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March 4, 1994


Appeal from the Circuit Court of Cook County. Honorable Daniel J. Kelley, Judge Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

McNULTY, Murray, Cousins

The opinion of the court was delivered by: Mcnulty

Justice McNULTY delivered the opinion of the court:

In August of 1991, defendant Michael Goldsmith was indicted for 12 counts of aggravated criminal sexual assault (720 ILCS 5/12-14 (West 1992), three counts of criminal sexual assault (720 ILCS 5/12-13 (West 1992), one count of home invasion (720 ILCS 5/12-11 (West 1992)), one count of armed robbery (720 ILCS 5/18-2 (West 1992)), one count of armed violence (720 ILCS 5/33A-2 (West 1992)), one count of residential burglary (720 ILCS 5/19-3 (West 1992)), and one count of aggravated unlawful restraint (720 ILCS 5/10-3.1 (West 1992)). After a bench trial on May 1, 1992, by the circuit court of Cook County, defendant was convicted of nine counts of aggravated criminal sexual assault, one count of home invasion, and one count of armed violence.

On December 21, 1992, defendant was sentenced to concurrent terms of 45 years' imprisonment for aggravated criminal sexual assault, 30 years for home invasion, 30 years for armed violence, and five years for aggravated unlawful restraint. Defendant filed a post-trial motion for a new trial. That motion was denied. Then defendant filed a motion for the court to reconsider its previous decision. In support of this motion, defense counsel submitted the affidavit of Dawn Larsen of DeKalb, Illinois. In her affidavit filed December 21, 1992, Ms. Larsen stated: "I remember Michael Goldsmith staying in my apartment the evening of July 27, 1991. He stayed Saturday evening and left the next afternoon." Ms. Larsen also related that she was interviewed by two assistant State's Attorney's in January 1992, and that they took notes during the conversation. The motion to reconsider was also denied. A timely notice of appeal was filed.

Defendant requests that this court reverse his convictions and remand the cause for a new trial, or, in the alternative, that this cause be remanded for a hearing regarding the States' alleged nondisclosure of exculpatory testimony. Defendant makes two arguments: (1) he was denied his due process right to a fair trial where the State failed to disclose a witness; (2) he was denied his right to the effective assistance of counsel because if defense counsel had exercised reasonable diligence he could have located a witness whose testimony probably would have changed the outcome of the trial.

After the indictment was filed, the State filed a motion for pretrial discovery and an answer to discovery on October 17, 1991. The State declared that it would provide defendant with statements, reports, and other evidence as it became available. In its answer to discovery the State also stated that it was not aware "of any evidence or witnesses which may be favorable to the defense in this cause." On November 5, 1991, defendant filed an answer to the State's motion stating that it may rely on the defense of alibi. Defendant also provided the names and addresses of possible witnesses it may or may not call, including, but not limited to, James Mason, Thomas Frederickson, Jr., Thomas Frederickson, Sr., and Dave Jensen. Subsequently, on December 6, 1991, the State filed a supplemental response to defendant's answer stating that it may or may not call additional witnesses. On May 1, 1992, defendant filed a supplemental motion for discovery requesting "any and all materials within the State's possession or control which tends to negate the guilt of the accused," and "the names and addresses of any witnesses who may be or would be favorable to the defense."

The court held a hearing on defendant's motion to quash arrest and suppress evidence. The court denied defendant's motion to quash the arrest and suppress evidence, but it granted defendant's motion to suppress the in person lineup identification for suggestive procedure. The court, however, reserved its decision on the question of the admissibility of an in-court identification by the victim to see if there was independent reliability for such an identification. On October 7, 1992, defendant requested a continuance of his case due to the unavailability of material witnesses. According to the State's brief the court granted defendant's motion for a continuance.

The trial began on October 7, 1992. During the trial, the State presented testimony from the victim, T.H. T.H. testified that she lived in an apartment at 3221 West Armitage Avenue, Chicago, Illinois. The only door to the apartment was in the front. The lock on the door did not work all the time. T.H. could check to see if the lock was functioning properly by pulling on the door. T.H. lived in the apartment with her six-year-old son, Nicholas.

T.H. testified that on July 26, 1991, she spent the night at her boyfriend's house and went to work the next morning, Saturday, July 27, 1991. After work T.H. and her son visited T.H.'s friend, Julie, at her apartment. Julie lives about a block from T.H. When T.H. left Julie's apartment at 11 p.m. Saturday, July 27, 1991, Nicholas remained there. T.H. went to visit her boyfriend at a corner store before going home.

After she returned home, T.H. went to another store where she happened to see her friend, Marie. Marie invited T.H. over to Marie's house to watch movies. T.H. stayed at Marie's for about one hour and a half, until 1 or 1:30 a.m. While T.H. was at Marie's, Marie gave T.H. a beer to drink. T.H. drank about half of the beer, and took the rest back to her apartment. T.H. returned to her apartment, having been "pretty certain that the door was locked" when she left. T.H. went to her son's bedroom to lie down and watch television. T.H. lay down, turned on the television, and fell asleep.

T.H. awoke the next morning with someone pulling her hair. T.H. testified that she was able to see the person's face who was pulling her hair. She testified that his face was about a foot away from her own. Later, over defendant's objection, T.H. made an in-court identification of Mr. Goldsmith as the person who woke her. T.H. held defendant's wrists to try to stop him from pulling her hair. T.H. felt something "stuck to [her] throat." She later learned that the object was a knife. Defendant made T.H. lie on her stomach. Defendant blindfolded T.H. with her pantyhose that were hanging up to dry.

T.H. further testified that defendant tied her hands behind her back with another pair of pantyhose and told her that if she did what he said, he would not kill her. According to T.H.'s testimony defendant said that he wanted "a piece of [her] ass." Defendant said that he had just been released from jail and "that's the way he liked it." Defendant then removed T.H.'s clothing, and T.H. heard defendant unzip his pants. Defendant then pulled T.H. across the bed and onto the floor so that her body was across the bed and her knees were on the floor. T.H. testified that defendant put his penis on her backside. According to T.H.'s testimony defendant untied her hands and retied them in front of her.

T.H. further testified that defendant sat on the edge of the bed and put T.H. on the floor on her knees and told her that if she bit him he would cut her in a place that would paralyze her. T.H. testified that defendant forced her to engage in oral sexual contact. Defendant held a knife to T.H. almost constantly during the offense. During the oral sex act T.H. could see through the pantyhose blindfold. She saw a scar on defendant that went from his groin toward his stomach. She was unable to see where the scar ended.

T.H.'s testimony was that defendant then made her get on the floor of her son's bedroom which was next to the bathroom. T.H. testified that defendant put her on her side, and he lay on his side. Defendant then attempted to have vaginal intercourse with her.

T.H. testified that she looked at defendant's face which was only about a foot away from her face. T.H. saw that defendant's eyes were closed and that he was gritting his teeth. T.H. saw that his teeth were yellow and kind of "crudded." T.H. looked at defendant's face about five or six seconds, until she became afraid. She was afraid that defendant would open his eyes and see T.H. looking at him and kill her. T.H. testified that defendant made T.H. turn on her stomach. Defendant retied T.H.'s hands behind her back. T.H. noticed ...

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