{ "id": 2473637, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIMON GREEN, Defendant-Appellant", "name_abbreviation": "People v. Green", "decision_date": "1990-06-12", "docket_number": "No. 3\u201488\u20140794", "first_page": "525", "last_page": "530", "citations": [ { "type": "official", "cite": "198 Ill. App. 3d 525" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "473 N.E.2d 1270", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141251 ], "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0001-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "pin_cites": [ { "page": "694" }, { "page": "698" }, { "page": "2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "93 S. Ct. 375", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6173155 ], "opinion_index": 0, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "432 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177400 ], "weight": 6, "pin_cites": [ { "page": "122" }, { "page": "159" }, { "page": "2257" }, { "page": "114" }, { "page": "154" }, { "page": "2253" } ], "opinion_index": 0, "case_paths": [ "/us/432/0098-01" ] }, { "cite": "410 N.E.2d 861", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "81 Ill. 2d 513", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481877 ], "year": 1977, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0513-01" ] }, { "cite": "494 N.E.2d 853", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "144 Ill. App. 3d 310", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3500368 ], "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0310-01" ] }, { "cite": "461 N.E.2d 398", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "101 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3161012 ], "year": 1986, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0128-01" ] } ], "analysis": { "cardinality": 604, "char_count": 10593, "ocr_confidence": 0.761, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3392280785482088 }, "sha256": "33b9b024e5429d77f264af12b34bf3bacb8eff355ebc5fa6e3a17982063bf302", "simhash": "1:862130ad36ce9a47", "word_count": 1769 }, "last_updated": "2023-07-14T19:49:28.995518+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. SIMON GREEN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STOUDER\ndelivered the opinion of the court:\nDefendant Simon Green and codefendant Ricky Gordon were charged by complaint with armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18\u20142(a)). The two were tried separately, with Green being tried first. Following a jury trial, Green was convicted of the offense. During two hearings following the conviction, the defendant argued that he should be granted a new trial because of certain newly discovered evidence. The trial court denied the motion and sentenced the defendant to a 20-year prison term. The defendant appeals.\nAt trial Gina Staehley, an owner of the Ken Woody Sports store, testified that at approximately 12:15 p.m. on June 6, 1988, an individual later identified as Ricky Gordon came into the store, inquired about some merchandise and left, indicating that he would return later. At about 12:35 p.m. Gordon returned and selected a pair of athletic shoes to purchase. Instead of paying for them, however, he drew a gun and ordered Staehley to put the shoes and all the money from the cash register into a plastic bag. Gordon then exited the store, walked past the next door Sunbaum Schwinn store and got in the passenger side of an automobile parked behind the Schwinn store.\nDavid Lesniewcz and Tim Beno, employees of the Schwinn store, testified that at approximately 12:45 p.m. on June 6, 1988, Staehley entered their store and told them that she had just been robbed. The two men ran out the back door of the store and saw a man get into the passenger side of a green Cordoba automobile.\nStaehley was able to provide police with a fairly detailed description of the robber, while Beno was able to provide the police with a fairly detailed description of the driver of the automobile. Lesniewicz was unable to provide specific identification regarding either of the suspects but he did give the police a general description of the passenger and the number of the license plate.\nRobin Jones, who lived across the hall from Gordon, testified that she saw Gordon and the defendant together at Gordon\u2019s apartment between 1 and 1:15 p.m. on the day of the robbery. Jones did not know whether the two arrived together. Jones further testified that Gordon\u2019s automobile was outside the apartment building at that time.\nSergeant Hafner of the Joliet police department testified that he was able to trace the license plate number provided by Lesniewicz to a car owned by Gordon. The police went to Gordon\u2019s apartment at 1:15 p.m. on the day of the robbery and found the car in front of Gordon\u2019s apartment complex. A new pair of athletic shoes, as well as a shirt later identified by Staehley as being the one worn by the robber, were found in the apartment.\nBeno and Staehley were able to identify Gordon as the passenger in the automobile from a police photographic lineup held nearly one month after the robbery. During the same photographic lineup, Beno also identified the defendant as the driver of the automobile.\nThe defendant was found guilty of armed robbery. During two hearings following the conviction, defense counsel argued that the defendant should be granted a new trial because of certain newly discovered evidence. Counsel explained that after Beno had testified, the defendant had informed him that his photograph had been in a \u201cCrime Stoppers\u201d article in the Joliet Herald News. Counsel was not able to confirm this until shortly before closing arguments. During Gordon\u2019s trial it was established that Beno had seen the \u201cCrime Stoppers\u201d article and had discussed it with other witnesses before he was shown the lineup from which he identified the defendant as the driver of the automobile. In fact, the same photograph that appeared in the paper was the same photograph Beno picked out during the lineup..In Gordon\u2019s trial, Beno\u2019s identification of Gordon was suppressed because of the impermissibly suggestive lineup.\nThe prosecutor argued that the motion for a new trial should be denied because defense counsel became aware of the \u201cCrime Stoppers\u201d article prior to the close of the defendant\u2019s trial and might have had a tactical reason for not pursuing the matter. The trial judge denied the motion without comment. The defendant raises two questions for our consideration.\nInitially the defendant contends that the trial court erred in not granting the defense motion for a new trial based upon the newly discovered evidence that the State\u2019s only identification witness had identified the defendant in an impermissibly suggestive lineup.\nThe party seeking a new trial based upon newly discovered evidence \u201cmust establish that the newly discovered evidence would have been likely to produce a different result in the trial.\u201d (People v. Molstad (1984), 101 Ill. 2d 128, 135, 461 N.E.2d 398.) A trial court\u2019s decision to deny a motion for a new trial will not be overturned absent an abuse of discretion. People v. Peters (1986), 144 Ill. App. 3d 310, 320, 494 N.E.2d 853.\nWe find that the trial court did not abuse its discretion in denying the motion. The State initially contends that the evidence was not newly discovered. We agree with the defendant that the evidence was newly discovered evidence. While defense counsel clearly became aware of the \u201cCrime Stoppers\u201d article during the defendant\u2019s trial, it was not discovered until after the trial that Beno had seen the article. We do not agree, however, that the evidence would have produced a different result at trial.\nAssuming that the photographic identification was impermissibly suggestive, the State may nevertheless overcome that obstacle, by a clear and convincing showing, based on the totality of the surrounding circumstances, that \u201c \u2018the witness is identifying the defendant solely on the basis of his memory of events at the time of the crime.\u2019 \u201d (People v. McTush (1980), 81 Ill. 2d 513, 520, 410 N.E.2d 861, quoting Manson v. Brathwaite (1977), 432 U.S. 98, 122, 53 L. Ed. 2d 140, 159, 97 S. Ct. 2243, 2257 (Marshall, J., dissenting).) In Manson, the Court stated:\n\u201cWe therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony ***. The factors to be considered are set out in Biggers. 409 U.S., at 199-200, 34 L. Ed. 2d at 401, 93 S. Ct. 375. These include the opportunity of the witness to view the criminal at the time of the crime, the witness\u2019 degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.\u201d 432 U.S. at 114, 53 L. Ed. 2d at 154, 97 S. Ct. at 2253.\nApplying these factors to the case at bar, it is apparent that:\n1. At approximately 12:45 p.m. on a clear, sunny day witness Beno observed the defendant from a distance of 10 to 15 feet for a period of one to two minutes. Beno described the defendant as \u201csweaty.\u201d\n2. Beno had just been advised that the store next door had been robbed. He and the other two employees went to the back of the store to see if they could observe the robber. It certainly can be inferred that he had a high degree of attention at that time, i.e., he wasn\u2019t a passive observer but rather went out to see what was going on.\n3. Beno\u2019s description to the police shortly after the incident was of a heavyset black male, approximately 30 to 40 years of age, with a bushy afro haircut, small beard and mustache.\nThe presentence report indicates that the defendant is a 5-foot 9-inch, 260-pound black male in his late 30\u2019s. The photograph of the defendant which was introduced at trial shows the defendant to have a small beard and mustache. Beno testified that other than having longer hair, the defendant appeared the same in the photograph as he did the day of the robbery.\n4. Beno never wavered in his identification of the defendant as the driver, either at the pretrial photo lineup or at the in-court identification of the defendant.\n5. The photo lineup took place approximately one month after the robbery. The in-court identification took place in mid-October 1988, four months after the robbery.\n6. It is true that the photo Beno saw in the article was identical to the photo he picked out of the police lineup. However, when he saw the photo, he immediately recognized the defendant as the driver of the automobile on June 6,1988.\nBalancing the first five against the sixth, we are of the opinion that an independent basis existed for Beno\u2019s identifications of the defendant. Accordingly, evidence of these would have been admitted at trial even if the identifications were tainted by Beno\u2019s viewing of the \u201cCrime Stoppers\u201d article.\nThe defendant\u2019s second issue contends that the defendant was denied his right to effective assistance of counsel. The defendant maintains that his counsel knew or should have known during the trial that the identification by Beno was suppressible.\nThe standard for determining whether a defendant has received effective assistance of counsel at trial has two components: deficiency and prejudice. The defendant must first prove that his counsel made an error so serious that he was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the sixth amendment to the United States Constitution. Second, the defendant must prove that there is a \u201creasonable probability that, but for counsel\u2019s unprofessional errors, the result *** would have been different.\u201d Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.\nThe defendant has failed to persuade us as to either of these points. The issue of counsel\u2019s competency is always based on a totality of the counsel\u2019s conduct. (People v. Mitchell (1984), 105 Ill. 2d 1, 15, 473 N.E.2d 1270.) Our review of the record fails to support such a finding.\nSecond, we are of the opinion that even if the defense counsel had discovered that Beno had seen the \u201cCrime Stoppers\u201d article, an independent basis existed for his identifications such that a motion to suppress would have failed.\nAccordingly, the judgment of the circuit court of Will County is affirmed.\nAffirmed.\nBARRY and SCOTT, JJ., concur.", "type": "majority", "author": "JUSTICE STOUDER" } ], "attorneys": [ "Janet L. Gandy, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Edward Burmila, State\u2019s Attorney, of Joliet (Rita Kennedy Mertel, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIMON GREEN, Defendant-Appellant.\nThird District\nNo. 3\u201488\u20140794\nOpinion filed June 12, 1990.\nJanet L. Gandy, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nEdward Burmila, State\u2019s Attorney, of Joliet (Rita Kennedy Mertel, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0525-01", "first_page_order": 547, "last_page_order": 552 }