People v. Herron

• Decision Date: 19 May 2005
• Docket Number: No. 95135.,95135.
• Citation: 830 N.E.2d 467,215 Ill.2d 167
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Nakia HERRON, Appellee.
• Court: Illinois Supreme Court

830 N.E.2d 467

215 Ill.2d 167

The PEOPLE of the State of Illinois, Appellant, v. Nakia HERRON, Appellee.

No. 95135.

Supreme Court of Illinois.

May 19, 2005.

COPYRIGHT MATERIAL OMITTED

James E. Ryan and Lisa Madigan, Attorneys General, Springfield, and Richard A. Devine, State's Attorney, Chicago (William L. Browers and Linda D. Woloshin, Solicitors General, Chicago, and Renee G. Goldfarb, Peter D. Fischer, Susan Schierl Sullivan, Veronica Calderon Malavia and Annette Collins, Assistant State's Attorneys, of counsel), for the People.

Edwin A. Burnette, Public Defender, Chicago (Lester Finkle and Brenton Williams, Assistant Public Defenders, of counsel), for appellee.

Justice FITZGERALD delivered the opinion of the court:

The defendant, Nakia Herron, was convicted of first degree murder and armed robbery in the circuit court of Cook County. In his direct appeal, he raised one issue: whether the trial court improperly instructed the jury about eyewitness identification testimony. The defendant did not object to this instruction at trial and did not mention this instruction in his posttrial motion. The appellate court addressed this issue under the plain-error doctrine, reversed his convictions, and remanded for a new trial. No. 1-01-3889 (unpublished order under Supreme Court Rule 23). The State appealed.

The central issue in this case is what constitutes plain error, or more specifically, what standard a reviewing court should use in deciding whether to excuse procedural default of an issue on appeal. The State challenges the continued viability of the "closely balanced evidence prong" of our traditional two-part test for plain error and asks us to adopt the four-part test used by federal courts. For the reasons that follow, we decline the State's invitation and affirm.

BACKGROUND

On the afternoon of October 22, 1996, two men wearing dark jeans and pullover "hoodies" entered the lobby of the Ramada Inn on South Lake Shore Drive in Chicago. According to Angela Eiland, the hotel's front desk supervisor, one man was around six feet tall, and the other man was shorter, "probably around five-five." Though the hoods covered their foreheads, Eiland observed that the taller man had a missing tooth; the shorter man had a darker complection and an unshaven face. Eiland asked if she could help them, and the shorter man said, "[G]ive me the money." He jumped over the counter with a gray cotton bag, while the taller man pointed a gun at her. Eiland opened the register, and the shorter man grabbed the money and proceeded toward the back office just as Lisa Brooks, hostess of the hotel restaurant, was leaving the office. The shorter man grabbed Brooks and pulled her back into the office. The taller man kept the gun pointed at Eiland.

Robert Comanse, the hotel's front office manager, heard a commotion and left his office, which was adjacent to the back office, to investigate. When he entered the back office, he saw the shorter man holding Brooks' arm. Comanse later described the shorter man as 5 foot 10 or 11 inches tall with spotty facial hair. As Comanse walked by Brooks on his way to the lobby, Brooks told Comanse that the man was a robber. Comanse, close enough to the man to smell his breath, laughed. The man put a gun in his face and said, "[T]his is real. It's a real gun." He ordered Comanse, Brooks, Linette Harkins, the hotel's reservation agent, and Marlynn Moore, the hotel's switchboard operator, to lie face down on the floor. The shorter man demanded, "[W]here's the money?" Comanse answered that there was no money in the office; the rest of the hotel's money was locked in a safe downstairs.

Outside the lobby Robert Priester, the hotel's assistant general manager and director of security, was waiting to accompany Brooks with her "bank" money to open the restaurant. Priester entered the lobby and approached Eiland to determine why Brooks was delayed. The taller man backed away from the desk, and Eiland mouthed the words to Priester that the hotel was being robbed. Priester turned toward the taller man and asked what he was doing. A struggle ensued. The taller man shouted, "[T]hey got me, G," and a gunshot rang through the lobby. Priester slumped down, bleeding from his neck. The two men fled. Outside, Dr. Terry Van Den Hok saw two men, both around six feet tall and wearing hoods, run from the hotel toward a parked car. Eiland ran to the back office and found Brooks, Harkins, Moore, and Comanse, lying on the floor. Eiland instructed them to call 911. She found some towels to help stop Priester's bleeding. He died within hours at Northwestern Memorial Hospital.

Fifteen months later, the police investigation of the shooting led to James Brisbon. After interviewing Brisbon, the police hunted for the defendant and Kenneth Durant. On January 27, 1998, the defendant voluntarily came to the police station to participate in several lineups. Though Harkins and Moore could not identify anyone, the police still arrested the defendant. The next day, the defendant spoke with Chicago Police Detective Glen Turner on the way to the lockup. The defendant stated that he had gone to the hotel with Brisbon and another person, but that he stayed outside while Brisbon and the other person went inside. When Turner asked if the defendant wanted to talk about the robbery further, the defendant said no. On February 14, 1998, in another lineup, Eiland identified Durant as the taller man, but she did not identify the defendant as one of the robbers. Comanse alone identified the defendant.

At the conclusion of the defendant's trial, the parties discussed jury instructions. The following exchange occurred:

"Assistant State's Attorney: No. 10 is IPI Criminal No. 3.15.

The Court: That has all the points in it?

Assistant State's Attorney: Yes.

Defense Counsel: Okay. No objection, judge.

The Court: Given."

In its closing argument, the State previewed this instruction for the jury:

"Another law that the judge is going to instruct you on is the law of identification. When you weigh the identification testimony of a witness, you should consider all the facts and circumstances in evidence including, but not limited to, the following: The opportunity the witness had to view the offender at the time of the offense or the witness's degree of attention at the time of the offense or the witness's earlier description of the offender or the level of certainty shown by the witness when confronting the defendant or the length of time between the offense and the identification testimony." (Emphases added.)

The State then provided its summary of Eiland's identification of Durant and Comanse's identification of the defendant. The defense later provided its own summary of these identifications.

In instructing the jury, the trial court recited Illinois Pattern Instruction, Criminal, No. 3.15 (4th ed.2000) (hereinafter IPI Criminal 4th), as follows:

"When you weigh the identification testimony of a witness, you should consider all the facts and circumstances in evidence, including, but not limited to, the following:

The opportunity the witness had to view the offender at the time of the offense or the witness's degree of attention at the time of the offense or the witness's earlier description of the offender or the level of certainty shown by the witness when confronting the defendant or the length of time between the offense and the identification confrontation." (Emphases added.)

The jury found the defendant guilty of first degree murder and armed robbery, and the trial court sentenced him to concurrent terms of 55 years' imprisonment for murder and 25 years' imprisonment for robbery. The trial court denied the defendant's motion for a new trial, amended motion for a new trial, and motion to reconsider sentence.

The defendant appealed, arguing that the trial court erred in its reading of IPI Criminal 4th No. 3.15. Specifically, the defendant charged that the trial court's use of the word "or" between the listed factors signaled that the jury could find an eyewitness' testimony reliable based on a single factor. The defendant acknowledged that he did not object to the instruction at trial or in a posttrial motion. Instead, he argued that the appellate court should consider this forfeited issue under the plain-error doctrine.

The appellate court reversed the defendant's conviction and sentence and remanded for a new trial. The appellate court stated:

"Here, we find that the evidence against defendant was closely balanced and thus, this issue warrants review under the plain error analysis. The State's case was based almost solely on the testimony of Comanse and his identification of defendant. Comanse testified that he had never seen the man before, but described him as five feet, ten inches or five feet, eleven inches tall wearing a black hooded sweatshirt covering his hair, but not his face. Comanse stated that he viewed the man's face for approximately 20 to 25 seconds before he complied with his demand and laid face down on the floor. Comanse first stated that he was looking down at the floor during their ensuing conversation, but later testified that he looked at the man while they talked. He viewed a photo lineup that day, but did not identify anyone. Nearly 16 months later, Comanse identified defendant from a lineup.

However, Comanse's description of the man who held a gun to him conflicted with Eiland's account. Eiland testified that the man was shorter than her, and was `probably' five feet, five inches tall. Defendant was five feet, eleven inches tall. Although she saw both men enter the lobby and approach the front desk and helped the shorter man to open the cash drawer and take the money, Eiland never identified defendant. Additionally, the State's other three eyewitnesses could not identify defendant. Moreover, there was no physical evidence linking defendant to the crime. While defendant made a statement to Detective Turner,...