Appeal from the Circuit Court of Cook County; the Hon. Philip
Carey, Judge, presiding.
PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was convicted of robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-1) and sentenced to a term of three years' imprisonment. On appeal, defendant claims that the trial court's application of the affidavit requirement of Rule 15.1(e) of the rules of the circuit court of Cook County *fn1 (the Rule) to his motion to suppress identification testimony violated his rights of equal protection of the laws and freedom from self-incrimination, and also infringed upon the attorney-client privilege. Further, in the event the Rule is not found to be unconstitutional, defendant claims that his attorney's failure to comply with the affidavit requirement deprived him of effective assistance of counsel. For the reasons that follow, we affirm the trial court.
The pertinent facts indicate that prior to trial, defendant moved to suppress identification testimony which was based upon an allegedly suggestive and improper lineup conducted on April 10, 1979. The State responded that because the motion was based on facts not appearing of record, the Rule required that a supporting affidavit be filed. Further, because defendant had failed to comply with this requirement, the motion should be denied. In response, defendant argued that the law did not require an affidavit when an evidentiary hearing on the motion was scheduled. Rather, the affidavit was required only when facts were not going to be of record. The court then stated, "You have to have the affidavit to show before the hearing, that is the purpose of the rule." As a caveat, the court explained that the defendant himself did not have to file the affidavit, "but somebody has to file it to substantiate these facts not of record" and to limit the issues.
Defense counsel replied that they would stand on their motion as filed, arguing that to require defendant to file an affidavit was a form of self-incrimination. For the record, defense counsel stated that defendant's motion alleged facts that would prove that the lineup was suggestive and improperly conducted, and that they were prepared to present evidence to satisfy their burden of proof.
After further arguments of counsel, the trial court reiterated its ruling that the affidavit requirement must be complied with or else he would strike the motion. Defense counsel declined to comply with the requirement and stated that the court's decision to strike the motion would deny defendant "his rights to counsel, * * * to trial by jury, * * * to raise constitutional issues relative to an identification which he has specifically laid out the facts in his motion which he expect [sic] to prove at a * * * full evidentiary hearing." Defense counsel then presented the following offer of proof: (1) defendant was arrested on February 27, 1979; (2) defendant participated in a lineup on April 10, 1979, during which he was viewed by the alleged victim, June Wilson; (3) on March 5, 1979, the victim made a photographic identification of defendant and these photographs were present in the lineup room and shown to the victim during the course of the lineup; (4) defendant requested that his attorney be present at the lineup; (5) Roxanne Wisnar of the Cook County public defender's office would testify that at the time the lineup was conducted, defendant was represented by the public defender's office in an unrelated matter; that she was notified by the police that defendant was going to appear in a lineup one hour before the lineup was scheduled; that she did not have time to notify defendant's attorney and could only post a notice about the lineup on the bulletin board at 26th and California; that the assistant public defenders who represented defendant were in Markham, Illinois, at the time of the lineup and, thus, received no notice of the lineup.
Thereafter, trial proceeded by way of stipulation. The State stipulated that if the victim, June Wilson, were called to testify, she would testify as follows. On February 18, 1979, approximately 8:30 p.m., as she was standing outside of her apartment hallway, defendant approached her with a pointed metal object in his left hand and said, "Give it up." Before defendant grabbed her purse and ran off, Wilson had a direct look at him for approximately 20 seconds in a well-lit area. Immediately after defendant fled the scene, Wilson called the police and, subsequently, gave them a detailed physical description of her assailant.
Thereafter, on March 4, 1979, at police headquarters, Wilson was shown three or four mug shot books which contained approximately 1,000 photographs from which she identified a photograph of defendant as her assailant. On April 10, 1979, at a lineup proceeding at Cook County jail, Wilson again identified defendant as her assailant. The State further stipulated that if Wilson were shown a photograph of a lineup conducted on February 27, 1979, she would identify defendant as her assailant and testify that defendant was wearing the same clothing in the photograph that he wore on the night of the robbery. Defense counsel then stipulated that the facts related by the State would be those testified to by the victim; however, he would not stipulate to the truth of those facts.
After the State rested its case, defendant's motion for a directed verdict was denied. Subsequently, defendant's offer to testify was withdrawn and defendant rested his case without presenting any evidence. The court then rendered its judgment.
Thereafter, defendant moved for an arrested judgment, or, in the alternative, a new trial on the ground that when the trial court refused to grant a hearing on defendant's motion to suppress, it denied defendant due process of law, equal protection of the law, and effective assistance of counsel. At the post-trial motion hearing, the State argued that the rules of the circuit court apply to all cases and the decision not to file an affidavit was a tactical decision, not an act of incompetence. In denying the post-trial motion, the court admitted that the Rule is not uniformly enforced, but emphasized that adherence to the Rule is necessary to avoid "a discovery hearing that wonders [sic] all over the lot." Defendant's timely appeal followed.
We first address defendant's claim that application of the Rule's affidavit requirement to his motion to suppress violated his right to equal protection of the law. In support of his contention, defendant argues that: (1) the Rule is not uniformly enforced among criminal litigants, and (2) civil litigants are not required to file a similar affidavit.
Pursuant to legislative authority, *fn2 the rules of the circuit court of Cook County were adopted by the circuit judges in order to effectuate the administration of justice and to simplify judicial procedure. In determining the constitutionality of a legislative enactment or a law passed pursuant to legislative authority, the judiciary is limited to a determination of whether the law is a valid exercise of the State's police power to promote the public comfort, health, safety, morals or welfare. (Henson v. City of Chicago (1953), 415 Ill. 564, 570-71, 114 N.E.2d 778.) To be valid, the legislation must not only bear a reasonable relationship to one of the foregoing interests, but the means adopted to promote that interest must be reasonable. (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill.2d 323, 327, 265 N.E.2d 640.) Because the legislature is granted broad discretion in determining how best to secure the interests of the public welfare, the court will not disturb a police regulation merely because there is a difference of opinion as to its wisdom, necessity or expediency. (City of Carbondale v. Brewster (1979), 78 Ill.2d 111, 115, 398 N.E.2d 829.) Moreover, a strong presumption of constitutional validity attaches to authorized enactments, and the party attacking a law has the burden of showing that it is unreasonable. People v. Copeland (1980), 92 Ill. App.3d 475, 479-80, 415 N.E.2d 1173.
• 1 With these legal axioms in mind, we now analyze the Rule's affidavit requirement for a determination of its reasonableness. The trial court, in making its ruling on the requirement, stated that the Rule requires that an affidavit attesting to the veracity of the facts in a pretrial motion be filed before a hearing on the motion if those facts have not yet become a matter of record. The court further explained that the objectives of the Rule were to limit the issues and to prevent the hearing from becoming a discovery deposition. We concur with the trial court's rationale and find that the affidavit requirement is a reasonable means by which to efficiently administer justice and simplify judicial procedure, as authorized in section 1-104 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 1-104). Furthermore, we find that it is a valid exercise of the State's police power to promulgate bodies of statutory law establishing and regulating its criminal justice system. People v. Zahn (1979), 71 Ill. App.3d 585, 589, 390 N.E.2d 93.
• 2 Regarding equal protection, defendant argues that the trial court's admission that the Rule is "not uniformly enforced" is sufficient proof in and of itself to establish that this right was violated. We disagree. The constitutionality of a statute is not dependent on its susceptibility of misapplication. (People v. Raby (1968), 40 Ill.2d 392, 397, 240 N.E.2d 595.) As discussed, the Rule was enacted pursuant to a valid exercise of the State's police power. The fact that the Rule has not been consistently enforced does not reflect on the constitutionality of the Rule. Further, the fact that the trial court had previously ruled in this case that an affidavit was not required to support defendant's earlier motions to quash arrest and suppress statements is evidence of nothing more ...