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Docket No. 90480-Agenda 10-November 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MELVIN TISDEL, Appellee.

Opinion filed March 15, 2002.

JUSTICE THOMAS delivered the opinion of the court:

Following a jury trial, defendant, Melvin Tisdel, wasconvicted of the first degree murder of Julio Lagunas. Defendantwas sentenced to 35 years' imprisonment. The appellate courtreversed defendant's conviction on the ground that the trial courtshould not have allowed the State's witnesses to testify concerninga nonidentification lineup. 316 Ill. App. 3d 1143. The appellatecourt concluded that the error was not harmless, because theevidence was closely balanced and it was possible that the jurywould have reached a different verdict had the nonidentificationtestimony been excluded. This court thereafter granted the State'spetition for leave to appeal. 177 Ill. 2d R. 315.

BACKGROUND

Defendant's conviction was based upon the drive-by shootingof Julio Lagunas on September 3, 1995. The facts detailing thecrime and the investigation leading to defendant's arrest are set outin the appellate court's opinion (316 Ill. App. 3d 1143), and willbe recited here only as necessary to an understanding of the issuebefore this court.

On September 3, 1995, around 5:50 p.m., 18-year-old JulioLagunas was shot to death as he stood on the corner of ClarkStreet and Jarvis Avenue in Chicago. Lagunas was shot by thepassenger in a passing black IROC Chevrolet Camaro. Althoughthe driver of the Camaro was identified and arrested shortly afterthe shooting, defendant was not identified until almost one yearlater, in lineups conducted on August 16, 1996, and September 12,1997. Ultimately there were four eyewitnesses that identifieddefendant as the shooter. Those eyewitnesses included GerardoQuiroz (Gerardo), Osvaldo Quiroz (Osvaldo), Francisco Curonel(Francisco) and Jose Ramos (Jose).

Gerardo testified at trial that on September 3, 1995, he,Osvaldo and Jose were standing on the sidewalk outside the ClarkMall in Chicago when he saw a black IROC Camaro with tintedwindows, chrome wheels and two tailpipes pull into the entranceto the mall parking lot. The two men inside the car tried to talk tosome girls going into the mall, then drove toward the back of themall parking lot, turned right, and came through the middle of thelot. The Camaro then stopped on the sidewalk before turning leftonto Clark Street. The passenger side of the car was facingGerardo and the others, and the window was down. At that point,the passenger pulled out a gun and pointed it at Gerardo, Osvaldoand Jose. The car then drove north onto Clark Street.

As the car drove along Clark Street, Gerardo saw Franciscoacross the street from the Clark Mall, in Touhy Park. Gerardo sawthe passenger take out his gun and point it at Francisco. Franciscotried to hit the car with something, then ducked. The car keptdriving north on Clark Street, then stopped as Julio Lagunas andUlysses Renteria were trying to cross Clark Street at theintersection of Jarvis and Rogers Avenue. Gerardo again saw ahand holding a gun sticking out of the passenger side windowpointing at Julio and Ulysses. Gerardo heard a gunshot as the carsped up and "took off." Gerardo ran toward Julio, who was lyingon the ground bleeding. Osvaldo went home before the policearrived.

Gerardo described the passenger to the police as a skinny 23-year-old black male with a light complexion and braided hair withbeads on the ends. The police took Gerardo, Jose, Francisco andUlysses (who was deceased at the time of trial) to the policestation. At the station, Gerardo recognized the black Camaroinvolved in the shooting. Gerardo also looked at a lineup that daybut did not identify anyone. Approximately one week later,Gerardo told the officers that his brother Osvaldo also hadwitnessed the shooting. Almost one year later, on August 16,1996, Gerardo, Osvaldo and Francisco separately viewed a lineupat the police station. Gerardo identified defendant in the lineup asthe passenger in the Camaro. Gerardo identified defendant in courtas the person he recognized as the shooter in the August 16, 1996,lineup. A photo of the August 16, 1996, lineup reveals thatdefendant had a braided hairstyle at the time of the lineup.

Osvaldo's testimony concerning the events leading to theshooting was similar to Gerardo's testimony. Osvaldo describedthe passenger as a dark male who had long braided hair with black,white and blue beads at the ends. Osvaldo testified that he did nottalk to the police on the day of the shooting because his mothercame to the scene and told him to go home because he was tooyoung to get involved. The next day, Osvaldo and his mother werewalking on Ashland Avenue in Chicago when Osvaldo saw agreen Nissan Maxima drive past. Osvaldo recognized defendant asa passenger in the Maxima. Defendant stared at Osvaldo forawhile and Osvaldo stared back.

On September 12, 1995, Osvaldo spoke with police officersfor the first time. On that date, Osvaldo viewed five photographsat the police station and identified the driver of the car in one ofthe photographs. Osvaldo told the officers he was pretty certain theperson in the picture was the driver, but said he would have to seehim in person. On September 21, 1995, Osvaldo went back to thepolice station to view a lineup. Osvaldo identified the driver of thecar in the lineup. Although another individual in the lineup had hishair in braids, Osvaldo did not identify him as the shooter. OnAugust 16, 1996, Osvaldo viewed a lineup and identifieddefendant as the shooter. Osvaldo also identified defendant incourt as the shooter.

Francisco also testified at trial that he saw the car turn into theClark Mall, then later pull out from the middle of the parking lotand turn north on Clark Street. Francisco heard someone yell"watch out with the car, they've got a gun." The passenger in thecar threw his arm out and pointed a gun at Francisco. Franciscothen threw a bag at the car then fell to the ground. Franciscostarted running toward Julio and Ulysses. The car slowed downwhen the occupants saw Julio and Ulysses. The passenger put hisarm out the window with the gun in his hand. Francisco heard ashot and the car sped off. When Francisco reached Julio, Julio waslying on the ground bleeding.

That same day, Francisco went to the police station andidentified a car as the Camaro involved in the shooting. Franciscoalso viewed a lineup around 1 a.m. and identified the driver of thecar. Francisco described the passenger as a black male, 25 to 28years old, with a skinny face and braided hair close to his head. OnAugust 16, 1996, Francisco viewed another lineup and identifieddefendant as the shooter. Francisco identified defendant in courtas the person he picked out of the lineup as the shooter.

Jose testified that he was on a pay phone in front of the ClarkMall with Gerardo and Osvaldo standing nearby when a blackIROC Camaro stopped in front of him on the sidewalk. Thewindows of the Camaro were down, so that Jose could see twomales in the car. The passenger was smoking marijuana and therewas a gun on the seat between the driver and passenger. Thepassenger grabbed the gun and put it between his legs. Joseidentified defendant in court as the passenger. The car went aroundthe mall parking lot, then came out the middle. Before the carturned left onto Clark Street, the passenger pointed a gun at Jose,Gerardo and Osvaldo. Jose described the passenger as 21 to 25years old, dark skinned, with braids.

Jose's description of the events leading to the shootingparalleled that of Gerardo, Osvaldo and Francisco. Jose also wentto the police station immediately after the shooting and identifiedthe Camaro used in the shooting. Jose viewed a lineup that night,but did not identify anyone in the lineup. Jose viewed a secondlineup on September 12, 1997, approximately one month prior totrial. Jose identified defendant in the lineup as the shooter. Aphoto of this lineup reveals that defendant had a different hairstyleat this lineup, with his hair short and not braided. On cross-examination, Jose testified that he did not see any beads in theshooter's hair on September 3, 1995.

As noted, following his conviction for first degree murder,defendant appealed his conviction to the appellate court claiming,inter alia, that he was deprived of a fair trial when the State'switnesses testified that they had viewed lineups containing personsother than defendant and had made no identification. Defendantclaimed that the State was attempting to bolster its case with thenonidentification testimony. Defendant conceded that he had notobjected to the testimony at trial or in his post-trial motion, butasked the court to apply the plain error rule.

The appellate court agreed that the issue should be consideredunder the plain error rule. 316 Ill. App. 3d at 1154. Citing thiscourt's opinion in People v. Hayes, 139 Ill. 2d 89 (1990), theappellate court noted that a witness' identification of a defendantmay not be bolstered by introducing evidence that the witnessfailed to identify anyone else during pretrial identificationprocedures. 316 Ill. App. 3d at 1154. The appellate court held thatthe nonidentification testimony should not have been allowedbecause it was presented simply to corroborate the witnesses'subsequent identification of defendant. 316 Ill. App. 3d at 1154.The appellate court also held that because it was possible that thejury might have returned a different verdict had thenonidentification testimony been excluded, the error in admittingthe testimony required reversal of defendant's conviction. 316 Ill.App. 3d at 1154-55. One justice wrote a special concurrence toexpress his "strong disagreement" with this court's position thatnonidentification testimony is inadmissible. 316 Ill. App. 3d at1158-59 (Quinn, P.J., specially concurring). This court thereaftergranted the State's petition for leave to appeal that decision. 177Ill. 2d R. 315.

ANALYSIS

In People v. Hayes, 139 Ill. 2d 89, 138 (1990), this courtfound error in the admission of witness testimony stating that thewitnesses had viewed pictures of persons other than defendant andhad made no identification. This court held that the testimonyviolated the general rule that a witness may not testify in court asto statements made out of court for the purpose of corroboratinghis trial testimony concerning the same subject. Hayes, 139 Ill. 2dat 138.

We recognized, however, that there were two exceptions tothe general rule. Hayes, 139 Ill. 2d at 138. One exception is wherea prior consistent statement is introduced to rebut a charge or aninference that the witness is motivated to testify falsely or that hisin-court testimony is of recent fabrication. Hayes, 139 Ill. 2d at138. That exception did not apply in Hayes because the defendanthad not expressly or impliedly charged that the State's witnesseswere motivated to falsely identify him, but instead simplyattempted to show that the witnesses may have been mistaken intheir identification of him. Hayes, 139 Ill. 2d at 138.

The second exception to the general rule is where the out-of-court statement is one of identification. Hayes, 139 Ill. 2d at 138.That exception did not apply because the witnesses' out-of-courtstatements were not statements of identification. Hayes, 139 Ill. 2dat 138. Rather, the statements were that the witnesses did notidentify the defendant from police photo books and photo arrays.Hayes, 139 Ill. 2d at 138. In fact, the State introduced the out-of-court statements to bolster the reliability of the witnesses'subsequent lineup and in-court identifications of the defendant.Hayes, 139 Ill. 2d at 138-39. This court concluded that suchevidence was improperly introduced, although the evidence wasnot so prejudicial as to deprive defendant of a fair trial. Hayes, 139Ill. 2d at 139.

In this case, the State asks this court to depart from theprecedent set forth in Hayes. The State argues that negativeidentification testimony is both relevant and admissible. The Stateobserves that in Hayes, this court was not presented with evidencethat a witness had viewed photographs or multiple lineupscontaining individuals similar in appearance to the defendant.Thus, the court did not consider that a witness' failure to identifyindividuals similar to the defendant demonstrates the witness'reliability and also refutes the possibility that the prior pretrialidentification was based upon the suggestiveness of theidentification procedure.

Defendant responds that Hayes is controlling authorityconcerning the use of pretrial nonidentification evidence.Defendant further contends that neither of the exceptions to theprior consistent statement rule apply, because there was no chargethat the witnesses in this case were fabricating their testimony, norwere the statements of the witnesses statements of identification.Defendant therefore maintains that this court must affirm thedecision of the appellate court.

Upon review, we find this court's determination in Hayesconcerning nonidentification testimony to be flawed. The Hayescourt acknowledged that there was an exception to the general rulewhere an out-of-court statement is one of identification. Hayes,139 Ill. 2d at 138. The court then held that the nonidentificationtestimony was not admissible under this exception because thestatements were not statements of identification. Hayes, 139 Ill. 2dat 138. We believe the Hayes court construed the term "statementsof identification" too narrowly.

At the outset we note that nonidentification evidence isinherent in most "statements of identification." As Justice Quinnobserved in his special concurrence to the appellate court opinionin this case, when identifying a defendant from a lineup or photoarray, a witness necessarily does not identify the remainingindividuals in the lineup or photo array. See 316 Ill. App. 3d at1163 (Quinn, P.J., specially concurring). This type ofnonidentification is crucial to the accuracy of the witness'identification because, in the typical case, a witness is shown agroup of similar looking individuals and asked to pick out only theone who committed the crime. Consequently, the fact that thewitness did not pick the other individuals in the lineup becomes asimportant as the fact that the witness did pick the defendant. Giventhe crucial role that nonidentification plays with regard to a lineupor photo array where a defendant is positively identified, it followsthat the same considerations apply with regard to those lineups orphoto arrays where a defendant is not identified. Indeed, it islogical to presume that the more lineups and photo arrays awitness views, the more likely that witness' identification isreliable and is not based upon suggestiveness.

With the foregoing in mind, we find that the Hayes court erredin limiting "statements of identification" to a witness' actualidentification of a defendant. This interpretation mistakenlyfocuses on the result rather than the process. As a consequence, atrier of fact may be deprived of information necessary to aninformed decision concerning a witness' reliability. In contrast,construing "statements of identification" to include the entireidentification process would ensure that a trier of fact is fullyinformed concerning the reliability of a witness' identification, aswell as the suggestiveness or lack thereof in that identification.

Justice Quinn, in his special concurrence, pointed out thispotential problem with limiting "statements of identification" toonly positive identifications. Justice Quinn noted that the court'sholding would:

"require the State on retrial to confine its evidence on thesubject of identification of the defendant to the date of thefirst identification-one year (or two) after the shooting.What is the jury to make of this delay? The defense willattack the investigation and the State will be precludedfrom explaining what investigatory steps were taken fromthe time of the shooting to the first lineup identification."316 Ill. App. 3d at 1162 (Quinn, P.J., speciallyconcurring).

That the entire identification process includes bothidentification and nonidentification evidence has been given tacitapproval by the United States Supreme Court. In Neil v. Biggers,409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), the Courtheld that although a showup procedure was unnecessarilysuggestive, there was no substantial likelihood of misidentificationrequiring evidence of the identification to be excluded. The Courtnoted various factors weighing in favor of the admission of theidentification. Among those factors was that the victim had lookedat numerous photographs, lineups and showups in the seven-month time period between the crime and her identification of thedefendant as the perpetrator. Biggers, 409 U.S. at 201, 34 L. Ed.2d at 412, 93 S. Ct. at 383. Specifically, the Court stated that:

"There was, to be sure, a lapse of seven monthsbetween the rape and the confrontation. This would be aseriously negative factor in most cases. Here, however,the testimony is undisputed that the victim made noprevious identification at any of the showups, lineups, orphotographic showings. Her record for reliability wasthus a good one, as she had previously resisted whateversuggestiveness inheres in a showup." (Emphasis added.)Biggers, 409 U.S. at 201, 34 L. Ed. 2d at 412, 93 S. Ct. at383.

Obviously, the admissibility of nonidentification evidence islimited by considerations of relevance. If nonidentificationevidence is not relevant, it should be excluded from evidence. Forexample, evidence that a witness viewed a lineup containing red-haired, blue-eyed men would not be relevant or admissible if thewitness described the perpetrator as a blond-haired, brown-eyedman. However, evidence that a witness viewed a lineup containingindividuals similar in appearance to the defendant but did notidentify anyone would be relevant to the identification process.

In this case, the trial court properly allowed the witnesses totestify concerning the nonidentification lineups. As in Biggers,there was a significant lapse of time between the shooting of Julioand the witnesses' identification of defendant. Consequently, thefact that some of the witnesses had viewed prior lineups and didnot identify anyone was relevant in demonstrating the reliability ofthe subsequent identifications. This is especially true with regardto the lineup viewed by Osvaldo, which contained not only thedriver of the Camaro, but also an individual similar in appearanceto defendant, including defendant's distinctive hairstyle-braids orcornrows.

We further note that the gravamen of the defense was that thewitnesses were mistaken in their identification of defendant as theshooter. Defense counsel extensively cross-examined thewitnesses concerning their ability to observe the shooter, theirlevel of attention to the occupants in the Camaro, and the almostone-year length of time between the shooting and the lineupidentification of defendant. Under the circumstances, the processleading to the lineup identification, including nonidentificationlineups, was relevant to the witnesses' ultimate identification ofdefendant as the shooter.

Because we find that this court in Hayes erred in finding thatnonidentification evidence was not admissible under the"statement of identification" exception to the general rule, andtherefore depart from that holding, it follows that the appellatecourt in this case erred in reversing defendant's conviction basedupon our holding in Hayes. We therefore reverse the decision ofthe appellate court and affirm defendant's conviction and sentence.

For the foregoing reasons, the judgment of the appellate courtis reversed, and the judgment of the circuit court is affirmed.

Appellate court judgment reversed;

circuit court judgment affirmed.

JUSTICE McMORROW, dissenting:

At issue in this appeal is whether the trial court erred inallowing witnesses for the State in a murder prosecution to testifyconcerning a nonidentification lineup. In answering this questionin the negative, the majority neither discusses nor makes citationto this court's decision in People v. Jones, 153 Ill. 2d 155 (1992),a unanimous ruling less than 10 years old which addresses theprecise issue at bar, and which compels a result opposite to themajority's ruling. The majority also overrules, without cogentreason, this court's decision in People v. Hayes, 139 Ill. 2d 89(1990). Because the majority's conclusion represents anunwarranted departure from this court's holdings in Jones andHayes, I respectfully dissent.

This appeal has its genesis in the conviction of defendant, bya jury, of the first degree murder of Julio Lagunas, who was killedin a drive-by shooting on September 3, 1995. During defendant'strial, the State called four eyewitnesses who identified defendantas the passenger who shot Lagunas. Three of the four eyewitnessesstated that they identified defendant as the gunman from a lineupconducted on August 16, 1996, and the fourth eyewitness statedthat he had picked defendant out of a lineup on September 12,1997. The State elicited from all four witnesses that, prior toviewing the lineup from which they identified defendant, theyviewed another lineup (which did not include defendant) fromwhich they did not identify anyone as being the gunman.

On appeal, defendant argued that the trial court erred inallowing the State to impermissibly bolster its case by introducingthe witnesses' nonidentification testimony. According todefendant, the State improperly relied upon the nonidentificationsto show how careful the witnesses were in their ultimateidentification of defendant. A majority of the appellate court panelagreed with the defendant's contentions. Relying upon this court's1990 decision in Hayes, 139 Ill. 2d 89, the majority of the panelconcluded that the State may not bolster a witness' identificationof a defendant by introducing evidence that the witness failed toidentify anyone else during pretrial identification procedures. Theappellate court determined that the nonidentification testimonyshould not have been allowed because "it was presented simply tocorroborate the witnesses' subsequent identification of defendant."316 Ill. App. 3d at 1154. Furthermore, the panel determined thatthis error could not be considered harmless, since the evidence inthe case was closely balanced. The appellate court majority notedthat "none of the eyewitnesses knew defendant or viewed him fora considerable length of time," that there was "no physicalevidence linking defendant to the crime," that "defendant was notarrested near the scene," and that "[d]efendant did not confess."316 Ill. App. 3d at 1153-54. Further, the appellate court majorityobserved that a "substantial amount of time [had] elapsed betweenthe offense and the lineup identifications," with three of thewitnesses identifying defendant almost a year after the shooting,and another witness identifying defendant two years after theshooting. 316 Ill. App. 3d at 1154. The appellate court majorityconcluded that, under these facts, it was "quite possible that thejury would have returned a different verdict had thenonidentification testimony been excluded." 316 Ill. App. 3d at1154.

The majority now reverses the judgment of the appellatecourt, and holds that this court "erred" in its Hayes decision. Forthe reasons fully set forth below, I disagree with the majority'sconclusion.

In People v. Hayes, 139 Ill. 2d 89 (1990), the defendant wasconvicted of murder and armed robbery. On appeal, the defendantalleged that the trial court committed reversible error when fourprosecution witnesses were allowed to testify that, prior toidentifying the defendant, they viewed photographs of individualsother than the defendant and made no identification. Defendantargued that such nonidentification evidence was "irrelevant andhighly prejudicial" because "testimony that the witnesses viewedpictures of persons other than the defendant and made noidentification was no more relevant than evidence that thewitnesses did not view the defendant at an athletic event orshopping mall." Hayes, 139 Ill. 2d at 137. This court unanimouslyagreed with the defendant's assertion that the nonidentificationtestimony should not have been admitted, holding that it "violatedthe general rule that a witness, although present in court andsubject to cross-examination, may not testify as to statements hemade out of court for the purpose of corroborating his testimonygiven at trial relative to the same subject." Hayes, 139 Ill. 2d at138. Indeed, the general rule of evidence cited in Hayes barring,as hearsay, the admission of prior out-of-court statements tobolster in-court testimony on the same subject has long been a partof this court's jurisprudence. See, e.g., People v. Clark, 52 Ill. 2d374, 389 (1972); People v. Wesley, 18 Ill. 2d 138, 153-54 (1959);Lyon v. Oliver, 316 Ill. 292, 303 (1925); People v. Fox, 269 Ill.300, 323 (1915); Gates v. People, 14 Ill. 433, 438 (1853). Hayes,however, was the first case in which this court applied this well-settled rule of evidence to bar a witness' nonidentificationtestimony.

As is noted in Hayes, this court has traditionally recognizedtwo exceptions to the general rule that a witness may not testify asto out-of-court statements for the purpose of bolstering in-courttestimony relative to the same subject. First, it is well settled thata prior consistent statement is not barred by the hearsay rule, andis therefore admissible, if the statement is offered to rebut a chargeor inference that the witness is motivated to testify falsely or thatthe witness' in-court testimony is of recent fabrication. Hayes, 139Ill. 2d at 138, citing Clark, 52 Ill. 2d at 388-90; see also Lyon, 316Ill. at 303; Gates, 14 Ill. at 438. The Hayes court determined thatthis exception did not apply to the facts before it because thedefendant had simply attempted to show that the witnesses mayhave mistakenly identified him, and did not expressly or impliedlyallege that the State's witnesses were motivated to falsely identifyhim. Hayes, 139 Ill. 2d at 138.

Further, as Hayes made clear, it is well settled that the baragainst hearsay does not apply where a prior out-of-courtstatement is one of identification. Accordingly, statements withrespect to a prior identification of the defendant are admissible.Hayes, 139 Ill. 2d at 138, citing People v. Rogers, 81 Ill. 2d 571,578-79 (1980); see also 725 ILCS 5/115-12 (West 2000). Thecourt in Hayes relied upon this court's prior decision in Rogers,wherein the rationale for this exception was explained: "[B]y thetime of trial, the witness' mind has become so conditioned thatthere is little likelihood that he would not identify the person[defendant] in court *** '*** therefore, it is entirely proper *** toprove that at a former time, when the suggestions of others couldnot have intervened to create a fancied recognition in the witness'mind, he recognized and declared the present accused to be theperson.' " (Emphasis omitted.) Rogers, 81 Ill. 2d at 578-79,quoting 4 J. Wigmore, Evidence