People v. Kramer

• Decision Date: 26 March 1996
• Docket Number: No. 1-95-0208,1-95-0208
• Parties: , 215 Ill.Dec. 729 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William KRAMER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 126

664 N.E.2d 126

278 Ill.App.3d 963, 215 Ill.Dec. 729

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William KRAMER, Defendant-Appellant.

No. 1-95-0208.

Appellate Court of Illinois First District, Second Division.

March 26, 1996.

Appeal from the Circuit Court of Cook County, County Department, Criminal Division; Themis N. Karnezis, Judge Presiding.

Epstein, Zaideman & Esrig, P.C., Chicago (James R. Epstein, Elizabeth A. Kaveny, of counsel), for Appellant.

Jack O'Malley, State's Attorney of Cook County, Chicago (Renee Goldfarb, James S. Beligratis, of counsel), for Appellee.

Justice SCARIANO delivered the opinion of the court:

On June 20, 1993, William Kramer ("defendant") and Seth Dahm, were travelling in a Chevrolet Blazer owned by defendant's parents. A high speed chase of the Blazer by police officers ended in a collision killing Dahm and injuring defendant.

The Blazer was first observed travelling north on Indianapolis Boulevard at "an extremely high rate of speed" by East Chicago police officer Lopez. While he attempted to curb the vehicle, it "ran" between 10 and 12 red lights, and continued to pick up speed until it was travelling at a rate of "at least a hundred miles an hour."

After being ordered to terminate his pursuit and to allow Whiting police officers to take over, Lopez continued north, and while looking for a place to turn around, he saw that the Blazer had been overturned and was on fire. Both occupants were on the ground but he was unable to tell which of them had been the driver.

Whiting police officer Semancik was on Indianapolis Boulevard when he received a dispatch that a vehicle was being pursued in his direction. He saw the Blazer pass by at a high rate of speed, but was unable to observe anything inside the vehicle. He began pursuit, allowing Whiting police officer Trojnar to proceed ahead of him. Semancik estimated that the Blazer was travelling at "well over a hundred miles an hour" as it continued through Hammond into Chicago.

As Semancik slowed down, looking for a place to turn around, he saw two men ("Chavez" and "Jiminez") signalling for him to stop. They told him that there was an accident under the Skyway, and after proceeding to the vacant lot they had indicated, Semancik saw the Blazer lying on its side and someone lying on the ground. He radioed for emergency help and found that the individual, later identified as defendant, had a pulse and was breathing, but unconscious and "pretty messed up." Trojnar arrived next, and began putting out the fire.

Trojnar testified that upon being radioed that a vehicle was entering the city limits at a high rate of speed, she went down a side street to Indianapolis Boulevard and waited, looking south. As she saw the Blazer approach, she kept her eyes on the vehicle and was able to see that there were two occupants. When the Blazer was only five to ten feet away, she observed that the passenger had a long, blond ponytail (Dahm had long blond hair; defendant has dark hair.) She estimated that the Blazer was travelling at over ninety miles an hour.

As the vehicle passed her and continued north on Indianapolis, Trojnar began pursuit. She was forced to slow down, however, upon encountering another vehicle in her lane, and Semancik passed her. After losing sight of the Blazer and Semancik, she began to turn around, when "an unknown vehicle" pointed for her to continue north on Indianapolis. Looking for Semancik, she followed an individual pointing into a vacant lot, and saw the Blazer lying on its side.

Upon seeing that the Blazer had caught fire and that Semancik was rendering aid to one of the occupants, Trojnar extinguished the fire and began looking for the other occupant. She found an individual with blond hair in a ponytail, who she determined to be the passenger of the vehicle, located near a pillar of the Skyway. She admitted at trial that although the accident occurred on June 20, 1993, she did not tell anyone about seeing the blond ponytail until one month prior to the May 1994 trial, after being told that there was a problem of identification in this case.

Jiminez testified that he was stopped at a red light, with Chavez and his brother as passengers, when a "speeding truck" went by. The truck passed within two feet of Jiminez's car, and he claimed to have seen a heavyset passenger hanging on to the dashboard. The truck then crashed through a fence and a tree and turned over. Jiminez and Chavez went to the vacant lot where the truck had crashed and found one man without a pulse and another man screaming "my head, my head."

Police officers on the scene had told Jiminez and Chavez that they were attempting to determine which occupant had been the driver, and when they questioned him about "the violator", Jiminez stated that he was wearing a white tee shirt, admitted that he could not identify the driver, but indicated that the man who had been found near the cement pillar was the passenger. Chavez told the officers that he had not been able to observe anyone when the Blazer passed by him.

Both Trojnar and Jiminez were cross-examined regarding the circumstances affecting their ability to observe the passenger of the speeding Blazer and their failure to report their observations at the time of the accident. Chavez testified that he was in the back seat when the vehicle came "flying from the left side," causing Jiminez to slam on the brakes; that after seeing the Blazer crash and explode, he and Jiminez ran to the scene; and that he had not been able to observe anyone when the Blazer passed by him.

At trial, defense counsel attempted several times to ask Chavez about any conversations he had had with Jiminez regarding his observation of the occupants of the Blazer. After sustaining the State's objections, the court stated: "... what I'm looking for, to be perfectly frank, ..., is any questioning of Mr. Jiminez regarding any conversation between he [sic] and/or the witness, and I don't see any. So most respectfully, the objection will be sustained."

At the conclusion of defendant's bench trial, the judge found him guilty of reckless homicide. Defendant moved for a new trial, arguing that he was denied effective assistance of counsel because his attorney failed to bring up a prior inconsistent statement made by Jiminez. Counsel was permitted to make a post-trial offer of proof that Jiminez had previously told Chavez that he did not, in fact, observe either occupant of the Blazer as it passed him, but instead decided to "hang" it on "the guy who lived." Defendant further charged that his counsel failed to have a "human factors expert" perform tests which would have enabled him to give testimony discrediting the eyewitnesses' trial identification. Defendant concluded his motion for a new trial with the assertion that he was convicted despite the existence of a reasonable doubt of his guilt.

In denying defendant's motion, the court sentenced him to 30 months' probation, prohibiting him from driving during that period, plus 300 hours of community service, and six months' confinement, to be served in his room when he was not attending classes. Defendant appeals his conviction and sentence, advancing the same assignments of error urged in his motion for a new trial.

Defendant first contends that he was denied effective assistance of trial counsel (1) because his attorney failed to impeach Jiminez's identification of Dahm as the Blazer's passenger, and (2) because counsel failed to contact and present a human factors expert who would have conducted tests and given his opinion discrediting the eyewitness identifications made by Jiminez and Trojnar.

To establish that he was denied effective assistance of counsel, defendant must show "(1) that his counsel made errors so serious, and his performance was so deficient, that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment to the United States Constitution, and (2) that these deficiencies so prejudiced the defendant as to deprive him of a fair trial, a trial whose result is reliable." People v. Caballero, 126 Ill.2d 248, 259-60, 128 Ill.Dec. 1, 533 N.E.2d 1089 (1989) (citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674). Defendant must overcome a strong presumption, however, that counsel's conduct was reasonable and that his actions constituted sound trial strategy. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984), reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864. Defendant cannot use the benefit of hindsight to second-guess counsel's exercise of judgment, discretion, or trial tactics. People v. Cunningham, 191 Ill.App.3d 332, 138 Ill.Dec. 598, 547 N.E.2d 765 (1989), appeal denied, 131 Ill.2d 561, 142 Ill.Dec. 884, 553 N.E.2d 398 (1990).

To establish prejudice, defendant must show that there is a "reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69. Further, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ... if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." People v. Albanese, 104 Ill.2d 504, 527, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984), cert. denied, 471 U.S. 1044, 105 S.Ct. 2061, 85 L.Ed.2d 335 (1985), reh'g denied, 472 U.S. 1013, 105 S.Ct. 2715, 86 L.Ed.2d 730.

The first deficiency of trial counsel which defendant claims constituted ineffective assistance was his failure to impeach Jiminez with a prior inconsistent statement, alleged to have been made to Chavez, that he did not, in fact, observe the passenger of the Blazer as it sped past him, but instead, merely decided to...