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09/06/95 PEOPLE STATE ILLINOIS v. BRUCE KEENER

September 6, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BRUCE KEENER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 90-CF-2434. Honorable Raymond J. McKoski, Judge, Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Hutchinson delivered the opinion of the court: McLAREN, P.j., and Doyle, J., concur.

The opinion of the court was delivered by: Hutchinson

JUSTICE HUTCHINSON delivered the opinion of the court:

Defendant, Bruce Keener, appeals the order dismissing his post-conviction petition (see 725 ILCS 5/122-2.1(a)(2) (West 1992)). Defendant was convicted of home invasion, armed robbery, and residential burglary. He appealed directly to this court. During the pendency of that appeal, defendant filed a post-trial motion pursuant to section 2-1401 of the Civil Practice Law (see 735 ILCS 5/2-1401 (West 1992)). Defendant appealed the denial of this motion. Judge Peter Trobe presided over both the trial and post-trial motion. This court, sua sponte, consolidated both appeals and affirmed Judge Trobe. (See People v. Keener (2d Dist. April 22, 1993), Nos. 2-91-0748, 2-92-0165 cons. (unpublished order under Supreme Court Rule 23) (remanding cause solely for correction of mittimus to show judgment was never entered on the lesser included offense of home invasion).) Following the issuance of our order affirming defendant's conviction and denying his post-trial motion, defendant filed the post-conviction petition at issue in the present case. Judge Raymond McKoski heard and dismissed the petition.

Defendant contends Judge McKoski erred by (1) dismissing the petition alleging ineffective assistance of counsel due to counsel's failure to file a motion to suppress identification even though the record and petition presented a meritorious claim; (2) dismissing the petitionbased on waiver; and (3) ruling on the petition even though there was no allegation Judge Trobe was prejudiced against defendant. We affirm.

Our previous order sufficiently summarizes the circumstances of the conviction and sentence. We will discuss only those facts relevant to defendant's ineffective assistance of counsel argument. We note in his petition defendant alleged his trial counsel failed to investigate latent fingerprints found on the victim's automobile; additionally, defendant alleged the cumulative effect of trial counsel's shortcomings deprived defendant of due process under the fourteenth amendment. On appeal defendant only pursues trial counsel's failure to file a motion to suppress identification. We will not, therefore, address the other constitutional violations alleged in the petition.

The victim, Toni Frydman, identified defendant at two photo showups and during the trial. The residential burglary occurred on October 22, 1990. Frydman testified that on October 29, 1990, Buffalo Grove police officers presented her with approximately 10 photographs of suspects. Frydman picked out the photograph of the individual she believed burglarized her home. The individual depicted in the photograph was not defendant. The individual in the photograph was clean-shaven. Frydman testified the person who burglarized her home was also clean-shaven. Frydman also testified she told the police officers that the person whose photograph she had identified was "younger than I thought and much stockier also."

Buffalo Grove police officers showed Frydman a videotape on November 1, 1990. A person was depicted in the videotape. Frydman testified she told the police officers the person depicted in the videotape was not the individual who burglarized her home.

Frydman picked out a photograph of defendant on November 27, 1990, in her home. The police officers presented Frydman with "25 or more" photographs. She looked through the photographs one at a time. Among the photographs was a picture of defendant. This picture measured approximately three inches by three inches. It depicted a smaller photograph of defendant. This smaller photograph had been cropped by placing it in crude white matte. The actual portion of the picture depicting defendant measured approximately 1 1/8 inches by 2 1/4 inches. In the picture defendant had a mustache. Frydman testified that after looking once through the photographs she picked out the picture of defendant.

At a later photo showup Frydman again picked out a photograph of defendant. This showup took place on December 6, 1990, in Frydman's home. Frydman was presented with four photographs. Among these was a photograph of defendant. The photograph appeared to bethe original of the matted photograph Frydman picked out during the November photo showup. This photograph measured approximately 3 3/4 inches by 2 3/4 inches. It was lighter and clearer than the photograph of defendant used during the November photo showup. The police officers laid the four photographs out on the table. Frydman testified that the police officers "had a lot of interesting--just a lot of information to tell me." Frydman was not cross-examined concerning the nature of these communications between Frydman and the police officers. Frydman picked out the photograph of defendant.

Frydman then identified defendant in court. Defense counsel did not object to the in-court identification. Frydman testified the person who burglarized her home was "dressed as a construction worker." She stated the individual was wearing a hard hat, wire-rim glasses, and a blue lightweight jacket.

Defendant's former roommate, Robert Cannan, testified for the State. Cannan testified he had never seen defendant without a mustache until October 16, 1990. On October 16, 1990, according to Cannan's testimony, defendant shaved off his mustache. Cannan also testified defendant had asked Cannan to participate in "a couple of home invasions and some burglaries." Cannan testified that on either October 16, or 17, 1990, he saw defendant dressed as a construction worker. Cannan testified defendant wore a blue denim jacket, a white hard hat, and wire-rimmed glasses. Cannan testified defendant owed him $400. On October 20, 1990, Cannan moved out of defendant's apartment. He stated that after moving out he attempted to collect the $400 by speaking with the defendant's mother. On approximately October 23, 1990, Cannan read a newspaper article describing the burglary of Frydman's home. Cannan contacted the Buffalo Grove police department concerning the burglary on December 3, 1990. He stated he was afraid he would be implicated as an accomplice if he did not come forward.

Cannan was subjected to extensive cross-examination. Cannan admitted to being a heroin addict for "[a] couple of months." Cannan stated he stopped using heroin without assistance in July or August 1990. Cannan also admitted to having been convicted of possession or delivery of a controlled substance in 1977. In 1979, he was convicted of two counts of aggravated battery, burglary, and violation of felony probation. Cannan testified he had been angry with defendant over the $400 debt; Cannan stated he was "not happy with all the shit [defendant] pulled." Cannan also admitted he had attempted to collect the $400 ...


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