{ "id": 256256, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OMAR CHANEY, Defendant-Appellant", "name_abbreviation": "People v. Chaney", "decision_date": "2001-06-29", "docket_number": "No. 1 \u2014 99\u20141925", "first_page": "322", "last_page": "328", "citations": [ { "type": "official", "cite": "324 Ill. App. 3d 322" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "196 Ill. 2d 518", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351227 ], "year": 2001, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0518-01" ] }, { "cite": "246 Ill. App. 3d 773", "category": "reporters:state", "reporter": "Ill. App. 3d", "year": 1994, "pin_cites": [ { "page": "781", "parenthetical": "Derrick Berry" } ], "opinion_index": 0 }, { "cite": "316 Ill. App. 3d 1143", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096650 ], "year": 2000, "pin_cites": [ { "page": "1153" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/1143-01" ] }, { "cite": "241 Ill. App. 3d 993", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2434837 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "998", "parenthetical": "Terry Berry" }, { "page": "998" }, { "page": "998" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/241/0993-01" ] }, { "cite": "139 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573939 ], "year": 1990, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0089-01" ] }, { "cite": "273 Ill. App. 3d 116", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258809 ], "year": 1995, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0116-01" ] }, { "cite": "306 Ill. App. 3d 793", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336125 ], "year": 1999, "pin_cites": [ { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0793-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 12, "year": 2000, "pin_cites": [ { "page": "490" }, { "page": "455" }, { "page": "2362-63" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] } ], "analysis": { "cardinality": 812, "char_count": 15330, "ocr_confidence": 0.773, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.010187852650868835 }, "sha256": "0b3cd6c11f0d049cf624ea88ba067fe72e3974f02a3f69d73ac571528f05c4a8", "simhash": "1:139634ac6b44e957", "word_count": 2663 }, "last_updated": "2023-07-14T20:56:29.143572+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. OMAR CHANEY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COHEN\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Omar Chaney was convicted of three counts of aggravated criminal sexual assault and one count of armed robbery. The trial court sentenced Chaney to consecutive prison terms of 25, 9 and 6 years, respectively, for the three aggravated criminal sexual assault convictions. The court also imposed a concurrent prison sentence of 25 years for the armed robbery conviction. This appeal followed.\nChaney argues that his convictions must be overturned and a new trial granted because the prosecution impermissibly elicited testimony that before the victim identified Chaney from an array of photos, she had examined other photos in mug books without recognizing anyone. Chaney further argues that because consecutive (rather than concurrent) sentences were imposed, based on a finding by the trial court on a matter neither charged nor submitted to a jury, his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.\n1. Background\nThe victim, A.E, testified as follows. On the evening of August 17, 1993, A.E was waiting at Union Station for a friend to pick her up and drive her to suburban Elmhurst, where A.E lived with her parents. A.E had just completed new student orientation at the University of Illinois at Chicago earlier that week. A.E had been waiting in the station between an hour and a half and two hours for her friend when she was approached by two men, who introduced themselves as \u201cMike\u201d and \u201cArdmore.\u201d A.E later learned that \u201cArdmore\u201d was the defendant, Omar Chaney.\nThe two men said that A.E looked \u201ckind of lost\u201d and asked if they could help her. A.E agreed and explained her situation. At their suggestion, A.E had her friend paged over the station intercom, but there was no response. They waited another half-hour and then, around 9:30 p.m., A.E called her stepmother. Her stepmother told A.E that she needed to return home quickly because her curfew was 10 p.m. No trains left Union Station for Elmhurst for another hour and a half. The men said that their car was only a few blocks away and offered to give A.E a ride to Elmhurst. Because the men \u201cseemed nice,\u201d she accepted.\nAfter they began walking to the car, the men said that they needed to stop at a friend\u2019s house prior to leaving for Elmhurst. They walked for many blocks until they came to a red brick building at 846 South Racine. They went into an apartment on the third floor. Ms. Freddie Mae Harris, who resided in the apartment, let them in.\nHarris testified that on August 17, 1993, she knew the defendant as \u201cOmar Chaney.\u201d She said that Chaney was a friend and that they had lived together on and off for about eight months. Chaney arrived at Harris\u2019s apartment that night along with another man and a woman, whom she later learned to be A.E Harris\u2019 apartment was used as a \u201csmoke house,\u201d a place where drug users gather to smoke cocaine. A.E and Harris sat in the kitchen, while Chaney and Mike went into another room to use cocaine. Harris also used some cocaine. A.E just sat at the kitchen table and stared out the window.\nA.E testified that she kept telling Harris that she had to go back to Elmhurst. However, she didn\u2019t want to leave the apartment by herself because \u201ceverybody was already staring at [her] and looking at [her] crazy.\u201d A.E said that she felt safer in the apartment because she did not know exactly where she was and she did not know anyone other than Mike and Chaney. After about an hour, A.E left the apartment with the two men. Mike told her that the car was only a couple of blocks away.\nThe men walked A.E down a series of alleys. Chaney put his arm around her. The men said they needed gas money. Eventually, Mike grabbed A.E from behind, covering her mouth with one hand. Chaney drew a knife with a four-inch blade and a red handle. The men dragged A.E down an alley until they reached a rat-infested pile of flattened cardboard boxes near a loading dock, where they ordered A.E to remove her clothes. A.E responded, \u201cWhy are you doing this to me. Flease don\u2019t do this to me.\u201d Mike replied, \u201cTake off your clothes, bitch. You\u2019re getting what you deserve.\u201d\nEach of the men then raped A.E multiple times, both orally and vaginally, while the other held the knife. The first time they raped A.E, they allowed A.E to dress herself, then the men walked her toward some parked cars while Chaney went through her backpack. They then returned her to the pile of boxes, where both men again raped her multiple times. They also beat her and choked her. When they had finally finished, Mike and Chaney had an argument about whether to kill A.E, with Mike stating that \u201cI\u2019m not going back to the pen. I\u2019m not going back there for that bitch.\u201d Chaney, who argued against killing A.E, told A.E to get dressed.\nChaney then walked A.E along the streets for a while, telling her \u201cYou know, you really could be my girlfriend.\u201d Chaney then hailed a taxi and put A.E inside. The driver asked if A.E had any money. When she said no, he told her to get out. Chaney then put her in a second cab. That cab was driven by Mehdi Seyf Tolooi.\nTolooi testified at trial that a man and a woman approached his cab between 2 and 2:30 a.m. on the morning of August 18, 1993. He thought it looked as if \u201cthey had some kind of argument, some kind of disturbance, something was going on.\u201d It was clear to him that something was wrong. The woman\u2019s face \u201cwas jammed, smushed, very disturbed.\u201d The man was holding a purse. He told Tolooi to drive the woman to the suburbs and gave her the purse through the car window.\nThey drove off. When the cab turned the corner, A.E started shaking and crying. She told Tolooi that the man had a knife and that he had raped her. Tolooi radioed in to the dispatcher and the police arrived shortly thereafter. Tolooi gave them a description of the man who had put A.E in the cab. A.E showed the police where the rape had occurred and was taken to Northwestern Hospital.\nAn evidence technician surveyed the crime scene. He found mascara, eyeliner and earrings that A.E identified as her own. A doctor examined A.E and found her to be in a state of emotional distress with reddened areas about the face, a scratch on the left side of the neck, tender ribs and redness and tenderness in her pelvic area. Her undergarments tested positive for semen. However, no spermatozoa cells were found, thus precluding DNA testing.\nThe following day, A.E went to the police station and viewed several books of photographs. She did not recognize anyone. Two weeks later, a detective came to her dorm room and showed her an array of five photographs. A.E immediately picked out Chaney\u2019s picture and identified him as one of the men who had raped her. Later, she picked Chaney out of a lineup at the police station. Two weeks after that, Tolooi also picked Chaney out of a lineup. He thought Chaney looked \u201cvery, very familiar.\u201d Tolooi said he was not positive that Chaney was the man who put A.E in his cab, but said that he was more than 80% certain.\nAugustus Spearman testified on behalf of Chaney. Spearman said that he saw Chaney board a bus for St. Lawrence, Minnesota, on August 3, 1993, and did not see Chaney again until the end of August.\nChaney took the stand on his own behalf. Chaney testified that on the date of the crime he was living with his fianc\u00e9e in St. Paid, Minnesota. He said that he knew Harris but had not been to her apartment. He did not know A.E Chaney said that he was working in Minnesota at the time the rape occurred. However, he was unable to produce a pay stub.\nThe jury found Chaney guilty of three counts of aggravated criminal sexual assault and one count of armed robbery. The court sentenced Chaney to consecutive prison terms of 25, 9 and 6 years, respectively, for the three aggravated criminal sexual assault convictions and imposed a concurrent 25-year sentence for the armed robbery conviction.\nChaney now appeals his convictions and sentence. He first argues that his convictions must be reversed because the trial court erroneously admitted evidence that, prior to the time A.E identified the defendant from an array of photos, she had looked at mug books at the police station and had not recognized anyone. Chaney also argues that his sentences must be reversed in light of the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).\n2. \u201cNonidentification\u201d Testimony\nel The admissibility of evidence is determined by the trial court. We review such determinations for abuse of discretion. People v. Jones, 306 Ill. App. 3d 793, 799 (1999). \u201cGenerally, a witness should not be permitted to testify that he made no identification when viewing photographs of persons other than [the] defendant.\u201d People v. Biggers, 273 Ill. App. 3d 116, 121 (1995). This rule is a subset of the larger principle that a witness generally may not testify as to his own prior consistent statements in order to corroborate testimony at trial. People v. Hayes, 139 Ill. 2d 89, 138 (1990). Here, A.E testified that prior to her identification of Chaney\u2019s photograph, she had looked at mug books at the police station and had not seen anyone that she recognized. The State acknowledges that this testimony ran afoul of the rule against prior \u201cnonidentification\u201d testimony. However, Chaney failed to object to the admission of the testimony in question either at trial or in a posttrial motion. Accordingly, he has waived the matter for purposes of this appeal. People v. Berry, 241 Ill. App. 3d 993, 998 (1993) (Terry Berry).\nChaney urges this court, however, to address the matter as plain error. \u201cThe plain error doctrine (134 Ill. 2d R. 615(a)) may be applied where the evidence is closely balanced or where the error is of such magnitude that it denied the accused a fair trial.\u201d People v. Tisdel, 316 Ill. App. 3d 1143, 1153 (2000). Under the circumstances before us, we decline to do so. This was not an error of such magnitude as to deny Chaney a fair trial. Further, Chaney has not brought to our attention any case in which a court of review has found that the admission of prior \u201cnonidentification\u201d testimony denied a defendant a fair trial. Indeed, the admission of such testimony has been held to be harmless even where the matter was not waived, where there were other errors, and where the prosecution relied upon the prohibited evidence in closing and rebuttal. People v. Berry, 246 Ill. App. 3d 773, 781 (1994) (Derrick Berry). Moreover, this is not a case in which the evidence is closely balanced. In fact, even if we did not find the matter waived, we would nevertheless hold any error to be harmless due to the otherwise overwhelming evidence against Chaney.\n\u201cThe testimony of [the victim] was clear, convincing and unhesitating. She was able to view the defendant for a considerable length of time under conditions permitting a positive identification to be made. In our opinion, the non-identification testimony neither constituted a material factor in the jury\u2019s verdict nor served to deprive the defendant of a fair trial.\u201d Terry Berry, 241 Ill. App. 3d at 998.\nAlong with the victim\u2019s persuasive testimony, Chaney was independently identified by Harris, whom Chaney admitted that he knew, as well as by the taxi driver, Tolooi.\nGiven the nature of the evidence, we conclude that nothing in the circumstances of this case compels us to treat the admission of the subject testimony as plain error. The objection is waived. Terry Berry, 241 Ill. App. 3d at 998., Chaney\u2019s convictions are affirmed.\n3. Apprendi Issue\n\u20222 The trial court ordered, under section 5 \u2014 8\u20144(a) of the Unified Code of Corrections (730 ILCS 5/5 \u2014 8\u20144(a) (West 1998)), that the sentences for each of Chaney\u2019s three aggravated criminal sexual assault convictions run consecutively. Section 5 \u2014 8\u20144(a) states in relevant part:\n\u201cThe court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12 \u2014 13, 12 \u2014 14, or 12 \u2014 14.1 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively.\u201d (Emphasis added.) 730 ILCS 5/5 \u2014 8\u20144(a) (West 1998).\nCiting the decision of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), Chaney asserts that the imposition of consecutive sentences under this section is unconstitutional. The Apprendi Court held that, \u201c[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\u201d Ap-prendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Chaney argues that the failure to submit to a jury or to have proved beyond a reasonable doubt the question of whether his offenses \u201cwere committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective\u201d within the meaning of section 5 \u2014 8\u20144(a) violated his rights to due process and trial by jury under Apprendi.\nFirst, Chaney misreads the statute. The determination under section 5 \u2014 8\u20144(a) that offenses were \u201ccommitted as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective\u201d does not trigger the imposition of consecutive sentences. 730 ILCS 5/5 \u2014 8\u20144(a) (West 1998). Rather, such a determination bars the trial court from imposing consecutive sentences unless one of two named exceptions is present: (1) defendant was convicted of either a Class X or Class 1 felony and inflicted severe bodily injury, or (2) \u201cdefendant was convicted of a violation of Section 12 \u2014 13, 12 \u2014 14, or 12 \u2014 14.1 of the Criminal Code of 1961.\u201d 730 ILCS 5/5 \u2014 8\u20144(a) (West 1998). Chaney\u2019s conviction of aggravated criminal sexual assault in violation of section 12 \u2014 14(a)(1) of the Criminal Code of 1961 (720 ILCS 5/12 \u2014 14(a)(1) (West 1998)) falls within the second of the named exceptions to the consecutive sentencing bar, thereby triggering the imposition of consecutive sentences under section 5 \u2014 8\u20144(a) (730 ILCS 5/5 \u2014 8\u20144(a) (West 1998)).\nEven if artfully framed, however, Chaney\u2019s Apprendi argument must fail. Our supreme court has ruled that section 5 \u2014 8\u20144(a) is constitutional under Apprendi. People v. Carney, 196 Ill. 2d 518, 536 (2001). Chaney\u2019s consecutive sentences are therefore affirmed.\nAffirmed.\nMcNULTY, EJ., and O\u2019HARA FROSSARD, J, concur.", "type": "majority", "author": "JUSTICE COHEN" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Ira Sheffey, Assistant Public Defender, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, William L. Toffenetti, and Bradley C. Giglio, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OMAR CHANEY, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1 \u2014 99\u20141925\nOpinion filed June 29, 2001.\nRita A. Fry, Public Defender, of Chicago (Ira Sheffey, Assistant Public Defender, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, William L. Toffenetti, and Bradley C. Giglio, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0322-01", "first_page_order": 340, "last_page_order": 346 }