{ "id": 2501226, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL SMREKAR, Defendant-Appellant", "name_abbreviation": "People v. Smrekar", "decision_date": "1990-01-11", "docket_number": "No. 4\u201488\u20140594", "first_page": "534", "last_page": "540", "citations": [ { "type": "official", "cite": "193 Ill. App. 3d 534" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "169 N.E.2d 347", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "350" } ], "opinion_index": 0 }, { "cite": "20 Ill. 2d 11", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2738737 ], "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0011-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "pin_cites": [ { "page": "694" }, { "page": "698" }, { "page": "2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "473 N.E.2d 868", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "873" }, { "page": "875" }, { "page": "875" } ], "opinion_index": 0 }, { "cite": "105 Ill. 2d 79", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141216 ], "weight": 3, "pin_cites": [ { "page": "87-88" }, { "page": "91" }, { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0079-01" ] }, { "cite": "544 N.E.2d 276", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1984, "pin_cites": [ { "page": "277" }, { "page": "277" }, { "page": "277" }, { "page": "278" }, { "page": "278" } ], "opinion_index": 0 }, { "cite": "129 Ill. 2d 303", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567042 ], "weight": 5, "year": 1984, "pin_cites": [ { "page": "308" }, { "page": "308" }, { "page": "308" }, { "page": "309" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0303-01" ] }, { "cite": "489 N.E.2d 1350", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "1353" }, { "page": "1353" } ], "opinion_index": 0 }, { "cite": "111 Ill. 2d 283", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3167488 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "290" }, { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0283-01" ] }, { "cite": "108 S. Ct. 212", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "98 L. Ed. 2d 163", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "484 U.S. 873", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "507 N.E.2d 830", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "116 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543128 ], "year": 1987, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0357-01" ] }, { "cite": "546 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "519" }, { "page": "519" } ], "opinion_index": 0 }, { "cite": "131 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569602 ], "weight": 4, "pin_cites": [ { "page": "298" }, { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0284-01" ] }, { "cite": "385 N.E.2d 848", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "pin_cites": [ { "page": "856" }, { "page": "852" }, { "page": "856" }, { "page": "856" } ], "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 379", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3309467 ], "weight": 5, "pin_cites": [ { "page": "390" }, { "page": "384" }, { "page": "390" }, { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0379-01" ] } ], "analysis": { "cardinality": 739, "char_count": 13296, "ocr_confidence": 0.775, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3465097772109494 }, "sha256": "69878eb0e783026fc66533574be65f5ee1ae2d44128f751df7bda08925f581bc", "simhash": "1:93d45d5482e36fa4", "word_count": 2164 }, "last_updated": "2023-07-14T21:36:46.192510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL SMREKAR, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LUND\ndelivered the opinion of the court:\nOn July 15, 1988, the circuit court of Logan County, pursuant to the State\u2019s motion, dismissed the petition of defendant Russell Smrekar filed pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, pars. 122\u20141 through 122\u20148). Defendant appeals. We affirm.\nOn February 28, 1977, defendant was found guilty by a jury of committing two acts of murder. He was subsequently sentenced to 100 to 300 years for each offense with said sentences to run consecutively. This court affirmed the convictions and sentences in People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848, finding overwhelming proof of defendant\u2019s guilt.\nOriginally, in 1980 defendant filed a pro se petition for post-conviction relief which was eventually withdrawn without prejudice. A new petition was filed in 1987. Counsel was appointed and an amended petition was filed. The State filed a motion to dismiss which the court granted.\nDefendant now raises two issues on appeal. The first is that the court improperly dismissed his allegation in his post-conviction petition that he received ineffective assistance of counsel. The second is that the recent Illinois Supreme Court case, People v. Zayas (1989), 131 Ill. 2d 284, 546 N.E.2d 513, which held that post-hypnotic evidence is inadmissible, requires reversal of this case.\nWhile the underlying facts of this case are adequately set out in Smrekar, a brief review of them here will facilitate the present analysis.\nOn October 9, 1976, in Lincoln, Illinois, Ann Mardis observed her brother and sister-in-law return to their next-door trailer. Around 1 a.m. she heard a \u201croaring\u201d noise come from her brother\u2019s trailer. She looked out the window and observed a man standing next to the trailer who, acting as if he forgot something, turned around and entered the trailer. She attempted to telephone her brother and received no answer. When she returned to the window the man was gone. She observed him 30 to 40 seconds, and the area between the residences is very well lit. She went to the trailer and found her brother and sister-in-law shotgunned to death.\nAbout 3:30 a.m. on that day defendant was stopped and ticketed on what was then U.S. Route 66 (now Interstate 55) south of Odell traveling 96 miles per hour. He was heading north toward Joliet. Route 66 was a direct route between Lincoln and Joliet, where defendant lived at that time.\nThe next day Mardis told the police she had a 50-50 chance of identifying the man she saw. She was shown some pictures. She picked out two as being possible. One she selected due to the hair length. The other she selected because the facial features looked right, but the hair was wrong. This was the picture of defendant.\nShe subsequently visited a physician who hypnotized her to enhance her memory. On October 18 she saw defendant in person for the first time and immediately identified him. Defendant was in a crowd of people at that time. She also identified him at trial.\nThe State\u2019s evidence also established that defendant had been earlier charged with misdemeanor theft and that one of the murder victims and Ruth Martin were prosecution witnesses. That trial had been set for October 19, 1976. In June 1976, Martin disappeared and has not been found. Bloodstains were found in her garage, and her car was found in Bloomington with bloodstains in the trunk.\nTwo youths told the police that approximately three to four hours before the crime they observed a man driving his car slowly with the headlights off and acting suspiciously upon exiting it in the crime area. They could not see the person\u2019s face, but, in a lineup, picked two people out as resembling the person in height and build. Again, one was defendant.\nDefendant, upon his arrest, was held at the Macon County jail. While being booked he was told the charges were serious. The booking deputy testified defendant stated, under his breath, that he did it but the State would never prove it.\nFinally, the State presented the testimony of two cellmates of defendant whom we referred to in Smrekar as Witness I and Witness II. Witness I testified defendant told him he killed the victims and Martin to keep them from testifying against him. Defendant also related some aspects of the shooting to Witness I which were corroborated by the medical testimony. Witness II testified similarly and in much greater detail. However, in Smrekar, defendant raised allegations of discovery errors concerning this witness and we indicated we would not consider this evidence then (Smrekar, 68 Ill. App. 3d at 390, 385 N.E.2d at 856), and we will not now.\nDefendant raised an alibi defense. As we observed earlier, the testimony of defendant\u2019s mother, father, cousin, and girlfriend was inconsistent and impeached by their biased and inconsistent statements. (Smrekar, 68 Ill. App. 3d at 384, 385 N.E.2d at 852.) Defendant\u2019s testimony was inconsistent with some of theirs. His explanation for being south of Odell heading toward Joliet at 3 a.m. was highly implausible in and of itself. This implausibility was increased by conflicts between his testimony and that of the arresting officer concerning defendant\u2019s statements at the traffic stop.\nAfter reviewing all the relevant evidence, this court in Smrekar commented on the weight of that evidence as follows:\n\u201cThe most that the withheld information could have accomplished was to completely nullify the probative value of the testimony of Witness II. Even without that testimony the totality of (1) the testimony of the confessions and admissions of the defendant to Witness I and Deputy McCammon, (2) the circumstances of defendant\u2019s speeding arrest at Odell at a time when he would likely have been fleeing from the crime, (3) his motive to kill, and (4) the mysterious disappearance of Ruth Martin accompanied by evidence of his confession of killing her, together with whatever weight the jury might have given to the identification testimony of Ann Mardis, and all in the face of defendant\u2019s unlikely and highly impeached alibi evidence, would present a picture of overwhelming proof of guilt.\u201d Smrekar, 68 Ill. App. 3d at 390, 385 N.E.2d at 856.\nIn his post-conviction petition, defendant asserted he received ineffective assistance of counsel. He specifically argued that counsel should have procured an expert witness to testify to the shortcomings of hypnotically enhanced evidence. An affidavit of a psychiatry professor was attached. This affidavit stated it was the witness\u2019 professional opinion, after reviewing the testimony concerning the hypnotic procedure, that \u201cthere is an above average probability that seeing a photograph of the defendant prior to hypnosis and then undergoing hypnosis may have strongly influenced the witness\u2019 belief that defendant was the man she had seen.\u201d The court, determining that an expert cannot testify as quoted, granted the State\u2019s motion to dismiss the petition.\nThe Post-Conviction Hearing Act provides a remedy to criminal defendants who claim that substantial violations of constitutional rights occurred in their trial. (People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, 833, cert. denied (1987), 484 U.S. 873, 98 L. Ed. 2d 163, 108 S. Ct. 212.) Such a proceeding is not an appeal per se, but a collateral attack upon a final judgment. (People v. James (1986), 111 Ill. 2d 283, 290, 489 N.E.2d 1350, 1353.) The scope of review is limited to issues which have not been, and could not have been, previously adjudicated. People v. Owens (1989), 129 Ill. 2d 303, 308, 544 N.E.2d 276, 277; People v. Gaines (1984), 105 Ill. 2d 79, 87-88, 473 N.E.2d 868, 873.\nGenerally, the issue of a trial counsel\u2019s competence is waived where the defendant\u2019s appellate counsel fails to raise it on direct appeal. (Owens; 129 Ill. 2d at 308, 544 N.E.2d at 277; Gaines, 105 Ill. 2d at 91, 473 N.E.2d at 875.) However, the waiver rule is relaxed where the facts relating to the issue of incompetency do not appear on the face of the record (Owens, 129 Ill. 2d at 308, 544 N.E.2d at 277), or in the situation where the same attorney represents defendant at trial and on appeal. (See Gaines, 105 Ill. 2d at 91, 473 N.E.2d at 875.) In the present case defendant was represented by different counsel on appeal. While appellate counsel\u2019s brief did not specifically raise the issue of trial counsel\u2019s ineffectiveness, it did address what is referred to as trial counsel\u2019s inactivity in his failure to preserve alleged errors. It is apparent then that this present allegation could have been raised and addressed on direct appeal, and defendant is therefore barred from raising this issue in his post-conviction petition.\nHowever, even if we address defendant\u2019s contention, the trial court\u2019s ruling must stand. The United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, formulated a two-part test for evaluating whether a claim of ineffective assistance of counsel rises to the level of a constitutional deprivation. Defendant must first demonstrate that counsel\u2019s performance was deficient. (Owens, 129 Ill. 2d at 309, 544 N.E.2d at 278.) Defendant must also prove that his counsel\u2019s deficient performance substantially prejudiced his defense. (Owens, 129 Ill. 2d at 309, 544 N.E.2d at 278.) To meet this second test, a defendant must show a reasonable probability that \u201cbut for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) It is upon this second prong that defendant\u2019s case fails.\nThe purpose of the missing expert testimony is to discredit the positive identification of defendant by Mardis on October 18 and in court. However, even if we assume that these identifications were totally discredited, that still leaves her selection of defendant\u2019s picture as one of two possibilities prior to her hypnosis. She selected defendant\u2019s picture because it closely resembled the facial features of the man she saw. Her only reservations involved the length of the hair in the picture. As noted, in Smrekar this court found the evidence of defendant\u2019s guilt overwhelming. (Smrekar, 68 Ill. App. 3d at 390, 385 N.E.2d at 856.) In reaching that conclusion we relied on all of the evidence and did not place great weight on Mardis\u2019 post-hypnotic identification. We find that eliminating that identification, and limiting Mar-dis\u2019 testimony to selection of the suspect pictures, when coupled with all the other evidence, does not affect in any great way the substantiality of the State\u2019s case or suggest any reasonable probability that the outcome of defendant\u2019s trial would have been different if the expert testimony had been offered. Accordingly, we find the court\u2019s dismissal of defendant\u2019s post-conviction petition was proper.\nNext, defendant argues the recent supreme court case of People v. Zayas (1989), 131 Ill. 2d 284, 546 N.E.2d 513, in which the court held that all post-hypnotic evidence was inadmissible, requires his conviction be reversed. The specific language of Zayas resolves this argument. The court stated:\n\u201cWe understand that other criminal cases in Illinois have involved the use of hypnosis. This ruling, however, will not affect those cases that have been finally determined on direct appeal.\u201d (Zayas, 131 Ill. 2d at 298, 546 N.E.2d at 519.)\nDefendant has previously exhausted his direct appeals. This present case is considered collateral (see James, 111 Ill. 2d at 290, 489 N.E.2d at 1353) and is thus not affected by Zayas.\nDefendant asserts, at oral argument, that the Zayas court was not required to consider the effect post-hypnotic testimony has on the sixth amendment right to confrontation. He believes Mardis\u2019 post-hypnotic testimony is violative of this right and this, coupled with the Zayas analysis, requires reversal.\nHowever, even if we assume, arguendo, that Zayas applies and that Mardis\u2019 questioned testimony violated defendant\u2019s right to confrontation, no reversible error exists. The reason the court reversed in Zayas is that it found that without this improper evidence the jury could have reached a different verdict. (Zayas, 131 Ill. 2d at 298, 546 N.E.2d at 519.) There is no such difficulty with the present case. As earlier discussed, even if we disregard Mardis\u2019 testimony concerning events during and after her hypnotism, which is the foundation of the alleged errors, and consider only the evidence we relied on in Smrekar, the evidence of defendant\u2019s guilt is still overwhelming. Accordingly, since a different result would not occur even if defendant\u2019s allegations of error were correct, any error is harmless. See People v. Tranowski (1960), 20 Ill. 2d 11, 17, 169 N.E.2d 347, 350.\nAffirmed.\nKNECHT, P.J., and GREEN, J., concur.", "type": "majority", "author": "JUSTICE LUND" } ], "attorneys": [ "Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of Springfield, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL SMREKAR, Defendant-Appellant.\nFourth District\nNo. 4\u201488\u20140594\nOpinion filed January 11,1990.\nRehearing denied February 23,1990.\nDaniel D. Yuhas and David Bergschneider, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nKenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of Springfield, for the People." }, "file_name": "0534-01", "first_page_order": 556, "last_page_order": 562 }