Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County No. 89 CR 5408 The Honorable Matthew E. Coghlan, Judge Presiding.
Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, (Alan D. Goldberg and Rebecca I. Levy, of counsel), for APPELLANT.
Anita Alvarez, State's Attorney, County of Cook, (Alan J. Spellberg, Christine Cook and Joan F. Frazier, of counsel), for APPELLEE.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Pierce concurred in the judgment and opinion.
¶ 1 Petitioner, Harold Oliver, appeals the judgment of the circuit court dismissing his post- conviction petition after the second stage. On appeal, Oliver contends the trial court erred in dismissing his post-conviction petition where he made a substantial showing that appellate counsel was ineffective for failing to argue on direct appeal that (1) the court gave improper jury instructions on how to evaluate eyewitness identification testimony; and (2) his trial counsel was ineffective in failing to challenge the improper instruction. For the following reasons, we affirm.
¶ 2 JURISDICTION
¶ 3 The trial court dismissed Oliver's post-conviction petition on February 24, 2012. He filed a notice of appeal that same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rule 651, governing appeals in post-conviction proceedings. Ill. Const. 1970, art. VI, § 6; Ill. S.Ct. R. 651 (eff. Feb. 6, 2013).
¶ 4 BACKGROUND
¶ 5 Oliver was charged with aggravated criminal sexual assault and armed robbery in connection with an incident that occurred on January 24, 1989. A jury found him guilty in March of 1991. On appeal, this court reversed his convictions and remanded for a new trial. People v. Oliver, 265 Ill.App.3d 543 (1994). After the second trial, the jury again found Oliver guilty of committing criminal sexual assault and armed robbery. Oliver appealed and this court affirmed his convictions. People v. Oliver, 306 Ill.App.3d 59 (1999). Oliver filed his initial pro se petition for post-conviction relief on February 1, 2001. He subsequently filed other motions and claims, and on June 7, 2011, Oliver filed a petition to consolidate all of his claims in one petition. The State filed a motion to dismiss on August 31, 2011. The following facts are relevant to Oliver's appeal.
¶ 6 On January 24, 1989, around 7:45 a.m., S.S. was walking to the bus stop when a man grabbed her from behind and put a gun to her neck. The man wore grey glasses and had a scar on the right side of his face. S.S. testified that she recognized the man as someone she knew from several years ago by the name of "Ralph." S.S. met Ralph through her cousin, Sharon Allison. They met at a Burger King in Chicago. S.S. recognized him as a friend of someone she dated when she was a teenager, but she had never formally met him before. Allison told S.S. that Ralph's real name was Harold Oliver.
¶ 7 The man ordered S.S. to take off her shoes and although he warned her not to look at him, she did anyway. The man forced S.S. into a vestibule of a nearby apartment building and ordered her to take off her jacket and pull up her sweater. The vestibule had plenty of windows and the sun was shining through. S.S. could clearly see the man in that space. He tried covering her face with the jacket to keep her from seeing him, but it kept slipping off during the assault. The man inserted his fingers and his penis into S.S.'s vagina, and then he forced her to perform fellatio. After he ejaculated, S.S. spit the semen onto the floor.
¶ 8 Mildred Williams, who lived on the first floor of the building, testified that on the morning of January 24, 1989, she was talking with a neighbor when she heard a commotion in the entryway. When she went to investigate, she saw a man with his back to her and she saw S.S. She thought they were engaging in a consensual sex act and she yelled, "how dare they be in that lobby." The man turned around and made a motion as if he were putting something in his waistband. He quickly glanced at Williams before taking S.S.'s leather jacket and leaving. S.S. then screamed, "Help me, help me, I've been raped." Williams opened the door and, as S.S. cried, Williams asked a neighbor to call 911.
¶ 9 The police arrived and S.S. gave them a description of her assailant as a man she knew as Ralph who had a scar on his face, wore glasses, and was no more than two inches taller than her. S.S. was taken to the hospital and the police took photographs of the scene and collected semen and saliva samples from the floor. After speaking with S.S. at the hospital, the police spoke with Allison. She told them that she knew Ralph from the neighborhood and she had dated him for several months. When she introduced him to S.S., S.S. replied, "I know ...