People v. Nelson

• Decision Date: 21 May 1982
• Docket Number: No. 80-0063,80-0063
• Citation: 62 Ill.Dec. 629,106 Ill.App.3d 838,436 N.E.2d 655
• Parties: , 62 Ill.Dec. 629 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis NELSON and Gregory Blocker, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 655

436 N.E.2d 655

106 Ill.App.3d 838, 62 Ill.Dec. 629

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis NELSON and Gregory Blocker, Defendants-Appellants.

No. 80-0063.

Appellate Court of Illinois, First District, Fifth Division.

May 21, 1982.

[62 Ill.Dec. 631] Ralph Ruebner, Deputy State Appellate Defender, Patricia Unsinn, Asst. State Appellate Defender, Chicago, for defendants-appellants

Tatel, Levy & Howlett, Chicago, for Gregory Blocker.

Richard M. Daley, State's Atty., Chicago (Michael E. Shabat, Barry A. Gross, Marcia B. Orr, Richard F. Burke, Jr., Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

WILSON, Justice:

Following a jury trial defendants were found guilty of 2 counts of armed robbery and 2 counts of unlawful restraint. (Ill.Rev.Stat.1979, ch. 38, pars. 18-2, 10-3(a).) Both were sentenced to concurrent prison terms of 20 years on each armed robbery count and 3 years on each count of unlawful restraint. On appeal, defendants argue that (1) they are entitled to a new trial because of defense counsel's failure to use available impeaching and alibi evidence and (2) their sentences are excessive and should be reduced, or, alternatively, a new sentencing hearing must be conducted at which the trial court must specify the reasons that led to its sentencing determination. We affirm the convictions but reduce the sentences.

In October of 1977, defendants Nelson and Blocker were arrested and charged with armed robbery and unlawful restraint. A jury trial in September, 1978 ended in a mistrial when the jury was unable to reach a verdict. In November, 1979, a second jury trial began and the following evidence was adduced.

Joseph Woodward testified that at 11:50 p. m. on the night of October 14, 1977, he and a co-worker from the Illinois Masonic Hospital were in his car at 51st and Halsted. Woodward had pulled over to the curb and his co-worker, O. T. Ford began to get out of the car. Two black males, later identified as defendants, walked up with a gun and pointed it at Ford, saying "This is a stick-up." Woodward testified that defendant Nelson was the one who held the gun. He further testified that when he got out of the car Nelson held the gun on Ford. Nelson told Woodward not to run or he would kill him. All four men got into the car and Nelson told Woodward to drive down 51st Street onto the Dan Ryan Expressway. He said he did not intend to rob them but had to get out of the neighborhood. At Nelson's order, Woodward then exited from the expressway and drove to an alley where defendants searched Woodward and took his money, about $7. Afterward they drove around for a short period of time while Blocker held the gun on Woodward and Ford. Nelson then stopped the car on the shoulder of the expressway and told Ford to "hit the grass." Ford crawled through the weeds and bushes adjacent to the expressway. Shortly thereafter, defendants released Woodward and drove off in his car. Woodward testified that the entire incident had lasted approximately 45 minutes.

Testifying further, Woodward stated that he and Ford called the police from a service station, after the incident. When the police arrived, Woodward explained what had happened and described his car and the two assailants. The police transmitted the descriptions over their radio at approximately 1:10 a. m.

Officer Vereecken testified that while he was on patrol at about 3:30 a. m. on October 15, 1977, he noticed a vehicle that matched the description of Woodward's car. He and his partner, Officer Kovac, stopped the car and noticed that there were 2 males, whom he identified in court as defendants, and three females. He advised the men of their rights and searched them, finding $50 on Nelson. He also discovered a fully loaded .357 revolver under the seat of the passenger's side of the car.

At 4 a. m. the police telephoned Woodward and asked him to view a lineup at the station. He and Ford separately viewed a 6-man lineup. They both identified two men, defendants, as their assailants. In the parking lot at the station, Woodward saw his vehicle.

Next to testify was the police investigator who had conducted the lineup. He described An Assistant State's Attorney, Brian Collins, then testified as to his presence in an interview room with defendant Blocker in the early morning of October 15, 1977. Collins advised Blocker of his Miranda rights from memory. Blocker indicated that he understood them and then admitted that he had committed a robbery in the vicinity of 51st Street and Halsted. He said he had taken $10. When a police officer came into the interview room with a gun, defendant identified it as the gun he used in the robbery. Collins testified further that he did not ask Blocker to sign a written statement. Collins later used his own notations to write a summary of Blocker's statement but it was not read or signed by Blocker. Collins also testified that it is not normal procedure to attempt to procure a written statement except in homicide cases.

[62 Ill.Dec. 632] the procedures and circumstances surrounding the lineup.

Ford then testified. His account of the occurrence was substantially the same as Woodward's. He stated that defendants took approximately $50-60 from him. In his initial description to the police he reported that Nelson was tall, dark, 160-170 pounds, about 26, and wore a goatee. He identified a photograph of the lineup and testified that he was able to identify defendants because they were still wearing the same clothes.

After the admission of its exhibits the State rested and defendant's motion for a directed verdict was denied.

Charles Stewart, an unemployed carpenter, then testified for the defense. On October 14, 1977 at 8:30 or 9 p. m. he attended a party at a lounge with defendants and a man named McGowan. He recalled defendants being with him in the lounge from midnight until 1 or 1:30 a. m. He remained in the lounge until closing time, approximately 2:30 or 3 a. m., helping McGowan straighten up while defendants waited outside in the parking lot. Stewart further testified that when he left the lounge he saw them in the parking lot talking to a couple of girls. While they were sitting in the car and talking, a car pulled up to the curb and the driver called out for Blocker. Stewart testified that he did not know what was said then but he saw Blocker, Nelson and the girls get into the car and drive away.

On cross-examination, Stewart testified that he was a friend of defendants. He did not recall Nelson having a goatee on October 14 and 15, 1977 or what type of clothing he wore, except for a black hat and brown jacket. He doubted that Blocker had a mustache and had never known him to have a suede jacket. He admitted that he had never gone to tell the police that he was with defendants on that night.

Following Stewart's testimony, both sides rested. The jury then heard closing arguments and were instructed on the law, after which they found defendants guilty as charged on 2 counts each of armed robbery and unlawful restraint. Defendants, who each had one prior conviction, were thereafter sentenced to concurrent prison terms of 20 years on each armed robbery count and 3 years on each count of unlawful restraint.

OPINION

I.

Initially defendants argue that they were denied effective assistance of counsel in violation of their right to due process of law under the fourteenth amendment to the United States Constitution. They contend that their attorney failed to impeach complainants' identification testimony with their prior inconsistent descriptions and failed to produce a defense witness for the second trial whose testimony would have "unequivocally" established their alibi defense. Therefore, because of the importance of this evidence to their defense that they were victims of mistaken identity, defendants request that their convictions be reversed and the case remanded for a new trial. We reject these contentions.

Under Illinois law a defendant is entitled to a new trial if he can establish his counsel's actual incompetence, "as reflected by the manner of carrying out his duties as a trial attorney which results in substantial prejudice without which the outcome would probably have been different." (People v. Carlson (1980), 79 Ill.2d 564, 584-85, 38 Ill.Dec. 809, 404 N.E.2d 233; accord People v. Talley (1981), 97 Ill.App.3d 439, 52 Ill.Dec. 875, 422 N.E.2d 1084.) Substantial prejudice is not established by mere conjecture or by second-guessing counsel's trial tactics. (See People v. Bell (1981), 95 Ill.App.3d 803, 51 Ill.Dec. 83, 420 N.E.2d 497.) Furthermore, competency is generally determined from counsel's overall performance during the course of trial. People v. Bell.

We adhere to these principles as being the established law of Illinois. Although defendants urge us to replace the actual incompetence/substantial prejudice standard with a "minimum standard of professional representation" test espoused in various federal cases (e.g., United States ex rel. Williams v. Twomey (7th Cir. 1975), 510 F.2d 634), we note that the Illinois Supreme Court has rejected that standard. (People v. Murphy (1978), 72 Ill.2d 421, 21 Ill.Dec. 350, 381 N.E.2d 677; see also People v. Greer (1980), 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203.) We therefore decline to adopt the standard and express no opinion as to its relative merits.

On the issue of counsel's failure to use impeaching evidence at the second trial, defendants enumerate several discrepancies in complainants' descriptions of their assailants. They contrast the victims' descriptions given to the investigating police officer with the descriptions given at trial. In the first trial, which ended in a mistrial, the police officer called by the defense had testified as to the following descriptions he received from the victims: one offender (later identified as Nelson) was dark complected, had a goatee, was 5' 7 , 180...