Appeal from the Circuit Court of Cook County. Honorable Douglas J. Simpson, Judge Presiding. No. 01 CR 22606
The opinion of the court was delivered by: Justice Robert E. Gordon
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justices Cahill and McBride concurred in the judgment and opinion.
Following a jury trial, defendant Michael Lacy was convicted of aggravated criminal sexual assault and two counts of armed robbery. Judgment was entered on the verdict, and defendant was sentenced to 25 years' imprisonment. Defendant's conviction was upheld on appeal (People v. Lacy, No. 1-05-2137 (2007) (unpublished order under Supreme Court Rule
23)), and defendant filed a petition for post-conviction relief in which he claimed ineffective assistance of counsel. The post-conviction petition was dismissed at the second stage of the proceedings, and defendant appeals. We affirm.
Defendant's arguments on appeal are focused on trial counsel's examination of a witness both during a hearing on defendant's motion to suppress and at trial. Defendant challenges counsel's examination of the witness during the suppression hearing and counsel's failure to use the pretrial testimony to impeach the witness' trial testimony. The two accounts are not identical and accordingly, we set out the witness' testimony during each proceeding in detail.
Defendant was arrested and charged in connection with an incident occurring on August 6, 2001, in Eastgate Park in Park Forest, during which three men threatened two victims with a gun, took the victims' property, and forced the female victim to perform oral sex on two of the men. Defendant and his two co-defendants, Antonio Hale and Maurice Shelton, were charged with and indicted on 12 charges, including aggravated criminal sexual assault (720 ILCS 5/12-14(a)(4) (West 2000)) and armed robbery (720 ILCS 18-2(a)(2) (West 2000)). Defendant filed a petition for severance of his case from that of his co-defendants, which was granted.
Defendant filed a motion to suppress certain identification testimony of the State's witnesses. In the motion, defendant claimed that the two victims, T.D. and Dorwin Vines, identified defendant in a photo array after viewing a police lineup in which they were unable to identify defendant. Defendant also claimed that he was the only person who was both in the photo array and the lineup and that he was the only man in either who was a light-complexioned African-American male. From the "grossly suggestive nature of the pre-trial confrontation," as well as from the circumstances surrounding the incident and the "vague description" of the offenders given to police by the witnesses, defendant requested that any pretrial and in-court identification of defendant be excluded.
A hearing on the motion was held on November 18, 2004. In its opening statement, the State indicated that several of defendant's claims in the motion were factually incorrect. First, the State denied defendant's claims that T.D. viewed the photo array after the lineup but said that defendant was identified in the photo array prior to the lineup. The State also indicated that T.D. identified defendant both in the photo array and in the lineup, and that one of the co-defendants was also present in both the photo array and the lineup.
Defendant called Park Forest police officer Padilla as his first witness. Officer Padilla, an officer in the K-9 unit of the patrol division, testified that on the evening of August 6, 2001, he and two other officers responded to a call concerning a potential aggravated criminal sexual assault that had occurred in Eastgate Park. Officer Padilla went to the home of Vines, who had telephoned the police. Vines told Officer Padilla that three people had been involved in the incident and described them as being in their late teens, all wearing black, hooded sweatshirts and dark pants; the only physical characteristics provided were gender, race, and clothing.
Officer Padilla further testified that he went to Eastgate Park that evening. He described himself as "pretty familiar" with the park, having been a Park Forest police officer for 25 years, and indicated that the park was a small park approximately a block from railroad tracks. He testified that at the time Vines indicated that the incident occurred, it was dark outside, and opined that the park was not well lit.
Defendant also called T.D., the female victim, as a witness. She testified that on August 6, 2001, she was walking through Eastgate Park with Vines at approximately 9 or 9:30 p.m., when three unfamiliar men came up to them. T.D. said that two of the men were wearing hooded sweatshirts and the third was not. T.D. did not see where the men came from and was surprised by their presence. The men asked her and Vines if they smoked "weed"; they replied that they did not and kept walking. At that time, T.D. saw the men only briefly and did not pay any attention to them. After T.D. and Vines had gone a few feet, T.D. heard the men ask whether they should "get them," after which they came up to her and Vines, pointed a gun, and demanded her purse. T.D. testified that she was startled and scared when she saw the gun.
T.D. further testified that they took her purse and Vines' watch and then, while she and Vines were standing next to each other, the men patted both of them down to see if they had anything else. The men told Vines to lie down on the ground; T.D. testified that one man went to Vines, while the other two stayed with her. They then told T.D. to remove all of her clothing;
T.D. described the two men's positions as standing "at ten and two o'clock" in relation to her position. T.D. was upset and began crying. When asked how long the incident lasted, T.D. could not remember, but said that "[i]t felt like a long time. Like 10 minutes, maybe 15 minutes." She testified that Hale sat on a bench with her and she performed oral sex on him, after which defendant came over and forced her to perform oral sex on him; she then was forced to perform oral sex on Hale again. T.D. confirmed that this occasion was the first time she had seen any of the men, but testified that she was able to see the faces of the men well, and saw defendant's face for approximately three to four minutes while she was "doing him."
T.D. testified that the incident occurred a few feet from two benches in the park. When asked whether there were lights near the benches, T.D. replied:
"WITNESS: It was a light over the bench.
DEFENSE COUNSEL: Over the bench? WITNESS: Yeah, like over part."
On cross-examination, the State also asked about the lighting in the area:
"PROSECUTOR: [W]hen you were in the park, it was night time but you said there was lighting over the bench; is that correct?
PROSECUTOR: Is that the bench you were made to sit on beginning with Antonio Hale?
PROSECUTOR: Did that light shine right down upon where you were sitting?
WITNESS: It was probably like more to the left, but it was, you know, yeah, basically it did, but it was more -- it was like on the left, and it was shining over.
PROSECUTOR: So it provided light on the bench where you were?
After the incident, T.D. went to Vines' house, where they called the police. T.D. testified that when the police arrived, Vines did most of the talking because she was "shook up" from what had occurred. She could not provide a description that night because she was "so shooken up," but gave one the next day. After speaking with the police, she went to the hospital, and she returned to the police station the next day.
T.D. testified on cross-examination that she met Detective Mannino for the first time when she went to the hospital; at that time, she was calmer and was able to describe the events of the night. When she spoke with Detective Mannino at the hospital, she gave him descriptions of all three men, including "a light skinned boy that had braids." However, on direct examination, T.D. testified that she spoke to Detective Mannino at the police station the day after the attack and gave him "a description of one that I remembered," who was later identified as Hale. She described the man as "a black guy with -- he was dark, had braids." On direct examination, T.D. recalled giving Detective Mannino a description of defendant as "light skinned with braids," but could not remember when that conversation took place.
On August 9, 2001, T.D. was called back to view a computer screen of photographs. She agreed that looking at the computer screen was similar to looking through mug shots in a book and that they appeared on the screen approximately 12 at a time. T.D. recognized Hale from the first set of photographs and did not look any further after she had identified him. T.D. testified that after she identified Hale, the police officers asked her if she wanted to "do the other photographs," and she responded "no. I picked him out. I just knew that was him." T.D. testified that all of the people on the page were dark-skinned African-American males. Later, Detective Mannino called T.D. and told her that he "had the guy" and that the person apprehended had identified the other two men.
After several days had elapsed, T.D. was called to the station again to view a lineup of six people. She recalled seeing a man with a light complexion and braids in the lineup; when she saw him, she testified that "I just had, I just knew it was him. I just knew. I just had a feeling." When asked whether that meant that she had no doubt when she saw defendant, she replied: "No. I am not saying it was no doubt, but you know, he just stood out, you know, out of all of them." T.D. acknowledged that defendant was the only person in the lineup with a light complexion and braids; none of the other men had a light complexion, and all of the other men had shaved heads. After identifying defendant in the lineup, T.D. identified defendant from a photo array; the photo array was not on the computer but consisted of six photographs on a file folder. T.D. also identified Shelton from the same lineup and photo array in which she identified defendant.
However, on cross-examination, T.D. testified that she identified defendant and Shelton in the photo array prior to viewing them in a physical lineup. She testified that after identifying Hale, Detective Mannino came to T.D.'s home one morning approximately a week to 10 days later with a folder displaying a photo array of six photographs. All six of the men in the photographs were African-American, but they had different complexions and different hairstyles. T.D. testified that she recognized defendant's skin color and also testified that she recognized his face; he was not wearing braids in the photograph. When the State asked T.D. whether she recognized defendant only based on his skin color, she responded, "No. It was his face," and she said that she knew his face. T.D. also recognized Shelton in the same photo array. On redirect examination, T.D. repeated that she viewed the photo array including defendant and Shelton at her home and not at the police station as she had testified on direct examination; she said that when she testified on direct examination she "was talking about the other" photo array, when she had identified Hale.
Later on the same day, T.D. went to the police station to view a police lineup, during which she identified defendant and Shelton. T.D. testified that she went into the room to view the lineup alone and that her instructions were to let Detective Mannino "know if anyone looks familiar." Detective Mannino did not "definitely tell" her that someone from the crime was in the lineup. During the lineup, all of the men were seated, then individually stood up and turned around. T.D. testified that Vines also viewed a lineup, although they did not view it together, and she did not tell him who she chose.
The State questioned T.D. about her testimony on direct examination in which she testified that she identified defendant and Shelton in the physical lineup prior to identifying them in the photo array:
"PROSECUTOR: So just for the record, the question I am asking you clearly is did you see the photo array first or the line up first?
WITNESS: I seen the photo first.
PROSECUTOR: Okay. So when [defense counsel] was asking you were you confused about what you had seen at what time?
WITNESS: Yeah, he was, he was confusing me, yeah. PROSECUTOR: And just so we know for the record, we're calling the computer screen the photo array [and] ...