People v. GoergerPeople v. Goerger
- Reporters:
- , ,
- Before:
- Underwood
delivered the opinion of the court:
On February 10, 1965, petitioner, Robert Goerger, was found guilty of aggravated battery by a jury in the circuit court of St. Clair County and sentenced to a term of from two years and six months to ten years in the penitentiary. He took no direct appeal. On December 1, 1968, he filed a pro se petition under the Post-Conviction Hearing Act (Ill.Rev.Stat. 1967, ch. 38, par. 122 — 1 et seq.) and shortly thereafter filed an amended petition. An attorney was appointed to represent him in those proceedings.
In his amended petition, petitioner alleged denial of his constitutional rights in that: (1) the jury was given an improper instruction defining reasonable doubt; (2) admissions and confessions introduced into evidence against him were not voluntarily given, the trial court did not conduct a hearing to determine their voluntariness, and the jury was not instructed that in arriving at its verdict it could consider the question of voluntariness as affecting their weight and credibility; (3) the People did not furnish him with a copy of an arrest report prepared by a police officer who testified at the trial and furthermore did not produce on demand a written statement which he had signed following his arrest; (4) no warrant for his arrest was ever produced; (5) the prosecutor made improper remarks to the jury in his closing argument; (6) police officers conducted an illegal search of his residence to obtain a razor; and (7) the public defender appointed to represent him at the trial did not afford him competent representation. For the reasons hereafter stated we concur with the circuit court’s determination that these allegations, even when liberally construed in favor of the petitioner and when considered with the supporting documents attached to the petitions, were insufficient to show a “substantial denial of his rights under the Constitutions of the United States or of the State of Illinois” as required by section 122 — 1 of the Post-Conviction Hearing Act. Ill.Rev.Stat. 1967, ch. 38, par. 122 — 1.
In view of the fact that the allegations of the petition all relate to asserted errors which would have been reviewable on direct appeal, defendant’s failure to appeal could well be said to constitute a waiver. [People v. Rose (1969), 43 Ill.2d 273, 279; People v. Eatmon (1970), 47 Ill. 2d 90, 92.) However, since petitioner is proceeding here
Petitioner’s initial allegation is that the trial court erred in giving People’s Instruction No. 6 which reads as follows: “The court instructs the jury that a doubt to justify an acquittal must be reasonable and it must arise from a candid and impartial consideration of all the evidence in the case; and is such, that, were the same kind of a doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause. Under this instruction if, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.” This instruction was not objected to by defense counsel at trial. Nevertheless, petitioner contends that the instruction was so prejudicial that he should not be deemed to have waived his right to raise the question in this proceeding. In so arguing, petitioner correctly points out that in People v. Cagle (1969), 41 Ill.2d 528, this court held that the giving of such an instruction constituted error, since the legal concept of reasonable doubt needs no definition and further because the instruction implied that a defendant must justify an acquittal. That this unobjected-to instruction was improperly given, however, does not constitute such fundamental unfairness as to obviate the res judicata and waiver doctrines hereinbefore referred to, nor does its giving effect the substantial denial of constitutional rights cognizable under the Post-Conviction Hearing Act. People v. Johndrow (1968), 40 Ill.2d 288.
We next consider petitioner’s allegations that his admissions and confessions were involuntary; that the court erred in not holding a hearing on the question of their admissibility; and that it was error not to instruct the jury that it could consider the matter of voluntariness. At the outset, we note that neither the petition nor the supporting affidavits and excerpts of the record establish
We turn next to petitioner’s allegations that he was prejudiced by: (1) failure of the People to furnish him with a copy of an arrest report prepared by a police officer who testified at the trial; and (2) the People’s inability to produce a prior written statement which he had signed. Neither of these contentions can be sustained. With regard to the arrest report, the excerpt of the record on which petitioner relies establishes very clearly that the report was produced and handed to defense counsel upon request. As
Similarly, the allegation that no warrant was ever produced for his arrest, and his allegations that portions of the prosecutor’s argument to the jury (not objected to) were improper, present no substantial constitutional questions. People v. Bliss (1970), 44 Ill.2d 363; People v. Wallace (1966), 35 Ill.2d 620.
In his amended petition petitioner alleged denial of his constitutional rights in that a police officer removed a razor from his residence without his permission and not pursuant to a search warrant. The razor was apparently introduced into evidence, although petitioner does not allege, and the supporting excerpts from the record do not show, that any objection to its introduction was ever raised below. The gist of petitioner’s allegation is simply that two police officers gave perjured testimony when they testified that petitioner had given them permission to go to his residence to get the razor after he was arrested. These allegations are patently insufficient to warrant a post-conviction hearing.
Petitioner’s allegation that the public defender appointed to represent him at trial did not afford competent representation is based on counsel’s failure to object to
Accordingly, the judgment of the circuit court of St. Glair County dismissing the petitions for post-conviction relief without a hearing is affirmed.
Judgment affirmed.