People v. Gonzalez

2018 IL App (1st) 152242
No. 1-15-2242
Opinion filed September 28, 2018

FOURTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 10 CR 14964
)
LEONARDO GONZALEZ, ) The Honorable
) Thomas V. Gainer, Jr.,
Defendant-Appellant. ) Judge, presiding.

JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice McBride specially concurred, with opinion.
Justice Burke dissented, with opinion.

OPINION

¶1 After a jury trial, defendant Leonardo Gonzalez was convicted of

attempted first degree murder and aggravated battery with a firearm, for a

shooting on July 3, 2010. Defendant was sentenced on June 25, 2015, to
 No. 1-15-2242

concurrent sentences of 38 years and 10 years, respectively, with the Illinois

Department of Corrections (IDOC).

¶2 On appeal, defendant raises numerous claims, including that his

conviction and sentence for aggravated battery must be vacated under the one-

act, one-crime rule, since the two offenses stemmed from the same shooting of

the same victim. The State agrees.

¶3 Defendant's other claims include: (1) that the trial court improperly

denied his right to present a defense by barring him from showing the tattoos on

his hands to the jury where the tattoos would have further established the

weakness of the State's eyewitness identifications, unless he waived his right to

testify; (2) that the unreliable eyewitness identifications failed to prove beyond

a reasonable doubt that defendant was, in fact, the shooter, where the police told

the eyewitnesses, prior to their initial identifications that they had found the

shooter and that his photo appeared in the photo spread given to them; (3) that

his trial counsel was ineffective for failing to call numerous alibi witnesses; and

(4) that the trial court erred in denying his motion for a new trial based on

evidence of actual innocence.

¶4 For the following reasons, we reverse and remand for a new trial.

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¶5 BACKGROUND

¶6 I. Pretrial

¶7 Prior to trial, the State made an oral motion in limine to exclude gang

evidence. Defense counsel explained that the victim had admitted to being in a

gang and had stated that he believed the shooter was also in a gang. However,

counsel “agree[d] there should be no gang evidence [with] regards to”

defendant. The ASA replied that the State did not intend to elicit any gang

evidence. The ASA confirmed that the victim had stated to a detective that the

victim was in a gang and believed that the shooter had also been in the same

gang. However, the ASA clarified that the victim “indicated to [the ASA] that

he does not know the defendant, and has never known the defendant prior to

this incident.” The trial court ruled that, if defense counsel tried to impeach the

victim with his prior statement concerning gangs, then counsel will have

opened the door to the State also to bring in gang evidence.

¶8 II. Trial

¶9 The following facts were established at trial. On July 3, 2010, at some

time after 1 a.m., the victim left a party, and his van hit a pothole, blowing out a

tire, near Harding Avenue and 28th Street in the South Lawndale neighborhood

of Chicago. He called his girlfriend, who arrived in her sport utility vehicle

(SUV), which the two of them sat in while they waited for a tow truck. In the

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rearview mirror, the victim observed a man looking inside his van. A second

man approached, and the first man told the second man that there was a stereo

in the van. The first man tried to open the van by reaching into the van through

a window. The victim exited his girlfriend’s vehicle and told the two men not to

steal the stereo from his van. As the first man started backing away from the

van, the victim walked toward it. The first man then lifted up his shirt with his

left hand, pulled out a gun from his waistband with his right hand, cocked the

gun with his left hand, and fired at the victim. When the shooting started, the

victim was approximately six feet away from the shooter. After the victim was

shot in his right hand three times, he ran and was shot in the leg and in the

posterior. The two men ran off, and the victim’s girlfriend drove the victim to

the hospital.

¶ 10 At trial, the victim testified that he was 26 years old and had three felony

convictions for (1) attempted residential burglary, in 2003, (2) burglary in 2004,

and (3) criminal damage to government property, in 2012. On July 2, 2010, he

was at a wedding party at his grandmother’s house, where he consumed six

beers. He stopped drinking by 1 a.m. on July 3, 2010.

¶ 11 The victim testified that, after leaving the party, his van hit a pothole near

28th Street and Harding Avenue, which was a residential neighborhood with

streetlamps. It was “like three in the morning,” so there were no other drivers

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on the road. He parked his van on 28th Street, and there was a streetlamp right

by his van, at the corner. After inspecting the broken wheel, he called both a

tow truck and his girlfriend. When his girlfriend arrived 10 minutes later, she

parked her SUV on Harding Avenue, about three houses or 50 feet away from

his van, and he entered the passenger side of her SUV. While talking to his

girlfriend and waiting in her SUV for the tow truck, he also kept an eye on his

van by looking in the rearview mirror.

¶ 12 The victim testified that, after five minutes, he observed a man walk to

his van and peer inside by the driver’s side. Then this first man walked across

the street towards a second man who was exiting from the rear of a house. The

two men were talking loudly, and the victim had his window rolled down, and

so the victim could clearly hear the first man state “there’s a stereo in that car.”

The van’s windows were rolled down, and the first person returned to the van

and stuck “pretty much half his body” inside the van, through the passenger

window. The victim could hear the first man trying to open the van’s door from

the inside. At this point, the second man was three feet from the first man.

¶ 13 The victim testified that he exited his girlfriend’s SUV and approached

his van. As the victim approached, both men looked toward him. The first man

stopped leaning into the van, turned toward the victim, and was standing five or

six feet away. In court, the victim identified the first man as defendant, who the

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victim had “never” observed before. The victim testified that he told the first

man: “this is my van. Don’t steal it. Don’t rob it. I live [nearby].” At that

moment, the first man backed 8 or 10 feet away from the van, and the victim

walked toward the passenger side of his van. The first man lifted up his shirt

with his left hand, pulled a gun out of his waistband with his right hand, cocked

it back with his left hand, and pointed it at the victim’s abdomen. Before the

first man fired, the victim placed his hands over his abdomen and was shot in

his right hand three times. When the shooting started, the victim was six or

seven feet away from the gun.

¶ 14 The victim testified that, after he was shot in his right hand, he turned and

ran and was hit two more times, once in the leg and once in his posterior. The

bullet in his leg exited through his lower stomach, while the second bullet, in

his posterior, remained in his body. The first man fired a total of 10 to 12 times

at the victim. The victim screamed that he was shot in the chest, in the hope that

the firing would stop. After the victim observed the two men run away, the

victim ran toward and entered his girlfriend’s SUV, and she drove him to the

hospital.

¶ 15 The victim testified that, when he first arrived at the hospital, he received

morphine. During the 24 hours that the victim was at the hospital, he was

visited twice by the Chicago police. During the first visit, the victim estimated

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that his pain level was a 10, on a scale of 1 to 10, and he had to stop the

conversation with the police.

¶ 16 The victim testified that, on August 5, 2010, he met with Detective Jose

Gomez who showed him a photo spread. The victim identified the bottom left

photo as a photo of the shooter and initialed and dated it. In court, the victim

identified both “a lineup photo-spread advisory form” that he had signed 1 and

the six-photo spread itself. On the next day, August 6, 2010, the victim was

informed that the shooter had been arrested, and he and his girlfriend went to a

police station to view a lineup. During the lineup, he identified the shooter as

the second person from the left, who was wearing a jersey stating “Detroit.” In

court, the victim identified a set of photos as photos of the lineup and identified

defendant as the person whom he had identified in the lineup.2

¶ 17 At the end of the direct examination, when asked if he was sure that

defendant was the shooter, the victim replied:

“VICTIM: I’m 100 percent sure. I was only a couple feet away. I had

a good glimpse of his tattoos and his face to—

1
The advisory form was read into the record on redirect examination, so
we provide its contents at that time.
2
People’s exhibit Nos. 3 through 6 were photos of the lineup. In the
lineup, the other three men are all wearing black or white T-shirts and dark
pants. Defendant is wearing a bright blue basketball tank top stating “Detroit 3”
and a pair of shorts and is the only person with visible tattoos.
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ASA: Rest at this time, Judge, with regards to this witness.”

¶ 18 On cross-examination, the victim testified that, when the shooter cocked

the gun with his left hand, the victim noticed that the shooter had tattoos on his

arms. When asked whether the shooter had tattoos on his hands, the victim

responded that he “was just focused on the ones on the arms.” When defense

counsel asked if the victim was focused on the left hand that had lifted the shirt

and cocked the gun, he replied “yes.” When counsel asked if the victim noticed

any tattoos on the shooter’s left hand, the victim then stated that he “was more

focused on [the shooter’s] face and his reactions to see if he would say

anything.” Counsel then asked, when the victim was focused on the shooter’s

face, whether he noticed an overbite. The victim testified that he did not notice

an overbite because he was “concentrated on the face part.” When counsel

asked again whether the victim noticed any tattoos on the shooter’s hands, he

replied: “There were tattoos that I still can’t distinguish like what they were.”

¶ 19 On cross-examination, the victim testified that it took 10 minutes to drive

to the hospital, and that he spoke to the police five minutes later. At that time,

he told the police that the two men were Hispanic and that they were dressed in

all black clothing, but he did not mention that the shooter had tattoos and a

“shag” haircut. The victim explained that, in a shag haircut, the hair is long in

back. Although the victim testified on direct examination that he received

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morphine at the hospital, on cross-examination he testified that he did not know

what medications he received at the hospital and he did not tell the police that

he was on morphine.

¶ 20 On cross-examination, the victim testified (1) that he spoke to the police

a second time on July 3, 2010; (2) that when the police asked him if his van had

been rammed, he told them no; and (3) that when the police asked further

questions, he replied that he did not want to speak to them anymore.

¶ 21 Later on cross-examination, when asked again about whether he told the

police about tattoos, the victim replied: “I think I told him like there was some

like I said on the arms.” The victim also testified: “I could have mentioned that

there was something on the hands but in the front of the hands but I didn’t

recognize what they are so I didn’t say any.” As to the tattoo that he recalled,

the victim testified: “There was a letter A and some bunny ears on one of the

arms.” Defense counsel then asked his client to stand up, and the court stated:

“Now we will have a sidebar.” After the sidebar was held off the record,3 the

court ruled: “Objection’s sustained.” Thus, immediately after the victim

described the shooter’s tattoos, defense counsel asked defendant to stand up,

and the jury heard the court prohibiting that action without any explanation.

3
This issue was discussed again, on the record, at the end of the victim’s
testimony, and we quote that discussion below.
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¶ 22 On cross-examination, the victim testified that the second time that he

spoke with police on July 3, 2010, his girlfriend was also present in the room

and she spoke with the police at the same time that he did. The victim testified

that, during that second conversation, he believed he told the police that the

shooter was wearing a “black shirt, beige something.”

¶ 23 On cross-examination, the victim testified that, when he was in court last

month, on April 1, 2013, he viewed People’s exhibit No. 2, which was the

photo spread. Counsel asked: “And when you saw that photo that’s when you

made the statement the shooter did have a shag, correct?” The victim replied:

“Yes.”

¶ 24 The victim testified (1) that, on August 6, 2010, he viewed a physical

lineup; (2) that People’s exhibit No. 6 is a photo of the lineup; and (3) that, in

the photo of the lineup, defendant does not have a shag haircut. The victim

testified: “I wasn’t clear that the shag had to do with anything else. I was more

focused on his face that’s how I pointed him out by his face and by a haircut.”

The following colloquy ensued:

“Q. But it was important enough for you to mention back on April 1st

of 2013 last month, oh, I do remember that the shooter had a shag,

correct?

A. Yes.

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Q. I can’t hear you?

A. Yes.

Q. But it’s not important now, correct?

A. It is important.

Q. And prior to April 1st, 2013, you had never told anyone in law

enforcement that the shooter had a shag, did you?

A. No, I didn’t because I didn’t see one. ***.”

¶ 25 The victim testified that, on August 5, 2010, when he viewed the photo

array, the detective told him that he had found the shooter and that the shooter

was in the photo array:

“DEFENSE COUNSEL: Now, back on August 5, 2010, when you

went for the photo array, that’s when you saw the six photos, you were

contacted by a detective, is that correct?

VICTIM: Yes.

DEFENSE COUNSEL: And that detective told you he had discovered

the person that shot you, right?

VICTIM: Yes.

DEFENSE COUNSEL: And they told you that you were going to see

a photo array and the shooter was in that photo array, right?

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ASA: Objection.

THE COURT: Overruled.

DEFENSE COUNSEL: Is that right?

VICTIM: Yes.”

¶ 26 The victim testified that, before viewing the photo spread, a detective

called him to ask if he was at home and if the detective could come over. The

victim agreed, and after the detective arrived, the detective asked if the victim’s

girlfriend was there, and the victim replied that she was at work but he would

call her. The victim informed the detective that his girlfriend should arrive in 30

minutes, so the detective waited, and the detective and the victim talked during

this time. Defense counsel then asked:

“Q. And while you were talking to him for 30 minutes, at that time,

that’s when he told you he had identified who the shooter was?

A. Correct.”

¶ 27 On redirect examination, the victim testified that, on August 5, 2010, he

had the opportunity to read People’s exhibit No. 1, which was the lineup photo

spread advisory form, that it was also read aloud to him by the detective on

August 5, 2010, and that the victim signed it. The form, which the ASA read

into the record, stated in relevant part:

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“I, [name], agree to view a lineup/photo spread at [address] on 5 Aug.

2010.

*I understand that the suspect may or may not be in the

lineup/photospread.

I understand that I am not required to make an identification.

I do not assume that the person administering the lineup/photospread

knows which person is the suspect.”

¶ 28 On redirect examination, the victim also testified that the detective did

not tell him who the shooter was, that the victim’s girlfriend was not in the

room when the victim viewed the photo spread, and that he was not in the room

when she viewed the photo spread.

¶ 29 After the victim was excused from the stand and the jury was excused for

lunch, the trial court and the attorneys held a conference about showing

defendant’s tattoos to the jury:

“THE COURT: All right. Now, at some point there was a request by

the defense to have [defendant] stand and show his hands to the witness

for the purpose of identifying or talking about some tattoos I’m not clear

are on his hand. Why did you want to do that?

DEFENSE COUNSEL: I wanted, your Honor, to show that on

[defendant’s] left [ ]hand he has a tattoo which would have been evident

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to [the victim] if he had viewed what he say[s] he described when he saw

the person lift with his left [ ] hand a shirt[,] as well as in a cocking

motion cock a [pistol], Judge, I believe that I should have been able to

have [defendant] show his hand and let the jury see his hand, your Honor,

the same way that he was identified by [defendant] as the person that shot

him.

THE COURT: Okay. Well, the problem I have with this and the

reason I didn’t let you do it is because there’s absolutely no way for the

prosecution to cross-examine your client, when the tattoo was placed on

[his] hand, how long he’s had the tattoo, whether he had receipts for the

tattoo so [defendant] wants to show his hand to the jury, he’s going to

have to do it from the witness stand so that the prosecution can cross-

examine him about that which he’s offering into evidence.

DEFENSE COUNSEL: Your Honor, just briefly, with regards to the

photo lineups, your Honor, being the tattoos are in the lineup which [is]

already in evidence.

THE COURT: Then that’s something you can argue, but as far as him

making any displays, they have got to be able to cross-examine and they

can’t if you do it that way.”

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¶ 30 In the discussion quoted above, where defense counsel argued that “the

tattoos are in the lineup which [is] already in evidence,” he was referring to

People’s exhibit Nos. 3 through 6, the photos of the lineup held on August 6,

2010, approximately a month after the offense. These photos show that

defendant had tattoos across the width of both of his hands, and defense counsel

was correct that these photos were already in evidence. 4 Defendant’s hands

were flat on his lap, so the photos provide a side or horizontal view of the

tattoos. Since the hands were not photographed from above, one cannot discern

exactly what the tattoos depict or precisely how eye-catching they were.

However, the tattoos’ existence, on the date of the lineup, was established and

in the record, as defense counsel had argued to the trial court.

¶ 31 The victim’s girlfriend, age 21, testified that on July 3, 2010, after 2 a.m.,

she received a call from her boyfriend, who stated that he had a busted tire and

needed a tow truck. She then drove to 28th Street and Harding Avenue in her

SUV, arriving “a little after three in the morning.” The area was residential with

street lights. After she parked on Harding Avenue, the victim entered the

4
Toward the end of the trial, when the trial court and counsel were
reviewing what exhibits had already been admitted into evidence, the trial court
began: “Here’s what I got, People’s 1 through 13, admitted into evidence. Do
you agree with that, [defense counsel], or not?” Defense counsel then indicated
he agreed. Thus, there is no question that the photos were admitted, thereby
establishing the tattoos’ existence both at the time of identification and shortly
after the offense.
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passenger side of her SUV. As they were talking and waiting for a tow truck,

she noticed that the victim became distracted, and that is when she noticed two

men outside and she heard them say “something about a radio.” When asked if

she was able to view their faces, she replied: “Just their side face.” In court, she

identified defendant as one of the two men whom she noticed that night.

¶ 32 The victim’s girlfriend testified that, after she noticed the two men, the

victim exited her SUV and approached the two men. The victim stated that the

van was his van and that he lived in the area. One of the men pulled out a silver

gun from his shirt and started shooting at the victim. She heard at least eight

shots and observed the victim run. She heard the victim state “my chest, my

chest,” and observed the two men run away. Then the victim entered her SUV,

and she drove him to the hospital, which took less than five minutes. Still on

July 3, 2010, but hours later, she spoke with the police at the hospital.

¶ 33 The victim’s girlfriend testified that, on August 5, 2010, she viewed a

photo spread at her boyfriend’s house with Detective Gomez. Prior to viewing

the spread, she viewed and signed an advisory form. 5 From the photo spread,

she identified a photo of defendant as the shooter. In court, she identified

People’s exhibit No. 15 as the spread that she had viewed. She also viewed a

5
The ASA reviewed the contents of the advisory form with her on
redirect examination.
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physical lineup, although she did not recall the date. From the lineup, she also

identified defendant as the shooter.

¶ 34 The victim’s girlfriend testified that, on July 3, 2010, when she was

sitting in her SUV prior to the shooting and she observed the two men, she

recognized defendant as someone with whom she had gone to high school. She

did not know his name, but she recognized his face. However, when the police

spoke with her at the hospital, she did not inform them that she had recognized

the shooter because she was “scared because he had just shot [her] boyfriend so

[she] knew he had a gun.” She also did not tell the police when she met with

them again to view the photo spread because she was still scared.

¶ 35 On cross-examination, the victim’s girlfriend admitted that, the day

before, she had stated that the reason she did not reveal she recognized the

shooter was because she did not want her boyfriend to know that she knew the

shooter. While she was driving the victim to the hospital, she also called the

police. At the hospital, she spoke to her boyfriend while two police officers

were present and asking questions. In court, she did not recall telling the

officers that she had given her SUV to the victim’s brother and that she had no

way of contacting him. She also did not recall telling them that she did not

recognize any of the people involved in the incident. She denied telling the

officers that the shooter had either one or two companions with him. She did

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recall telling the officers that she knew the shooter from high school so she was

“a little shocked” the day before when the ASA did not know that. She also

recalled telling the police, in the victim’s presence, that the shooter wore a

beige and black shirt. She did not recall the victim telling the officers that he

did not want to talk to them any more after they asked if his van had been struck

or rammed.

¶ 36 On cross-examination, the victim’s girlfriend testified that, after the

hospital, she did not speak to the police again for a month, until she met with

them at the victim’s house. When she was heading to the victim’s house that

day, she had no idea that the police were there. When she arrived, the victim

was there with his grandmother, and two detectives were there, one of whom

was named “Detective Gomez.” All four were sitting in the living room of the

single-family house. Prior to her viewing the photo spread, the detectives told

her that they had identified the shooter and his photo was in the photo spread:

“DEFENSE COUNSEL: [B]efore they showed you the pictures, they

told you they had identified who the shooter was, right?

A. Yes.

Q. And they told you the shooter was going to be in the lineup in the

photo array that you were going to see, correct?

A. Yes.

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Q. And then you were shown the photo array, correct?

A. Correct.

Q. And that’s when you recognized [defendant] who you went to high

school with, correct?

A. Yes.

Q. And that’s who you picked out?

A. Yes.”

However, she did not inform the police at that time that defendant had attended

her high school, and she did not inform them the following day when she

selected defendant from a physical lineup.

¶ 37 The victim’s girlfriend testified that, between August 6, 2010, the date of

the physical lineup, and “yesterday’s date,” which was May 7, 2013, she did not

speak to the police. She testified, that prior to May 7, 2013, she had not

informed the police that she recognized defendant from school. 6 The two men

involved in the incident wore T-shirts, and she was not sure whether she told

the police that one of them had tattoos. Periodically, the police would call her to

give her updates about the case, and every time the police called, she would

6
This testimony contradicted her earlier testimony on cross when she
testified that she did recall telling the officers that she knew the shooter from
high school and, thus, she was “a little shocked” the day before when the ASA
did not know that.
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speak to the victim about the incident and the men involved in it. However, she

did not inform her boyfriend that she knew defendant from high school until

sometime shortly after August 5, 2010. When she told him, she also stated to

him that she had not told the police. The next time that she told someone, other

than her boyfriend, was when she told the ASA on May 7.

¶ 38 On redirect examination, the victim’s girlfriend testified that Detective

Gomez showed her the advisory form before showing her the photo spread and

that she read and understood it. The ASA read the advisory form into the

record, and it stated in relevant part:

“I, [name], agree to view a lineup/photo spread at [address] on 5 Aug.

2010.

*I understand that the suspect may or may not be in the

lineup/photospread.

I understand that I am not required to make an identification.

I do not assume that the person administering the lineup/photospread

knows which person is the suspect.”

Then the ASA asked “[a]t no point did Detective Gomez tell you that he already

had the shooter in that photo array, correct?” and she answered “yes.” However,

on cross-examination, she had testified that there were two detectives present,

and the ASA did not inquire about the other detective. Similarly, with respect to

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the physical lineup, the ASA asked only whether Detective Gomez had stated

that the shooter was in the physical lineup, and she responded that Detective

Gomez had not. She testified that no one had told her who to select from the

photo array or lineup.

¶ 39 On recross-examination, defense counsel inquired about the photo

spread:

“Q. You knew when you were having a conversation with the

detectives on August 5, 2010, that you were going to participate in a

photo lineup, correct?

A. Yes.

Q. And the police officers explained to you what you were about to do

when you looked at the lineup, correct?

A. Yes.

Q. Yes?

A. Yes.

Q. When they explained that to you, they were explaining that to both

you and [the victim]?

A. Correct.

Q. They told you they had identified the person who shot [defendant]

on July 3, 2010, correct?
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A. No.[7]

Q. They told you they wanted you to look at some photos, correct?

A. Yes.

Q. And they told you that you were going to sign on the photo of the

person that shot [the victim] on July 3, 2010, right?

A. Initial.

Q. Initial, right?

A. Yes.

Q. And they told you all of that before you went into a separate room,

correct?

A. Correct.”

¶ 40 The State’s next witness, Elizabeth Dawson, was an evidence technician

with the Chicago Police Department who processed the crime scene on July 3,

2010, at 5 a.m. Specifically, she photographed the victim’s green van and a

nearby red vehicle and searched for firearm evidence, which she did not find.

On cross-examination, she testified that she did not look for fingerprints on the

green van. She looked for but did not find any bullet fragments or spent shell

casings. She testified that, as she was sitting on the witness stand, she was

7
This answer is in direct contradiction to the answer that the victim’s
girlfriend gave to the same question on cross that we quoted above. Supra ¶ 36.
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currently wearing on her hip a semiautomatic weapon. Defense counsel asked

her to demonstrate to the jury how she would cock a semiautomatic weapon,

and then counsel stated: “So that the record is clear, could it reflect that with

your right hand you made a forward movement with your right hand with your

left hand on top of it in a backward position, going in a backward position.”

Dawson agreed, and she also testified that, if a semiautomatic weapon was

fired, she would expect to find spent shell casings. She agreed that “the spent

shell casing is the rear portion of ammunition or bullet in common terms.”

¶ 41 The State’s next witness, Detective Jose Gomez, testified that he had

been employed with the Chicago Police Department for 21 years. Detective

Gomez testified that, on August 5, 2010, he met with the victim at his residence

for the purpose of showing him a photo spread. The victim also called his

girlfriend and told her to come over “because [Detective Gomez] needed to talk

to her.” Both the victim and his girlfriend read and signed a lineup advisory

form and selected defendant from the photo spread. Detective Gomez testified

that the victim and his girlfriend viewed the spread separately. On August 6,

2010, the victim and his girlfriend also separately viewed a physical lineup at

the police station and selected defendant from the lineup. Detective Gomez

denied telling either the victim or his girlfriend that the detective had the

shooter or knew who the shooter was.

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¶ 42 On cross-examination, Detective Gomez testified that he spoke with the

victim outside of his house and that he did not recall speaking with the victim’s

grandmother. When Detective Gomez finished speaking with the victim and

finished showing him the photo spread, the detective asked the victim to contact

his girlfriend and “have her come over.” Thus, the victim’s girlfriend knew why

she was coming over, namely, because the detective “needed to talk with her.”

¶ 43 On cross-examination, Detective Gomez testified that, prior to visiting

the victim on August 5, 2010, he told him: “I’m going to show him some photo

arrays and if he sees the person who shot him on the date [of] the incident I

want him to pick him out.” Detective Gomez testified that he was aware that the

victim had been asked on July 3, 2010, about damage to the victim’s vehicle

and had refused to answer any further questions at that time. On August 5,

2010, the victim’s girlfriend arrived in 10 to 15 minutes. When Detective

Gomez testified that he could not recall what the victim’s girlfriend had stated

on August 5, 2010, the defense introduced defendant’s exhibit Nos. 1 and 2,

which were the two reports that Detective Gomez generated with respect to this

investigation. Exhibit No. 1 was the case report, and exhibit No. 2 was a general

progress report. After reviewing his reports, he testified that she did not inform

him either on August 5 or August 6, 2010, that she had gone to high school with

defendant.

24
 No. 1-15-2242

¶ 44 Detective Gomez testified that the victim and his girlfriend arrived

together at the police station on August 6, 2010, before viewing the physical

lineup. Neither of them informed the detective that they recognized any of

defendant’s tattoos, and the girlfriend never informed him that she knew

defendant.

¶ 45 On redirect examination, Detective Gomez testified that defendant was

the only person in both the photo spread and the lineup. On recross-

examination, he testified that he was aware that there were different ways to

show a photo lineup and one of those ways is to show the photos one at a time

instead of showing a group of photos as he did.

¶ 46 The State rested, and the trial court denied defendant’s motion for a

directed verdict. The defense called Detective Paul McDonagh, who testified

that he had been employed with the Chicago Police Department for 16½ years.

On July 3, 2010, after 3 a.m. he went to the hospital to interview the victim of a

shooting. When Detective McDonagh arrived, the hospital staff were still

working on the victim, and thus, the detective’s conversation with the victim

was “very limited.” The victim stated the offenders were “two Hispanic males”

dressed in black. The victim did not provide any information regarding either

tattoos or a shag haircut. After speaking briefly with the victim, Detective

McDonagh left the hospital and went to the vicinity of 28th Street and Harding

25
 No. 1-15-2242

Avenue, where the offense occurred. While there, he spoke to individuals who

identified themselves as witnesses. He also looked for firearm evidence and did

not find any “expended cartridge casings.” After returning to the hospital,

Detective McDonagh had “information” that he had “learned pursuant to the

investigation,” and he confronted the victim with that information. One of the

questions the detective asked was whether his vehicle had been rammed. The

detective had found physical evidence of fresh damage to the victim’s van.

Once the detective asked that question, the victim ended the conversation.

¶ 47 Detective McDonagh testified that on July 3, 2010, he also spoke with

the victim’s girlfriend and asked her to provide a description of the offenders.

She never told him that she recognized any of them or that one had gone to high

school with her. She told him that she could not give him access to her vehicle

because it had been given to the victim’s brother and she had no way of

contacting him. Neither the victim nor his girlfriend mentioned that the shooter

had tattoos. The victim did not state that it was because of the morphine he

received that he did not want to have a conversation. The detective’s questions

required only a one- or two-word answer, and the victim’s answers were

coherent. On recross-examination, Detective McDonagh testified that, when he

spoke with the victim, the victim was receiving “a drip” that, based on his

experience, is normally a saline solution with painkiller, “usually morphine.”

26
 No. 1-15-2242

The victim’s girlfriend was crying and distraught. While at the crime scene, the

detective was unable to obtain the names of any witnesses. The last question

defense counsel asked was: “[Y]ou had learned pursuant to your investigation at

the scene that the car had been rammed prior to shooting, correct?” The State

objected, and the trial court sustained the objection. The defense then rested,

and defendant did not take the stand.

¶ 48 After the jury was excused, defense counsel explained that Detective

McDonagh indicated in his report that there was a witness who told the

detective that the victim’s vehicle had been rammed by a van and that three

individuals exited their van and chased the victim around the vehicle while

shooting at him. Defense counsel argued that this version contradicted the

description of events testified to by the victim and his girlfriend. Although

hearsay, defense counsel argued that he should have been able to ask about the

victim’s reaction when confronted with this information. The court ruled, “[N]o

I don’t think there was any way for you to get into what you got into. I gave you

a great deal of leeway.”

¶ 49 After closing arguments, the trial court provided detailed jury

instructions, including that the jurors “should disregard questions and exhibits

that were withdrawn or to which objections were sustained” and “should

27
 No. 1-15-2242

disregard testimony and exhibits which the Court has refused or stricken.” 8 In

addition, the court instructed: “The evidence which you should consider

consists only of the testimony of the witnesses and the exhibits which the Court

has received.” After listening to the jury instructions and deliberating, the jury

found defendant guilty of attempted first degree murder and aggravated battery

with a firearm.

¶ 50 III. Posttrial Motions

¶ 51 On August 5, 2013, defense counsel filed a posttrial motion for a new

trial that made mostly boilerplate claims, such as that the State failed to prove

defendant guilty beyond a reasonable doubt. One of the few nonboilerplate

claims, which was made with an eye toward sentencing, was that defendant

“has no criminal record.”

¶ 52 On February 3, 2014, defense counsel filed an amended posttrial motion

for a new trial that claimed, among other things, that on December 11, 2013,

defense counsel had discovered new evidence of actual innocence that could not

have been discovered earlier. Attached to this motion were the affidavits of two

witnesses who averred that at a small “get together” on April 3, 2013, they

overheard the victim state that he had been shot but “that the person that had
8
Similarly, prior to trial, the trial court instructed the jury, including that
it “will decide the disputed issues of law that arise during the trial” and that “[i]f
an objection to a question is sustained, you should not guess at what the answer
might have been.”
28
 No. 1-15-2242

been locked up for it was not the person that shot him” and “that the friends of

the person that was locked up would have to give [the victim] money to drop

the charges.” One of the witnesses, Yesenia De La Cruz, averred that, in

November 2013, she spoke with defendant’s sister and asked the name of the

victim in defendant’s case. On December 4, 2013, De La Cruz called the other

witness, Rosa Pliego, and on December 11, 2013, they visited defense counsel

and swore out affidavits.

¶ 53 On April 30, 2014, defendant filed a pro se posttrial motion in which he

claimed, among other things, that “I feel my lawyer *** took advantage of me

because of my birth defect, I always was I Special Ed [sic] growing up in

school.” Attached to the motion was a letter by defendant in which he stated

that he was “an innocent man,” that he “was at home with my daughter [‘]n the

whole family,” and that he wanted to take a lie detector test.

¶ 54 On December 2, 2014, defendant engaged new counsel who submitted a

supplemental posttrial motion for a new trial that claimed defendant received

ineffective assistance of counsel for several reasons, including (1) that trial

counsel failed to move either for a mistrial or to suppress the identifications

after the victim and his girlfriend testified that the detective stated that the

shooter was in the photo spread and lineup and (2) that trial counsel failed to

introduce evidence of defendant’s tattoos. Attached to the motion was an

29
 No. 1-15-2242

affidavit from defendant in which he averred that he had taken special

education classes from second grade through sophomore year of high school

and that he has “the same tattoos on my hands today that I had on the date of

the offense.”

¶ 55 On March 10, 2015, defendant’s new counsel filed a second

supplemental posttrial motion claiming ineffective assistance of counsel for

several reasons, including that his trial counsel failed to call three alibi

witnesses, 9 that defendant’s sister had provided defendant’s trial counsel with

an affidavit from one of the three alibi witnesses prior to trial, and that when

defendant’s sister attempted to retrieve the affidavit from counsel after trial, he

denied knowledge of it.

¶ 56 IV. Posttrial Hearing

¶ 57 A. Defense Case

¶ 58 On defendant's posttrial motions for a new trial based on actual

innocence and ineffective assistance of counsel, the trial court held a posttrial

hearing on April 22, 2015. Defendant called seven witnesses. In sum, two

witnesses, Rosa Pliego and Yesenia De La Cruz, testified that they heard the

9
Defendant’s appellate brief states that the motion included affidavits
from the three alibi witnesses, but the affidavits are not attached to the motion
in the appellate record. However, the record does have their testimony at the
subsequent posttrial hearing.
30
 No. 1-15-2242

victim talking at a party about how the person in jail for the offense was not the

shooter and how the victim wanted money to drop the charges. Three alibi

witnesses testified that defendant was at home at the time of the offense, and

defendant’s sister, Nancy Gonzalez, testified that she brought affidavits from

the alibi witnesses to trial counsel prior to trial. The three alibi witnesses were

Rosario Calderon, the grandmother of defendant’s two daughters and the

mother of his girlfriend, and Rosario’s two sons, Julian Calderon and Victor

Zea. The three witnesses testified that defendant, Julian, and Zea were at home

playing video games during the night, at the time when the offense occurred.

Rosario lived in a one-family house, and defendant, his girlfriend, and their

daughters lived in the basement.

¶ 59 Defendant testified at the posttrial hearing that when he asked his trial

counsel why he did not contact the alibi witnesses, trial counsel replied that

they did not need them and he “got this beat.” Defendant testified that, during

the night of the shooting, he was at home watching his daughter but then she

went downstairs and went to sleep and he stayed upstairs with his girlfriend’s

brothers playing video games. Defendant also testified that the tattoos on his

hands were not gang tattoos but were his daughter’s names and that he had

these same tattoos when he was arrested. The parties stipulated that the tattoo

on defendant’s right hand was 4½ inches by 2 inches and stated “Nevaeh” with

31
 No. 1-15-2242

a heart on top of the “v”; and that the tattoo on his left hand was 3 inches by 1½

inches and stated “Alani.” 10

¶ 60 B. State’s Case

¶ 61 In response, the State called defendant’s trial counsel, who denied that

defendant’s sister gave him affidavits and explained that he decided not to

introduce evidence of the tattoos on defendant’s hands for fear that it might

open the door to gang evidence. 11 With respect to the tattoos, counsel testified:

“It was my belief that if we put in tattoos on his hands, that could possibly open

up the door to other gang evidence.” On cross-examination, trial counsel

testified that he recalled that defendant had a tattoo on one hand but did not

recall whether defendant had tattoos on both hands. He did not approach the

State or file a motion in limine seeking to prohibit the State from introducing

gang evidence if he introduced evidence of the hand tattoos on the ground that

this was solely a matter of identification.

¶ 62 Trial counsel testified that he learned from reading police reports that

defendant had told the police when he was arrested that he was at home during

10
According to both the presentence investigation report and defendant’s
testimony at the posttrial hearing, Nevaeh and Alani are the names of
defendant’s two daughters. “Nevaeh” is “heaven” spelled backwards.
11
This made limited sense, since the tattoos on defendant’s hands were
the names of defendant’s two daughters. In addition, defense counsel did, in
fact, try to introduce evidence of defendant’s tattoos when he asked defendant
to stand for the purpose of displaying them to the jury.
32
 No. 1-15-2242

the evening of the offense “taking care of his child at his child’s mother’s

residence.” 12 While trial counsel did meet prior to trial with Nancy Gonzalez,

defendant’s sister, he denied that she gave him affidavits from other possible

witnesses at that time or that he was ever informed, prior to trial, that defendant

had an alibi for the night of the offense that he was at home playing video

games.

¶ 63 Trial counsel testified that the only possible alibi defense that he was told

about was by defendant and the alibi was that defendant “was with his child’s

mother’s mother that evening. That they were having a relationship and

smoking marijuana.” By “relationship,” he testified that he meant “a physical,

sexual relationship.”13 Trial counsel told defendant that the alibi was not

“believable.” Defendant provided counsel with the grandmother’s telephone

number and asked trial counsel to contact her. “The next day or the day after,”

trial counsel placed a phone call and did not receive a reply. He testified that the

grandmother, Rosario Calderon, also did not call him. Trial counsel testified

that he did not pursue this line of defense because of defendant’s prior

statement to the police and because of a prior “statement by his children’s

mother that indicated that he had not been there and something to the effect

they [sic] she had not seen him on that day or a few days prior to.” When trial
12
Defendant also lived in the same house.
13
At the posttrial hearing, defendant denied ever telling counsel this.
33
 No. 1-15-2242

counsel was asked on cross-examination how defendant’s prior statement that

he was at home conflicted with an alibi that he was at home, counsel replied

that it conflicted with the girlfriend’s statement. However, trial counsel did not

explain and was not asked how the girlfriend’s statement that she had not

observed defendant that day or a few days before conflicted with an alibi that

defendant was at home that night. Counsel did testify: “I did not believe the

veracity of what he was telling me.”

¶ 64 Trial counsel testified that, at a posttrial court appearance, Rosario

Calderon, the grandmother of defendant’s daughters, accused him of not

returning her telephone calls. On direct examination, he testified that he tried to

call her once. On cross-examination, he testified, “[o]nce or twice,” and then

testified that he was “not sure how many phone calls [he] made.” The State also

called Rosario Calderon, who testified that she called trial counsel twice prior to

trial and that he never contacted her.

¶ 65 C. Ruling

¶ 66 The trial court denied the posttrial motions. In denying the motions, the

trial court made a number of observations, including that “the jury had more

than ample time to observe what counsel calls—what is already in the record as

the size of the tattoos on his hands” and that “just sitting there, you can see the

34
 No. 1-15-2242

tattoos.”14 In effect, the trial court found that the jurors had considered

defendant’s hand tattoos, despite the trial court’s express instruction to them not

to consider any exhibits “to which objections were sustained.”

¶ 67 With respect to the alibi, the trial court found that “these three witnesses

established an alibi for the defendant that would have put him in the house on [a

certain street] at the time of the shooting.” However, the trial court observed

that the alibi contradicted a statement that defendant’s girlfriend “apparently”

made to the police that defendant was not “at the house” and contradicted

defendant’s statement that he was at home watching his daughter. 15 In addition,

trial counsel testified that he was not told that defendant was playing video

games but that he was having sex and smoking marijuana with his daughters’

grandmother, which was a story that counsel found unbelievable.

¶ 68 The trial court found that “the video game alibi was a good alibi” but that

“it would be strategically very risky thing to do knowing that it is going to be
14
In its ruling on the posttrial motions, the trial court did not explain how
the jurors were supposed to know that they were free to consider this evidence,
after the trial court had barred it in front of them and then instructed them to
disregard any evidence “to which objections were sustained.” Immediately after
the victim had described the shooter’s tattoos, defense counsel asked defendant
to stand up, and the jury heard the court prohibiting defendant from showing his
tattoos.
15
The State’s “Answer to Discovery,” filed February 13, 2013, states that
defendant’s girlfriend made a written statement that was provided to defendant
in open court and that police reports were also provided in open court.
However, the appellate record contains neither her written statement nor police
reports.
35
 No. 1-15-2242

shot out of the water by Chicago police officers” who spoke earlier to defendant

and his girlfriend.

¶ 69 With respect to Rosa Pliego and Yesenia De La Cruz, who testified that

they heard the victim talking at a party about how the person in jail for the

offense was not the shooter and how he wanted money to drop the charges, the

trial court found that it reflected poorly on their credibility that they waited to

report what they had heard. The trial court observed that the party occurred

three weeks before trial but they did not come forward with this information

until after trial. The trial court found this information should have led to “a mad

dash to the lawyer’s office to get the lawyer to stop the imminent trial.”

¶ 70 After reviewing the evidence, the trial court denied the posttrial motions

for a new trial.

¶ 71 V. The Sentencing

¶ 72 On June 25, 2015, defendant’s new counsel filed a third supplemental

posttrial motion, in which he claimed that the State failed to prove great bodily

harm. The jury instructions stated that the State had charged that, during the

commission of attempted first degree murder, defendant had personally

discharged a firearm that proximately caused great bodily harm.

¶ 73 On June 25, 2015, the trial court denied the third supplemental posttrial

motion and proceeded to sentencing. After hearing from three witnesses in

36
 No. 1-15-2242

mitigation and listening also to factors in aggravation, the trial court sentenced

defendant to 38 years with IDOC for attempted murder and 10 years for

aggravated battery, to run concurrently. Defendant immediately filed a motion

to reconsider sentencing, which was denied. On June 25, 2015, defendant filed

a notice of appeal, and this timely appeal followed.

¶ 74 ANALYSIS

¶ 75 Since the evidence in this case was closely balanced and we find that the

trial court did err in ruling that defendant could not offer evidence of his tattoos

without testifying, and where the trial court failed to consider the testimony of

Yesenia De La Cruz and Rosa Pilego, we remand for a new trial. We find that

the tattoo evidence, together with the testimony of De La Cruz and Pilego,

could reasonably change the result of the verdict in this case.

¶ 76 I. Tattoos

¶ 77 On appeal, defendant claims that the trial court erred in barring him from

showing his hand tattoos to the jury without subjecting himself to cross-

examination. In the case at bar, identification was the only issue, and

defendant’s only defense at trial was misidentification. The only evidence

linking defendant to the offense were the identifications of the victim and his

girlfriend, who did not tell the police initially that the shooter had any tattoos.

37
 No. 1-15-2242

Defendant claims that barring the jury from considering the prominence, type,

and size of his tattoos prevented him from offering a meaningful defense.

¶ 78 The trial court stated that it barred the display because the prosecution

lacked the opportunity to cross-examine defendant as to when the tattoos were

placed on defendant’s hands. Thus, defendant’s claim on appeal raises a purely

legal question, namely, whether a display of tattoos is testimonial and subject to

cross-examination, as the trial court found. While evidentiary rulings are

generally within the sound discretion of the trial court, de novo review applies

to an evidentiary question if that question concerns how to correctly interpret a

rule of law. People v. Caffey, 205 Ill. 2d 52, 89 (2001); People v. Williams, 188

Ill. 2d 365, 369 (1999) (“Where a trial court’s exercise of discretion has been

frustrated by an erroneous rule of law, appellate review is required ***.”). An

abuse of discretion occurs where the trial court’s ruling is arbitrary, fanciful, or

unreasonable or where no reasonable person would take the view adopted by

the trial court. People v. Patrick, 233 Ill. 2d 62, 68 (2009). By contrast, de novo

consideration means that we perform the same analysis that a trial judge would

perform. People v. Schlosser, 2017 IL App (1st) 150355, ¶ 28.

¶ 79 Simply put, the exception to the general rule of deference applies in cases

where a trial court’s exercise of discretion has been frustrated by the erroneous

application of a rule of law. Caffey, 205 Ill. 2d at 89. Where “the only issue for

38
 No. 1-15-2242

the reviewing court is the correctness of the trial court’s legal interpretation,

de novo review is appropriate.” People v. Risper, 2015 IL App (1st) 130993,

¶ 33. Thus, de novo review applies to this claim. However, our result would be

the same whichever standard we applied.16

¶ 80 A criminal defendant is constitutionally guaranteed a meaningful

opportunity to present a complete defense. People v. White, 2017 IL App (1st)

142358, ¶ 30 (citing Holmes v. South Carolina, 547 U.S. 319, 324 (2006);

People v. Ramirez, 2012 IL App (1st) 093504, ¶ 43; U.S. Const., amends. VI,

XIV; Ill. Const. 1970, art. I, § 8). The right is abridged by evidentiary rulings

that infringe upon a weighty interest of the accused and are arbitrary or

disproportionate to the purpose the purpose that they are supposed to serve.

Holmes, 547 U.S. at 324. Arbitrary rules are ones “that excluded important

defense evidence but that did not serve any legitimate interests.” Holmes, 547

U.S. at 325.

¶ 81 Defendant argues in his brief to this court that Illinois courts have long

held that physical in-court demonstrations are not testimony, and the State does

16
Neither party on appeal has much discussion about the appropriate
standard of review. The State assumes that the abuse-of-discretion standard
applies.
39
No. 1-15-2242

not dispute this point of law.17 People v. Warmack, 83 Ill. 2d 112, 126 (1980)

(“no testimonial compulsion was involved” when the trial court forced the

defendant to model certain clothing in front of the jury); People v. James, 348

Ill. App. 3d 498, 508-09 (2004) (“a tattoo was not testimonial in nature and the

defendant’s sixth amendment right to confrontation was not violated where a

nontestifying codefendant’s gang tattoos were displayed to the jury”); 18 see also

Gilbert v. California, 388 U.S. 263, 266 (1967) (compelling the defendant to

provide handwriting exemplars did not violate his fifth amendment privilege

against self-incrimination); People v. Hayes, 353 Ill. App. 3d 355, 360 (2004)

(no error occurred when the trial court ordered the defendant to walk before the

jury in order to demonstrate a limp); People v. Speirs, 231 Ill. App. 3d 807,

807-09 (1992) (no error occurred when the defendant was compelled to show

the tattoo on his arm to the jury, after the victim testified that he recalled a

tattoo on his attacker’s arm).

17
Although in its appellate brief the State “maintain[s] that the trial
court’s evidentiary rule was correct,” it offers no discussion of statute or case
law to support that assertion.
18
See also United States v. Hubbell, 530 U.S. 27, 35 (2000) (“[A]
criminal suspect may be compelled to put on a shirt, to provide a blood sample
or handwriting exemplar, or to make a recording of his voice. The act of
exhibiting such physical characteristics is not the same as a sworn
communication by a witness that relates either express or implied assertions of
fact or belief.”).
40
 No. 1-15-2242

¶ 82 In People v. Davenport, 301 Ill. App. 3d 143, 154 (1998), a police officer

was allowed to testify to the gang significance of a tattoo on a co-defendant

while the co-defendant was required to stand in the well of the courtroom and

display his tattoo. In that case of first impression in a trial which was

conducted jointly before two juries, we recognized that the courtroom display

of the co-defendant's gang related tattoos, was not testimony, and did not trigger

Davenport's Sixth Amendment right to cross-examine the prosecution's

witnesses because the co-defendant's body was used as an exhibit or

demonstrative evidence. Davenport, 301 Ill. App. 3d 3d at 154.

¶ 83 In People v. Speirs, 231 Ill. App. 3d 807, 811 (1992), although not based

upon the non-testimonial nature of the display, the appellate court held that the

trial court properly required a defendant who was charged with aggravated

battery to remove his jacket to reveal his tattoos on his arms which were similar

to those described by the victim, since those tattoos were relevant to the issue of

identification.

¶ 84 More recently, there is authority which suggests a defendant should be

allowed to demonstrate or display his tattoos without providing testimony. In

People v. White, 2017 IL App (1st) 142358, ¶ 36, this court vacated the

defendant's conviction and remanded for new trial where the trial court's

erroneous limitation and exclusion of defendant's arm tattoos was not harmless.

41
 No. 1-15-2242

Here, the trial judge did not have the benefit of the White decision when he

ruled, nor was the issue in White the same as the one we are confronted with in

this appeal. Since this specific issue has not been addressed directly in any

other Illinois decision, it is this court's opinion that we should set forth a clear

rule for trial judges to follow when confronted with a similar issue in the future.

¶ 85 Courts of other jurisdictions which have dealt directly with the issue of a

defendant's request to display some physical characteristics without testifying

have allowed such displays on the basis of due process. These courts have held

that to permit the State the right to require a defendant to display some physical

characteristic without allowing a defendant the same right to display a physical

characteristic would violate that defendant's right to due process. See State v.

Martin, 519 So. 2d 87, 90-93 (1988) (since defendant could have been

compelled by the State to demonstrate any tattoos he had on his body, without

violating his privilege against self-incrimination, as display would not be

testimonial, defendant was entitled to show his tattoos or lack of them at trial

where such display was material, without any cross-examination as to tattoo's

origin); U.S. v. Bay, 762 F.2d 1314, 1315-17 (1984) (holding that it was error to

refuse bank robbery defendant, who did not take the stand, to exhibit to the jury

the tattoos on the backs of his hands, where on cross-examination, the teller at

the bank testified that she did not remember anything unusual about defendant's

42
 No. 1-15-2242

hands except that he had long fingers; the hand display would be relevant to

other robbery counts where other tellers saw defendant do things with his hands

and handed him money and, when asked what they remembered about the

perpetrator's appearance, specifically including his hands, they did not mention

any tattoos on the perpetrator's hands). Based upon all of the above, we find

that a defendant's right to display a physical characteristic should not be

conditioned upon a defendant's relinquishment of his Fifth Amendment right

not to testify.

¶ 86 Like the introduction of any physical evidence, a foundation for that

evidence is required. Therefore, the party offering a tattoo into evidence, to be

published or displayed to the jury, has the burden to establish a foundation that

the tattoo was placed on the defendant or viewed by others at the relevant time.

Without such a foundation, a display of tattoos or a lack of tattoos would have

no evidentiary basis.

¶ 87 In the case at bar, the trial court stated that it barred the display, for the

following reasons:

“Well, the problem I have with this and the reason I didn’t let you do

it is because there’s absolutely no way for the prosecution to cross-

examine your client, when the tattoo was placed on [his] hand, how long

he’s had the tattoo, whether he had receipts for the tattoo so [defendant]

43
 No. 1-15-2242

wants to show his hand to the jury, he’s going to have to do it from the

witness stand so that the prosecution can cross-examine him about that

which he’s offering into evidence.”

Not only is that ruling legally wrong as we discussed above, it was also

factually problematic for the following reasons. The victim testified that he was

“100 percent sure” that defendant was the shooter because he had “a good

glimpse of his tattoos”—when the ASA cut off his answer. The lineup photos in

evidence were not taken from above defendant’s hands but from the front of his

hands which were flat on his lap and, thus, show a two-dimensional or

horizontal view of the tattoos. However, the hand tattoos are unmistakably there

and unmistakably in evidence, as of the date the photos were taken, but not

necessarily before that time. What is not in evidence is a good view of how eye-

catching and prominent they are, and what they actually display. People v.

Minter, 2015 IL App (1st) 120958, ¶ 95 (discussing another case, this court

observed that “the defendant’s tattoos were relevant to establish his identity

because one of the State’s witnesses identified him by the tattoos”).

¶ 88 If the jurors were faithfully following the instructions given to them, and

we have been given no reason to think that they were not, then the jurors were

told specifically to disregard any evidence, “to which objections were

sustained,” such as the tattoos on defendant’s hands. The trial court’s ruling

44
 No. 1-15-2242

caused the jurors, if they were following the instructions, to disregard this

evidence.

¶ 89 When the trial court revisited the issue again during the posttrial hearing,

the trial court found no error, finding that the tattoos were “obvious to the jury”

and, “just sitting there, you can see the tattoos.” Again, this assumes that the

jurors considered the evidence that they had been explicitly told not to consider.

¶ 90 Apart from a defendant testifying himself, there are any number of ways

of laying a proper foundation for the viewing of tattoos. Any witnesses who

knew defendant could testify that he had the tattoos at or before the date of the

shooting. A receipt or other business record from a tattoo parlor, if properly

introduced, could also establish a foundation—all without subjecting defendant

to cross-examination. Defendant concedes on appeal that he failed to preserve

this issue for appeal. We find that the trial court's ruling, that defendant could

not admit evidence of his tattoos without surrendering his right not to testify,

constituted a clear and obvious error. Thus, the next question is whether this

ruling rose to the level of plain error. 19

¶ 91 When a defendant has failed to preserve an error for review, we may still

review the issue for plain error. People v. Sebby, 2017 IL 119445, ¶ 48; Ill. S.

Ct. R. 615(a) (“Plain errors or defects affecting substantial rights may be
19
This court is not certain that this concession is correct, but we accept it
for purposes of our analysis.
45
 No. 1-15-2242

noticed although they were not brought to the attention of the trial court.”). The

plain error doctrine allows a reviewing court to consider unpreserved error

when (1) a clear or obvious error occurred and the evidence is so closely

balanced that the error also threatened to tip the scales of justice against the

defendant, regardless of the seriousness of the error, or (2) a clear or obvious

error occurred and the error is so serious that it affected the fairness of the

defendant’s trial and challenged the integrity of the judicial process, regardless

of the closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565

(2007). For the reasons already explained above, a clear and obvious error

occurred. Thus, we next consider whether the evidence was closely balanced.

To determine whether the evidence at trial was close, “a reviewing court must

evaluate the totality of the evidence and conduct a qualitative, commonsense

assessment of it within the context of the case.” Sebby, 2017 IL 119445, ¶ 53.

¶ 92 At trial, as we have explained, the State presented no evidence linking

defendant to the offense except for the identifications by the victim and his

girlfriend. The State offered no testimony that defendant was arrested at or near

the scene of the crime. The State did not introduce a confession or any

incriminating words or actions by defendant. The State presented no evidence

that defendant tried to flee or avoid the police. The evidence technician testified

that she recovered no gun or ballistics evidence from the scene. The State

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 No. 1-15-2242

offered no items found on or near defendant, such as ammunition. Although the

victim testified that the shooter tried to enter the victim’s van, inside and out,

the evidence technician stated that she did not look for fingerprints.

Immediately after the offense, the only description that the victim and his

girlfriend provided was that the offenders were Hispanic men dressed in

black—a description that could fit a vast number of men in the city of Chicago.

The State provided no evidence or testimony of how the police came to select

this particular Hispanic man to place in a photo spread. Defendant had no prior

felony convictions and only three minor misdemeanors from years ago. In sum,

there was no introduced link between defendant and the shooting except for the

victim’s and his girlfriend’s selection of defendant from the photo spread and

lineup shown to them.

¶ 93 While the identification of one eyewitness is enough to find that the

evidence was sufficient to find defendant guilty beyond a reasonable doubt (e.g.

People v. Smith, 185 Ill. 2d 532, 545 (1999)), the question for us at this juncture

in our analysis is not sufficiency but whether the evidence was closely

balanced. Piatkowski, 225 Ill. 2d at 566 (“[w]hether the evidence is closely

balanced is, of course, a separate question from whether the evidence is

sufficient to sustain a conviction”).

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 No. 1-15-2242

¶ 94 At trial, as we have explained, the State presented no evidence linking

defendant to the offense except for the identifications by the victim and his

girlfriend. The State offered no testimony that defendant was arrested at or near

the scene of the crime. The State did not introduce a confession or any

incriminating words or actions by defendant. The State presented no evidence

that defendant tried to flee or avoid the police. The evidence technician testified

that she recovered no gun or ballistics evidence from the scene. The State

offered no items found on or near defendant, such as ammunition. Although the

victim testified that the shooter tried to enter the victim’s van, inside and out,

the evidence technician stated that she did not look for fingerprints.

Immediately after the offense, the only description that the victim and his

girlfriend provided was that the offenders were Hispanic men dressed in

black—a description that could fit a vast number of men in the city of Chicago.

The State provided no evidence or testimony of how the police came to select

this particular Hispanic man to place in a photo spread. Defendant had no prior

felony convictions and only three minor misdemeanors from years ago. In sum,

there was no evidentiary link between defendant and the shooting except for the

victim’s and his girlfriend’s selection of defendant from the photo spread, the

lineup shown to them and their in-court identifications.

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 No. 1-15-2242

¶ 95 Both eyewitnesses testified at trial that, prior to their initial identification

from the photo array, the police told them (1) that the police had found the

shooter and (2) that his photo was in the photo array. The witnesses were

thereby encouraged to select the photo that most resembled the shooter rather

than selecting a photo only if they were positive it was, in fact, the shooter.

After the ASA led the victim’s girlfriend through every line of the advisory

form on redirect examination, she answered “no” on recross-examination when

asked if the police told her that they had identified the person who shot the

victim. However, it is unclear if this “no” referred to the form or to the prior

conversation that she had already testified to because, when subsequently asked

if the police told her that she was “going to sign” on the photo of the person

who shot the victim, she replied affirmatively.

¶ 96 This error was compounded when defendant was the only person to

appear in both the photo array and the subsequent lineup. Since the police told

the witnesses that they had found “the shooter” and since defendant was the

only person in both the photo array and the lineup, the only person who could

have possibly been “the shooter,” according to the police, was defendant, who

was the only person to appear in both displays.

¶ 97 The police conduct in conducting the photo array and lineups may have

undermined the reliability of the identification by the victim, who testified that

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he had never observed either the shooter or defendant before. However, the day

before trial, the victim’s girlfriend volunteered to the authorities, 20 for the first

time, that she recognized defendant from school. Thus, if believed, she had

some independent basis for recognizing defendant. However, her view of the

shooter was compromised, since she testified that she observed only the side of

the shooter’s face. She was sitting inside her vehicle rather than standing on the

street as the victim had been.

¶ 98 We reverse and remand for a new trial. Based upon all the above, we

find that the trial court erred in denying evidence of defendant's tattoos. The

evidence of the tattoos, and the two additional witnesses who claim the victim

admitted that defendant is not the person who shot at him, could possibly

change the result in this case and meet the test for a new trial based upon actual

innocence. People v. Ortiz, 235 Ill. 2d 319, 332 (2009) (to support a claim of

actual innocence, the evidence must be newly discovered, material and not

merely cumulative, and of such a conclusive character that it would probably

change the result on retrial).

20
As we discussed, she never told the police. She told the prosecutor the
day before trial.
50
 No. 1-15-2242

¶ 99 II. Double Jeopardy

¶ 100 When a reviewing court remands for a new trial, it must consider whether

a new trial would violate double jeopardy. People v. McKown, 236 Ill. 2d 278,

311 (2010). If the evidence presented at the first trial could permit “any”

rational trier of fact to find defendant guilty, retrial is permitted. McKown, 236

Ill. 2d at 311; White, 2017 IL App (1st) 142358, ¶ 36 (observing “the minimal

standard for a sufficiency of the evidence challenge”). Since one eyewitness

identification can render a verdict simply sufficient, double jeopardy is not a bar

to a new trial. E.g. Smith, 185 Ill. 2d at 545 (the testimony of a single witness

may be sufficient to convict).

¶ 101 CONCLUSION

¶ 102 For the foregoing reasons, we reverse and remand for a new trial.

¶ 103 Reversed and remanded with instructions.

¶ 104 PRESIDING JUSTICE McBRIDE, specially concurring:

¶ 105 Although I agree with the decision to reverse and remand for a new trial,

I do so for two simple reasons: (1) the trial court’s denial of defendant’s request

to present evidence of his tattoos was an error that was plain; the evidence was

closely balanced and defendant has carried his burden of persuasion that the

outcome of the trial would probably have been different if he had been allowed

to present this evidence (People v. Herron, 215 Ill. 2d 167, 178-79, 186-87

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(2005); and, (2) the motion for a new trial based upon actual innocence should

have been granted. It is the combination of these two rulings under the facts and

circumstances of this case which undermines confidence in the outcome of

defendant’s trial and warrants a reversal and remand for a new trial.

¶ 106 Speaking first to the motion for a new trial, it is my opinion that

defendant clearly established the evidence was new, material, non-cumulative,

and likely to change the outcome on retrial. People v. Molstad, 101 Ill. 2d 128,

134-36 (1984). The most significant testimony presented on the claim of actual

innocence at the hearing on defendant’s multiple motions for a new trial, was

that of Rosa Pilego and Yesenia De La Cruz. Both witnesses testified that they

attended a party where the victim in this case, Mr. Montenegro, spoke about

being shot and that the person in jail for shooting him, was not the person who

actually shot him. Montenegro was also heard to say that he wanted money

from that person’s family and friends in order for him to drop the charges

against that person. Thus, under Molstad, this evidence should have been

scrutinized more closely to determine defendant’s guilt or innocence. Molstad,

101 Ill. 2d at 136.

¶ 107 Considering the closeness of the evidence in this case, which I describe

below, the outcome of the defendant’s trial probably would have been different

had the jury heard from these two witnesses. Finally, although, the trial court

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rejected the new alibi testimony, based upon the claim of ineffectiveness of trial

counsel, the hearing did disclose that there were other alibi witnesses available

to testify at a new trial. It should also be noted that there was no conflict

concerning these new alibi witnesses, because of a statement made by the

mother of defendant’s children. Her hearsay statement, which was actually

never testified to but was made to a police officer shortly after defendant’s

arrest, could not be used to impeach another alibi witness’s statement that

defendant was with that person on the night of this shooting. The person to

whom it was made, a police officer, if it was made, could not testify to this

hearsay statement and it is doubtful that the mother of defendant’s children

would testify and possibly be impeached, when other alibi witnesses were

available. In any event, the testimony of these two witnesses, Pilego and DeLa

Cruz, regarding statements of the victim which indicated this defendant did not

shoot the victim were, in themselves, sufficient to undermine confidence in the

verdict at defendant’s trial.

¶ 108 As to the presentation of the tattoo evidence, I agree, for the reasons cited

above, that defendant should have been allowed to present this evidence

without surrendering his right not to testify. However, it is also apparent from

the record of the proceedings on defendant’s motions for a new trial that

defendant’s sister would also have been available to testify that defendant’s

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tattoos were on his hands at or around the time of the commission of the

offenses at issue here. Her testimony at that hearing established a sufficient

foundation to show that the tattoos were on defendant’s hands and in place at

the time of the shooting. This testimony surrounding the placement of

defendant’s tattoos would also probably change the result on retrial. Further,

any claim that this evidence would open the door to gang evidence is not

supported by this record, because there is no question that the tattoos were the

names of defendant’s two daughters and nothing more. Consequently, there was

sufficient evidence to show that a new trial should have been granted based

upon what can only be described as a closely balanced case. Although the

evidence presented at trial was enough to satisfy the sufficiency of the evidence

argument on appeal, it is not enough to withstand the defendant’s argument on

his right to present his defense and whether he is entitled to a new trial on actual

innocence grounds.

¶ 109 As to plain error, there is little doubt that the evidence in this case was

closely balanced. Both eyewitnesses were impeached on numerous matters,

their identifications were riddled with inconsistencies, and the victim of the

shooting was a convicted felon. The prosecution’s case also lacked

corroborating physical evidence, or any incriminating statement of defendant.

In addition, and very early on, the victim refused to answer questions posed by

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police concerning what another unnamed eyewitness told police about this

shooting, specifically whether prior to the shooting, the victim’s vehicle was

rammed by another vehicle, that three people—not two—got out of that other

vehicle, and that they then chased the victim on the street and eventually shot

him. This area of inquiry was not allowed to be explored by the defense even

though it was completely contrary to the version of events testified to by the

victim and his girlfriend, and even though there was evidence that a police

officer noticed that the victim’s vehicle appeared to have been recently

damaged. Granted, this testimony was perhaps, inadmissible, but the testimony

that an officer noticed recent damage to the victim’s vehicle was not hearsay

and these facts show that the victim was uncooperative and demonstrate further

evidence concerning the victim’s credibility.

¶ 110 Since we are remanding for a new trial, it is not necessary to address any

of the defendant’s other claims, in particular, the claim of ineffectiveness of

trial counsel. Accordingly, I concur in the decision to reverse and remand for a

new trial for the two reasons stated in this special concurrence.

¶ 111 JUSTICE BURKE, dissenting:

¶ 112 I write separately because I disagree with the majority’s conclusion that

the trial court committed reversible error in preventing defendant from showing

his tattoos to the jury. Although the majority has not addressed the defendant's

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claim of ineffective assistance of counsel due to the reversal on other grounds, I

also write separately to address the ineffective assistance of counsel claim that

was briefed by both parties.

¶ 113 The victim and his girlfriend testified for the State that on July 3, 2010,

they were waiting for a tow truck in the girlfriend’s SUV when two men

approached the victim’s nearby van. The victim approached the two men

because he believed they were attempting to steal the stereo from his van.

Defendant had been leaning inside of the van. Defendant pulled a gun out of his

waistband when the victim was six or seven feet away him, and he shot the

victim three times in the hand, once in the leg, and once in the posterior. The

victim and his girlfriend testified that the streetlights provided enough light so

that they could see clearly. The victim could see defendant’s face and identified

him as the shooter in a photo array, in a lineup, and at trial. He had never seen

defendant before the shooting, but was sure defendant was the shooter because

he got a good look at his face and the tattoos on his arms.

¶ 114 The victim’s girlfriend also testified that she could see the sides of both

men’s faces from the SUV and identified defendant as the shooter in a photo

array, in a lineup, and at trial. The victim’s girlfriend also testified that she

recognized defendant because they attended the same high school, but she

acknowledged that she did not tell police that information. The victim told

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 No. 1-15-2242

police that there were two male offenders, both of whom were Latino, wearing

black and beige clothing. The jury found defendant guilty of the charged

offense.

¶ 115 Defense counsel filed a posttrial motion for a new trial alleging that there

was newly discovered evidence of defendant’s actual innocence. Defendant

engaged new counsel who filed two supplemental posttrial motions.

Defendant’s new counsel alleged that defendant’s trial counsel provided

ineffective assistance by, inter alia, not introducing evidence of defendant’s

hand tattoos and failing to call three alibi witnesses.

¶ 116 The court held an extensive hearing on defendant’s posttrial motions

where defendant called seven witnesses. Two of the witnesses testified that they

heard the victim state that the person who was “locked up” was not the person

who shot him, and that he wanted money from that person’s friends or family to

drop the charges. Defendant also presented the testimony of three alibi

witnesses who testified that defendant was at home playing video games at the

time of the offense. Defendant’s sister testified that she presented affidavits

from these alibi witnesses to defendant’s trial counsel prior to trial. Defendant

testified that he asked his trial counsel about the alibi witnesses, but trial

counsel told him that he did not need to call the alibi witnesses because he

could win the case without them.

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 No. 1-15-2242

¶ 117 The State presented the testimony of defendant’s trial counsel who

testified that he did not present an alibi defense because the police reports

indicated that defendant’s girlfriend told police that defendant was not at the

house that day. Trial counsel testified that the only alibi evidence he was

presented with prior to trial was defendant’s claim that at the time of the offense

he was having sex with his children’s maternal grandmother. Trial counsel did

not present this alibi because he did not believe defendant was being truthful,

and because it was contradicted by defendant’s girlfriend’s statement to police.

Trial counsel testified that he had met with defendant’s sister, but she had not

given him any affidavits. Trial counsel also testified that he was never presented

with any evidence regarding defendant being at home playing video games at

the time of the offense.

¶ 118 Trial counsel also testified that he made a strategic decision to not

introduce evidence of defendant’s tattoos at trial because, based on the pretrial

motion in limine, that would open the door for the State to present evidence of

defendant’s gang-related tattoos. He believed, however, that questioning the

witnesses regarding whether they saw defendant’s tattoos was relevant to

defendant’s defense.

¶ 119 The trial court denied defendant’s posttrial motions finding that the

testimony of the alibi witnesses that defendant was at the house playing video

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 No. 1-15-2242

games at the time of the shooting contradicted the statement defendant’s

girlfriend gave to police that defendant was not at the house that day. The court

also noted that trial counsel did not find defendant’s alibi, the only alibi he

knew about prior to trial, believable. The court thus determined that it was

reasonable for trial counsel to not present an alibi defense because of the State’s

opportunity for impeachment. With regard to defendant’s tattoos, the court

observed that the jury had the opportunity to observe the tattoos on defendant’s

hands throughout the trial, even though defense counsel did not present any

evidence of them.

¶ 120 The court also rejected defendant’s claim of actual innocence based on

the testimony of two witnesses, noting that because they knew defendant, the

court did not believe the two witnesses would wait to come forward until after

the trial. Accordingly, the court did not find their testimony credible.

¶ 121 I disagree with the majority’s conclusion that the trial court’s comments

that defendant could not introduce evidence of his tattoos without taking the

stand and being subject to cross-examination constituted reversible error. The

majority addresses this issue as an error of law subject to de novo review. I find

that not only does the majority apply the incorrect standard of review, but the

majority’s analysis also confuses the issue. The majority presents the issue as

whether defendant’s demonstration would be testimonial. The issue identified

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by the trial court, however, was one of foundation, an issue the majority touches

upon only briefly and only after finding error.

¶ 122 Initially, the majority correctly recognizes that evidentiary rulings are

generally within the sound discretion of the trial court, and that such rulings

will not be reversed absent an abuse of discretion. People v. Caffey, 205 Ill. 2d

52, 89-90 (2001). Without much explanation, however, the majority concludes

that de novo review is appropriate in this case because “defendant’s claim on

appeal raises a purely legal question, namely, whether a display of tattoos is

testimonial and subject to cross-examination.” This, however, is

mischaracterization of the trial court’s ruling. The majority quotes from the trial

court’s comments, but ignores the substance of the statements. The trial court

stated that:

“Well, the problem I have with this and the reason I didn’t let you

do it is because there’s absolutely no way for the prosecution to cross-

examine your client, when the tattoo was placed on [his] hand, how long

he’s had the tattoo, whether he had receipts for the tattoo so [defendant]

wants to show his hand to the jury, he’s going to have to do it from the

witness stand so that the prosecution can cross-examine him about that

which he’s offering into evidence.”

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 No. 1-15-2242

¶ 123 Here, the court’s comments identify the crux of the issue that the

majority glosses over: foundation. The court’s comments recognize that

defendant has a right to not testify and he would not waive that right by

showing his tattoos to the jury, i.e., that demonstration would be non-

testimonial. The court clearly states that if defendant were to show his tattoos to

the jury “there’s absolutely no way for the prosecution to cross-examine your

client,” that is, defendant is in “no way” subject to cross-examination merely by

displaying his tattoos to the jury. The court’s concern, however, was

establishing a foundation for when the tattoos were placed on defendant’s

hands.

¶ 124 It is important to remember that, in this case, the shooting occurred on

July 3, 2010. The victim and his girlfriend viewed a photo array with

defendant’s photograph on August 5, 2010, and viewed the lineup with

defendant in it on August 6, 2010. The trial court acknowledged that

defendant’s hand tattoos were visible in the lineup photograph, but this cannot

and does not serve as evidence that defendant had the tattoos on the night of the

incident over a month prior.

¶ 125 Defense counsel was offering evidence of the tattoos to challenge the

witnesses’ identification. However, defendant’s tattoos are relevant only if he

had them on the date of the offense. Thus, based on how this issue was

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presented to the trial court, defendant was the only person who could provide

the required foundation. The court thus correctly found that if defendant wanted

to display his tattoos in the manner defendant requested, he would have to take

the stand to establish a proper foundation and be subject to cross-examination

on that topic. As the majority recognizes, defendant could have established a

foundation for the tattoos through another witness or through a business record,

if admissible. However, that was not the issue that was presented to the trial

court, and the trial court was merely required to rule on the issue that was

presented to it, not to suggest every possible avenue through which defendant

could establish a foundation for this evidence.

¶ 126 The majority’s misidentification of the issue is further illustrated by its

citation to People v. White, 2017 IL App (1st) 142358. Somewhat

contradictorily, the majority notes that the trial court did not have the “benefit”

of the White decision when it ruled, but also finds that the “issue in White [was

not] the same as the one we are confronted with in this appeal.” The majority is

correct that the issue in this case was not before the White court. In White, the

issue was whether the trial court denied defendant a meaningful opportunity to

present his defense and confront the witnesses against him by being permitted

to display both his arm tattoos. Id. ¶ 30. There was no discussion in that case of

whether such a demonstration was testimonial and there was no discussion of

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 No. 1-15-2242

whether defendant presented a proper foundation. Notably, however, the

majority in White noted that it took “no issue with the proposition that a court

may limit, restrict, or deny altogether a demonstration in the appropriate

circumstances. And we will defer to that ruling unless we find, as we do here,

that the court abused its discretion.” White, ¶ 37. Thus, the court in White

recognized, unlike the majority here, that whether to permit defendant to

display his tattoos is within the trial court’s discretion, and that, under

appropriate circumstances, the court may restrict or deny defendant an

opportunity to do so.

¶ 127 In this case, there is simply no basis to find that the trial court abused its

discretion where defendant failed to establish any foundation to show that he

had the tattoos on the date of the offense. The court’s comments do not suggest

that defendant was precluded from introducing this evidence unless he waived

his right to testify, but merely suggest that if defendant, personally, was going

to introduce the evidence of his tattoos suggesting that he had them on the date

of the offense, then defendant would be required to establish the foundation for

that evidence and be subject to cross-examination for his foundational

testimony. Such a ruling does not represent an abuse of discretion.

¶ 128 The majority’s concludes that the court’s error constituted plain error. As

discussed, I do not find that the court’s ruling constituted clear or obvious error,

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and thus no plain error occurred. Even assuming an error occurred, however, I

would not find that the evidence was closely balanced and that the error

threatened to tip the scales of justice against defendant. People v. Piatkowski,

225 Ill. 2d 551, 564-65 (2007) (quoting People v. Herron, 215 Ill. 2d 167, 186-

87 (2005)). At trial, the victim testified that he identified defendant by his

haircut, the tattoos on his arms, and because he was able to see defendant’s face

from six or seven feet away on a well-lit street. When defense counsel asked the

victim if he had a clear look at defendant’s hands, the victim responded, “No. I

was focused on the face.” The victim also testified that he clearly saw a tattoo

on defendant’s arms of a “letter ‘A’ and some bunny ears.”

¶ 129 The victim’s girlfriend similarly testified that she was able to see the side

of defendant’s face as he approached the victim’s van. Defense counsel

questioned both witnesses regarding whether they observed any tattoos on

defendant’s hands, and they both testified that they did not. Thus, there were

two positive identifications of defendant, and both witnesses testified that they

relied on physical characteristics other than defendant’s hands in identifying

him, whether or not he had the hand tattoos at the time of the shooting. This

evidence was sufficient to prove defendant guilty at trial, and there is no basis

for finding that if defendant had been permitted to display his hand tattoos to

the jury that the result would have been different. Thus, the evidence was not so

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closely balanced that the evidence of defendant’s hand tattoos would have

tipped the scales of justice.

¶ 130 Finally, during posttrial proceedings, the trial court heard testimony from

two witnesses who claimed to hear the victim saying that defendant was not the

shooter and would drop the charges if he received money from the defendant’s

family and friends. The trial court did not just review affidavits from the

potential witnesses making these claims. The trial court conducted an extensive

hearing with these witnesses. The trial court did what a trial court is supposed to

do. He assessed their credibility and he found it lacking. Being in the

courtroom, being able to see and hear witnesses, is solely the function of the

trial court. Reading the record on appeal, does not, and cannot, give this court

the ability to discern what a trial court sees and hears. That is why the trial court

is given deference in making those determinations. That is why we review the

court’s determinations on granting a motion for new trial based upon newly

discovered evidence under an abuse of discretion standard. People v. Rudell,

2017 IL App (1st) 152772, ¶ 38. Accordingly, I respectfully dissent and find

that the trial court did not abuse its discretion in precluding defendant from

displaying his hand tattoos to the jury or in denying his motion for new trial.

65