In a recent Illinois appellate case, the defendant was convicted of aggravated vehicular hijacking, armed robbery and attempted first degree murder. The case arose when the victim left work and drove home to Chicago. At midnight he stopped at a stop sign by his home, and saw someone there with a dog. He continued home and parked in his garage. When he heard a noise in the alley, he waited to make sure the garage door would close. However, the man with the dog was standing at the garage door and came in asking for help.
The victim told him to leave and called for his wife. The man stabbed him seven times and demanded his wallet, keys, and money. The victim gave him these things, and stayed on the ground. The man had trouble unlocking the door of the SUV so the victim told him what button to push. The man put the dog in the SUV and told the victim he’d leave the SUV near a hospital and to wait 10 minutes before doing anything.
Once the man left, the victim went inside and asked his wife to call 911. He was a doctor, so he provided his wife and her brother with instructions on how to perform first aid for himself while they waited for the paramedics. The police got a description of the man, but at trial the victim testified he hadn’t given the description the police had reported and that the attacker had a black nylon hair covering that was over his face when he stabbed him.
The following day the police found the SUV. They found blood stains inside and eventually tested it for DNA. No finger prints were recovered. The victim then told the detectives that a light-skinned black man had attacked him. A match was found between the defendant’s DNA and the swabs from the SUV. A photo array was prepared that included the defendant’s photo. The defendant identified as Hispanic, so the photos in the array were of Latino men that had facial hair. The defendant’s hair was longer than that of the other men in the photos. The victim thought the defendant’s photo looked like his attacker, but chose the other remaining photo because the skin tone was closer, although he said it was hard to tell from black and white photos. He didn’t end up making a positive identification.
The victim went to a lineup, and positively identified the defendant there. The DNA test allowed for identification of two DNA profiles. One matched the defendant’s profile. The defendant was found guilty and sentenced to life in prison as a habitual offender.
On appeal, the defendant claimed that the photo array and lineup were unduly suggestive, that the trial court shouldn’t have denied his request to present expert testimony on the unreliability of eyewitness identification, and that denial of his jury instruction on eyewitness identification was improper.
The defendant argued that he was a white Hispanic and didn’t match the victim’s original description of him as a black man. He argued that the victim didn’t say he could have been Hispanic until after he looked at the photo array, which was composed entirely of Hispanic men. The appellate court explained that there is a two-part test to decide whether an identification is tainted by suggestion and therefore shouldn’t be admitted at trial. The first issue is whether it was so tainted that it was unreliable considering the witness’s chance to look at the suspect during the offense, whether the witness was paying attention, the accuracy of prior descriptions, the witness’s level of certainty, the amount of time that passed between the crime and identifications, and any prior acquaintance that would affect recognition.
The defendant argued the detective had suggested information to the victim through nonverbal cues, and that his photo was entirely dissimilar to the other photos, which was overly suggestive. The appellate court disagreed, finding that the detective had compiled the photo array by choosing features to ensure the men in the array would look like him. The appellate court found the appearances of all the men to be similar. Although the police knew there was a matchup between the defendant’s DNA and the evidence from the SUV, they didn’t mention this to the victim or call attention to the defendant. The men in the lineup all wore black-knit caps so the defendant’s long hair didn’t call attention to itself. The appellate court ruled that it was not improper to deny the defendant’s motion to suppress because the procedure used was not suggestive.
For this and other reasons, the lower court’s judgment was affirmed.
Although this defendant was not successful in challenging the photo array and lineup evidence, each case is different, and an experienced attorney can make sure you present the strongest possible defense. John Ioakimidis is an award-winning Chicago attorney and author with more than 22 years of experience. If you have a vehicular hijacking case in Illinois, contact me in Cook (312-229-5500), DuPage and Kane (630-504-2096), or Lake (847-696-6458) County for a free and confidential consultation to discuss your legal options.
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