Appeal from the Circuit Court of Lake County; the Hon. Harry
Strouse, Jr., Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 26, 1984.
The defendant, Ronnie L. Starks, was indicted in Lake County for the armed robbery of the Libertyville Federal Savings and Loan Association branch in Gurnee, Illinois. He was convicted by a jury and sentenced to the Department of Corrections for 11 years. The defendant filed a post-trial motion which was supplemented twice; all were denied, and he appealed.
Jalena Gutman, a teller at Libertyville Federal Savings and Loan Association branch in Gurnee, testified she was robbed at gun point about 6:30 p.m. on Friday, January 15, 1982. She identified the defendant as the robber from photos shown to her later that evening, in an in-person lineup on March 10, and in court. Her testimony was corroborated by the other teller on duty that evening, Donna Vasey. Vasey also identified the defendant as the robber from photos, the lineup and in court. The defendant did not testify, but his uncle, aunt, mother, and a friend testified that he was in East Bernstadt, Kentucky, during the period December 24 to January 20 when he was arrested by the Kentucky police. The defendant's sister also testified she phoned her mother in East Bernstadt on January 15 at approximately 4:30 p.m., Kentucky time, and that she heard the defendant's voice in the background. The defendant called one of the State's witnesses, Gurnee Police Department Sergeant Sheldon, who testified that Gutman and Vasey described the robber as being six feet tall, 185 pounds, with grey or green eyes. There was no testimony at trial as to the defendant's actual physical description.
In rebuttal, the State called Karen Newman, a teller at the First Federal Bank of Chicago in McHenry. Newman was expected to testify that she saw the defendant about 6 p.m. on January 8 at that bank. However, at trial, she was unable to recognize the defendant as the man she saw that evening. Diane Gatham, who attended some of her high school classes with the defendant and whom she had known for about 10 years, testified she saw the defendant at the J & L gas station in Island Lake on either Sunday, December 27, 1981, or Sunday, January 3, 1982. She observed him for about three minutes while she was stopped in traffic waiting to make a left turn. She saw him walk toward a green El Camino or Ranchero, which the witness identified as being Bill Dotson's, whom she stated was somehow related to the defendant. She observed the defendant get in the passenger side of the car; she did not identify Dotson as the person driving the car. Gatham testified she later informed her husband, who was an Island Lake police officer, that she had seen the defendant, and he called that information in to the police department. Gatham also testified a woman she worked with, Bernice Woods, drove with the defendant's sister-in-law, and that Bernice mentioned she had seen the defendant sometime after the date Gatham had seen him.
During the defendant's surrebuttal, Bernice Woods denied telling Gatham she had seen the defendant or had any knowledge of him having been in the area.
The jury found the defendant guilty of armed robbery and the trial court entered judgment on the verdict.
Defense counsel filed a post-trial motion, which was later supplemented by additional, newly retained counsel for the defendant, Robert J. Hauser. The supplemental motion for new trial identified seven additional alibi witnesses and their affidavits were attached to the motion. The motion also alleged that the defendant submitted himself to a polygraph examination upon representation by the Lake County State's Attorney's office that the charge would be dismissed if the defendant passed the test. The motion alleged the defendant passed the test, but that the State's Attorney's office reneged.
Hauser filed another supplement to the post-trial motion, alleging that the defendant's appointed counsel at trial, Randall Stewart, failed to provide the defendant with effective assistance of counsel due to Stewart's failure to call or take evidence depositions of all witnesses available for his defense, specifically the seven previously noted witnesses and, in addition, Bill Dotson and Stefan Urban. It was also alleged that the defendant was not adequately advised of his right to testify at trial.
After entry of the judgment on the verdict on July 1, 1982, the trial court held a hearing on August 24 at which Hauser was permitted to examine Joseph Wayne Feekes, whom defense counsel had reason to believe had robbed the savings and loan rather than the defendant. However, upon examination, Feekes denied that he had previously admitted to the FBI that he was involved in a bank robbery in Lake County, and neither Jalena Gutman nor Donna Vasey recognized Feekes as the robber. A third person present at the savings and loan when it was robbed was a customer, Stefan Urban. Urban had been unable to identify Starks as the robber from photos shown to him earlier. Urban was also unable to identify Feekes as the robber after viewing him in the courtroom.
The trial court heard arguments on trial counsel Stewart's original post-trial motion and Hauser's argument concerning additional alibi witnesses and the alleged polygraph agreement between the State's Attorney and the defendant. Hauser was also permitted at that time to examine Bill Dotson, who owned the El Camino in which Diane Gatham stated she saw the defendant on either December 27 or January 3. Dotson denied he saw Starks during the period in question, but stated that another friend of his from Texas was staying with him at that time, and may have been the person Gatham observed at the J & L gas station. Hauser also indicated he had an affidavit from Susan Starks, the defendant's ex-wife, regarding her regular telephone contact with the defendant in Kentucky during the period testified to by Diane Gatham. After argument, the trial court denied the motion. Sentencing was continued to permit counsel an opportunity to discuss the defendant's presentence report with him due to the defendant's illiteracy.
On the date set for sentencing, Hauser was further allowed to make a record concerning Stewart's representation of the defendant at trial. Hauser presented testimony from Betty Dotson, the defendant's sister, that she had advised Stewart of all the witnesses who could testify for the defendant and provided him with their affidavits prior to trial. She stated Stewart advised her there were limited funds for witnesses and that she would have to get them up to Illinois. She did, in fact, drive the witnesses who testified at trial up from Kentucky in her van and they stayed at her home. Susan Starks, the defendant's ex-wife, then testified she spoke with the defendant in Kentucky on January 3, 11, 12 and 16, as stated in her previously filed affidavit. She testified she was not contacted before trial by anyone representing the defendant.
Finally, the defendant testified he was interviewed by Stewart only three times, the first of which interviews was merely to advise him that Stewart had been appointed to represent him. The defendant referred Stewart to his sister, Betty Dotson, for the names of witnesses. The defendant told Stewart at the start of trial that he would testify if either he (Stewart) or the State's Attorney wanted him to. He could not recall if Stewart told him the State's Attorney could not call him to testify; in any case, Stewart advised against his testifying in light of his past record.
The defendant testified about the polygraph agreement also:
"Q. [Hauser] And on what basis did you take that polygraph examination? What was your understanding if you passed it?
A. [Starks] The understanding that I had got from him, that the State told him if I passed the polygraph test they would drop the charge.
Q. So you went ahead and took it?
A. Yes, sir, and they said that I, you know, for the line-up, for ...