Upon the trial court ruling that the confession would not be allowed into evidence, defensecounsel never made an offer of proof regarding Eric's alleged resemblance to the defendant. It iswell settled that "[w]hen a trial court refuses evidence, no appealable issue remains unless a formaloffer of proof is made." People v. Peeples, 155 Ill. 2d 422, 457 (1993), quoting People v.Montgomery, 51 Ill. App. 3d 324, 331 (1977). Since an offer of proof regarding Eric's physicalappearance was never made, this issue has been waived.

Even if this issue had not been waived, we find that displaying Eric to the jury in theabsence of his confession would have been meaningless to the jury. However, had the confessionbeen admitted, then the requisite relevancy would have been established and exhibiting Eric to thejury would have been proper.

The introduction of a person as evidence relative to identification is governed by the rulesapplicable to the introduction of evidence. People v. Ward, 193 Ill. App. 3d 677, 682 (1990). Generally, the law of evidence is governed by the principle that what is relevant is admissible.Ward, 193 Ill. App. 3d at 682, citing People v. Monroe, 66 Ill. 2d 317, 321 (1977), quoting Peopleex rel. Noren v. Dempsey, 10 Ill. 2d 288, 293 (1957). "Relevancy is established where a factoffered tends to prove a fact in controversy or renders a matter in issue more or less probable."Ward, 193 Ill. App. 3d at 682, citing People v. Free, 94 Ill. 2d 378, 413 (1983). In recognition ofthe aforementioned rules of evidence, before Eric can be exhibited the jury, the defendant mustestablish that the person of Eric Leeson is relevant so that displaying him before the jury and thewitnesses would tend to make it more probable or less probable that defendant was the shooterthan it would be without the evidence. Thus, although we recognize that this issue has beenwaived, we note that since relevancy had not been established, the trial court properly determinednot to exhibit Eric.

For the foregoing reasons, we reverse defendant's conviction and remand the case for a newtrial consistent with this opinion.

Reversed and remanded.

CAMPBELL, P.J. and QUINN, J., concur.