People v. Harris

                                                             First Division
                                                               May 19, 1997
                                                                           





No. 1-95-0104

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from the
                                        )    Circuit Court
          Plaintiff-Appellee,           )    of Cook County.
                                        )
               v.                       )
                                        )
CHRISTOPHER HARRIS,                     )    Honorable
                                        )    Paul J. Nealis,
          Defendant-Appellant.          )    Judge Presiding.


     JUSTICE BUCKLEY delivered the opinion of the court:

     Following a jury trial, defendant was convicted of
aggravated criminal sexual assault, criminal sexual assault,
aggravated kidnapping, and kidnapping.  Defendant raises the
following three issues on appeal: (1) whether the trial court
erred in allowing evidence of other crimes allegedly committed by
defendant; (2) whether defendant was deprived of effective
assistance of counsel; and (3) whether the State made improper
comments during closing arguments.
     Defendant was indicted for the kidnapping and aggravated
criminal sexual assault of D.W.  At trial, D.W. testified that on
June 11, 1993, at approximately 9:30 p.m., she was walking south
on Michigan Avenue in Chicago, on her way to a local sandwich
shop.  As she approached the northwest corner of 113th and
Michigan, she noticed a distinctive black Chevrolet Blazer, with
a pink stripe on the side, pull up in front of her.  The driver
slid into the passenger seat, opened the door, grabbed D.W. by
the shirt, and pulled her into the vehicle.  As he was pulling
her into the Blazer, the driver said, "you must be doing
something wrong.  You are under arrest for soliciting."  D.W.
identified defendant as the driver.
     D.W. testified that defendant showed her a five-point badge
and identified himself as a police officer.  He handcuffed D.W.
behind her back and told her to sit on the floor in front of the
passenger seat.  D.W. complied.  Defendant then threw a coat over
D.W.'s head, but D.W. could still see defendant's face. 
Defendant drove for between 20 and 45 minutes, during which time
he told D.W. in graphic terms that he wanted to have sexual
intercourse with her.
     When the vehicle stopped, defendant said he was going to
look for his partner and exited the truck.  The coat was no
longer over D.W.'s head, and she was able to see that defendant
was wearing police uniform pants, black patent leather shoes and
belt, and a black jacket.  She also noticed that the radio was
missing from the truck and wires were hanging out of the
dashboard.
     When defendant returned, he said he was unable to locate his
partner.  He drove for approximately another hour and finally
pulled into a wooded area.  Defendant exited the vehicle and
walked around to the passenger side.  He opened the passenger
side door and told D.W. to sit sideways on the passenger seat
with her legs dangling out the door.  Defendant unzipped his
pants and told D.W. to take off her clothes.  Defendant took the
handcuffs off one hand and removed D.W.'s clothes.  He then left
D.W. naked in the truck while he folded her clothes and left them
nearby in the woods.  When he returned, defendant had forcible
intercourse with D.W. for about 15 minutes.  Defendant then
attempted to have anal intercourse with D.W., but he was
unsuccessful.  
     Defendant dressed himself and handcuffed D.W.  He then
carried her into the woods and put her down next to her clothes. 
Defendant told D.W. to stay there until she could no longer see
the lights on the Blazer.  D.W. followed defendant's
instructions.  When the truck was out of sight, D.W. picked up
her clothes and walked to the nearest house.  She was still naked
and unable to dress because she was handcuffed behind her back. 
She pounded on the door of the house, but no one answered.  She
went to the next house, and a woman answered the door.  The woman
wrapped a sheet around D.W. and called the police.  The police
arrived shortly and took D.W. to St. Francis Hospital in Blue
Island.  D.W. decided, however, that she just wanted to go home,
so she left the hospital and went to her own doctor the next day.
     On July 16, 1993, two Chicago police officers asked D.W. to
review a book of mug shots.  D.W. looked at the book and
identified defendant as the man who raped her.  Later that
evening, D.W. viewed a lineup at the police station and again
identified defendant.  She also went to the garage and identified
defendant's truck as the one in which she was raped.  
     On cross-examination, D.W. stated that only defendant was
dressed in clothes similar to those of a police officer.  
     The State's next witness was D.H.  She testified that
defendant raped her on June 3, 1993.  D.H. testified that she was
walking south on King Drive when a man she identified in court as
defendant pulled in front of her in a black Chevrolet Blazer with
a pink stripe on the side.  Defendant left the truck running,
exited the vehicle, and approached D.H.  Defendant showed D.H. a
badge, told her she was under arrest, and attempted to handcuff
her.  D.H. resisted, but defendant forced her arms behind her
back and put the handcuffs on.  Defendant then threw D.H. into
the front passenger side of the Blazer.
     D.H. testified that defendant forced her onto the floor in
front of the passenger seat and put a coat over her head.  She
said she could still see that he was wearing a black jacket,
black shoes, blue pants, and a black baseball cap.  Defendant
drove for an hour or two, during which time D.H. observed that
the radio was missing and wires were hanging out of the
dashboard.
     Defendant drove to a wooded area.  He exited the vehicle,
walked around to the passenger side, opened the door, and told
D.H. to sit sideways on the passenger seat with her legs dangling
out the door.  Defendant undressed D.H. from the waist down and
had forcible sexual and anal intercourse with her.
     Defendant threw D.H.'s clothes into the woods and walked
D.H. over to them.  Defendant told D.H., naked from the waist
down and handcuffed behind her back, not to move until she could
no longer see the truck.  D.H. waited, picked up her clothes, and
went to the same house for help that D.W. went to eight days
later.  The same woman answered the door and called the police. 
The police arrived shortly and took D.H. to St. Francis Hospital,
where a Vitullo rape kit was prepared.  
     On June 16, 1993, D.H. also went to the police station and
identified defendant as the man who had raped her.  She also
identified the Blazer in the garage.
     Next, the State called Lieutenant Harold Kohn from the
Robbins police department.  Kohn testified that at about 12:25
a.m. on June 12, 1993, he responded to a call at a house at 143rd
and Kedzie in Robbins, Illinois.  When he reached the house, he
observed D.W. sitting naked on the porch with her hands cuffed
behind her back.  He noticed that the keyholes of the handcuffs
were turned out, which is a procedure commonly employed by law
enforcement officers.  He also spoke with the owner of the house,
whom he had met one week earlier after D.H. was assaulted.  
     Kohn testified that he followed D.W. to the hospital and
attempted to interview her.  She was very upset and did not want
to stay at the hospital, but she offered Kohn descriptions of her
attacker and the Blazer.  She said the attacker was a light-
skinned black male, 5 feet 9 inches to 6 feet 2 inches in height,
weighing 220 to 230 pounds, and wearing police uniform pants,
patent leather shoes, a white uniform shirt, and a dark blue
uniform jacket.  
     Kohn was also present at the lineup on June 16, 1993.  He
testified that defendant was number four in the lineup and that
D.W. identified him without hesitation.  Kohn also accompanied
D.W. into the garage, where she identified defendant's Blazer.
     Sergeant Leo Rojek of the Chicago police department
testified that on June 16, 1993, he showed D.W. a mug shot book,
and D.W. identified defendant as her attacker.  Rojek was also
investigating the D.H. assault.  He had shown D.H. the same book
on June 9, but defendant's photograph was not in the book at that
time, and D.H. was unable to identify anyone.
     Upon D.W.'s identification, Rojek arrested defendant and
read him his Miranda rights.  At the time of the arrest,
defendant was wearing a white uniform shirt, patent leather shoes
and belt, and dark blue "police type" pants.  Defendant's Blazer
was located and taken to the police station.
     Stipulations were entered into evidence describing how the
Vitullo kit and blood tests were administered and establishing a
sufficient chain of custody for the samples.
     The State's final witness was Kevin Lumey, a forensic
biologist with the Illinois State Police Laboratory.  The trial
court found Lumey to be an expert in the field of DNA analysis
and comparison, a procedure that he described in detail.  Lumey
testified that he conducted DNA tests on the semen taken from
D.H. on the night she was assaulted and that it was consistent
with defendant's DNA profile.  He testified that only 1 in 10
million black men had a DNA profile consistent with defendant's.
     The State rested, and defendant's motion for a directed
verdict was denied.
     The defense called four alibi witnesses.  Nader Salam
testified that he works at Racine Food and Liquors with
defendant.  Salam was working the night of June 11, 1993, the
night of the assault on D.W., and noticed defendant arrive
between 8 and 8:30 p.m.  Neither Salam nor defendant left the
store until approximately 2:10 a.m. the following morning when
defendant's shift ended.  
     Next, Carlton Short testified that he was the vice-president
and commander at Federal Security, defendant's employer.  On June
3, 1993, the night of the assault on D.H., Short had a party at
his home to celebrate his recent promotion.  Short testified that
defendant arrived at the party at about 7 p.m. and did not leave
until after 1 a.m. the following morning.  On cross-examination,
Short admitted that he had spoken to defendant four or five times
since defendant was arrested, but he testified that none of those
conversations pertained to the trial.
     Short's wife, Levetta Short, was the next witness.  She
corroborated her husband's testimony that defendant arrived at
their house at 7 p.m. on June 3, 1993, and stayed until after 1
a.m. on June 4.
     The last alibi witness was Dwayne Lemons.  Lemons is also
employed at Federal Security and further corroborated the Shorts'
testimony concerning defendant's presence at the party on June 3,
1993.
     Next, Bonita Harris testified that she is defendant's wife
and that the radio in their Blazer was not removed until sometime
after June 12, 1993.  She also stated that defendant was home at
12 a.m. on June 4, 1993.
     Finally, defendant testified that on June 3, 1993, he was at
Short's party from 7 or 8 p.m. until approximately 1:30 a.m. the
next morning.  On June 11, 1993, he was at Racine Food and Liquor
from about 8 p.m. until 2 a.m. the next morning.  He wore blue
pants, blue shoes, a navy shirt, and a silver star.  He denied
abducting or assaulting D.W. or D.H.
     After the defense rested and closing arguments were heard,
the jury found defendant guilty of two counts of aggravated
criminal sexual assault, two counts of criminal sexual assault,
one count of aggravated kidnapping and one count of kidnapping. 
The court sentenced defendant to 25 years in the Illinois
Department of Corrections for each count of aggravated criminal
sexual assault to run consecutively.  The court also sentenced
defendant to 10 years for the aggravated kidnapping to run
concurrently.  This appeal followed.
     Defendant first contends that the trial court erred in
allowing the State to present evidence of D.H.'s assault, as
defendant was only on trial for the assault of D.W. Defendant's
argument fails for the following reasons.
     The legal rules with respect to the admissibility of other
crimes evidence are firmly established in Illinois.  Generally,
the admissibility of evidence is within the sound discretion of
the trial court and should not be disturbed on review absent a
clear abuse of that discretion.  People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519 (1991).  Evidence of collateral
crimes for which an accused is not on trial is inadmissible if it
is offered merely to establish the defendant's propensity to
commit a crime.  Illgen, 145 Ill. 2d  at 364, 583 N.E.2d  at 519. 
However, such evidence is admissible if it is relevant to prove
modus operandi, intent, identity, motive or absence of mistake. 
Illgen, 145 Ill. 2d  at 364-65, 583 N.E.2d  at 519.
     In this case, the State claims D.H.'s testimony that she was
sexually assaulted by defendant was relevant to show modus
operandi.  "Where evidence of prior bad acts is offered to prove
modus operandi ***, there must be a high degree of identity
between the facts of the crime charged and the other offense in
which the defendant was involved.  The two offenses must share
such distinctive common features as to earmark both acts as the
handiwork of the same person."  Illgen, 145 Ill. 2d  at 372-73,
583 N.E.2d  at 523.
     The two sexual assaults in this case share extraordinarily
distinctive common features.  Both victims were grabbed off the
street in the same vicinity and forced into a black Chevrolet
Blazer with a pink stripe on the side and wires hanging from the
dashboard.  Defendant identified himself as a police officer in
both instances and told the women that they were under arrest. 
Defendant told them that he was looking for his partner.  He
handcuffed both women and made them sit on the floor of the
vehicle with a coat over their heads while he drove for at least
45 minutes or an hour.  Defendant also committed both assaults in
the same wooded area.  
     Even the ugly details of the two assaults are almost
identical:  defendant ordered both victims to sit sideways on the
passenger seat of his Blazer with their feet dangling out the
door; he had forced sexual intercourse with both victims; he
attempted to have anal intercourse with both victims; he then
took both victims, still handcuffed and undressed, into the woods
and left them next to their clothes; and he told both victims not
to move until they could no longer see the lights on the Blazer. 
When the vehicle finally disappeared, the two women even went to
the same house for help.  This extensive list of identical and
distinctive facts is sufficient to earmark both assaults as the
crimes of the same person.  See Illgen, 145 Ill. 2d  at 372-73,
583 N.E.2d  at 523.  
     Defendant claims that even if the evidence was relevant, its
probative value was outweighed by its prejudicial effect. 
Specifically, defendant complains that approximately two-thirds
of the testimony involved the assault to D.H.
     Again, defendant's contention is without merit.  It is true
that the longest testimony came from Kevin Lumey, who testified
as to the DNA evidence obtained after a Vitullo kit was prepared
for D.H..  However, the vast majority of this testimony pertained
to DNA testing generally and not to Lumey's specific conclusions
in the case at bar.  Such testimony was not prejudicial to
defendant.  It was necessary for the jury to understand the
science by which DNA testing is conducted, and for that reason,
the State had to go into some detail.  Clearly, Lumey's
conclusions were highly probative and were not outweighed by any
prejudice to defendant.  Therefore, the trial court did not abuse
its discretion in allowing the evidence relating to the assault
of D.H.
     Defendant next claims that he was rendered ineffective
assistance of counsel at trial for two reasons.  First, defendant
argues that trial counsel was ineffective for failing to request
a limiting instruction for the jury in advance of the State's
presentation of the other crimes evidence discussed above.
     In order to establish ineffectiveness warranting a reversal,
defendant must meet a two-prong test.  He must show that (1)
trial counsel's representation fell below an objective standard
of reasonableness, and (2) there exists a reasonable probability
that, but for counsel's errors, the result of the trial would
have been different.  Strickland v. Washington, 466 U.S. 668,
687, 80 L. Ed. 2d 674, 693-94, 104 S. Ct. 2052, 2064 (1984);
People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255
(1984).  
     Here, the other crimes limiting instruction was ultimately
given at the end of the case.  At that time, the trial judge told
the jury that the D.H. evidence "has been received on the issues
of the defendant's identification and design and may be
considered by you only for that limited purpose."  Defendant
cites no case, and indeed none exists in Illinois, where the
court found that a defense attorney's failure to immediately
request such an instruction constitutes representation falling
below an objective standard of reasonableness.  Furthermore,
there is a strong presumption that jurors follow the instructions
of the court (People v. Taylor, 166 Ill. 2d 414, 438, 655 N.E.2d 901, 913 (1995)), and nothing in the record rebuts that
presumption.  Therefore, defendant's claim fails under both
Strickland prongs.
     While we hold that defense counsel's failure to request a
limiting instruction at the time the other crimes evidence was
admitted does not amount to ineffective assistance of counsel,
further comment is warranted.  Evidence of other crimes, although
relevant for some limited purpose in the case being tried,
carries a risk of unfair prejudice to the defendant.  The danger
is that the jury will use the evidence for an improper purpose,
such as to conclude that the defendant has a propensity to commit
crime.  People v. Roe, 228 Ill. App. 3d 628, 635, 592, N.E.2d
596, 601 (1992).
     Trial judges should recognize the potential peril, whether
or not defense counsel first proposes a limiting instruction. 
The best way to address the problem is to use the limiting
instruction contained in Illinois Pattern Jury Instructions,
Criminal, No. 3.14 (3d ed. 1992), taking care that the proper
limited purpose of the evidence is used.  We suggest trial judges
heed the advice contained in People v. Denny, 241 Ill. App. 3d
345, 360-61, 608 N.E.2d 1313, 1324 (1993):  "Because of the
significant prejudice to a defendant's case that the admission of
other crimes evidence usually risks, we hold that trial courts
should not only instruct the jury in accordance with IPI Criminal
[3d] No. 3.14 at the close of the case, but also orally from the
bench (unless defendant objects) at the time the evidence is
first presented to the jury."
     Nonetheless, for the reasons discussed above, defense
counsel's failure to request such an instruction in this case did
not amount to ineffective assistance of counsel. 
     Defendant also contends that trial counsel was ineffective
for failing to file a motion to suppress the lineup
identification.  In order to prevail on a motion to suppress an
out-of-court identification, "a defendant must meet the burden of
proving that the identification procedures were 'so unnecessarily
suggestive and conducive to irreparable mistaken identification
that he was denied due process of law.'"  People v. Miller, 254
Ill. App. 3d 997, 1003, 626 N.E.2d 1350, 1356 (1993), quoting
People v. Blumenshine, 42 Ill. 2d 508, 511, 250 N.E.2d 152, 154
(1969).  This is a heavy burden that defendant's trial counsel
would not have been able to meet had he filed a motion to
suppress, and perhaps that is why he elected not to do so.  
     The failure to file a motion to suppress will not warrant a
reversal if the State can show that the identification was
reliable.  People v. Moore, 266 Ill. App. 3d 791, 797, 640 N.E.2d 1256, 1260 (1994).  In determining reliability, the court should
consider (1) the opportunity of the witness to view the
perpetrator at the time of the crime, (2) the witness's degree of
attention, (3) the accuracy of the witness's prior description,
(4) the witness's level of certainty at the time of the
identification, and (5) the length of time between the crime and
the identification.  Moore, 266 Ill. App. 3d at 797, 640 N.E.2d 
at 1260.  
     Considering these factors in this case, D.W.'s
identification of defendant in the pretrial lineup was clearly
reliable.  D.W. testified that she had ample opportunity to view
defendant as he grabbed her off the street in a very well-lit
area and drove the Blazer for more than an hour.  Also, it is
clear that D.W. was highly attentive during this period because
she provided considerable detail in describing her attacker to
Lieutenant Kohn on the night of the assault.  Furthermore, her
description closely matched defendant.  Lieutenant Kohn testified
that D.W. was very certain at the time of the identification
because she identified defendant immediately upon seeing the
lineup.  Finally, the lineup occurred only five days after the
assault, surely a short enough time for D.W. to remember her
assailant's face.  
     Because the lineup was not unnecessarily suggestive and
D.W.'s identification of defendant was reliable, defense
counsel's failure to file a motion to suppress the lineup
identification did not constitute ineffective assistance of
counsel.
     Lastly, defendant contends that the State committed
reversible error in making certain remarks during closing
arguments.  Specifically, defendant cites the following statement
by the prosecutor:
      "We presented overwhelming physical evidence to you,
      ladies and gentlemen in this case, and I have seen
      absolutely no physical evidence to corroborate what
      this defendant told you today, not one pay stub, not
      one schedule shown you he was working at that time. 
      Why, because it's concocted."
      Defendant's contention that these remarks improperly shifted the
burden of proof onto him is unfounded.  The State is entitled to
wide latitude during closing arguments.  People v. Fields, 135 Ill. 2d 18, 64, 552 N.E.2d 791, 812 (1990).  Clearly, the
prosecutor may comment during closing arguments on the
credibility of the defendant and other defense witnesses.  Here,
defendant put forth an alibi defense.  The State was entitled to
attack the alibi testimony.
     For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed.
     Affirmed.
     WOLFSON and BRADEN*, JJ., concur.









*Justice Braden concurred in the disposition of this appeal
before his reassignment to the circuit court of Cook County.