{ "id": 3185358, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE FAULKNER et al., Defendants-Appellants", "name_abbreviation": "People v. Faulkner", "decision_date": "1980-07-01", "docket_number": "No. 78-286", "first_page": "136", "last_page": "142", "citations": [ { "type": "official", "cite": "86 Ill. App. 3d 136" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "79 Ill.2d 627", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "396 N.E.2d 59", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 59", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3293232 ], "year": 1980, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0059-01" ] }, { "cite": "388 U.S. 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168284 ], "weight": 3, "pin_cites": [ { "page": "302" }, { "page": "1206" } ], "opinion_index": 0, "case_paths": [ "/us/388/0293-01" ] }, { "cite": "409 U.S. 188", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173155 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "199-200" }, { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "394 N.E.2d 1182", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. 2d 35", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490428 ], "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0035-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "98 S. Ct. 1513", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "55 L. Ed. 2d 533", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "435 U.S. 937", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3106, 3091, 2397 ], "opinion_index": 0, "case_paths": [ "/us/435/0937-02", "/us/435/0937-01", "/us/435/0937-03" ] }, { "cite": "367 N.E.2d 1313", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "67 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811071 ], "year": 1978, "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0564-01" ] }, { "cite": "289 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5393878 ], "weight": 2, "pin_cites": [ { "page": "568" }, { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0564-01" ] }, { "cite": "356 N.E.2d 921", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 842", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2641732 ], "pin_cites": [ { "page": "846" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0842-01" ] }, { "cite": "268 N.E.2d 17", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "48 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2907059 ], "year": 1976, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0382-01" ] }, { "cite": "401 N.E.2d 523", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. 2d 500", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3073388 ], "pin_cites": [ { "page": "505-06" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0500-01" ] }, { "cite": "343 N.E.2d 489", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971950 ], "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0448-01" ] }, { "cite": "374 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5628278 ], "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0719-01" ] }, { "cite": "303 N.E.2d 409", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "55 Ill. 2d 421", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937510 ], "year": 1979, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0421-01" ] }, { "cite": "388 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 6, "year": 1973, "pin_cites": [ { "page": "241" }, { "page": "1165" } ], "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] }, { "cite": "432 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177400 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "114-15" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/us/432/0098-01" ] }, { "cite": "388 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168184 ], "weight": 9, "pin_cites": [ { "page": "273" }, { "page": "1186" }, { "page": "272" }, { "page": "1186" } ], "opinion_index": 0, "case_paths": [ "/us/388/0263-01" ] }, { "cite": "79 Ill. 2d 614", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "387 N.E.2d 107", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11715369 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ne2d/387/0107-01" ] }, { "cite": "70 Ill. App. 3d 275", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5576499 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "282" }, { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0275-01" ] }, { "cite": "406 U.S. 682", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173132 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "688-89" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/us/406/0682-01" ] } ], "analysis": { "cardinality": 851, "char_count": 15436, "ocr_confidence": 0.882, "pagerank": { "raw": 9.343516746942455e-08, "percentile": 0.5137971364353675 }, "sha256": "3ca3aba3074ce9a05824e0203f96214410aac4016605606e8e678b8780a5e8da", "simhash": "1:8943d7c00d7e2f25", "word_count": 2462 }, "last_updated": "2023-07-14T21:36:08.867369+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. CLARENCE FAULKNER et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. JUSTICE DOWNING\ndelivered the opinion of the court:\nDefendants, Clarence Faulkner and Richard Ford, were charged by indictment with rape, robbery, and aggravated kidnapping. After a bench trial, defendants were found guilty of rape and aggravated kidnapping. Both received sentences of 12 to 18 years. On appeal this court is asked to consider (1) whether the trial court erred when it denied Faulkner\u2019s motion to suppress identification testimony; (2) whether the trial court erred when it permitted admission of an exhibit absent necessary foundation testimony; (3) whether defendants\u2019 court-appointed attorneys failed to provide effective assistance; (4) whether defendants were proved guilty beyond a reasonable doubt; and (5) whether the trial court imposed upon Ford an excessive sentence.\nFord and Faulkner were arrested pursuant to warrants issued after complainant filed complaints alleging defendants had raped her on May 4, 1975. Prior to trial, Faulkner filed a motion to suppress identification testimony. Complainant previously identified Faulkner at a lineup. Although the lineup occurred after his arrest, no attorney was present. The trial court denied Faulkner\u2019s motion.\nDuring trial complainant testified that on May 4,1975, a Sunday, she was walking east on Chicago Avenue near the intersection of Larrabee. It was approximately 6:30 a.m. She was going to church. Complainant noticed that a car with two male occupants was following her. The car was green with a black top. As she increased her gait the car kept pace. She headed toward a friend\u2019s home, but just as she reached the steps of that building, the former occupants of the car grabbed her from either side. She identified Ford as having told her not to scream. She identified Faulkner as having said he would kill her if she did. They dragged her into their car.\nDefendants tied a handkerchief in blindfold fashion over her eyes, drove her to an apartment building, and then dragged her to a studio apartment. Once inside the apartment, Faulkner removed the blindfold, threatened complainant\u2019s life, and raped her. She could clearly see her assailant\u2019s face throughout the 30-minute episode. Complainant testified further that Ford sat in a chair watching the attack until Faulkner removed himself from atop her and told Ford, \u201cShe\u2019s yours.\u201d Ford then raped her. Complainant looked at Ford\u2019s face throughout the one-hour ordeal. After she was permitted to dress herself, defendants again blindfolded her and returned her to Chicago Avenue.\nComplainant\u2019s mother testified that on May 4, her daughter returned from church later than usual and cried repeatedly, \u201cI\u2019ve been raped.\u201d\nRobert Gerwig, a Chicago police officer, testified that on July 9,1975, he and two other officers were investigating a robbery which involved a green and black Mercury automobile. The officers saw such a car parked in front of a house on North Ridgeway, Chicago. Faulkner left that house, approached the officers, and after a brief discussion gave them the keys to the car which they drove to a police station.\nBetty Faulkner testified as an alibi witness for her husband. She stated that on May 4 she was confined to her bed while she recuperated from surgery. Defendant Faulkner had fallen asleep late the night before and arose earlier than she to prepare breakfast for their four children. She awoke at about 11:30 that morning.\nDefendant Faulkner was the last witness to testify. He denied any participation in the charged offenses. He stated he was at his home during May 4. He also stated he owned a \u201cblack over green Mercury.\u201d In addition, Ford and he knew each other socially.\nIt was stipulated that Dr. Thornton examined complainant at Cook County Hospital on May 4, and he found neither evidence of sperm nor trauma requiring surgical correction.\nAt the conclusion of the evidence, defendants moved for directed findings in their favor. The trial court denied those motions and after argument of counsel found defendants guilty of rape and aggravated kidnapping. Motions for new trials were denied. The trial court then recited the nature of the crimes, the relevant criminal records of defendants, and their opportunity for rehabilitation. It concluded that defendants should be removed from the community for a considerable length of time and sentenced them accordingly.\nI.\nA.\nFaulkner first contends the trial court erred when it denied his motion to suppress identification testimony. He contends that his constitutional right to have counsel present during a lineup identification was activated by his arrest pursuant to a judicially issued warrant. In the absence of counsel, he concludes, any identification testimony resulting from the lineup should have been suppressed. We agree.\nAfter Faulkner was charged by complaint with rape, he was entitled to counsel. (Kirby v. Illinois (1972), 406 U.S. 682, 688-89, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877; People v. Giovanetti (1979), 70 Ill. App. 3d 275, 282, 387 N.E.2d 107, appeal denied (1979), 79 Ill. 2d 614.) Testimony regarding a lineup identification in violation of that entitlement is prohibited under Gilbert v. California (1967), 388 U.S. 263, 273, 18 L. Ed. 2d 1178, 1186, 87 S. Ct. 1951. Therefore, defendant\u2019s motion to suppress such testimony should have been granted.\nB.\nFaulkner also contends complainant\u2019s in-court identification testimony was constitutionally impermissible. We disagree. In-court identification testimony by a witness to an illegal lineup identification may be admitted if the in-court identification has an \u201cindependent source.\u201d (Gilbert v. California (1967), 388 U.S. 263, 272, 18 L. Ed. 2d 1178, 1186, 87 S. Ct. 1951.) A determination of an \u201cindependent source\u201d requires consideration of several factors: the opportunity to view; the degree of attention; the accuracy of the description; the witness\u2019 level of certainty; and the time between the crime and the confrontation. (See generally Manson v. Brathwaite (1977), 432 U.S. 98, 114-15, 53 L. Ed. 2d 140, 154, 97 S. Ct. 2243; United States v. Wade (1967), 388 U.S. 218, 241, 18 L. Ed. 2d 1149, 1165, 87 S. Ct. 1926.) We believe the instant record, in the light of these factors, clearly indicates complainant arrived at her in-court identification independently, as a matter of law, from the illegal lineup. See, e.g., People v. Connolly (1973), 55 Ill. 2d 421, 427, 303 N.E.2d 409; People v. Giovanetti (1979), 70 Ill. App. 3d 275, 283.\nII.\nDefendants claim the trial court erred when it admitted into evidence, over objection, a certified copy of Faulkner\u2019s application for a 1975 automobile license plate for his 1969 Mercury car. No foundation testimony was adduced. Although we conclude that it was error to admit this evidence, the error was harmless for three reasons. First, the presumption that the trial court considered only competent evidence (People v. Rodgers (1978), 58 Ill. App. 3d 719, 724, 374 N.E.2d 721) is not rebutted by the record. Second, Faulkner admitted during cross-examination that he owned a \u201cblack over green Mercury.\u201d Third, defense counsel attempted to use the fact that Faulkner owned a Mercury, rather than a \u201cBuick 225,\u201d as evidence supporting their defense theory of misidentification. Admission of the document was not reversible error.\nFord also contends, in connection with Faulkner\u2019s ownership of the car, that Officer Gerwig\u2019s testimony contained an impermissible \u201creference to other crimes\u201d which prejudiced Ford\u2019s case. \u201cEvidence which tends to prove a fact in issue is admissible though it may be evidence showing that the accused has committed a crime other than the one for which he is being tried, and evidence which goes to show * * * identity \u201d # \u201d is admissible though it may show the commission of a separate offense.\u201d (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489.) Gerwig\u2019s testimony was probative on the issue of Faulkner\u2019s ownership of a car similar to the one described by complainant. Thus, it was admissible to show ownership and control of the vehicle, as well as identity. It was therefore admissible even though it may have suggested Ford associated with one whose car was the subject of a criminal investigation.\nIII.\nDefendants next contend they were denied the constitutional guarantee of effective assistance of counsel. They cite the following five examples as illustrative of their claim: defendants were permitted by counsel to waive their right to a jury prior to the hearing on their motions to suppress; counsel failed to object to complainant\u2019s testimony that she recognized Faulkner\u2019s picture in a \u201cmug book\u201d; counsel failed to object to complainant\u2019s lineup identification testimony; complainant viewed pictures of the lineup while testifying thereto without objection; and defense counsel failed to aggressively cross-examine complainant\u2019s mother. Defendants argue that these examples, in the aggregate, compel reversal.\nThe law is clear that a conviction will not be reversed on the ground of incompetent court-appointed counsel unless defendants \u201cestablish (1) actual incompetence and (2) substantial prejudice resulting therefrom. [Citations.] Proof of prejudice cannot be based on mere conjecture [citations] nor can a defendant rely upon speculation as to the outcome of his case had the representation been of higher quality [citations].\u201d (People v. Hills (1980), 78 Ill. 2d 500, 505-06, 401 N.E.2d 523.) Defendants have failed to establish either necessary element. Our review of the record indicates that each example constitutes counsel\u2019s exercise of judgment, discretion, or trial strategy. Our review of competency does not extend to those areas. (People v. Newell (1971), 48 Ill. 2d 382, 387, 268 N.E.2d 17; People v. Monreal (1976), 42 Ill. App. 3d 842, 846, 356 N.E.2d 921.) Even if we were to assume that the cited examples, in the aggregate, established actual incompetence, defendants have failed to show the trial court considered incompetent evidence. (See generally People v. Rodgers.) Thus, defendants fail to establish substantial prejudice arising from that representation.\nIV.\nDefendants also claim the State failed to prove them guilty of the crimes charged beyond a reasonable doubt. They claim that absent the lineup identification of Faulkner, and excluding all arguably inadmissible evidence, the trier of fact was faced with evidence so improbable as to raise a reasonable doubt. See generally People v. Stringer (1972), 52 Ill. 2d 564, 568, 289 N.E.2d 631.\nComplainant viewed her assailants under conditions conducive to a positive identification. She identified Ford and Faulkner in court as those assailants. Although she described the vehicle her assailants used as a Buick, and Faulkner owns a Mercury, complainant correctly identified the color scheme of Faulkner\u2019s car. \u201c[W]here the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made.\u201d People v. Stringer (1972), 52 Ill. 2d 564, 569.\nFurthermore, other discrepancies cited by defendants do not compel reversal. \u201cA reviewing court may not substitute its judgment for that of the trier of fact \u2018on questions involving the weight of the evidence or the credibility of the witnesses * 6 V \u201d (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Therefore, in the absence of evidence so improbable as to raise a reasonable doubt of guilt, defendants\u2019 convictions are affirmed.\nV.\nFinally, Ford claims his sentence is excessive. There is no contention, however, that the trial court applied improper factors in sentencing Ford. In fact, the record discloses the trial court considered all relevant factors. (See generally People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) That court also considered defendant\u2019s history of criminal activity and the nature of the crime giving rise to his conviction. In the light of these latter factors, we cannot say the trial court abused its discretion. Accordingly, Ford\u2019s sentence is affirmed. See People v. Lykins (1979), 77 Ill. 2d 35, 40, 394 N.E.2d 1182.\nThe judgment of the circuit court of Cook County as to each defendant is affirmed.\nAffirmed.\nSTAMOS and HARTMAN, JJ., concur.\nFord\u2019s appellate brief does not directly address the issue of the trial court\u2019s denial of his motion to suppress. He does adopt any and all applicable arguments advanced by Faulkner. The instant issue does not apply to Ford.\nWe reject the State\u2019s claim that Faulkner waived this issue. Although Faulkner\u2019s form motion to suppress was in several respects vague, it clearly invoked the constitutional right to counsel during the lineup identification by citing two fundamental cases applicable to that issue: United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, and Gilbert v. California (1967), 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951. Faulkner\u2019s post-trial motion for a new trial was based, in part, upon a claim that the trial court erred in denying his motion to suppress. The issue was therefore preserved for review.\nThese factors may also be applied to Faulkner\u2019s argument, by implication, that the lineup constituted a due process violation. (See generally Neil v. Biggers (1972), 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375; Stovall v. Denno (1967), 388 U.S. 293, 302, 18 L. Ed. 2d 1199, 1206, 87 S. Ct. 1967.) Under the instant facts our analysis of the totality of circumstances compels the conclusion that no such violation is present.\nComplainant testified that she thought the model of the assailants\u2019 car was a \u201cBuick 225.\u201d\nWe note that at least two recent appellate court decisions have interpreted and applied a different standard in their review of sentences. (See People v. Cox (1979), 77 Ill. App. 3d 59, 63, 396 N.E.2d 59, appealallowed, (1980), 79 Ill.2d 627 (presumption that trial courtimposed proper sentence may be rebutted on appeal if defendant affirmatively shows a sentencing error); People v. Choate (1979), 71 Ill. App. 3d267, 273, 389 N.E. 2d670 (same) .)The\u201crebuttable presumption\u201d standard of sentencing review is set forth in section 5 \u2014 5\u20144.1 of the new Illinois sentencing act (Ill. Rev. Stat. 1977, ch. 38, par. 1005 \u2014 5\u20144.1), effective February 1, 1978. Ford was sentenced prior to the effective date of that act. Although we believe Ford\u2019s sentence is properly reviewed pursuant to the \u201cabuse of discretion\u201d standard clearly applicable to review of sentences imposed before the new act\u2019s effective date, our review of the instant record in the light of Cox and Choate compels the conclusion that Ford has failed to affirmatively demonstrate sufficient sentencing error to rebut the presumption of a properly imposed sentence.", "type": "majority", "author": "Mr. JUSTICE DOWNING" } ], "attorneys": [ "Sam Adam, of Chicago, for appellant Clarence Faulkner.", "Frederick N. Aiossa, of Chicago (Douglas K. Morrison, of counsel), for appellant Richard Ford.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr and Pamela L. Gray, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE FAULKNER et al., Defendants-Appellants.\nFirst District (2nd Division)\nNo. 78-286\nOpinion filed July 1, 1980.\nSam Adam, of Chicago, for appellant Clarence Faulkner.\nFrederick N. Aiossa, of Chicago (Douglas K. Morrison, of counsel), for appellant Richard Ford.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr and Pamela L. Gray, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0136-01", "first_page_order": 158, "last_page_order": 164 }