{ "id": 411669, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID HERNANDEZ, Defendant-Appellant", "name_abbreviation": "People v. Hernandez", "decision_date": "2000-04-12", "docket_number": "No. 1 \u2014 99 \u2014 0264", "first_page": "1032", "last_page": "1039", "citations": [ { "type": "official", "cite": "312 Ill. App. 3d 1032" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "312 Ill. App. 3d 920", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411685 ], "year": 2000, "pin_cites": [ { "page": "934" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0920-01" ] }, { "cite": "563 N.E.2d 421", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "138 Ill. 2d 434", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576671 ], "year": 1990, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0434-01" ] }, { "cite": "710 N.E.2d 163", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 628", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564573 ], "year": 1999, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0628-01" ] }, { "cite": "697 N.E.2d 329", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 519", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910291 ], "year": 1998, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0519-01" ] }, { "cite": "537 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "127 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564025 ], "year": 1989, "pin_cites": [ { "page": "307-08" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0302-01" ] }, { "cite": "409 U.S. 188", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173155 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "199-200" }, { "page": "411" }, { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "651 N.E.2d 72", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "165 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483560 ], "year": 1995, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0305-01" ] }, { "cite": "708 N.E.2d 365", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "185 Ill. 2d 532", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121990 ], "year": 1999, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0532-01" ] }, { "cite": "670 N.E.2d 606", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "172 Ill. 2d 484", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55985 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "515" }, { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0484-01" ] }, { "cite": "164 Ill. 2d 279", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 476988 ], "year": 1995, "pin_cites": [ { "page": "299" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/164/0279-01" ] }, { "cite": "312 Ill. App. 3d 920", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411685 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "1037" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/312/0920-01" ] }, { "cite": "138 Ill. 2d 434", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576671 ], "year": 1990, "pin_cites": [ { "page": "455" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/138/0434-01" ] }, { "cite": "127 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564025 ], "year": 1989, "pin_cites": [ { "page": "307-08" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/127/0302-01" ] }, { "cite": "172 Ill. 2d 484", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55985 ], "year": 1996, "pin_cites": [ { "page": "515" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/172/0484-01" ] } ], "analysis": { "cardinality": 786, "char_count": 17093, "ocr_confidence": 0.752, "pagerank": { "raw": 9.459436620061931e-08, "percentile": 0.5174411712806423 }, "sha256": "dd8aed9480cd25929a6db8544b43ebefbfb312f9bd6e6778e6e628651c4971f1", "simhash": "1:a5ae7ee13b751777", "word_count": 2872 }, "last_updated": "2023-07-14T15:51:04.567640+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID HERNANDEZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nThis was, as the trial judge said, \u201ca one-witness shooting in the streets of Dixmoor.\u201d The court believed the witness\u2019 identification testimony and convicted David Hernandez (Hernandez) of first degree murder. On appeal Hernandez contends the prosecution\u2019s identification evidence was insufficient to support his conviction. We agree with Hernandez. We reverse his conviction.\nFACTS\nIn the afternoon of April 24, 1997, Andrew Grant (Grant) was shot and killed in Dixmoor, Illinois. On the night of the shooting and again on May 13, 1997, in the course of their investigation, Illinois State Police officers spoke with the lone eyewitness to the shooting, Jerry Phillips (Phillips). On May 29 and June 26, 1997, the police showed Phillips photos of Hernandez, and on July 24, 1997, the police arrested Hernandez for Grant\u2019s murder. Phillips identified Hernandez as the gunman in a July 25, 1997, lineup. Hernandez was charged with first degree murder.\nHernandez filed a motion to suppress Phillips\u2019 eyewitness testimony. After Hernandez waived a jury trial, the court said it would conduct a hearing on the motion to suppress along with a bench trial.\nAt trial, Phillips testified.\nAround 3 p.m. on April 24, 1997, Phillips, a school bus driver, was sitting in the driver\u2019s seat of his bus, waiting to pick up a child. Phillips noticed two vans four to five car lengths, or 90 feet, away from his bus. Two men \u2014 \u201ctwo young men around the ages of nineteen, twenty years old\u201d \u2014 stood between the vans, and one man stood in front of them, Grant. Phillips identified Hernandez as one of the two young men standing between the vans.\nAccording to Phillips, Hernandez was arguing with Grant when Hernandez suddenly pulled out a gun and began shooting Grant. Grant fell to the ground and struggled to his feet. Hernandez shot Grant again, and Grant scrambled to escape across the street. Phillips saw Hernandez shoot Grant four times and shoot into Grant\u2019s van once. After the shooting, Hernandez and the other young man jumped into their van and sped away. Phillips reported the shooting to \u201cbase\u201d and waited in his bus until he could speak to the police.\nPhillips said the police contacted him on May 29, 1997, to view a photo array. He was shown two separate folders, each containing six photos. From one of the folders, Phillips identified a photo of the young man who was with the shooter. From the other folder, Phillips pointed to photos of men wearing braided hairstyles like those of the shooter. But he did not identify the defendant as the shooter. The defendant\u2019s photo was in that folder.\nPhillips said he viewed another photo array on June 26, 1997, and identified Hernandez. According to Phillips, he told the police \u201cthere\u2019s your one you\u2019re looking for right there.\u201d He explained, \u201cthat\u2019s the profile that I seen when the guy turned his head toward me.\u201d Phillips said he told the police, \u201cThat the profile of the \u2014 of his \u2014 of that photograph is the perfect form of the shooter, without the hair.\u201d On July 25, 1997, Phillips positively identified the defendant in a lineup.\nOn cross-examination, Hernandez\u2019 attorney asked Phillips for a physical description of the two young men between the vans. Phillips said they were both \u201cabout the same height\u201d and \u201c[a]bout the same weight,\u201d though he added, \u201cI wasn\u2019t paying too much attention to how big they was. Neither one of \u2019em was fat.\u201d\nPhillips said he gave the police a written statement on the night of the shooting. This statement contained little description of the two young men \u2014 \u201cone light skinned and one dark skinned\u201d \u2014 between the vans. Phillips acknowledged he spoke with the police on May 13, 1997, and provided a physical description of the two young men. Hernandez\u2019 attorney and Phillips engaged in this exchange:\n\u201cQ. One of the individuals you described as a dark male Black, approximately five foot ten, one hundred and seventy-five pounds, is that right?\nA. Yes, sir.\nQ. The other individual you described as five foot seven, one hundred and fifty-five pounds, light skin, did you not?\nA. Yes, sir.\nQ. You said at that time that the dark male Black pulled out a gun and shot Mr. Grant, isn\u2019t that what you said?\nA. I believe that\u2019s what is on the paper.\nQ. Well, did you say that, sir? Do you recall whether or not you said that?\nA. I don\u2019t remember saying that.\nQ. You don\u2019t remember whether you said that it was the dark male Black that shot Mr. Grant?\nA. I don\u2019t believe I said that.\n* * *\nQ. *** At that time,'Mr. Phillips, did you say to the police *** on May 13th, that you were unsure if you could identify the two suspects because you were looking at the back of their heads most of the time?\nA. I told \u2018em I couldn\u2019t make a positive identification until he had turn\u2019t sideways and I could see his profile of his face.\nQ. So you\u2019re saying that you told the police you \u2014 you could identify him when he turned and you could see his profile?\nA. Yes, sir.\u201d\nOn May 29, 1997, Phillips repeated to the police, \u201cThat the only way I could recognize him, when I seen the profile.\u201d When Phillips identified Hernandez as the shooter on June 26, 1997, he told police, \u201cthat\u2019s the profile and that\u2019s the identification.\u201d Phillips said when the police initially spoke with him at the scene of the shooting, he told them to pursue \u201ctwo, young males\u201d approximately \u201cseventeen, twenty-two years old.\u201d According to Phillips, he observed the two young men for \u201ca good ten minutes\u201d before the shooting, but conceded he spent most of that time staring at the backs of their heads.\nOn redirect examination, Phillips said the shooter was darker skinned than the other young man. Phillips added the young men were \u201c[a]bout 5\u20192\u201d, three, four\u201d tall and \u201c[a]bout a hundred and fifty-five, a hundred sixty pounds.\u201d On examination by the court, Phillips clarified Hernandez was the dark-skinned young man.\nAt the close of the trial, the court denied Hernandez\u2019 motion to suppress, finding the photos and their presentations were not suggestive. The court further found Phillips\u2019 testimony sufficiently established Hernandez\u2019 guilt and sentenced him to 50 years imprisonment. This appeal followed.\nDECISION\nWhen a defendant challenges the sufficiency of the evidence supporting his conviction, we ask whether, viewing this evidence in the light most favorable to the prosecution, a rational fact finder could have found the defendant guilty of the essential elements of the crime beyond a reasonable doubt. People v. Gilliam, 172 Ill. 2d 484, 515, 670 N.E.2d 606 (1996). Our supreme court recently has instructed:\n\u201c[I]t is our duty in the case at bar to carefully examine the evidence while giving due consideration to the fact that the court *** saw and heard the witnesses. [Citations.] If, however, after such consideration we are of the opinion that the evidence is insufficient to establish the defendant\u2019s guilt beyond a reasonable doubt, we must reverse the conviction.\u201d People v. Smith, 185 Ill. 2d 532, 541, 708 N.E.2d 365 (1999).\nThat is, a criminal conviction cannot stand on appeal if the prosecution\u2019s evidence is so weak as to create a reasonable doubt of the defendant\u2019s guilt. Gilliam, 172 Ill. 2d at 515.\nA single eyewitness identification can support a conviction if the witness viewed the accused under circumstances permitting a positive identification. People v. Lewis, 165 Ill. 2d 305, 356, 651 N.E.2d 72 (1995). The United States Supreme Court, in Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382 (1972), offered five factors for evaluating the reliability of an eyewitness identification: (1) the witness\u2019 opportunity to view the criminal at the time of the offense; (2) the witness\u2019 degree of attention; (3) the accuracy of the witness\u2019 prior description of the criminal; (4) the level of certainty demonstrated by the witness when identifying the defendant as the criminal; and (5) the length of time between the crime and the identification. Illinois courts consider these factors. See People v. Slim, 127 Ill. 2d 302, 307-08, 537 N.E.2d 317 (1989).\nHere, Phillips\u2019 testimony is not reliable. On April 24, 1997, Phillips watched for nearly 10 minutes as the two young men between the vans argued with the man in front of the vans. But Phillips\u2019 attention was riveted on the backs of the two young men\u2019s heads until the shooter momentarily exposed his profile to Phillips, sitting in a school bus 90 feet away.\nPhillips\u2019 description of the shooter on May 13, 1997 \u2014 5 feet 10 inches, 175 pounds \u2014 conflicted with his description of the shooter at trial \u2014 5 feet 2 to 4 inches, 155 to 160 pounds. While this disparity alone does not create a reasonable doubt as a matter of law (see People v. Negron, 297 Ill. App. 3d 519, 530, 697 N.E.2d 329 (1998)), it certainly is no endorsement of Phillips\u2019 powers of observation. In addition, on May 13, Phillips told officers he was \u201cunsure\u201d if he could identify anyone because he was \u201clooking at the backs of their heads most of the time.\u201d\nThree months after the shooting, on July 25, Phillips identified Hernandez in a lineup. Between those two events, the police twice showed photos to Phillips. Each time, Hernandez\u2019 photo was included.\nThe first time, there was no identification of Hernandez\u2019 face. The second time, on June 26, 1997, two months after the shooting, there was an identification: Phillips recognized Hernandez\u2019 profile, or, as he told police, the shooter\u2019s \u201cjaw and cheek.\u201d Considering the totality of the circumstances (see People v. Kelley, 304 Ill. App. 3d 628, 637, 710 N.E.2d 163 (1999)), Phillips\u2019 identification of Hernandez was fatally weak.\nWe understand great deference should be given to trial judges when they hear the evidence and observe the witnesses. See People v. Furby, 138 Ill. 2d 434, 455, 563 N.E.2d 421 (1990). But this deference does not require a mindless rubber stamp on every bench trial guilty verdict we address. That would be an abdication of our constitutional responsibility. And we are not reluctant to examine the record for a lack of evidence linking the defendant to the crime charged. Another division of this court recently performed the identical analysis in a murder case, concluding the uncorroborated testimony of a single eyewitness did not support a guilty verdict. See People v. Rodriguez, 312 Ill. App. 3d 920, 934 (2000).\nEyewitness testimony under the best of conditions is subject to all of the frailties of human perception. But here, where the lone eyewitness saw only the back of the shooter\u2019s head until he momentarily glimpsed the shooter\u2019s profile from 90 feet away, where the eyewitness\u2019 testimony is not corroborated by other evidence, and where the photo array procedure inexorably led to a lineup identification three months after the shooting, a first degree murder conviction and a 50-year sentence cannot stand.\nCONCLUSION\nBecause the prosecution did not prove Hernandez guilty beyond a reasonable doubt, we reverse. We see no reason to address the defendant\u2019s motion to suppress the eyewitness testimony.\nReversed.\nBURKE, J., concurs.", "type": "majority", "author": "JUSTICE WOLFSON" }, { "text": "PRESIDING JUSTICE CAHILL,\ndissenting:\nI respectfully dissent. The typescript of this bench murder trial runs to some 176 pages, modest by any standard. At its heart is the direct and cross-examination of a single eyewitness who positively identified the defendant in a lineup and at trial. The defense attorney conducted a masterful cross-examination, in which it was established that the eyewitness was unable to positively identify the defendant from a photo array presented to him before the lineup was held. But the defense attorney could not dissuade the witness from his positive identification at the lineup or at trial. Nor was he able to find in this witness a lack of credibility or a motive to lie.\nIf we examine the reliability of the identification under the five-part Slim test (People v. Slim, 127 Ill. 2d 302, 307-08 (1989)), we find: (1) the witness watched a murder in broad daylight, but did not at all times observe the face of the shooter; (2) his attention was never diverted from the crime that played out before him; (3) his description of the shooter contains some inconsistencies; (4) he positively identified the shooter in a lineup and again at trial; and (5) the crime took place on April 24, 1997, and the lineup identification occurred July 24, exactly three months later. Three of the tests unquestionably meet the reliability requirement. The other two tests are what this trial was about. The trier of fact heard conflicting evidence on both, particularly with respect to how much of the shooter\u2019s face the eyewitness saw and his response to the photo arrays.\nThe majority reminds us of our duty to carefully examine the evidence while giving due consideration to the fact that the court saw and heard the witnesses. People v. Gilliam, 172 Ill. 2d 484, 515 (1996). I can find nothing in this opinion that reflects due consideration for what the judge in this case saw and heard at trial. The majority does not cite to the four-page summation of the evidence made by the trial judge. The judge\u2019s assessment of the evidence, his opinion of the credibility of the eyewitness, the comments he made on the conflicting evidence, and his response to the arguments of defense counsel are simply ignored. Each of the issues the majority raises was addressed by the trial judge. I might have a different view of this case if the majority had reviewed the findings of the trial judge, dismantled (or at least criticized) his reasoning, and pointed out where he went wrong. Where inconsistencies and conflicts exist in the evidence, the trier of fact has the responsibility of weighing the credibility of the witnesses and resolving these conflicts and inconsistencies. People v. Byron, 164 Ill. 2d 279, 299 (1995).\nUnlike a jury trial, where the reasoning of the trier of fact is forever hidden, we have a trial judge here who explained on the record how he reached his decision to find the defendant guilty of murder beyond a reasonable doubt. Because this was a bench trial where the trial judge explained how he weighed the evidence and assessed credibility, the majority has a rare opportunity to show us why the majority reading of the record is to be preferred. A majority that points out our constitutional obligation not to mindlessly rubber-stamp guilty verdicts must be aware that we also have an obligation not to mindlessly ignore the way the judge resolved conflicting evidence and his assessment of credibility when those findings are of record.\nI welcome the reference in the majority opinion (312 Ill. App. 3d at 1037) to People v. Rodriguez, 312 Ill. App. 3d 920 (2000), where we reversed a murder conviction, after a jury trial, based on the testimony of a single eyewitness. The evidence that went to impeachment and credibility in the two cases is dramatically different. In Rodriguez, the record revealed and the opinion noted that the eyewitness observed the defendant for seven to nine seconds while his hands covered his face. The eyewitness was also subject to \u201cmultiple impeachment\u201d at trial. This included prior inconsistent statements, a plea of guilty to a felony charge, the failure to come forward until a $5,000 reward was posted, and the failure of another witness to identify the defendant in a lineup, despite evidence that earlier the other witness may have seen the suspect identified by the primary eyewitness. By contrast, the eyewitness in this case observed a murder in progress for seven to nine minutes in broad daylight and never backed away from his positive identification at the lineup. As for impeachment, the defense attorney here, in his summation to the court, said about the eyewitness in this case: \u201cMr. Phillips is a hard working guy. He came to court and told you what he saw. I am not suggesting, Judge, for one second that Jerry Phillips got on the stand and lied.\u201d Of course, defense counsel then surveyed the evidence and testimony in the case and attempted to show that the witness, though well meaning, was mistaken. He presented what he believed to be reasonable inferences that could be drawn from conflicting evidence. The trial court in his ruling addressed these inferences and came to a different conclusion.\nThe majority in its analysis of the case has, I believe, paid lip service to the admonition in People v. Furby, 138 Ill. 2d 434, 455 (1990), and little else. I can only conclude that the majority has retried the defendant from the written record and substituted its judgment of the weight of the evidence and the credibility of the witness for that of the trial judge.", "type": "dissent", "author": "PRESIDING JUSTICE CAHILL," } ], "attorneys": [ "Kenneth N. Flaxman, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Sari London, Assistant State\u2019s Attorneys, of counsel), for the Feople." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID HERNANDEZ, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1 \u2014 99 \u2014 0264\nOpinion filed April 12, 2000.\nCAHILL, EJ., dissenting.\nKenneth N. Flaxman, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Sari London, Assistant State\u2019s Attorneys, of counsel), for the Feople." }, "file_name": "1032-01", "first_page_order": 1052, "last_page_order": 1059 }