Appeal from the Circuit Court of Cook County, Illinois. No. 90 CR 11985 Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Joseph Gordon
Defendant, Tony Anderson, appeals from the summary dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)). He contends that the circuit court erred in summarily dismissing his petition where he set forth the gist of meritorious claims of (1) ineffective assistance of counsel based upon counsel's failure to investigate defendant's claims of "corruption and coercion" in the conducting of defendant's lineups at Area 2 and (2) that the State violated his right to due process by failing to disclose the existence of voluminous claims of Area 2 police torture pursuant to Brady v. Maryland, 373 U.S. 83, 10 L.Ed. 2d 215, 83 S.Ct. 1194 (1963).
Defendant was indicted on over 100 charges in thirteen different cases in Cook County, stemming from offenses he committed in March and April 1990. Case No. 90 CR 11984 was tried to a judge; case No. 90 CR 11985 was tried to a jury; and defendant pleaded guilty to charges in 11 remaining cases. Case Nos. 90 CR 11984 and 90 CR 11985 arose from two separate robberies of Trak Auto stores both committed on April 15, 1990, the first at 116th Street and Halsted, the second at 73rd Street and Stony Island. In case No. 90 CR 11985, the subject of this appeal, defendant was convicted of armed robbery and sentenced to 25 years' imprisonment.
Prior to defendant's jury trial in case No. 90 CR 11985, defense counsel, William Heenan, filed a motion to suppress three lineup identifications of defendant, contending that they were improperly suggestive and a product of police misconduct.*fn1
At the June 5, 1991, hearing on that motion, defendant first called Detective Guy Habiak. Detective Habiak testified that on April 19, 1990, four days after the robbery of the Trak Auto store at 73rd Street and Stony Island, he conducted three separate lineups at Area 2 Violent Crimes located at 111th Street, Chicago. According to Detective Habiak, the first lineup was viewed by James Hill at approximately 11:45 a.m., the second was viewed by Willie Bradley at about 2:15 p.m., and the third was viewed by Linda Hinkle at about 6 p.m.
Detective Habiak testified that the same six men participated in all three lineups. On each occasion, Detective Habiak placed the six participants in the lineup room and instructed them "to stand in any position they wanted in the lineup." According to Detective Habiak, in the Hill lineup, defendant stood in the number one position, and in the Hinkle and Bradley lineups, he stood in the number six position. According to Detective Habiak, in the Hinkle lineup each participant was also brought forward to a one-way mirror to be viewed by Hinkle, who stood on the other side of that mirror.
Detective Habiak also testified that he had initially contacted Hill and Hinkle by telephone and requested that they come to the station to view the lineups, to see if they could recognize anybody that "might have been in the Trak Auto Store" on the afternoon of the robbery. Detective Habiak denied having told either Hill or Hinkle that there was an offender in custody. He also denied discussing any descriptions of the offender prior to the lineups or instructing either Hill or Hinkle who to pick from the lineup.
Detective McGuire testified that on April 19, 1990, together with Detective Habiak, he conducted three separate lineups at Area 2 headquarters for Hill, Bradley and Hinkle. Detective Habiak admitted that he was in the room with Hill when Hill identified defendant, but averred that he, at no point in time, discussed the lineups with any of the witnesses. Detective McGuire also stated that prior to the lineups he never told Hill, Bradley or Hinkle that he had an offender in custody.
Defendant next called Hill to the stand. Hill testified that on April 19, 1990, he received a telephone call requesting that he come to the police station to view a lineup. Hill stated that he drove to the Area 2 police station alone. Once there, Hill viewed a lineup comprised of six individuals and from that lineup identified defendant as the perpetrator of the robbery at the Stony Island Trak Auto store. Hill averred that prior to the lineup, he had no conversation with anyone at the police station concerning defendant or the lineup procedure. Hill further stated that although Detective McGuire stood next to him in the room while he viewed the lineup, the detective did not speak. Hill also testified that even though he could see Detective Habiak through the one-way mirror standing in the room with the lineup participants, the detective did nothing to make him select defendant from the group.
Bradley next testified that on April 19, 1990, he was working at the Trak Auto store when he received a telephone call from a police officer requesting his presence at a lineup. Soon thereafter, the store manager, Hill, drove Bradley to the police station. Bradley stated that even though he was aware that Hill had viewed a lineup earlier that day, during the ride to the police station, the two of them did not discuss the lineup or any descriptions of the offender. Bradley further testified that once at Area 2 headquarters he viewed a lineup and identified defendant as the perpetrator of the robbery at the Trak Auto store. Bradley testified that the lineup was comprised of six individuals, who were instructed to stand up, turn left and then right. Bradley also stated that he did not discuss the lineup with any of the officers and that he was never told that the police had an offender in custody.
Hinkle next testified that when she arrived to work on April 19, 1990, Hill, her store manager, told her that the police "wanted [her] to look at a lineup about the robbery." Hinkle stated that Detectives Habiak and McGuire then picked her up from the store and drove her to the Area 2 police station. According to Hinkle, the detectives did not tell her that they had an offender in custody, and she did not describe the offender to them. Hinkle further testified that once at the police station, she viewed the lineup and identified defendant as the perpetrator of the robbery. According to Hinkle, although Detective McGuire remained in the viewing room with her during the lineup, he did not speak to her. Finally, Hinkle testified that before she went to the station, neither Hill nor Bradley talked to her about the lineups they had viewed earlier that day.
The State also introduced two photographs of the lineup participants and defense counsel asked that these be admitted as exhibits.*fn2 In closing, defense counsel argued that the composition of the lineups was unfair because the difference in the individuals' "height, weight, age, and clothing" was "extreme." Counsel also argued that the identifications were tainted because there was ample opportunity for Hill to discuss the lineup he had viewed in the morning with Hinkle and Bradley, who viewed the same lineups later that day. Counsel also asked the court to consider the "circumstances of the police activity in gathering these witnesses to view the lineup[s], in [sic] informing them of their police requests or desires to have them view the lineup[s]." Particularly, counsel noted that the two officers picked up and drove Hinkle to the police station, giving them ample opportunity to discuss the lineup in advance and taint her identification.
At the close of this hearing, the court denied defendant's motion to suppress the lineup. In doing so, the court noted:
"I have had an opportunity to listen and hear the witnesses. I have also had the opportunity to look at the two photographs, which have been presented, indicating the line-ups [sic] viewed by the individuals. And I would note the following: Three of the people in the line-up [sic] have gym shoes on, three don't. There can't be more than an [sic] three-inch spread on the height of any of these individuals. They are all approximately the same height. There is no question that there are some individuals who are slightly taller than Mr. Anderson [defendant]. I think there is one who looks like he could be within a sixteenth of an inch of the height and another one who is very close to the height. A couple might be slightly taller.
I don't know that you can set a fairer composition of the individuals standing in this line-up [sic]. There is absolutely no indication that any of these three individuals who viewed these there separate line-ups [sic] were led by anyone to identify anyone. As a matter of fact, quite the contrary. Respectfully, the motion to suppress the identification will be denied."
On June 5, and June 6, 1991, defendant proceeded with a jury trial for armed robbery. The evidence presented at trial established that on April 15, 1990, Hill was working as the manager of the Trak Auto store at 73rd Street and Stony Island, together with Bradley and Hinkle, who were operating the cash registers at the front of the store. According to Hill, around 3:30 p.m., at Bradley's request, he went to the front of the store to place change in the cash registers. Hill stated that just as he placed his key into the change drawer, a man approached him from the rear and announced a "stick-up." Hill made an in-court identification of defendant as the man who approached him on that day.
Hill also testified that initially he thought that the "stick-up" was a joke, but then noticed a taller man with a gun, standing behind Hinkle. This man was wearing a black jacket and a black cap. The gunman walked over to Bradley and put the gun to Bradley's back, while defendant took money from the change drawer and Bradley's register and put it in a Trak Auto bag. Defendant then ordered Hill to open Hinkle's register, and after Hill obliged, he took money from both the register and the cash box beneath it and placed it in the same Trak Auto bag.
Hill further testified that defendant ordered the others to stay next to the registers but pushed Hill to move toward the office in the back. Defendant forced Hill to open the office safe, then took the money from the safe, and put it in the Trak Auto bag. Although Hill feared that the gunman was going to shoot him, both defendant and the gunman then "just walked out the door."
Hill also testified about the lineup conducted on April 19, 1990, at Area 2 headquarters where he identified defendant as one of the men who participated in the robbery. Hill's trial testimony regarding the lineup was substantially the same as his testimony at the suppression hearing. In addition, Hill stated that on the day of the robbery defendant was not further than "six, seven, eight inches away" from him and that there was nothing obstructing his view of defendant's face. During trial, Hill also identified the gun and the black jacket worn by the taller man during the robbery.
On cross-examination, Hill indicated that the robbers were not in the store for more than five to six minutes. He also stated that he could not recall if on April 15, 1990, immediately after the robbery, he gave the police officers a description of ...