People v. Macklin

• Decision Date: 05 March 2019
• Docket Number: No. 1-16-1165,1-16-1165
• Citation: 430 Ill.Dec. 228,125 N.E.3d 1246,2019 IL App (1st) 161165
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Derrick MACKLIN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 161165

125 N.E.3d 1246

430 Ill.Dec. 228

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Derrick MACKLIN, Defendant-Appellant.

No. 1-16-1165

Appellate Court of Illinois, First District, Second Division.

Filed March 5, 2019

Rehearing denied April 4, 2019

PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Following a 2016 bench trial, defendant, Derrick Macklin, was convicted of armed robbery involving the personal discharge of a firearm causing great bodily harm ( 720 ILCS 5/18-2(a)(4) (West 2010) ) and sentenced to 40 years' imprisonment. The only argument Macklin raises on appeal is that the State did not sustain its burden to prove him guilty beyond a reasonable doubt because the eyewitness testimony implicating him should not have been believed by the trial judge. Related to this claim, Macklin argues that his trial counsel rendered ineffective assistance by not presenting an expert witness to support his defense that the eyewitness identifications were unreliable. Finding no error, we affirm.

¶ 2 Macklin was charged with six counts of attempt first degree murder, five counts of armed robbery, one count of aggravated battery, one count of armed habitual criminal, two counts of aggravated discharge of a firearm, and four counts of aggravated unlawful restraint, all arising out of an incident occurring on October 2, 2011, and involving two victims, Jose Gomez and Wilfredo Garcia.

¶ 3 At about 10:30 p.m. on October 2, Gomez and his nephew, Garcia, were walking in the vicinity of 156th Street and Central in Harvey. As they were walking, a white car with four passengers approached from behind and stopped next to them. Three men got out of the car and walked toward Gomez and Garcia. The driver remained in the car and eventually drove off without the others.

¶ 4 The area was well lit with streetlamps, including one near Gomez and Garcia and another near the car. All three men wore dark sweatshirts and baseball caps with the hoods pulled up over the caps. Their faces were not covered. The man in the middle of the three men, later identified as Macklin, was taller than the others, and Gomez and Garcia were able to see his face. When he was about 12 feet away from Gomez and Garcia, Macklin pulled out a gun and said, "your money or you die" and fired a single shot toward them. The gunshot struck Garcia in the right hand and he fell to the ground facedown. The other two men took over $ 150 in cash and identification cards from Gomez's pockets, as Macklin pointed the gun at Gomez and Garcia. They also took Garcia's wallet. The three men fled on foot.

¶ 5 After the men left, Gomez found that he still had his cell phone and called 911. Police officers responded to the call. Gomez spoke English in the 911 call and with the officers. The record does not contain the police report or any description of the offenders Gomez gave to police. Garcia cannot speak or read English so he not did speak to the responding officers directly. It is unclear whether he communicated with the officers through Gomez.

¶ 6 Garcia's right hand was bleeding from a through and through gunshot wound

, and an ambulance took him to the hospital. He remained in the hospital overnight and was transferred to another hospital the next day. He has permanent scarring from the wound and loss of feeling in one of his fingers.

¶ 7 Macklin was arrested on October 10, 2011, as a result of another incident involving shots fired at another location in Harvey. He was charged and convicted of being an armed habitual criminal in connection with that incident. See People v. Macklin , 2016 IL App (1st) 140697-U.

¶ 8 The day after Macklin's arrest, Gomez and Garcia went to the police station to view a lineup. Detective Andrew Wallace, who speaks a little Spanish but is not fluent, met them at the station. Before the lineup, Gomez signed a lineup advisory form and saw that Garcia signed one as well. Gomez was able to read the English-language advisory form. He explained the form to Garcia. A Spanish-speaking officer, whose name Wallace could not recall, also explained the form to Garcia (although, according to Garcia, Gomez was not present at the time). Gomez and Garcia were notified that (i) the suspect may or may not be in the lineup, (ii) they were not required to make an identification, and (iii) they should not assume that the person administering the lineup knew which person was the suspect.

¶ 9 Garcia, and then Gomez, separately viewed the lineup and both identified Macklin as the person who had robbed them and shot Garcia. Macklin sat in a different position in each lineup. Garcia was "70 percent sure" of his identification. Garcia did not tell Gomez who to identify before Gomez viewed the lineup. When Gomez viewed the lineup, he identified Macklin. Gomez was "100 percent sure" of his identification. Nobody told Gomez to choose Macklin; instead, he recognized Macklin from the incident. While only Macklin wore braids in the lineup, that did not affect Gomez's identification because it was based on "[h]is eyes and mouth," which Gomez recognized.

¶ 10 Before trial, defense counsel filed a motion to suppress the lineup identifications on the ground that the composition of the lineup was suggestive. In particular, counsel contended that Macklin was the only person in the lineup wearing a white T-shirt and who had braids. No testimony was taken at the hearing and counsel relied only on the lineup photos to argue that they were suggestive. Defense counsel never argued that the offender was described as having braids so there was no issue that Macklin's hairstyle was not suggestive. Focusing on Macklin's claim that his lineup attire was suggestive, the court inquired what information regarding the offenders' attire had been described by the victims. Both defense counsel and the State agreed that the victims had described the men as wearing black hoodies and baseball caps. The court responded, "So in the lineup, there are no black hoodies and no baseball caps." Noting that Macklin's white T-shirt did not make it more likely that he would identified since he was not described as wearing a white T-shirt at the time of the incident, the court found that the lineup was not suggestive and denied the motion to suppress. At no point during the hearing did the State indicate that the only description given by the victims was that the offenders were wearing black hoodies and baseball caps.

¶ 11 The State presented the testimony of Gomez, Garcia, and Wallace at trial. Macklin elected not to testify and did not present any evidence.

¶ 12 Following closing arguments, the court found Macklin guilty of all charges but attempted first degree murder. Since it was undisputed that Garcia had been shot, the court found that the only issue was the reliability of the victims' identification of Macklin. Although both Gomez and Garcia had testified through an interpreter at trial, the court noted that Gomez understood and spoke English. The court found Gomez credible, consistent, and unimpeached. The court noted that Garcia expressly denied being told who to identify. The court stated that while there was evidence that Garcia had been only 70% certain in his identification, "Gomez is 100 percent sure. He never wavered." In other words, Garcia and Gomez "were both sure of one thing, that [Macklin] was the guy that shot" Garcia.

¶ 13 In his posttrial motion, Macklin challenged the sufficiency of the evidence and the denial of his motion to suppress identification testimony. At the motion hearing, defense counsel argued in relevant part that the testimony of all three witnesses was not credible, and in particular Garcia "had difficulty actually identifying [Macklin] as the shooter" and "said in court in testimony that he was 70 percent sure at first that it was [Macklin] that indeed shot him." The court denied the posttrial motion.

¶ 14 Following a sentencing hearing, the court sentenced Macklin to 40 years' imprisonment for the armed robbery of Garcia involving the personal discharge of a firearm proximately causing great bodily harm. The convictions on all other counts merged into the armed robbery conviction.

¶ 15 As noted, Macklin raises no claim of trial error other than the trial court's decision to credit the eyewitness identifications of him as the assailant.

¶ 16 A person commits armed robbery when he (1) knowingly takes property from another by the use of force, or by threatening imminent use of force and (2) in committing that offense, he personally discharges a firearm proximately causing great bodily harm to another. 720 ILCS 5/18-1(a), 18-2(a)(4) (West 2010). Macklin does not challenge that an armed robbery occurred but argues that the State failed to prove he was the perpetrator.

¶ 17 On a claim of insufficient evidence, we must determine whether, taking the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Gray , 2017 IL 120958, ¶ 35, 418 Ill.Dec. 916, 91 N.E.3d 876. It is the responsibility of the trier of fact to weigh, resolve conflicts in, and draw reasonable inferences from the testimony and other evidence, and it is better equipped than this court to do so as it heard the evidence. Id. ; In re Jonathon C.B. , 2011 IL 107750, ¶ 59, 354 Ill.Dec. 484, 958 N.E.2d 227. We do not retry a defendant; that is, we do not substitute our judgment for that of the trier of fact on witness credibility or the weight of evidence. Gray , 2017 IL 120958, ¶ 35, 418 Ill.Dec. 916, 91 N.E.3d 876. Contradictory evidence or minor or collateral discrepancies in testimony do not automatically render a witness's testimony incredible, and it is the task of the trier of fact to determine if and when a witness testified truthfully. Id. ¶¶ 36, 47. A conviction will be reversed only where the evidence is so unreasonable, improbable, or unsatisfactory...