People v. Hayes
| Docket Number | 1-19-0881 |
| Decision Date | 06 December 2021 |
| Citation | 2021 IL App (1st) 190881,196 N.E.3d 545,458 Ill.Dec. 241 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sylvester HAYES, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Douglas R. Hoff, and Christopher Kopacz, of State Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Matthew Connors, and Christine Cook, Assistant State's Attorneys, of counsel), for the People.
¶ 1 A jury found Sylvester Hayes guilty of first degree murder for the shooting death of Frederick Giles. The trial court sentenced him to 55 years in prison, and we affirmed his conviction and sentence on direct appeal. See People v. Hayes , 2017 IL App (1st) 153213-U, 2017 WL 5642329. Central to Hayes's appeal was a challenge to the sufficiency of the evidence based on the alleged deficiencies in the testimony of six eyewitnesses to Giles's murder. Id. ¶¶ 37-48. Hayes cited "scientific studies" related to the phenomenon of weapon focus and the lack of correlation between witness certainty and accuracy. Id. ¶¶ 42, 44. We declined to consider these studies largely because "Hayes did not attempt to call an expert witness at trial regarding the psychology of witness identifications." Id. ¶ 44 (citing People v. Lerma , 2016 IL 118496, 400 Ill.Dec. 20, 47 N.E.3d 985 ).
¶ 2 Picking up on the record deficiencies we highlighted, Hayes filed a postconviction petition, arguing trial counsel's ineffectiveness for failing to investigate or call an expert witness to opine on the weaknesses in eyewitness testimony that would not be apparent from cross-examination. He alleged counsel knew, at minimum, about the science related to weapon focus and did nothing to investigate further. And counsel's insufficient investigation prejudiced him because credibility of the eyewitnesses was essential for the State to overcome Hayes's alibi defense. The trial court dismissed the petition in a written order, reasoning that trial counsel conducted "meaningful adversarial testing" and so could not have performed deficiently. The trial court said nothing about prejudice.
¶ 3 We reverse, finding Hayes's claim of ineffective assistance arguable. Our decision on direct appeal indicated expert testimony may have bolstered Hayes's argument that the eyewitnesses were either distracted by the presence of a weapon or that the jury should not have been confident in the witnesses’ certitude. And, though all the witness identifications were sufficient to uphold Hayes's conviction under an exceedingly deferential standard of review, none was pristine. Thus, we find it arguable that an expert on eyewitness identifications could have undermined their credibility to the extent that a reasonable probability exists for a different outcome.
¶ 4 We remand for further proceedings consistent with the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 2020)).
¶ 6 We extensively recounted the facts in our order on direct appeal, including detailed testimony about the eyewitnesses’ direct and cross-examinations. Hayes , 2017 IL App (1st) 153213-U, ¶¶ 4-35. We briefly summarize those facts and recount additional detail essential to our analysis.
¶ 7 Six eyewitnesses saw an offender shoot Giles. Each described brief periods of observation. Rivianna Gilmore, who was walking with Giles, saw the offender for less than one minute and looked directly at him for one or two seconds. Faydra Brookshire, who saw the offender from inside her apartment at a distance of five feet, got a look at his profile for about five seconds. Kevin Neely, who saw the offender from his apartment, got a direct look at his face for "less than a second." Jasmine Bell, who saw the offender from her fourth story window, viewed the offender for about 30 seconds as he moved from shooting Giles to getting into a car. Edward Reed, in his apartment, got a "full frontal" view of the offender's face for "four or five seconds." Finally, Officer Irene Singleton saw the shooting from her car and, though she never saw the offender's face from the front, got a view of both sides of the offender's face for three seconds on each side.
¶ 8 The descriptions of the offender also varied. Few agreed on the offender's height. Gilmore thought the offender was 5 feet, 6 inches or 5 feet, 7 inches; Reed and Singleton thought he was between 5 feet, 8 inches and 5 feet, 10 inches; Bell believed he was 6 feet; and Neely could only say he was shorter than 5 feet, 11 inches. Two witnesses could not agree about the presence of facial hair—Neely said the offender had a little mustache, but Reed said he had no facial hair. Gilmore thought the offender had a "square head," but Singleton found distinctive the "round shape" of the offender's head.
¶ 9 They agreed on a few points. Everyone who described the offender's age thought he was young, with Singleton guessing between 26 and 29 years. Everyone who described the offender's skin tone—Gilmore, Neely, and Reed—said he had a dark complexion. And everyone who described the offender's clothes—Gilmore, Brookshire, Neely, and Singleton—said he had on all dark or all black clothes.
¶ 10 Four of the witnesses testified about seeing a gun. Brookshire and Singleton commented that the offender was holding a gun. Gilmore described a black gun that one would need two hands to hold. Neely described a gun with a "clip that was hanging out of it," and Reed described a "semi-automatic" gun with an extended clip.
¶ 11 All the witnesses identified Hayes in some format after the offense. Twenty-three days after the shooting, Gilmore went to the police station and identified Hayes's picture in a photo lineup of 55 photographs. A day after Gilmore's identification, Brookshire, Neely, Bell, Reed, and Singleton went separately to the police station and viewed a live lineup. They all identified Hayes as the offender with the gun.
¶ 12 No physical evidence connected Hayes to the shooting. Hayes testified that he was with his friend, Marcus Gilbert, and his friend's mother, Nicole Smallwood, at the time of the shooting. The three testified they were at a party between 3 and 4 p.m. until 11 p.m. or midnight. The shooting took place at about 7 p.m. Both Smallwood and Gilbert testified that Hayes remained with them at the party and never left.
¶ 13 Based on this evidence, we affirmed Hayes's conviction on direct appeal, finding the discrepancies in identification were for the jury to resolve. Id. ¶ 47. We rejected Hayes's claim about weapon focus and that scientific studies show a weak correlation between certainty and accuracy. Id. ¶ 42 (weapon focus); id. ¶ 44 (witness certainty). Because Hayes had failed to call an expert, we declined to consider the studies even though they "may call into question the reliability of eyewitness identifications." Id. ¶ 44.
¶ 14 Hayes then filed a postconviction petition arguing his trial counsel was ineffective for failing to call an expert in eyewitness identifications. He alleged that the State's case at trial was based on witnesses who all had "fleeting opportunity[ies]" to see the offender during a "chaotic and violent" encounter. Hayes also cited cases referring to the "scientific consensus" on weapons focus along with two scientific studies. Hayes alleged "this knowledge was available" to trial counsel and that counsel was ineffective for failing to "seek expert testimony." The trial court summarily dismissed Hayes's petition. The court primarily relied on counsel's trial strategy, finding that counsel "vigorously cross examined the State's eyewitnesses regarding their identifications," rendering Hayes's claim affirmatively rebutted by the record.
¶ 16 Before we discuss the merits of Hayes's argument, we must first assure ourselves that we have appellate jurisdiction. People v. Smith , 228 Ill. 2d 95, 104, 319 Ill.Dec. 373, 885 N.E.2d 1053 (2008). Two irregularities warrant our attention. First, in the notice of appeal, the judgment being appealed and the date of the judgment do not match. Second, the clerk file-stamped the notice of appeal more than 30 days after the trial court entered judgment. We find neither defect precludes exercise of jurisdiction.
¶ 17 The notice of appeal, which Hayes drafted, describes the judgment he is appealing as "post-conviction petition denial." The trial court entered its order dismissing Hayes's petition on March 8, 2019, but Hayes's petition lists the date of the trial court's judgment as March 15, 2019. We construe notices of appeal liberally, and if the defect is one of form, not substance, failure to strictly comply with the requirements for a notice of appeal is not fatal to jurisdiction. Id. at 104-05, 319 Ill.Dec. 373, 885 N.E.2d 1053. Here, we can easily discover the source of the error and confirm that Hayes's error is one of form. The circuit clerk sent notice of the trial court's judgment to Hayes, and the notice is dated March 15, 2019. It appears Hayes interpreted the date of the notice as the date of the trial court's judgment. But the notice references the March 8, 2019, order and incorporates it by reference. We see no way the State could have been prejudiced where the only judgment referenced by the clerk's notice is the March 8 judgment dismissing Hayes's postconviction petition. See id. ().
¶ 18 Similarly, the filing date of the notice of appeal does not defeat jurisdiction. A pro se incarcerated litigant timely files their notice of appeal if the notice is placed in the institutional mail within 30 days of the judgment appealed. See People v. Shines , 2015 IL App (1st) 121070, ¶ 31, 392 Ill.Dec. 620, 33 N.E.3d 169. To rely on the "mailbox rule," the litigant must include an affidavit complying with section 1-109 of the Code...
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