Appendix — Anding v. Illinois

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

' 85-1326

Appendix

Supreme Court, U.d9 |

FILED

rea CS 1988

- ce JR.

—

Defendant's Motion for a New Trial

(July 25, 1984)

Order Denying Defendant's Petition

for Leave to Appeal To Illinois

Supreme Court

( December 4, 1985)

Order from Illinois Supreme Court

Staying the Mandate

( December 30, 1985)

Order Denying Defendant's Petition

34

62

63

For Rehearing from Illinois Appellate 65

Court

( July 18, 1985)

Order Denying Defendant's Appeal

to the Illinois Appellate Court

and Opinion

( June 21, 1985)

66

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE ELEVENTH

JUDICIAL CIRCUIT

COUNTY OF MC LEAN

THE PEOPLE OF THE ]

STATE OF ILLINOIS, ]

Plaintiff, ]

Vv ] No. 83 CF 329

PETER J. ANDING, ]

Defendant, ]

MOTION FOR NEW TRIAL

Comes now the Defendant, PETER J. ANDING,

and moves the Court to enter an Order

granting him a new trial in the above-

entitled cause and as grounds for so moving

alleges and represents as follows:

1. That the verdict is contrary to the

law and the evidence.

2. That Defendant in the above-

entitled cause was denied procedural and

substantive due process in connection with

the defense of his cause in that his interests

before the court were not adequately

represented by his attorney.

3. That Defendant throughtout the legal

proceedings herein described was denied his

right to effective assistance of counsel

A

under the sixth amendment of the U.S.

Constitution.

4. That throughout the proceedings

herein Defendant was denied due process and

the effective assistance of counsel in one

or more of the following regards:

a. That he retained a counsel,

George C. Howard, of Chicago, Illinois after

his arraignment upon the above-entitled

case and after he was initially appointed

a public defender to represent him in the

above-entitled cuase.

b. That at the time of his arraignment

even though Defendant had hired George C.

Howard, Attorney at Law, said counsel did

not appear for the arraignment and Defendant

was represented by the public defender who

at that time filed a Motion to Withdraw and

was granted leave to withdraw simultaneous

with the arraignment.

c. That no pre-trial motions of any

nature were filed on behalf on the Defendant

by private counsel. Private counsel made

no pre-trial appearances either in writing

or in person for Defendant.

55

d. That the only pre-trial motion filed

on behalf of Defendant to protect his rights

and to obtain pre-trial information was a

standard form discovery motion filed by

the public defender's office which was allowed

e. That after the withdrawal of

public defender and the entry of appearance

in writing of private counsel, private

counsel on court appearances wherein the De-

fendant's appearance was required continued

to contact and communicate with the public

defender's office, asking the public

defender or an assistant therefrom to stand

in for him as a substitute counsel for Defen-

dant at court appearances.

f. That legitimate pre-trial issues

might, should or could have been raised on

behalf on Defendant, especially suppression

of the confe-sions, admissions, or statements

of defendant angsuppression of highly

questionable identification procedures

involving alleged and purported identification

of the Defendant by minor children, and

children of tender years under questionable

and suggestive circumstances, and even

though both pre-trial police reports and

trial evidence suggested that said

identification motions might well have been

called for, none were discussed with the

Defendant, apparently contemplated, filed

on behalf of Defendant or ever heard prior

to trial.

g. That no pre-trial negotiations were

discussed at any time by counsel with Defen-

dant or Defendant's parents concerning plea

negotiations, plea bargaining, polygraph tests

and no representations or discussions were

made as to such pre-trial matters as to

legal counsel with the Defendant.

h. That Defendant and his parents had

virtually no pre-trial access to retained

counsel except on the eve of trial and

that the only appearance made by privately

retained counsel on behalf of Defendant were

to journey to the site of the trial and

to conduct a jury trial which took approx-

imately two days.

i. That at all times during pre-trial

57

and during the trial the counsel indicated

strongly to Defendant and the Defendant's

parents that he believed that the evidence

was insufficient to convict the Defendant

and that the Defendant would not be convicted

and exonerated.

j. That post-verdict, the Defendant's

trial counsel filed no post-trial motion of

any kind preserving any legal or evidentiary

rulings, errors or matters for the record

and that said counsel was the only person in

a position to make said motion as he was

trial counsel.

k. That post-verdict when Defendant and

Defendant's parents indicated that they wish

to engage additional counsel for purposes

of contemplating appeal, privately retained

counsel indicated to Defendant and to his

parents that counsel's file would be closed

and said counsel in addition to filing no

post-trial motion indicated an unwillingness

to appear for Defendant at any post-trial

proceeding sentencing or otherwise even

though he is still the attorney of record in

the above-entitled proceeding.

CQ

Harold M. Jennings

STATE OF ILLINOIS]

COUNTY OF MC LEAN] is

PETER J. ANDING, being first duly

sworn on oath deposes and states that he is

the Defendant in the above-entitled cause,

that he has read the foregoing Motion for

New Trial and the contents contained therein

are true to the best of his knowledge,

information and belief.

Peter J. Anding

Subscribed and sworn to before me this

25th day of July, 1984.

Alice Faye Smalley

Notary Public

59

STATE OF ILLINOIS]

COUNTY OF MC LEAN] a

JAMES ANDING, being first duly sworn

on oath deposes and states that he is the

father of the Defendant in the above-

entitled cause, that he has read the foregoing

Motion for New Trial and the contents containe

therein are true to the best of his knowledge

information and belied.

James H. Anding

Subscribed and sworn to before me this

25 day of July, 1984.

Alice Faye Smalley

Notary Public

STATE OF ILLINOIS}

COUNTY OF MC LEAN] ss

HENRINE ANDING, being first duly sworn

on oath deposes and states that she is the

mother of the Defendant in the above-entitled

cuase, that she has read the foregoing Motion

for New Trial and the contents contained there

are true to the best of her knowledge, infor-

mation and belief. Henrine Anding

Subscribed and sworn to before me this

25th day of July, 1984.

Alice Faye Smell2y

Notary Public

61

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL 62706

217/782-2035

December 4, 1985

Mr. Harold M. Jennings 62344

Attorney at Law

109 W. Jefferson

Bloomington, IL 61701

No. 62344 - Peoples State of Illinois,

Respondent,

Vv

+

Peter J. Anding,

Petitioner,

Leave to appeal, Appellate Court, Fourth

District

The Supreme Court today DENIED the

petition for leave to appeal in the above

entitled cause.

The mandate of this Court will issue

to the Appellate Court on December 27, 1985.

No 62344

IN THE

SUPREME COURT OF ILLINOIS

People State of Illinois,]

u Appeal from

nets Appellate Court

vs Fourth District

4-84-0587

Peter J. Anding, } 83 CF 329

Petitioner, ]

PROPOSED ORDER

This matter has come for consideration upon

the motion of petitioner to stay and/or recall

the mandate of this Court pending application

for Certiorari in the United States Supreme

Court.

IT IS ORDERED that the mandate of this

Court in the above cause is stayed pending

the filing of an application for Certiorari

or the expiration of the period within which

said application may be filed. If Certiorari

is applied for, the mandate of this Court

shall, uvon proof of such application being

made by affidavit filed with the Clerk of

this Court, be stayed pending resolution

of the United States Supreme Court of such

63 |

me we

application. If no such affidavit is filed

the mandate shall, without further order,

issce upon the expiration of the time within

which Certiorari may be sought.

Ben Miller

Entered Dec. 30, 1985

64

STATE OF ILLINOIS

APPELLATE COURT

FOURTH DISTRICT

SUPREME COURT BUILDING

SPRINGFIELD, 62706

DATE: July 18, 1985

RE: People v Anding,

Peter J.

General No. 4-84-0587

McLean 83 CF 329

TO COUNSEL:

The court today denied the petition

for rehearing filed in above entitled cause.

The mandate of this court will issue

in 7 days to the Clerk of the Circuit Court

unless an affidavit of intent to seek

review in the Illinois Supreme Court [ Rule

368 (b)] is filed in this Court.

DARRYL PRATSCHER

Clerk

Appellate Court

Fourth District

DP:mcb

TO: Harold M. Jennings

Attorney at Law

109 W. Jefferson

Bloomington, IL 61701

Ronald C. Dozier, State's Attorney, McLean

County

Robert J. Biderman, Deputy Director, S.A.A.S.C.

Rebecca L. White

Staff Attorney

65

STATE OF ILLINOIS

APPELLATE COURT

FOURTH DISTRICT

SUPREME COURT BUILDING

SPRINGFIELD 62706

COUNSEL WILL PLEASE TAKE NOTE:

If you intent to appeal to the Supreme

Court we request that you file your affidavit

of intent in 28 days from the date of this

judgment.

[Rule 368(b)]

A petition for rehearing must be filed within

21 days (by July 11, 1985 ) from the date

cf this judgment [Rule 367(a)]

IF NEITHER FILED our mandate will issue to

the Circuit Clerk on July 18, 1985.

IF PETITION FOR REHEARING IS FILED our

mandate will issue 7 days after the order,

if denied, if no affidavit of intent is filed

within those 7 days.

THIS TIME SCHEDULE DOES NOT SHORTEN THE TIME

FOR FILING IN THE SUPREME COURT! It does pre-

vent recall of a mandate.

We solicit your cooperation in this schedule

so that we may expedite our case load and

issue our mandates as soon as possible.

Ww w & IX

67

RULE 23 ORDER FILED: JUNE 20, 1985

JUSTICES:

HONORABLE DONALD W. MORTHLAND,J.

HONORABLE JOHN T. McCULLOUGH, J.

HONORABLE HAROLD F. TRAPP, J.

Concurring

Dissenting

NO. 4-84-0587

IN THE APPLLLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE

STATE OF ILLINOIS,

Plaintiff-Appellee, Appeal from

Circuit Court

County of McLean

No. 83 CF 329

“7

7

J

]

]

PETER J. ANDING,

Defendant-Appellant,

Honorable

James A. Knecht,

Judge Presiding.

— Th

FOR APPELLANT

Harold M. Jennings

Attorney at Law

109 W. Jefferson

Bloomington, IL 61/701

FOR APPELLEE

Ronald C. Dozier

State's Attorney

McLean County Law & Justice

Center

Service Commission

151 Bruns Lane, Suite 103

Springfield, IL 62702

Rebecca L. White

Staff Attorney

69

NO. 4-84-0587

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE

STATE OF ILLINOIS,

Plaintiff-Appellee, Appeal from

Circuit Court

County of McLean

No. 83 CF 329

Vv

PETER J. ANDING,

Defendant-Appellant,

ee ee

Honorable

James A. Knecht,

Judge Presiding

JUSTICE MORTHLAND delivered the order

the Court:

Following a jury trial, defendant ,

Peter J. Anding, was convicted of deviate

sexual assault, indecent liberties with a

child and armed violence. (I1l. Rev Stat.

1983, ch.38, pars. Ii-3, 1i*8, gon*ee?

The court found that the indecent liberties

conviction merged into the deviate sexual

assault conviction and sentenced the defen-

dant to 6 years for the deviate cnt

assault and armed robbery convictions. On

appeal, the defendant contends that (1)

he was denied effective assistance of couns

and (2) his guilt was not proved beyond a

reasonable doubt. ;

The evidence adduced at trial established

the following. At about 7 p.m. on October

21, 1983, Brian VanHorn, a high school

sophomore, was changing for swim practice

in the locker room of Metcalf School. He

noticed a black male, whom he later ident-

ified as the defendant, Peter J. Anding,

putting supplies from the janitor's closet

into the restrooms. VanHorn testified that

the defendant grabbed him by the arm, pulled

out a knife which he placed against VanHorn's

lower back and pushed him into the janitor's

closet. VanHorn testified that the defendant

told him if he did not do exactly what he

told him he would stab him and throw him

down the stairway. The defendant performed

an act of oral sex on VanHorn and kissed

VanHorn on the buttocks. Before the defendant

left, he offered VanHorn $20 and told him not

to tell anyone of the incident.

71

VanHorn waited about two days before h«

told his father of the incident. He

described his assailant to the police as

being about 5 feet 10 or 11 inches in height

weighing 180 pounds, having a medium com-

plexion with a large blackhead on his left

cheekbone and wearing a pair of high-top,

leather, Nike basketball shoes with a silve:

emblem.

On October 24, 1983, the defendant, a

sophomore at Illinois State University and

a student manager of the basketball team,

was arrested by the ISU police in the locke

room of Metcalf School. At the time of his

arrest, the defendant carried a knife. This

knife,however, was not the knife that was

used against Brian VanHorn. Among the item

recovered from the defendant's locker were

a pair of expensive, high-top, leather,

Nike basketball shoes with a blue emblem.

Some of the keys in the defendant's possess

ion opened one of the exterior doors to

Metcalf School, the girls' equipment room,

and the girls' locker room. At the time of

72

_*

his arrest, the defendant told Officer

Knapp that he had obtained the keys at

Metcalf from an unidentified male sometime

last year.

Scott Shanahan, also a member of the

swim team, testified that on October 19,

1983, when he went into the locker room

to change, the defendant was in the locker

room. The defendant asked Shanahan if he

could see his penis and when Shanahan

refused, he first offered him $10 and the $20.

Prior to the incident, Shanahan testified

that he had observed the defendant in the

locker room for several evenings.

Maria Hirsch, a janitor at Metcalf

School, testified that on the evening of

October 20, 1983, at about 10 p.m., the

defendant accompanied by a male and female,

knocked on the door of the school. The

defendant told Hirsch that his boss had for-

gotten something and he went back to the

locker room. Hirsch assumed that the

defendant worked at the school because he had

some keys in his hands and because she had

seen him several times during the preceedins

two weeks at about 8 p.m. in the evenings.

John Thomas Almeida, another member

of the swim team, testified that he saw

the defendant in the locker room of Metcalf

School several times during the week of

October 17, 1983. One evening that week,

during swim practice, he discovered a

knife on the floor in one of the restroom

stalls in the locker room. The defendant

claimed the knife from Almeida. Almeida

identified the knife he had found as being

the same one which was found on the defendar

at the time of his arrest.

Several members of the Illinois State

University basketball team testified on

behalf of the defendant. One of the defen-

dants' roommates testified that on October

21, 1983, he, along with the defendant

and several other members of the team, ate

dinner at the dormitory at about 5:30p.m.

He testified that after dinner, the

defendant left with William Anderson in his

car and that when the roommate ceturtied

to the dormitory at about 8 p.m. the defen-

dant was there getting his hair cut.

William Anderson testified that, after

eating dinner on October 21, 1983, he drove

another teammate home and at about 7:10

or 7:15 p.m., dropped the defendant off

at the radio station where he worked.

The radio station is located across from

Metcalf School.

Michelle Hildreth, an ISU student and

one of the directors of the campus radio

station, testified that she saw defendant at

the radio station on October 21, 1983, at

about 7 p.m. or a few minutes thereafter.

She testified that the defendant remained

at the station for 15 minutes to half and

hour. | —

The defendant denied committing the

sexual assault upon Brian VanHorn. He

75

testified that about one month prior to

his arrest he had obtained the keys to

Metcalf School from a janitor who told him

to lock up when he finished playing basket-

ball. He also testified that he carried

a knife in order to open bundles of news-

paper: at the basketball office where he

worked.

On April 19, 1984, the jury returned

a verdict finding the defendant guilty as

charged. On July 25, 1984, the defendant,

through new counsel, filed a motion for a

new trial, The motion was denied and the

defendant was sentenced to a 6-year term

of imprisonment.

The defendant contends that he was

denied effective assistance of counsel

during the preliminary stages of the pro-

ceedings. Although the defendant concedes

that he received adequate representation

once* the trial began, he asserts that his

trial counsel was incompetent in failing

tc attend his hearing before the Illinois

State University judicial board. The defen-

16

dant likens that hearing to a dress

rehearsal for his trial and claims that

his attorney's failure to attend the hearing

and interview the witnesses prior to trial

demonstrates his incompetence.

Although the failure to investigate

witnesses may constitute actual incompetence

(People v Greer 1980), 79 I1l. 2d 103,

402 N.E. 2d 203), the defendant must demon-

strate a prejudicial effect without the out-

come of the trial would probably have been

different. As the court stated in People

v Young (1983), 115 I1l. App. 3d 455, 467,

450 N.E. 2d 947,957, “[c] onjecture does

not serve as a basis for a demonstration of

ineffective assistance of counsel and where

a defendant fails to indicate the nature of

the omitted testimony, he has failed to

prove the requiste prejudice resulting from

the omission.'' Here, the defendant fails

to meet thi». turden. He does not suggest

any favorable testimony which his counsel

failed to present and, in fact, admits that

his counsel represented him competently at

-

QQ —eooeeooooreeTET Te |

trial.

In addition, the defendant's parents

testified that they met with their son's

trial attorney several times prior to trial

and that the defendant had met with him on

at least one of these occasions. We note

that the defendant's trial attorney had

arranged to have other counsel appear on

behalf of the defendant at the pretrial

proceedings.

The defendant also contends that the

failure of his attorney to file a pretrial

motion to suppress allegedly suggestive

photographic identification procedures

constitutes ineffective assistance as

counsel. The defendant contends that the

State improperly showed the victim and othe

witnesses six photographs at a time when

defendant was in custody. Absent exten-

uating circumstances, the use of photograph

in identification procedures is generally

dissapproved when the subject is in custody

and a lineup would be feasible. (People

v Kubat (1983), 94 Ill. 2d 437,447,N.E.ed 2

People v Jackson (1973), 54 I1l. 2d 143,

(295 NE. 2d 462). However, even assuming that

the pretrial identification procedure was

improper, where the witness' in-court ident-

ification has a sufficiently independent basis

any impropriety in the pretrial identification

procedures will not be considered to have

affected the later identification.

(Kubat; Jackson.) A proper in-court

identification will sustain a defendant's

conviction. People v Williams (1975), 60

Lil. 260 25> See RE Se SE.

Under the test set forth in Manson v

Brathwaite (1977), 432 U.S. 96, 53 L. Ed.

2d 140, 97 S.Ct. 2243, we find that the

victim's and the witnesses' in-court iden-

tifications of the defendant were reliable.

VanHorn testified that he viewed the defendant

face-to-face in a well-lit locker room

for approximately 10 minutes. He described

his assailant as having a blackhead on his

left cheekbone. The defendant has a chicken

pox scar on his left cheekbone. Although the

description of the defendant given by

70

VanHorn differed by 3 inches in height and z

pounds in weight, considering the age of the

victim we view these discrepancies to be

minor. Scott Shanahan testified that he

observed the defendant in the locker room or

several occasions. Similarly, Maria Hirsct

tesified that she had seen the defendant

in Metcalf School many times. We conciude

that a motion to suppress would not have

been successful and therefore the defendant’

attorney ia not incompetent for failing to

make such a motion.

The defendant also contends that his

trial counsel's failure to file a post-trial

motion for a new trial constitutes incom-

petence. Failure to file a post-trial

motion does not amount to ineffective

assistance of counsel, however where no

substantial grounds for a new trial exist.

(People v Ortiz (1981). 96 Ill. App.

3d 497,421 N.E. 2d 556.) The record in the

present case does not reveal any substantia:

issues which could have been raised.

Defendant, however, relies on People

v Williams (1972), 93 Ill. 2d 309,444 N.E.

2d 136, to support his contention that he

was denied effective assistance of counsel.

In Williams, in view of the unique

circumstances presented in the case, the

court abandoned the established test for

determining competence of counsel. At

in ck of the defendant's trial, defendant's

counsel was simultaneously representing two

other co-defendants for capital murder

before two juries and was the subject of

disciplinary proceedings. In granting the

defendant a new trial, the court noted that

the unique facts and circumstances of the

case ''[would rarely, if ever, be duplicated."

93 Ill. 24-309, 325, 444 W.B. 2d 136, 143.

We do not find the Williams case anal-

oogous to the case at bar. None of the special

facts and circumstances which warranted

reversal in that case are present here.

Considering the totality of the conduct of

defendant's counsel, we conclude that the

defendant received competent representation.

81

The defendant's contention that the

evidence was insufficient to prove his

guilt beyond a reasonable doubt is based upo

the victim's unclear and unconvincing

identification of the defendant and the

defendant's corroborated alibi defense. It

is well settled that where a conviction for

indecent liberties rests upon the victim's

testimony and the defendant denies the charg

the victim' testimony must be clear and con-

vincing or substantially corroborated.

People v Morgan (1977), 69 I11. 2d 200, 370

N.E. 2d 1063; People v Kolden (1962), 25 I1l

26 327, 183: Nig. 264-178.

In our opinion, the testimony of Brian

VanHorn was clear and convincing and was

sufficient to support the defendant's ton-

victions. Furthermore, VanHorn's identifica

tion testimony was substantially corroborate

As we previously noted, the discrepancies

in VanHorn's identification testimony were

minor in character and go only to the weight

to be afforded his testimony by the trier

of fact. (See People v Britton (1980), 80

a {aaa ene

Ill. App. 3d 482, 400 N.E. 2d 33.) The

credibility and weight to be given to the

testimony of the defendant's alibi witnesses

is a matter for the trier of fact to determine

and its judgment will not be disturbed on

appeal unless palpably erroneous. (People

v. Davis (1977), 53 Ill. App. 3d 424,

368 N.E. 2d 721.) We find that the evidence

was sufficient for the jury to determine that

the defendant was guilty of the offenses

charged beyond a reasonable doubt.

For the foregoing reasons the judgment

of the circuit court of McLean County is

affirmed.

Affirmed.

McCULLOUGH and TRAPP, JJ., concur.

83