Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 C 7631-Marvin E. Aspen, Judge.
The opinion of the court was delivered by: Coffey, Circuit Judge.
Before BAUER, COFFEY, and ROVNER, Circuit Judges.
The General Store in Joliet, Illinois, was the scene of an armed robbery on the night of October 26, 1990, and the store clerk on duty Cheryl Smithson identified Darryl Allen as the perpetrator-first from a photographic array and also during his two state trials. The first of the two trials ended in a dead-locked jury, but the second trial resulted with Allen being convicted of armed robbery, which was upheld on appeal. In the petitioner's initial appeal of his conviction he alleged that his trial counsel was ineffective for eliciting testimony from Detective Farmer referring to the defendant's post-arrest silence, and also the petitioner argued that his appellate counsel was ineffective for failing to raise the issue of trial counsel's ineffectiveness on direct appeal. The state appellate court rejected each of these arguments, holding that, even if counsel's performance was deficient, he was not prejudiced by the trial counsel's question because the evidence of guilt was overwhelming. We affirm.
Allen's second jury trial lasted less than a day. As previously pointed out the store clerk identified the armed robber and during her testimony referred to him as a frequent customer and went on to explain that he had visited the store on two different occasions on the night of the robbery. Smithson's testimony also revealed that the robber was unmasked, which afforded her ample time to observe and recognize him. She also mentioned that he had been a frequent patron of the store. She further stated that the unmasked robber displayed a gun while standing within a foot of her and directed her to give him the money in the cash register. Shortly after the crime, the witness Smithson immediately identified Allen as the armed robber during a photo lineup and again at trial. In addition to Smithson's eyewitness account, a videotape of the robbery was displayed to the jury. Even though the pictures on the videotape film were not of perfect quality, they were of sufficient quality to assist the jury in substantiating Smithson's testimony as well as her identification of Allen as the robber.
Finally, the State as proof of consciousness of guilt offered the evidence that Allen fled to Georgia about two months after the crime. It is well established that evidence of flight is admissible as a circumstance tending to show a consciousness of guilt. See Illinois v. Pursley, 672 N.E.2d 1249, 1255 (1996).
It is also interesting to note that during his cross-exami-nation of the investigator, defense counsel, as distinguished from appellate counsel, elicited the following testimony concerning the post-arrest questioning of Allen:
Counsel: Okay. Now, you said that you read Mr. Allen the rights off the Miranda form, correct?
Counsel: But you filled the answers out?
Counsel: Okay. Isn't it a fact that Mr. Allen refused to answer any questions?
Farmer: He refused to answer questions in reference to the case in ...