People v. Oliver

Illinois Official Reports

Appellate Court

People v. Oliver, 2013 IL App (1st) 120793

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption HAROLD OLIVER, Defendant-Appellant.

District & No. First District, Second Division

Docket No. 1-12-0793

Filed December 24, 2013

Held The dismissal of defendant’s postconviction petition at the second

(Note: This syllabus stage of the proceedings was upheld over defendant’s contention that

constitutes no part of the his appellate counsel failed to argue that improper instructions were

opinion of the court but given on the factors to be considered in evaluating eyewitness

has been prepared by the identification testimony and that his trial counsel did not object to the

Reporter of Decisions instructions, since defendant’s conviction was affirmed in 1999 and

for the convenience of his pro se postconviction petition was filed in February 2001, and the

the reader.) appellate court opinion in Gonzalez, holding that the use of “or”

between the factors was error because it implied that eyewitness

testimony could be considered reliable if only one factor weighed in

favor of reliability, was not filed until November 26, 2001, and a claim

of ineffective assistance of counsel cannot be based on the failure to

invoke a ruling that had not yet occurred; furthermore, the evidence

was not closely balanced and the error was harmless.

Decision Under Appeal from the Circuit Court of Cook County, No. 89-CR-5408; the

Review Hon. Matthew E. Coghlan, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier, Alan D. Goldberg, and Rebecca I. Levy, all of

Appeal State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Christine Cook, and Joan F. Frazier, Assistant State’s Attorneys, of

counsel), for the People.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Presiding Justice Quinn and Justice Pierce concurred in the judgment

and opinion.

OPINION

¶1 Petitioner, Harold Oliver, appeals the judgment of the circuit court dismissing his

postconviction petition after the second stage. On appeal, Oliver contends the trial court erred

in dismissing his postconviction petition where he made a substantial showing that appellate

counsel was ineffective for failing to argue on direct appeal that (1) the court gave improper

jury instructions on how to evaluate eyewitness identification testimony; and (2) his trial

counsel was ineffective in failing to challenge the improper instruction. For the following

reasons, we affirm.

¶2 JURISDICTION

¶3 The trial court dismissed Oliver’s postconviction petition on February 24, 2012. He filed a

notice of appeal that same day. Accordingly, this court has jurisdiction pursuant to article VI,

section 6, of the Illinois Constitution and Illinois Supreme Court Rule 651, governing appeals

in postconviction proceedings. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 651 (eff. Feb. 6,

2013).

¶4 BACKGROUND

¶5 Oliver was charged with aggravated criminal sexual assault and armed robbery in

connection with an incident that occurred on January 24, 1989. A jury found him guilty in

March of 1991. On appeal, this court reversed his convictions and remanded for a new trial.

People v. Oliver, 265 Ill. App. 3d 543 (1994). After the second trial, the jury again found

Oliver guilty of committing criminal sexual assault and armed robbery. Oliver appealed and

this court affirmed his convictions. People v. Oliver, 306 Ill. App. 3d 59 (1999). Oliver filed

his initial pro se petition for postconviction relief on February 1, 2001. He subsequently filed

other motions and claims, and on June 7, 2011, Oliver filed a petition to consolidate all of his

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claims in one petition. The State filed a motion to dismiss on August 31, 2011. The following

facts are relevant to Oliver’s appeal.

¶6 On January 24, 1989, around 7:45 a.m., S.S. was walking to the bus stop when a man

grabbed her from behind and put a gun to her neck. The man wore grey glasses and had a scar

on the right side of his face. S.S. testified that she recognized the man as someone she knew

from several years ago by the name of “Ralph.” S.S. met Ralph through her cousin, Sharon

Allison. They met at a Burger King in Chicago. S.S. recognized him as a friend of someone she

dated when she was a teenager, but she had never formally met him before. Allison told S.S.

that Ralph’s real name was Harold Oliver.

¶7 The man ordered S.S. to take off her shoes, and although he warned her not to look at him,

she did anyway. The man forced S.S. into a vestibule of a nearby apartment building and

ordered her to take off her jacket and pull up her sweater. The vestibule had plenty of windows

and the sun was shining through. S.S. could clearly see the man in that space. He tried covering

her face with the jacket to keep her from seeing him, but it kept slipping off during the assault.

The man inserted his fingers and his penis into S.S.’s vagina, and then he forced her to perform

fellatio. After he ejaculated, S.S. spit the semen onto the floor.

¶8 Mildred Williams, who lived on the first floor of the building, testified that on the morning

of January 24, 1989, she was talking with a neighbor when she heard a commotion in the

entryway. When she went to investigate, she saw a man with his back to her and she saw S.S.

She thought they were engaging in a consensual sex act and she yelled, “how dare they be in

that lobby.” The man turned around and made a motion as if he were putting something in his

waistband. He quickly glanced at Williams before taking S.S.’s leather jacket and leaving. S.S.

then screamed, “Help me, help me, I’ve been raped.” Williams opened the door and, as S.S.

cried, Williams asked a neighbor to call 911.

¶9 The police arrived and S.S. gave them a description of her assailant as a man she knew as

Ralph, who had a scar on his face, wore glasses, and was no more than two inches taller than

her. S.S. was taken to the hospital and the police took photographs of the scene and collected

semen and saliva samples from the floor. After speaking with S.S. at the hospital, the police

spoke with Allison. She told them that she knew Ralph from the neighborhood and she had

dated him for several months. When she introduced him to S.S., S.S. replied, “I know you.”

Allison told police that Ralph’s actual name was Harold Oliver and that he wore glasses and

had a scar on his cheek over his mouth.

¶ 10 The police had photographs of Oliver and presented an array of photos, including the photo

of Oliver, to S.S. S.S. picked Oliver’s photo out of the array. Two days later, the police

searched Oliver’s residence but did not find a gun or leather jacket. They brought him into the

station and after searching him found a pair of glasses in his pocket. They placed Oliver,

without his glasses, in a lineup, which S.S. and Williams separately viewed. S.S. identified

Oliver as her assailant, but stated that he was wearing glasses during the attack. At trial S.S.

stated that she was positive in her lineup and in-court identification of Oliver. Williams could

not pick out Oliver in the lineup. Oliver was taken to the lockup. However, police could not

locate his glasses. In a routine search of Oliver before placing him in the lockup, police found

the glasses hidden under his armpit underneath his sweater.

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¶ 11 Dr. Harold Deadman, an expert in DNA analysis, performed “Restriction Fragment Length

Polymorphism” testing on the fluid found on the vestibule floor. The results showed that

Oliver could not be excluded as a donor of the DNA, and that the probability of a match was 1

in 41 African-American males. A new DNA profiling technique became available in 1996, and

Dr. Deadman performed the “Polymerase Chain Reaction” test on the semen sample. He

confirmed a match and stated that the chances of a random match among African-American

males was 1 in 2,200.

¶ 12 Christine Anderson, an expert in forensic serology, testified that her testing showed that

Oliver had blood type O and was a nonsecretor. As a nonsecretor, Oliver’s blood type cannot

be determined by examining any bodily fluids other than blood. S.S. had blood type B. Since

only blood type B was found in the fluid samples, the attacker was either a nonsecretor or had

the same blood type as S.S. This test ruled out approximately half of the African-American

male population.

¶ 13 At trial, Oliver presented the evidence deposition of Dr. Richard Sassetti as an expert in the

fields of hematology and serology. He stated that the semen in the sample tested could have

come from between 78% to 81% of the African-American male population. Oliver also

presented Dr. Edgardo Correa, who examined S.S. on January 24, 1989. He testified that on his

report he marked that S.S. did not know her attacker. However, on cross-examination he

acknowledged that he used the report to refresh his recollection and he had no independent

recollection of S.S. or the questions he asked her.

¶ 14 Oliver also presented alibi witnesses. Deborah Reasno testified that she worked as a

receptionist for attorney E. Duke McNeil at the time of trial. Oliver also worked in McNeil’s

office. Reasno stated that on January 24, 1989, she arrived at work between 8:15 and 8:30 a.m.,

as she did every work day. When she arrived at work, Oliver was already there using a

typewriter. She saw him when she put her lunch in the refrigerator, which was in the same

room. Also present in the office were McNeil, Oliver’s brother Paul, who also worked for

McNeil, and Emanuel Frank. Reasno testified that she referred to Oliver as “Ralph.” In a

previous proceeding, Reasno stated that Oliver wore glasses in 1989 and that he did not have a

scar on his face. She stated that Oliver did not have to record his time of arrival at work or sign

in.

¶ 15 Emanuel Frank’s testimony from the first trial was read into evidence. Frank worked as a

paralegal for McNeil and on January 24, 1989, he arrived at work at 7 a.m. Frank knew Oliver

as “Ralph.” Frank considered Oliver’s brother Paul a friend whom he has known for 10 years.

Paul arrived at the office at 7:15 a.m., and Oliver arrived around 7:25 a.m. that day. He did not

notice whether Oliver had a scar on his face when they worked for McNeil.

¶ 16 In rebuttal, Maureen Feerick, an assistant State’s Attorney, testified that she called

McNeil’s office on February 16, 1989, and Reasno told her that she arrived at work on January

24, 1989, at 8:30 a.m. Detective Steven Glynn stated that he was familiar with the area of the

assault and where Oliver worked, and he marked both locations on a map that was shown to the

jury.

¶ 17 The jury found Oliver guilty of aggravated criminal sexual assault and armed robbery.

Based on Oliver’s prior felony conviction of the same class within 10 years, the trial judge

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sentenced him to an extended term of 60 years in prison for sexual assault and a consecutive

term of 30 years for armed robbery. Oliver appealed his convictions and sentence.

¶ 18 On appeal, Oliver argued that: (1) the trial court erred in permitting the State to present

experimental scientific evidence; (2) the prosecution misstated the DNA testing results in

closing argument; (3) the prosecution improperly shifted the burden of proof to Oliver in

questioning his expert witness on serology testing; (4) the trial court improperly admitted

probability figures based on DNA tests that were substantially more prejudicial than probative;

(5) the trial court erred in qualifying a prosecution witness as an expert in population genetics;

(6) the trial court erroneously refused to question the venire on racial prejudice; (7) the trial

court erred in admitting evidence of Oliver’s prior convictions; (8) the trial court erred in

denying a motion to exclude references to the victim’s family; (9) the trial court erred in

refusing to allow the defense to present demonstrative evidence; and (10) the State failed to

prove Oliver guilty beyond a reasonable doubt. This court affirmed Oliver’s convictions and

sentence on June 22, 1999.

¶ 19 On January 24, 2000, Oliver filed a pro se postconviction petition. The trial court advanced

Oliver’s petition to the second stage and appointed counsel. On December 7, 2010, Oliver

waived his right to counsel and proceeded pro se. On June 7, 2011, he filed an amended

petition raising three issues: (1) his actual innocence; (2) a speedy trial violation in the first

trial; and (3) he was denied a fair trial when the trial court gave the jury an improper version of

Illinois Pattern Jury Instructions, Criminal, No. 3.15 (4th ed. 2000) (hereinafter, IPI Criminal

4th No. 3.15). The State filed a motion to dismiss Oliver’s petition which the trial court granted

on February 24, 2012. Oliver filed this timely appeal.

¶ 20 ANALYSIS

¶ 21 On appeal, Oliver challenges the trial court’s dismissal of his postconviction petition. The

Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)) provides a three-stage

process whereby a defendant may challenge his conviction and sentence on constitutional

grounds. The trial court here dismissed Oliver’s petition at the second stage, where a dismissal

is warranted if the petitioner’s allegations, liberally construed in light of the record, fail to

make a substantial showing of a constitutional violation. People v. Hall, 217 Ill. 2d 324, 334

(2005). We review the trial court’s dismissal at the second stage de novo. People v. Coleman,

183 Ill. 2d 366, 388-89 (1998).

¶ 22 A postconviction proceeding is not an appeal from the judgment below but, rather, is a

collateral attack on the trial court proceedings. People v. Petrenko, 237 Ill. 2d 490, 499 (2010).

The purpose of the proceeding is to allow inquiry into constitutional issues arising from the

original conviction and sentence that were not, and could not have been, adjudicated on direct

appeal. People v. Harris, 206 Ill. 2d 1, 12 (2002). Therefore, issues raised and decided on

direct appeal are res judicata and issues that could have been raised on direct appeal but were

not are forfeited. People v. Ligon, 239 Ill. 2d 94, 103 (2010).

¶ 23 On appeal, Oliver argues that the jury received an improper version of IPI Criminal 4th No.

3.15, thus violating his constitutional right to a fair trial. He contends that trial counsel was

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ineffective for failing to object to the instruction. At Oliver’s trial, the instruction given to the

jury listed the following factors to consider when evaluating eyewitness identification

testimony: (1) the opportunity the witness had to view the offender at the time of the offense;

(2) the witness’s degree of attention; (3) the witness’s earlier description of the offender; (4)

the witness’s level of certainty when confronting the offender; and (5) the length of time

between the offense and the identification. However, when listing the factors the trial court

used the word “or” in between each factor. This court held in People v. Gonzalez, 326 Ill. App.

3d 629, 640 (2001), that use of the word “or” between the listed factors is error because it

implies that an eyewitness’s identification testimony may be considered reliable even if only

one of the factors weighs in favor of reliability.

¶ 24 However, this court affirmed Oliver’s convictions in 1999, and he filed his initial pro se

postconviction petition on February 1, 2001. Gonzalez was decided on November 26, 2001. In

People v. Chatman, 357 Ill. App. 3d 695, 700 (2005), this court determined that a claim of

ineffective assistance of trial counsel could not be based on counsel’s failure to invoke a ruling

that had not yet occurred. Chatman also held that “Illinois courts generally will not apply new

rules retroactively to cases on collateral review.” Id. Accordingly, we hold that the improper

use of the word “or” between the listed factors in IPI Criminal 4th No. 3.15 occurring before

November 26, 2001, may not be raised in postconviction petitions. Those violations occurring

after November 26, 2001, may be raised in postconviction petitions.

¶ 25 Even on the merits, we are not persuaded by Oliver’s contention. Oliver did not object to

the instruction at trial or offer an alternative, nor did he raise the issue in a posttrial motion or

on direct appeal. Therefore, Oliver has forfeited review of the issue on appeal. People v.

Herron, 215 Ill. 2d 167, 175 (2005); Ligon, 239 Ill. 2d at 103. However, the plain-error

doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious

error occurred and the evidence is closely balanced; or (2) a clear and obvious error occurred

and the error is so serious it affected the integrity of the judicial process regardless of the

closeness of the evidence. Herron, 215 Ill. 2d at 186-87. Our supreme court has “determined

that giving IPI Criminal 4th No. 3.15 with the ‘ors’ is indeed clear and obvious error.” People

v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The error, though, is not so serious that reversal is

required regardless of the closeness of the evidence. Id. at 566. Instead, “defendant must meet

his burden to show that the error was prejudicial–in other words, he must show that the

quantum of evidence presented by the State against the defendant rendered the evidence

‘closely balanced.’ ” Id.

¶ 26 Although the police did not find a gun or S.S.’s leather jacket when they arrested Oliver,

the State’s identification evidence against him was strong. The evidence consisted mainly of

DNA evidence and S.S.’s positive identification of him as her attacker. DNA experts testified

that their testing resulted in a match and that the chances of a random match among

African-American males was 1 in 2,200. Furthermore, S.S.’s positive identification of Oliver

alone is sufficient to sustain a conviction, even in the presence of alibi testimony, if she had an

adequate opportunity to view her attacker and her identification is positive and credible.

People v. Slim, 127 Ill. 2d 302, 307 (1989).

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¶ 27 People v. Furdge, 332 Ill. App. 3d 1019 (2002), is instructive. In Furdge, the jury was also

instructed with IPI Criminal 4th No. 3.15 using “or” between each factor. The defendant in

Furdge also failed to preserve the issue for review and asked this court to address the issue as

plain error. Id. at 1031. Although the court acknowledged that error occurred in giving the

instruction, it determined that the error was harmless because the result would not have been

different had the trial court given the proper instruction. Id. at 1032. The court viewed the error

in light of the facts of the case and found that the defendant was not prejudiced by the error. It

noted that the victim testified that he had known the shooter for years from the neighborhood.

On the day of the shooting he told police that “Kenny” had shot him and he identified the

defendant from a photo lineup that evening. He also positively identified the defendant at trial.

Although other eyewitnesses could not identify the defendant, their descriptions of the shooter

corroborated the victim’s testimony. The court held that the evidence was not closely balanced

and “[a]ny error in providing the instruction was harmless beyond a reasonable doubt.” Id.

¶ 28 Here, the evidence at trial showed that the attack on S.S. occurred in the morning hours,

around 7:45 a.m. S.S. testified that she got a good look at her attacker and recognized him as

“Ralph” from the neighborhood. She was formally introduced to him by her cousin several

years before, but she had known him even longer. Although her attacker told her not to look at

him, S.S. continued to do so. They went into an apartment vestibule and S.S. testified that there

were lots of windows and plenty of sunlight shined through. The attacker placed her jacket

over her head but it kept falling down during the attack and S.S. could see his face. Upon

hearing the commotion, Williams came from her apartment and yelled at them. The attacker

glanced at Williams before grabbing S.S.’s jacket and leaving. After police arrived, S.S. told

them that her attacker was a person named “Ralph” that she knew and he wore glasses and had

a scar on his face. Williams also described the attacker as wearing glasses. The police learned

from S.S.’s cousin that Ralph’s real name was Harold Oliver and later that same day showed

S.S. a photo array from which she identified Oliver as her attacker. Two days later, the police

placed Oliver, without his glasses, in a lineup which S.S. and Williams separately viewed. S.S.

identified Oliver as her assailant, but stated that he was wearing glasses during the attack. At

trial S.S. stated that she was positive in her lineup and in-court identification of Oliver.

Williams, however, could not pick out Oliver in the lineup. We find that, like the situation in

Furdge, the evidence is not closely balanced and any error in giving the instruction was

harmless. See also People v. McNeal, 405 Ill. App. 3d 647, 675-76 (2010); People v. Brookins,

333 Ill. App. 3d 1076 (2002).

¶ 29 Oliver disagrees, arguing that the evidence is closely balanced and citing Piatkowski and

Gonzalez as support. However, these cases are distinguishable. In Piatkowski, none of the

eyewitnesses knew the suspect previously, had as little as a few seconds to view the offender,

discrepancies existed in their prior descriptions of the offender, and a lapse of more than six

months occurred from the offense to the identification. Piatkowski, 225 Ill. 2d at 570. In

Gonzalez, the victims did not know defendant previously and the defense presented evidence

concerning inadequate lighting in the area of the shooting and the ability of the victims to

actually view their attacker. Gonzalez, 326 Ill. App. 3d at 634. In addition, during closing

argument the State in Gonzalez emphasized the erroneous instruction by telling the jury to

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“notice that ‘or’ ” between the factors. (Emphasis and internal quotation marks omitted.) Id. at

640-41. We find the case before us more similar to Furdge and hold that giving the improper

instruction here was harmless error.

¶ 30 Oliver also alleges his appellate counsel provided ineffective assistance in failing to raise

the erroneous instruction issue on direct appeal. The State argues that Oliver waived

consideration of this issue because he did not include it in his postconviction petition, citing

People v. Cole, 2012 IL App (1st) 102499. Waiver aside, Oliver cannot prevail on his

ineffective assistance claim. To establish ineffective assistance of appellate counsel, Oliver

must show that counsel’s performance was deficient and that, but for counsel’s errors, his

appeal would have been successful. People v. Petrenko, 237 Ill. 2d 490, 497 (2010). As

discussed above, the evidence against Oliver was not closely balanced and any error in giving

the instruction was harmless. Oliver’s appeal based on this issue would not have been

successful.

¶ 31 Since Oliver has not made a substantial showing of a constitutional violation, the trial

court’s dismissal of his postconviction petition at the second stage was proper.

¶ 32 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 33 Affirmed.

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