                                  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
                                                    -7-
       “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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