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February 14, 1994


Appeal from Circuit Court of Macon County. No. 91CF581. Honorable Frank W. Lincoln, Judge Presiding.

As Corrected March 7, 1994.

Honorable Carl A. Lund, J., Honorable Robert W. Cook, J., Concurring, Honorable Robert J. Steigmann, J., Dissenting

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

Defendant appeals his conviction for aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12-14(a)(1)) and home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 12-11(a)(1)). He was sentenced to consecutive terms of eight and six years' imprisonment, respectively. On appeal, defendant contends (1) the trial court erred in refusing to grant a new trial based upon exculpatory evidence which was not presented to the jury; (2) failure to present this exculpatory evidence proved he was denied effective assistance of counsel; and (3) the admission of evidence that he was on intensive probation and admission of certified copies of his prior convictions for retail theft deprived him of a fair trial. We reverse.

At about 1:30 a.m. on July 2, 1991, Terry Beckmeier awoke to find a stranger holding a razor to her throat. The stranger told her he would hurt her two-year-old child if she screamed, and then forced her to engage in sexual intercourse. He then fled, taking the victim's purse, but leaving behind a key ring. This key ring contained a key which fit the lock of defendant's apartment door.

Beckmeier told police she could not see her attacker's facial features, only his silhouette. She described him as a thin, black man with short hair, no facial hair, and smelling of hard liquor. At trial she modified this description, saying she was unable to tell whether he had facial hair. She was shown a photo array and picked out two men, one of them defendant, saying they each had the same facial shape as her attacker. Even though she said she would never forget the sound of his voice, she was unable to identify anyone at the lineup by appearance or voice.

Just before 9 a.m. on the day of the attack, James and Martha Cavanaugh pulled into the parking lot of a video repair store and saw a man pounding on the door trying to get in. James exited the car and approached the store, whereupon the man handed him a checkbook and asked him to turn it in to the store owner. According to Martha, who remained in the car, the man said he had found the checkbook in the parking lot and wanted to leave it for the store owner. The checkbook belonged to Terry Beckmeier. Martha contacted Beckmeier at work, and the police came to pick up the checkbook. James was unable to identify the man with the checkbook in a lineup. Martha, however, picked defendant out of a photo array. Later, she identified defendant in a lineup and confirmed this identification in court.

Only two pieces of evidence connect defendant to the crime--the key found in the victim's apartment and Martha's identification of defendant as the person in possession of the stolen checkbook. Forensic analysis of blood, semen, and hair traces were inconclusive. Two Negroid head hairs were found on the victim's T-shirt. Analysis confirmed these hairs did not come from defendant. At trial, it was explained that a young Afro-American boy came to the victim's house sometime before the attack. It was suggested that the head hair found on the victim's T-shirt came from the boy, but no tests were done to confirm this possibility. The Cavanaughs testified that the man with the checkbook wore a baseball cap. Defendant presented two witnesses who testified that defendant never wears a hat. Finally, the victim told police her attacker was a thin man with no facial hair. Testimony was heard that defendant had a beard on the day of the attack. Furthermore, a remark during trial indicated that defendant was not a thin man but, when defense counsel asked defendant his weight during redirect examination, the trial court sustained an objection to this testimony on grounds that it was beyond the scope of direct examination.

Defendant told police he had lost the key to his apartment, but was not sure when. At trial, he claimed it was sometime around June 12, 1991. There was no evidence that he reported this to his building manager, and he claimed he just left the door open. The manager's dogs apparently kept out any strangers. Defendant contends he was just beginning a new job with a detasseling crew for Northrup King. His probation officer confirmed that he had asked permission to leave his home early on the morning of July 2, 1991, to begin work. Defendant contends he was at home on July 2, 1991, until 5 or 6 a.m., whereupon he left for work. In closing arguments, defense counsel concluded that defendant could not have been seen by the Cavanaughs because he was out in the fields working that day.

One day before trial, on March 19, 1992, the State received a discovery answer from defense counsel which listed names of two prospective alibi witnesses, Maurice Moore and Dave Starr. Defense counsel interviewed Moore prior to trial, and Moore agreed to testify that he had worked with defendant on July 2, 1991, on the detasseling job for Northrup King. The foreman on this job, known to the workers as Dave Starr (not his real name), was located by a State investigator on the second day of trial. He told the investigator that defendant may have been working on July 2, 1991. He advised the investigator that he would check his records and get back to him.

The State immediately notified defense counsel that Starr may have exculpatory evidence to offer. Defense counsel decided it was too late to issue a subpoena, no motion for continuance was filed, and no effort was made to seek a recess in order to talk with this witness. Starr eventually faxed documents of defendant's work history to the State a few days after trial. Unknown to defense counsel, Moore had outstanding warrants for his arrest. Two subpoenas had been issued, but Moore, fearful of arrest, managed to avoid being served.

At a post-trial hearing, defense counsel argued for a new trial to allow the jury to hear testimony from Moore and Starr. Alternatively, defense counsel moved for a continuance On his motion for a new trial. At the time of this hearing, defense counsel still had not contacted Starr or issued a subpoena. Moore, who had previously ducked service of subpoenas, was by this time in custody and available to testify. No affidavits were attached to defendant's motion for a new trial. Defense counsel characterized his failure to seek a continuance or recess at trial as a tactical decision.

We find defendant was denied effective assistance of counsel and therefore do not address whether defendant deserves a new trial on the basis of newly discovered evidence. The determination of whether a defendant was denied effective assistance of counsel is a two-part test. First, defendant must show that counsel's performance was deficient, such that errors were so serious that counsel was not functioning as the "counsel" guaranteed by the sixth amendment. Second, defendant must show he was prejudiced. Counsel's errors must be so serious as to deprive defendant of a ...

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