{ "id": 4304306, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. COREY D. LATIMER, Defendant-Appellee", "name_abbreviation": "People v. Latimer", "decision_date": "2010-08-23", "docket_number": "No. 2\u201408\u20140947", "first_page": "595", "last_page": "600", "citations": [ { "type": "official", "cite": "403 Ill. App. 3d 595" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "298 Ill. App. 3d 278", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073696 ], "year": 1998, "pin_cites": [ { "page": "284", "parenthetical": "\" '[t]his court may not issue advisory opinions that are contingent upon the possible happening of a future event' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0278-01" ] }, { "cite": "304 Ill. App. 3d 580", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564579 ], "year": 1999, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0580-01" ] }, { "cite": "313 Ill. App. 3d 375", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186533 ], "year": 2000, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0375-01" ] }, { "cite": "179 Ill. App. 3d 1022", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2607387 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/1022-01" ] }, { "cite": "135 Ill. 2d 220", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256475 ], "year": 1989, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0220-01" ] }, { "cite": "432 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177400 ], "weight": 9, "year": 1977, "pin_cites": [ { "page": "114" }, { "page": "154" }, { "page": "2253" }, { "page": "108-09" }, { "page": "150" }, { "page": "2250" } ], "opinion_index": 0, "case_paths": [ "/us/432/0098-01" ] }, { "cite": "374 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 7328812 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "765" }, { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/374/0763-01" ] } ], "analysis": { "cardinality": 691, "char_count": 12670, "ocr_confidence": 0.774, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14490014668808876 }, "sha256": "0e8c23cef7f75e27bb1c987c70a9a4677ab1a3f86529c9723e8607ae7110461c", "simhash": "1:de1c95ab7f0c3f59", "word_count": 2038 }, "last_updated": "2023-07-14T16:11:09.619155+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. COREY D. LATIMER, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE JORGENSEN\ndelivered the opinion of the court:\nDefendant, Corey D. Latimer, was charged with two counts of unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/401(c)(l), (d), 407(b)(1), (b)(2) (West 2006)). He moved to suppress evidence obtained as a result of an encounter with a police officer. He also moved to suppress identification testimony by a different officer. The trial court granted both motions, and the State now appeals. We affirm in part, reverse in part, and remand for further proceedings.\nDefendant was charged after an informant, Willie Hernandez, allegedly engaged in a controlled purchase of heroin from an individual known to Hernandez only as \u201cL.A.\u201d The transaction allegedly took place between 5 and 6 p.m. on February 22, 2007, in the parking lot of Noble\u2019s grocery store. Hernandez purchased the heroin from an individual in a red Pontiac van. No arrest was made on that date. At the hearing on defendant\u2019s two motions, Rockford police officer Darin Spades testified that he and another officer conducted \u201cmobile surveillance\u201d within a one- or two-block area around the grocery store. Other officers conducted video surveillance of the transaction. Spades testified that he was unable to see anyone inside the van, but he noted the van\u2019s license plate number and later discovered that the van was registered to defendant. Spades obtained copies of defendant\u2019s state-identification-card photograph and a Winnebago County jail booking photograph of defendant. Spades also had a still image of the driver of the van prepared from the surveillance videotape. Spades compared the surveillance videotape and the still image with the photographs of defendant. According to Spades, the individuals depicted in the photographs and the surveillance images \u201cresembled one another\u201d and \u201c[i]t certainly could have been [defendant] in the driver\u2019s seat of [the van].\u201d However, Spades was not prepared to seek an arrest warrant based on his comparison of the images; instead, he \u201cwanted to further the investigation\u201d and conduct a second buy. Spades testified that he did not attempt to identify defendant by means of a \u201cphoto lineup.\u201d\nThe record reflects that Hernandez attempted to purchase more drugs from \u201cL.A.\u201d on March 5, 2007. Hernandez rendezvoused with an individual driving a white Buick, but was unable to complete a transaction. Marc Welsh, a detective with the Rockford police department, was on hand to apprehend the suspect if the transaction took place. When he learned that the transaction had fallen through, he followed the Buick, intending to stop the vehicle if its driver violated any traffic laws. The Buick proceeded west on Mulberry Street, turned onto North Independence Avenue, and came to a stop. Welsh testified that an individual emerged from the vehicle and started walking north. Welsh continued west but then circled back, proceeding east on School Street. Welsh observed that the person who had exited the Buick was walking in the roadway on Andrews Street. Welsh identified defendant as the person he had seen on Independence Avenue and on Andrews Street. Welsh stopped defendant, explaining that defendant was suspected of selling drugs to an informant on February 22, 2007. Welsh also advised defendant that it was illegal to walk in the roadway when the sidewalks were clear. See 625 ILCS 5/11 \u2014 1007(a) (West 2006). Welsh asked defendant for identification. Defendant told Welsh his name, address, and date of birth. Welsh did not place defendant under arrest.\nThe trial court ruled that, because Spades did not personally observe defendant in the Pontiac van, and because Spades was unsure whether the individual seen in surveillance images was defendant, Spades would not be permitted to identify defendant as the individual in the van. In addition, the trial court expressed its belief that, because of the poor quality of the surveillance images, it was impossible to make an identification from those images. The trial court also suppressed defendant\u2019s statements to Welsh, ruling that Welsh had no lawful basis for stopping defendant. Although the State appeals from both rulings, defendant concedes that his encounter with Welsh was not an unlawful seizure and that there is no basis for suppression of his statements to Welsh. Thus, the only issue before us is whether the trial court erred in barring Spades from identifying defendant at trial.\nOn appeal from a trial court\u2019s decision to suppress evidence, the trial court\u2019s findings of fact will be upheld unless they are against the manifest weight of the evidence. See People v. Walter, 374 Ill. App. 3d 763, 765 (2007). However, the ultimate question of whether the defendant is entitled to relief on a given set of facts is subject to de novo review. See Walter, 374 Ill. App. 3d at 765.\nThe State points to Spades\u2019 testimony that he was unable to positively identify defendant as the individual seen in surveillance images and could say only that the two individuals resembled one another. The State posits that the trial court ruling barring \u201cidentification\u201d testimony must have been based on \u201can erroneous recollection\u201d of Spades\u2019 testimony. The State\u2019s argument, as we understand it, is that the trial court would have ruled as it did only if it believed that Spades\u2019 testimony was being offered as positive identification. The argument flies in the face of the record. When announcing its ruling, the trial court specifically noted that Spades had indicated only that the individual in the surveillance images \u201ccould have been\u201d defendant. The trial court later noted that Spades had testified that he was not sure that the individual in the surveillance images was defendant.\nAlthough we find nothing in the record to suggest that the trial court did not have a firm grasp on the salient facts, we believe that the trial court\u2019s legal analysis would have been more apt in a case involving traditional eyewitness identification. The trial court relied in large part on Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), which set forth criteria for determining whether an out-of-court identification that was the product of an unnecessary and suggestive procedure is nonetheless sufficiently reliable that it may be admitted into evidence without offending due process. Factors germane to the issue of reliability include \u201cthe opportunity of the witness to view the criminal at the time of the crime, the witness\u2019 degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.\u201d Brathwaite, 432 U.S. at 114, 53 L. Ed. 2d at 154, 97 S. Ct. at 2253.\nIn Brathwaite, an undercover officer identified the defendant from a single photograph, a procedure that the parties agreed was suggestive. Brathwaite, 432 U.S. at 108-09, 53 L. Ed. 2d at 150, 97 S. Ct. at 2250. However, in contrast to this case, in Brathwaite, the officer had engaged in a face-to-face narcotics transaction with the individual whom he identified as the defendant. There is no dispute that, in this case, Spades never laid eyes on whoever sold heroin to Hernandez; at most, Spades could testify only that a figure seen in surveillance images resembled photographs of defendant. Given that Spades cannot identify defendant based on personal observation, the questions of suggestiveness and reliability are entirely academic; under general evidentiary principles, Spades\u2019 testimony would be inadmissible to establish the identity of the subject who sold heroin to Hernandez. Whether individuals depicted in various photographs or other images resemble one another is simply a matter of opinion. \u201cOpinion testimony concerns what a witness \u2018 \u201cthinks, believes, or infers in regard to facts in dispute, as distinguished from his personal knowledge of the facts themselves.\u201d \u2019 \u201d M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7700.1, at 514 (8th ed. 2004), quoting Mittelman v. Witous, 135 Ill. 2d 220, 243 (1989), quoting Black\u2019s Law Dictionary 985 (5th ed. 1979). It is a long-standing rule that \u201ctestimony of a lay witness in the form of an opinion may be introduced only if it is helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7701.1, at 517 (8th ed. 2004), citing Kolstad v. Rankin, 179 Ill. App. 3d 1022 (1989); see also Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 393 (2000). We fail to see how, for identification purposes, Spades\u2019 opinion would enhance the trier of fact\u2019s understanding of whatever nonopinion testimony he might provide. Nor would his opinion be helpful to the trier of fact in determining any fact in issue. Nothing in the record shows that Spades has any special expertise in comparing images of individuals for identification purposes. The trier of fact would be perfectly capable of performing such a comparison itself, and (assuming that the State is able to lay a proper foundation for the images) it would be the trier of fact\u2019s responsibility to do so. Because Spades\u2019 opinion would be inadmissible for identification purposes, there was no need to consider the issues of suggestiveness and reliability.\nIndeed, the State does not argue that an opinion as to the resemblance among figures depicted in photographs and videotapes would be admissible for identification purposes. The State\u2019s primary concern appears to be that the suppression ruling \u201cmight lead to confusion during the defendant\u2019s trial\u201d if the State offers Spades\u2019 testimony for a different purpose. The State insists that \u201csuppression of Detective Spades\u2019 identification testimony regarding the defendant as [sic] being at the scene was unnecessary.\u201d Moreover, the State worries that \u201cproblems may arise if *** Spades testifies that the person depicted in the [surveillance images] \u2018resembles\u2019 the defendant.\u201d According to the State, such testimony \u201cwould go to the investigative process.\u201d The State does not contend that the trial court\u2019s order actually bars Spades from testifying for purposes other than establishing defendant\u2019s identity. However, the State fears that, at trial, defendant will object that such testimony would be within the scope of the trial court\u2019s order. Supreme Court Rule 604(a)(1) authorizes the State to appeal from an order \u201cthe substantive effect of which results in *** suppressing evidence.\u201d 210 Ill. 2d R. 604(a)(1). It does not authorize the State to appeal from orders that are \u201cunnecessary\u201d or that \u201cmight lead to confusion.\u201d In essence, the State asks us to review an objection that has not yet been made, let alone ruled upon. The State cites no authority that such prospective review is permissible and, in our view, what the State seeks is nothing more than an advisory opinion. See In re Chilean D., 304 Ill. App. 3d 580, 584 (1999), quoting Stokes v. Pekin Insurance Co., 298 Ill. App. 3d 278, 284 (1998) (\u201c \u2018[t]his court may not issue advisory opinions that are contingent upon the possible happening of a future event\u2019 \u201d).\nFor the foregoing reasons, the portion of the trial court\u2019s order suppressing defendant\u2019s statements to Welsh is reversed, the portion of the order barring Spades from identifying defendant as the occupant of the Pontiac van is affirmed, and the cause is remanded for further proceedings.\nAffirmed in part and reversed in part; cause remanded.\nO\u2019MALLEY and SCHOSTOK, JJ., concur.\nIt is apparent from the record that, separate and apart from considerations of suggestiveness and reliability, the trial court simply did not share Spades\u2019 opinion that the figure seen in the surveillance images resembled defendant. (The court essentially expressed the view that, because of the poor quality of the surveillance images, they were not suitable for comparison.) We question whether the trial court\u2019s views as to the credibility of proposed opinion testimony should have any bearing on the admissibility of the testimony. However, because the issue of resemblance was not a proper subject of opinion testimony, we need not consider the matter further.", "type": "majority", "author": "JUSTICE JORGENSEN" } ], "attorneys": [ "Joseph E Bruscato, State\u2019s Attorney, of Rockford (Lawrence M. Bauer and Gregory L. Slovacek, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Thomas A. Lilien and Linda A. Johnson, both of State Appellate Defender\u2019s Office, of Elgin, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. COREY D. LATIMER, Defendant-Appellee.\nSecond District\nNo. 2\u201408\u20140947\nOpinion filed August 23, 2010.\nJoseph E Bruscato, State\u2019s Attorney, of Rockford (Lawrence M. Bauer and Gregory L. Slovacek, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nThomas A. Lilien and Linda A. Johnson, both of State Appellate Defender\u2019s Office, of Elgin, for appellee." }, "file_name": "0595-01", "first_page_order": 611, "last_page_order": 616 }