Appeal from the Circuit Court of Cook County; the Hon. Francis
J. Mahon, Judge, presiding.
JUSTICE MURRAY DELIVERED THE OPINION OF THE COURT:
Defendant, Ronald Rassmussen, was charged in a four count indictment with two counts of deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3(a)) and two counts of indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11-4(a)(2)). After a bench trial, the circuit court of Cook County found defendant guilty of both counts of deviate sexual assault and merged the indecent-liberties counts with the assault counts as lesser included offenses. At the sentencing hearing, after the State erroneously informed the court it had failed to make any findings on the indecent-liberties charges, the court entered judgment on those counts as well and sentenced defendant to concurrent terms of eight years on the deviate-sexual-assault counts and six years on the indecent-liberties counts. On appeal, defendant asserts 11 errors which require reversal of his conviction, remand of the case for a new trial or remand of the case for resentencing. For the reasons set forth below, we affirm in part and reverse in part, vacate sentence and remand for resentencing.
The record reveals that defendant's arrest resulted from evidence obtained by Chicago police officers while pursuing an investigation into child sexual exploitation. On April 7, 1982, police officer Brian Killacky located a 14-year-old runaway boy working in Chicago as a prostitute. He in turn led Officer Killacky to another runaway boy. Both youths lived with defendant in Lyons. The second youth told the police he wanted to move back home to Chicago, but stated he needed to remove his personal belongings from defendant's apartment. Thereafter, he unlocked the door to defendant's apartment with a key, allowed the police to enter in order to help him, and they found defendant asleep in his bedroom. The officers awakened defendant, identified themselves, and asked defendant to go to the living room so that they could speak with him. Other officers remained in the bedroom and, in the course of helping the youth gather his belongings, they discovered a number of photographs depicting nude children which defendant admitted to owning.
The police seized these photographs and later determined that one of the boys pictured in them was defendant's 14-year-old nephew Ron C. Ron C., after being questioned, identified 12-year-old Larry S., the complaining witness and victim, as the other boy pictured in one of the photographs with him. When questioned together, both boys stated to the police that defendant had engaged in sexual relations with them. At trial, however, Ron C. retracted his and Larry S.'s statement that defendant had engaged in sexual relations with them, whereas Larry S. specifically testified that defendant sexually assaulted him while Ron C. "held him down."
Prior to trial, defendant moved to quash his arrest and suppress the photographs. The court denied defendant's motion to quash, but granted the motion to suppress the photographs based on its determination that they were not in plain view when the officers discovered them and were seized without a search warrant and without defendant's consent.
On appeal, defendant contends for the first time that the testimony of Larry S. should have been suppressed. Defendant argues that the identity of Larry S. and his subsequent testimony were products of the illegal search of his apartment in violation of the Federal and Illinois constitutions prohibiting illegal searches and seizures (U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, sec. 6) and, thus, "the fruit of the poisonous tree" (Wong Sun v. United States (1963), 371 U.S. 471, 488, 9 L.Ed.2d 441, 455, 83 S.Ct. 407, 417).
The State argues that defendant's failure to raise this issue at trial or in his post-trial motion for a new trial constitutes a waiver of the alleged error under section 116-1(c) of the Code of Criminal Procedure of 1963 which provides that a motion for a new trial "shall specify the grounds therefore" (Ill. Rev. Stat. 1985, ch. 38, par. 116-1(c)). Where waiver of an issue occurs, constitutional or otherwise, that issue cannot be urged as a ground for reversal on review. (People v. Precup (1978), 73 Ill.2d 7, 16, 382 N.E.2d 227.) In response, defendant contends that under the plain-error rule (87 Ill.2d R. 615(a)), a reviewing court may consider errors not properly preserved for appeal where their nature is such as to deprive an accused of his constitutional rights. People v. Willis (1976), 39 Ill. App.3d 905, 907, 351 N.E.2d 330.
• 1 Although the waiver rule "`is not an ironclad rule' [citation]" (People v. Dickerson (1979), 69 Ill. App.3d 825, 828, 387 N.E.2d 806), neither is the fruit-of-the-poisonous-tree doctrine applicable to all evidence discovered in an illegal search (Wong Sun v. United States (1963), 371 U.S. 471, 487-88, 9 L.Ed.2d 441, 455, 83 S.Ct. 407, 417). The doctrine does not apply to (1) evidence discovered from an independent source, (2) evidence sufficiently distant in causal connection from the controverted search and seizure so that any connection has become so attenuated as to dissipate any taint or (3) evidence which inevitably would have been found without an illegal search. Satisfaction of any of the foregoing removes the evidence in question from the purview of the doctrine. United States v. Twomey (7th Cir. 1974), 508 F.2d 858, 865.
• 2 In the instant case, it is unnecessary to address the State's waiver contention because we have determined that Larry S.'s testimony was an acorn from a mighty oak rather than the fruit of the poisonous tree. Granting establishment of the primary illegality the search of defendant's apartment the evidence to which defendant objects was not obtained by exploitation of the illegality, but rather by means sufficiently distinguishable to be purged of the primary taint. (See Wong Sun v. United States (1963), 371 U.S. 471, 488, 9 L.Ed.2d 441, 455, 83 S.Ct. 407, 417.) First, no nexus exists between the crime of which defendant was convicted and Larry S.'s identity and testimony. Both were not discovered as a result of the tainted photographs, but rather as a result of an independent source, i.e., defendant's nephew Ron C. told the police that he had brought 12-year-old Larry S. to defendant's apartment where the 52-year-old man sexually assaulted him. Secondly, at the time of the illegal search the police had no knowledge of either the victim's identity or the crimes against him. Accordingly, the police did not enter defendant's apartment to gather evidence on the deviate-sexual-assault and indecent-liberties charges which were later filed against defendant they entered defendant's apartment to help a runaway youth who was living with him to gather up his personal belongings. A sufficiently distant causal connection from the controverted search and seizure, therefore, existed and any connection between the events was so attenuated as to dissipate any taint. See People v. Pettis (1973), 12 Ill. App.3d 123, 298 N.E.2d 372.
We further briefly note that the Illinois cases relied upon by defendant with respect to this issue are distinguishable from the present case. In People v. Albea (1954), 2 Ill.2d 317, 118 N.E.2d 277, and People v. Martin (1942), 382 Ill. 192, 46 N.E.2d 997, unlike the circumstances here, the testimony suppressed directly dealt with the police department's motivation for conducting the illegal search, each having been conducted to gather evidence of crimes for which the police had prior knowledge.
We also disagree with defendant that suppression of Larry S.'s testimony would serve the remedial objectives of the fourth amendment exclusionary rule deterrence of future police misconduct. As mentioned above, discovery of Larry S.'s identity and his subsequent testimony were not the fruit of the illegal search. In addition, the record discloses that Larry S. voluntarily went to the police station when requested to appear and he willingly testified at trial. Suppression of his testimony therefore would result in penalizing him, the government and the community, and would do nothing to advance the objectives of the exclusionary rule. See United States v. Ceccolini (1978), 435 U.S. 268, 275, 55 L.Ed.2d 268, 275, 98 S.Ct. 1054, 1060.
Accordingly, we hold that the trial court properly admitted the testimony of Larry S.
• 3 Defendant next argues that the failure of his trial counsel to move to suppress Larry S.'s testimony was tantamount to ineffective assistance of counsel requiring a new trial. We disagree. In Strickland v. Washington (1984), 466 U.S. 668, 688, 694, 80 L.Ed.2d 674, 693, 698, 104 S.Ct. 2052, 2063, 2068, the Supreme Court established a two-prong test to adjudicate sixth amendment ineffective assistance of counsel claims. That test is whether or not (1) a defendant's counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A defendant must also overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. 466 U.S. 668, 689, 80 L.Ed.2d 674, 694-95, 104 S.Ct. 2052, 2065-66.
• 4 Applying the above test to the instant case, we find defendant's ineffective assistance of counsel assertion without merit. Prior to trial, defendant's counsel successfully moved to suppress the photographs seized in defendant's apartment despite the fact that the question of the illegality of the seizure depended upon whose testimony the trier of fact believed more credible the police officers or defendant's witnesses. Counsel also effectively examined defendant's own witnesses and cross-examined the State's witnesses, demonstrating an intimate knowledge and understanding of the facts and law in the case. He further made an able argument at trial and arguments at the sentencing hearing. Additionally, for the reasons previously set forth in point I of this opinion, we also cannot say that the absence of a motion by counsel to suppress Larry S.'s testimony was error; such a motion would have been futile and failure to do a futile act does not constitute a denial of effective assistance of counsel. See People v. Gallardo (1983), 112 Ill. App.3d 764, 769, 445 N.E.2d 1213.
Defendant also has failed to offer any evidence that he was prejudiced by his counsel's representation, except his bare allegation pertaining to the isolated action of counsel's failure to move for suppression of the victim's testimony. Rather than focusing on isolated circumstances occurring during the course of proceedings, all facts and circumstances set forth in the record must be considered. (People v. Williams (1986), 140 Ill. App.3d 216, 228, 488 N.E.2d 649.) Viewing defense counsel's performance as a whole, we find that it did not fall below an objective standard of reasonableness and that, in light of defendant's failure to show that he was prejudiced, the outcome of the proceedings would not have been different had counsel moved to suppress Larry S.'s testimony. Defendant also has failed to overcome the strong presumption that counsel's conduct was within the wide range of reasonable professional assistance.
Accordingly, we find defendant's argument on this issue without merit.
Defendant asserts as his third assignment of error that the trial court committed reversible error when it allowed the State to use the photographs ordered suppressed to impeach defendant's credibility. The suppressed photographs, which the court denied the State's use of in its direct case, depicted defendant, his nephew Ron C. and the victim Larry S., among others, in the nude. Various photographs also depicted Ron C. and Larry S. in the nude together and were taken in a wooded area.
We first note that the parties are in disagreement with respect to the purpose for which the State sought introduction of the photographs into evidence. At trial, the State commented the purpose was to impeach defendant's character. In its appellate brief, the State argues the purpose was to contradict defendant's statements that he had rarely seen the victim and had only observed his penis on one occasion. Since the record clearly indicates that the trial court admitted the photographs for the purpose of impeachment of defendant's credibility, we address this issue on that basis.
On direct examination defendant testified as to his good character, admitted that he knew the victim, denied sexually assaulting him and stated he did not meet the victim until June 1981, subsequent to the May 12, 1981, occurrence testified to by the victim. On cross-examination, defendant testified he first met Larry S. when his nephew asked if he could accompany them on a fishing trip; that he did not like the victim and considered him a "bad element" and did not like him "hanging around" his nephew; that the second time he saw Larry S. was when his nephew brought him to ask if sores he had were syphilis; that he saw the victim again after he had received penicillin shots; and that he saw Larry S. a fourth time in November 1981 in some woods south of La Grange. Defendant also stated he had seen the victim's penis on only one occasion when Larry S. asked him if he had syphilis. He specifically denied he had observed his penis in the woods in November 1981 or that he had seen him "pull his pants down" and pose for photographs.
Thereafter, to impeach defendant's credibility with respect to his statement that he had never observed the victim's penis in the woods, the State referred to the previously suppressed photographs, over defendant's objection, and a manuscript admittedly written by defendant in which he recounted his examination of the victim for syphilis and sending him to a clinic for treatment. The manuscript described a 13-year-old boy who defendant had earlier identified as Larry S., and an excerpt from it, read by the prosecution, stated:
"My nephew kept hanging around with this boy. So, we allowed the kid to go with us for drives to parks and lakes to fish. I like to fish and I like the outdoors. While trompsing one day through the woods the boys met a dude with a camera who wanted pictures of them. So, they gave him a peep show pose, the two of them showing their stuff. The dude sent the copies like they asked for using my address. And of course I got them in the mail and thought them to be quite cute."
After this reading, the following colloquy occurred:
"MR. GREEN [defense counsel]: We object, Your Honor, as to not being ...