People v. Griffin

with the trial and disagree appellate We therefore Department’s courts on use of standards breath-alcohol tests for reckless homi- prosecution cide, court, reached each agree but with result of the test. Because we resolve breath suppression manner, we need not ad- this appeal foregoing contentions, dress the State’s additional which rest upon for the test foundation breath results. proper reasons, For the foregoing judgment appel- late court affirmed. is

Affirmed. (Nos. 69286 cons.

THE ILLINOIS, PEOPLE OF THE STATE OF Appel-

lee, GRIFFIN, v. HENRY Appellant.

Opinion 12, 1992. Rehearing March filed — 1, 1992. denied June FREEMAN, J., MILLER, C.J., joined by specially concur- ring. CLARK, J.,

BILANDIC, J., concurring in joined by part and dissenting part. Adam,

Sam Chicago, appellant. Burris, F. Roland Hartigan Attorneys Neil W. General, Richard M. and Jack Daley Springfield, L. Rotert (Mark State’s Attorneys, Chicago O’Malley, General, of Madsen, Terence M. Assistant Attorneys Gainer, Jr., Kenneth T. and Thomas Chicago, V.

49 Disis, E. Renee Goldfarb and Joan McCurry, Joseph Brent, of counsel), Assistant State’s for the Attorneys, People. HEIPLE

JUSTICE delivered opinion court: in

Following trial the circuit court of Cook jury defendant, Griffin, was County, Henry found guilty murder, solicitation to commit murder and conspiracy commit murder. He was sentenced to death. Defendant’s execution was direct stayed pending review this court by in cause No. 62397. Defendant filed a subsequently peti tion for relief. The State post-conviction filed a motion to dismiss the petition, which was granted court. The dismissal of defendant’s post-conviction peti tion was appealed to this court directly cause No. (111. Const. VI, art. §4(b); Ill. 2d Rules 603, 609(a)). We affirm.

FACTS of Carl body Gibson was discovered near the 73rd Street exit off of the ramp Chicago on the Skyway morning June 1984. He had been shot four times at close range several hours earlier. A homicide investi- gation ensued.

At the murder, time of the Gibson the Chicago police department and the State’s Attorney’s office of Cook were involved in County Camelot”—an “Operation inves- tigation of a major located on drug operation Chicago’s south side. The investigation the narcotics targeted net- work of Charles dealer Ashley, drug whose activities yielded an estimated million The victim was annually. $3 employed Ashley’s drug operation.

Also employed by Ashley’s drug operation Darryl Moore, who was arrested in August 1984 on drug unlawful use weapons charges. While Moore jail, 50 Pochordo,

contacted Michael a detective with the Violent Moore Chicago police department. Crimes Division information he concerning informed Pochordo that had and Pochordo set aup meeting the Gibson murder with of the State’s of- Moore and representatives Attorney’s 7, 1984, fice. At a Moore meeting August supplied concerning the State’s office with information Attorney’s in the murder. The information defendant’s involvement was sufficient for them to for a con- request permission for use in Moore’s contact with sensual overhear device defendant. for the overhear device was Application ap- the circuit court of Cook proved by County August .on 9, 1984, 1984. On device was August tape-recording office, Moore assembled at the State’s and Attorney’s was to call defendant. Moore recognized instructed him through defendant’s voice because he had known work, him their “enforcer” and had at least spoken Moore, times. his conversation with During taped in the of Carl Gib- defendant himself murder implicated son. was arrested and transported

Defendant subsequently in I. Allen to the Violent Crimes Division Area James incident, was also arrested connection with the and men rooms. As- were interview placed separate Neil was introduced to sistant State’s Cohen Attorney defendant and read defendant his Miranda warnings. Defendant as to whether Cohen had talked inquired and, that Allen had made a state- Allen upon hearing waived Miranda ment, and confessed to his rights murder. Defendant’s confession participation Gibson’s facts. following revealed if he and asked him defendant

Ashley approached $2,500. he would kill said that wanted Ashley Gibson Gibson eliminated because he Gibson suspected The offer was information secretly passing police. in the of James Allen. made and accepted presence Allen Defendant and then to the proceeded apartment Moore, to obtain a Moore was a fellow “en- Darryl gun. forcer” for and he and defendant had worked to- Ashley gether in the Moore defendant past. a .38-caliber gave revolver, defendant Allen apartment and and left and home. dropped off members family

Defendant returned from the to the car family home car, Carl accompanied by Gibson. Allen drove the Gibson sat in seat, in the passenger sat back seat. Allen drove onto the at 89th Chicago Skyway Street, proceeding southbound. When he reached a toll plaza, he turned the car north- around proceeded bound. While on the defend- driving northbound Skyway, ant shot Gibson four times in the head back of the with a .38-caliber revolver. Allen then exited the at Skyway 73rd Street car the on the exit stopped ramp. Defendant pulled then out of the The next car. body day, gave defendant murder to The weapon Ashley. rental car in the used slaying disposed by was defend- ant and Allen. Defendant paid was cash by Ashley and cocaine. confession, to

Subsequent defendant was indicted with Allen, his codefendants Charles and James Ashley to murder, commit commit conspiracy solicitation to murder trial, and murder. Prior found court defendant fit stand trial and denied mo- defendant’s tion to evidence seized a search suppress pursuant case warrant. The was 1985. tried before June jury Moore as testified State’s part against evidence defendant. Assistant State’s Additionally, Attorney Cohen testified defendant’s and writ- regarding the oral ten The confessions. conversation be- taped telephone tween Moore and the was into also admitted evidence, evidence. Following presentation State’s witness, defense called its Detective Pochordo. only Pochordo testified that he contacted initially by was an informant in 10

Moore and that Moore had been pre- cases, resulted in mur- vious homicide six of which had der convictions to date. The found defendant jury guilty on all counts. numerous issues on none of appeal,

Defendant raises merit. which have

POST-CONVICTION PETITION 17, 1989, defendant filed a post-convic- On November tion that “substantial was em- alleging perjury” petition the State’s Attor- to convict defendant and that ployed the perjured office knew or should have known of ney’s alleged Darryl evidence. Specifically, petition office $25,000 Attorney’s Moore was the State’s paid by trial, and that Detective Pochordo’s to lie was affidavit which conversation supported taped Attached to the was a of a transcript also a lie. petition his trial testi- wherein Moore recanted recording video Moore’s at an unre- testimony and an mony excerpt The an hear- petition requested evidentiary lated trial. ing. 20, 1986, August was taken on recording video the recording, defense Sam Adam. On attorney, that his at the defendant’s testimony

Moore stated was further stated that his testimony lie. He Po- he had received from Detective based on information office. In of the State’s Attorney’s chordo and members Allen’s a of James copy Moore had received particular, his arrest for the made to subsequent statement 16-page stated that his Moore testimony, murder. In return for fiancee, in a Holidome hotel with his he was housed for, that he was pro- paid were living expenses from a truck catering with money purchase vided Moore testified that he could sell hot food. which from the State’s his “lavish came lifestyle” money office. Attorney’s 10, 1987,

On Moore was a witness in an- August key other case, Freeman, Cook homicide County v. No. During 86—CR—2090. his testimony, Moore stated that he lied at trial, had and had been paid to do so Detective Pochordo by and members State’s Attorney’s office.

The State filed a motion to dismiss defendant’s peti- tion 1989, on 27, September arguing that the petition failed to raise any constitutional within the questions scope the Post-Conviction Act Hearing (111.Rev. Stat. 122—1 et 1987, 38, seq.). ch. On par. 28, September 1989, Earl Judge of the circuit Cook Strayhorn court of on heard County argument motion dismiss and granted same, “no finding constitutional imperfections as to in the petitioner’s rights trial of the case.” outset,

At the we note that the trial court properly proceeded on motion to pursuant dismiss to section 122—5 of the Post-Conviction Act Hearing (111. Rev. Stat. 1987, 38, ch. par. 5). 122—

Defendant contends Moore himself perjured by his trial testimony and that the court trial erred in deny- an ing on evidentiary hearing defendant’s post-conviction petition for relief. The line of cases cited by defendant for the an neces- proposition evidentiary is hearing is sary not as each is persuasive, case distinguishable its facts.

The Post-Conviction Act does Hearing require not to conduct judge an The Act hearing. evidentiary gives the post-conviction judge broad discretion as he type evidence consider in on the may ruling allega tion of the Section 122—6 of Act petition. provides: affidavits, “The court may proof receive depositions, 1987, oral or testimony, other evidence.” Rev. Stat. (111. People Derengowski ch. par. In 122— Ill. 2d this hearing court held that “an evidentiary is court, not ‘since the circuit always necessary upon

motion render post-conviction petition, may to dismiss its on the of what is contained in the decision basis directed, to which the motion is considered with pleading ” (44 the of trial or other Ill. 2d proceedings.’ transcript v. Morris 478-79, at quoting court with provided transcripts The trial was as well as trial from transcripts of Moore’s recantation Moore once testified again the unrelated trial which trial. that he had lied in defendant’s over defend Judge Strayhorn presided Additionally, hearing as well as the the post-convic ant’s trial jury People Humphrey 46 Ill. In tion petition. held that when whether considering this court peti on a hearing post-conviction an grant evidentiary use of knowing perjured testimony tion that the alleges defendant, at the trial who judge presided against person alleging of the credibility determine may the documents reviewing supporting the perjury by in of defendant testimony Oral petition. defendant’s (46 91-92.) Measuring Ill. 2d at necessary. formant is not the lan of this court and standards the established the trial statute, not that we do believe guage of allegations on the ruling its discretion court abused hearing. an conducting evidentiary without petition TRIAL ERRORS ALLEGED dis- the trial court properly determined that Having relief, we petition post-convictión missed defendant’s errors. of trial allegations now address Opening Statement in its opening the State contends Defendant drug Ashley’s Charles discussed statement improperly the evi- argues operation. Specifically, testi- trial because introduced dence was never subsequently was Overstreet of Sherman witness mony the trial court. Overstreet was to prevented by testify A rec- regarding Ashley’s drug activities. review ord ample Ashley’s reveals evidence net- drug work presented by other witnesses. testimony The discussion of business in Ashley’s statement opening in no resulted to defendant. prejudice Defendant next that argues codefendant James post-arrest Allen’s statement was discussed improperly in the State’s opening argument. The record discloses no of mention Allen’s post-arrest statements during opening

statements. The State the outlined and execu planning tion the of murder by Allen, defendant and of details which were presented of through testimony prosecution witnesses and defendant’s taped confession. A of is purpose opening argument to inform the fact finder of what the evidence show. will War (People mack (1980), 125.) No to defend prejudice ant resulted by the remarks. opening

Taped Conversation Defendant next challenges the admissibility taped conversation himself, between Moore and arguing that the State failed to an lay adequate foundation for its admission. Defendant the State not alleges did establish the of the identity on speakers tape.

record includes an identification defendant’s voice by Moore, who testified that he had spoken defendant more than 100 times person recognized voice. addition, In Assistant State’s Cohen testified Attorney that he recognized voice be the on the speaker after he telephone spoke to the defendant and took his statement at the station. Cohen had police been with an listening as the earphone telephone conver- sation was taped. defendant admitted he Finally, had a received call from on telephone Moore the day that he had talked about

his arrest and acknowledged “hit” that conversation. during the Gibson of the conversa taped The State moved for admission of all the Defendant evidence. presentation tion after court discussed the standards legal and the trial objected had held that foundation proper for admission can established for An foundation be adequate been laid. conversation when a witness telephone a tape-recorded testifies tape to the conversation recorded court, the con presented accurately portrays as tape, v. Williams (People 109 Ill. question. versation to establish The State’s evidence adequate of the tape-recorded foundation for admission proper Moore and defendant. conversation between telephone the speaker identified as accurately Moore the con accurately portrayed and testified that the tape him and defendant. versation between admissibility challenges Defendant also the was inaudible. asserting tape tape recording by discretion in imposing The trial is accorded wide judge (Peo evidence. the of upon admissibility taped conditions v. Ash ple In the instant 16 Ill. (1974), App. to it and listened case, tape the trial examined judge admission, At the time of its admission. allowing before to admission on audibil made no its objection defendant took of the sound quality and no discussion grounds ity discretion, found the court, its The within place. admissible. tape properly Assistance Counsel of

Ineffective ineffective assist- that he received argues Defendant (1) failure to: result of his counsel’s ance of counsel as a of his confes- the voluntariness file motion challenging of sions; admissibility to (2) challenge present v. Delaware under Franks 438 (1978), recording tape 2674; investí- 154, 667, (3) L. Ed. 2d 98 S. Ct. U.S. 57 alleged illness; of mental gate history and sufficient at the (4) present mitigation evidence sen- of tencing hearing. None defendant’s contentions have merit.

A claim for ineffective assistance counsel must meet the requirements enunciated Strickland v. Wash (1984), 466 80 L. Ed. 2d 104 S. ington U.S. Ct. 2052, which (1) defendant show: that his requires counsel’s fell an representation objective below standard reasonableness; and there was a (2) reasonable it probability that were not for the prejudicial errors counsel, committed the outcome of the proceedings have might been different. Illinois adopted Strick land standard in v. Albanese 504.

The record reflects that defendant made a knowing waiver of his Miranda rights confession. prior During his initial station, interview at the defend police ant waived his rights Miranda an oral made confes sion He police. the statement subsequently gave to a court reporter. Assistant State’s Cohen Attorney testi fied that alert and lucid throughout proceedings. reporter court was able understand defendant and take his statement. Although defendant contends that he was under the influence of narcotics at the time he confession, made the the record offers no ev idence such A influence. motion challenging defend

ant’s post-arrest statement on voluntariness grounds futile, would have been make failure to such an at tempt cannot as a serve basis for alleging inadequate Ill. representation. People Kubat 2d 437. defense counsel Additionally, challenged admissi- bility trial, at tape recording requested fitness and hearing by had defendant examined psychiatrist, presented and mitigation evidence sentencing

58 Defendant has failed to make the hearing. necessary Strickland showing. Death Act

Constitutionality Penalty Illinois the death statute is penalty Defendant asserts in that it: has been determined be (1) unconstitutional court; (2) of this denies unconstitutional aby majority review; not (3) does post-conviction access to equal arbitrary capricious minimize the risk of sufficiently have been arguments previously sentences. Defendant’s court, continue this and we rejected by considered and issues. See those stated on these to adhere to position v. Al People v. Brisbon People 342; Ill. (1985), v. Kubat banese 504; ILl. 2d 437.

CONCLUSION above, we affirm For the reasons set forth The clerk and sentence of death. convictions Tues- setting to enter an order of this court is directed 15, on which the sen- 1992, as the date day, September exe- the circuit court is be tence of death entered by in the manner executed cuted. The defendant shall be ch. 119— par. law Stat. (111.Rev. provided by in this case shall be of the mandate A certified 5). copy Director of of this court to the the clerk delivered Corrections, of Stateville Correctional to the warden wherein of the institution Center, and to warden is confined. Affirmed. concurring: MILLER, specially JUSTICE CHIEF his convic- from defendant, in the direct appeal sentence, attorney’s challenges tion and death little or With grounds. on several different performance contentions, these discussion, rejects no majority

59 I agree are without merit. they Although concluding determination, I sepa- with the court’s ultimate write my agreement. to basis for rately explain distinct The defendant raises four challenges The defendant first performance. argues attorney’s seek that trial was ineffective for failing counsel ground of his statements on the suppression inculpatory The issue con- were statements at they involuntary. sist of the conversa- prearrest tape-recorded tion with a informant and his two con- police post-arrest fessions assistant to an State’s The defendant Attorney. alleges that he was under the influence of illicit drugs during his conversation with informant and during the initial session of official that he interrogation, and was withdrawal the con- experiencing symptoms during of session The asserts cluding interrogation. defendant that his were faculties those times and that impaired the statements he made on those occasions must there- fore matter, be deemed As a involuntary. related defendant that he unable for rea- argues the same sons to make of his knowing intelligent waivers Miranda rights prior the assist- being questioned by ant State’s Attorney. considers majority opinion only the defendant’s post-arrest and, statements in a brief the defendant’s Miranda discussion, concludes that waivers were valid and his custodial statements volun- tary.

Trial counsel refrained from properly attempting to challenge, on voluntariness of admission grounds, defendant’s prearrest tape-recorded conversation with the police conversation, informant. At the time the defendant was not in custody yet had not been with the charged present offense. the ad- Accordingly, mission of the statement into evidence did not implicate Illinois any the defendant’s constitutional rights. (See Perkins 292, 243, 496 110 L. U.S. Ed. 2d v. United States 2394; 385 U.S. S. Ct. Hoffa With to the regard 17 L. Ed. 2d 87 S. Ct. statements, offers conclu only post-arrest must have drugs that his allegations consumption sory and the record evi functioning, diminished his mental intoxication At theory. contradicts the defendant’s dence conducted the trial, State’s who Attorney the assistant the defendant was alert and testified that interrogations to waive his those throughout periods, agreed lucid Miranda, and had no understand difficulty under rights occasion, On each answering or ing questions. detailed account of a coherent and provided addition, In during the offense here. charged his role in was specifi the later round of the defendant questioning, he then the influence asked whether under cally in substances, he responded alcohol or controlled when, during ceased Interrogation prepara negative. statement, the defendant requested tion of the formal absent from the Entirely of counsel. assistance coercion or over police case is element of any present of involun finding for necessary predicate reaching, v. Connelly 157, tariness. Colorado 479 U.S. 93 (1986), S. 515. 473, 107 L. Ed. 2d Ct. counsel seeking suppression

A motion defense here raised grounds statements on the the defendant’s not be con An will unavailing. attorney would have been v. Washington Strickland sidered ineffective under 2052, Ct. 668, 674, L. Ed. 2d 104 S. 466 U.S. (1984), a futile motion have been what would failing pursue (P v. Hall eople 376, 408), performance counsel’s to defense challenges present be rejected. must therefore did not trial counsel next argues

The defendant Franks v. Delaware under challenge, properly 2674, 667, po- 98 S. Ct. 154, 57 L. Ed. 438 U.S. authoriza- used obtain officer’s affidavit that was lice tion for the consensual device. In eavesdropping case, for the use of the device was ob- present authority tained in accordance with the provisions article 108A of the Code of Criminal Procedure of 1963 (111.Rev. Stat. ch. 108A—1 pars. through 11). Ap- 108A— the Franks plying to the order under principles procured this I regimen, would conclude that the autho- statutory valid,

rization was certain notwithstanding discrepancies in the supporting affidavit. trial,

Throughout defense counsel was permitted to attack the police officer’s affidavit that had been used to obtain authorization for the eavesdropping device. The received on this testimony question discloses that the of- ficer included an incorrectly offense the list of those for which the informant had assist- previously provided ance and neglected state that the informant was then on a jail pending charge and had been in at other jail addition, times. In to the assertion contrary contained in the affidavit, it was not clear whether the informant had seen actually the murder weapon. re- judge jected the defense contention that these discrepancies the officer’s affidavit would have vitiated the order au- the use thorizing device. eavesdropping A search bemay upheld if, under Franks after exci sion of the challenged statements from the supporting affidavit, the remaining information would have provided probable cause for issuance of the (Franks, warrant. 171-72, U.S. at 57 L. 682, Ed. 2d at 98 S. 2684; Ct. at v. Edwards People 108, 132; 144 Ill. (1991), Eyler 173, 133 Ill. 2d 204.) to the Contrary contention, defendant’s that are allegations objectionable under Franks will not doom a automatically supporting affidavit. v. Lucente (People 133, 145- these Adapting to the principles context statutory here, I would conclude that the remaining allegations in the officer’s affidavit would have satisfied the statutory of the consensual eaves- for authorization

requirements the in- device. Those established allegations dropping formant’s consent to use of the device eavesdropping that reasonable cause to believe the and provided that committed the and conversa- felony defendant had obtained through tions that offense could be concerning (See par. device. 111.Rev. Stat. ch. use the trial it cannot be said that counsel 4.) Accordingly, 108A — Franks for failed to the having perfect was ineffective of trial. in advance objection

In his next to counsel’s challenge performánce, ineffective the defendant that counsel was argues hearing to introduce at failing pretrial competency his earlier treatment for mental illness. records detailing this additional evidence The defendant believes for his claim that he would have provided strong support trial. The was not to stand competent majority opinion grounds the defendant’s contention rejects a fitness and had hearing defense counsel requested clear It is not psychiatrist. examined whether believes majority from the court’s discussion hearing, having an obtaining expert opinion sufficient more, without must be deemed generally with respect fulfill counsel’s professional obligations so, If majority ignores an accused’s fitness claim. that other evidence bear- contention present and that counsel was on the was available ing question it at the fitness hear- ineffective to introduce failing at is- event, In I would note that evidence ing. any time, remote in and that the substance sue here was it the trial court anyway. was before now suggests evidence the defendant additional hearing the competency submitted should have been relevant here too remote time be simply determining to the helpful judge would been not.have trial. This informa- to stand the defendant’s competency

63 made 20-year-old tion consisted of records during defendant’s commitment to a State health mental center a suicide in the In the following attempt 1960s. proceed below, ings who examined the psychiatrist defendant was aware of the history defendant’s and the personal circumstances of prior treatment. The records them selves would have to the utility been doubtful judge determining defendant’s to stand trial at competency the time here. See relevant v. Woods People (1963), Ill. 2d 561.

In a contention, related which the majority opinion address, does not the defendant that counsel argues for waiting ineffective until the trial eve of to make the The competency motion. defendant believes an ear- lier motion would have to permitted counsel obtain addi- tional on expert issue. opinions It is not competency record, however, evident from this that counsel had to cause the motion present at an earlier time. Counsel made the motion because he was having com- difficulty municating with the defendant trial, preparation defendant has to presented nothing indicate that counsel should have raised the issue earlier.

The final defendant’s series of to challenges counsel’s performance to the pertains capital sentencing hearing conducted in case. The present first argues that counsel was ineffective for failing present, during the second' stage hear- sentencing ing, evidence of illness. the defendant’s of mental history majority opinion’s response this contention is to note that other mitigating evidence was presented the defendant’s view, behalf. to the Contrary majority’s however, the presentation other evidence in mitigation does not alone conclude the It is clear that matter. coun- sel has a duty investigate personal his- tory and to background introduce testi- appropriate mony of his client’s support (People interests. v. Ruiz v. Caballero 126 Ill. 1; evi mitigating counsel introduced some That in fail that counsel acted properly does not mean dence other evidence. to introduce ing the defendant consists proposed by The evidence now he contends should health records the same mental of of his mo- competency in support have submitted been re- stated, evidence was suggested I the tion. As have utility of doubtful in time and would have been mote mental condition. the defendant’s assessing the court in could well have be- token, defense counsel the same By known to the information, made already this lieved doctor, examining of the through testimony court determination. sentencing little to the would have added Strickland, are enti- decisions strategic counsel’s Under here, was not deference, required counsel tled to it because existed. merely introduce evidence further points support raises two The defendant at the counsel was ineffective that defense his contention that counsel The defendant asserts sentencing hearing. Ida Powe defense witness adequately prepare failed to to her until did not talk he hearing because Powe provided she was called to testify. before shortly charac- concerning testimony favorable failed to point defendant has The reputation. ter and of Powe’s testi- the value out, however, in what respect at to talk to her counsel’s failure was affected by mony contends The defendant further an earlier time. the conclusion argument made an inadequate counsel hearing. the sentencing stage of the second ignored argument that counsel’s complains and fo- history of his psychological evidence available his in- testimony reliability instead on the cused had a The defendant offense. charged volvement he committed however, and criminal history, lengthy his parole months after here two only murder charged from prison. Apparently believing that the defendant’s little, personal if history provided any, mitigation, coun- sel chose to argue to the sentencing that the judge evi- dence of the defendant’s for this guilt offense should not form the basis for a death sentence. Counsel’s strategic decision is entitled to deference, and the defendant has failed to show that a different closing argument would have produced different result. sum,

In I although with the agree court in its ulti- mate determination that the defendant not denied the effective assistance of counsel at trial or in the sen- tencing I hearing, believe that those issues warrant more extensive treatment than that provided majority. For the stated, reasons I concur in the court’s judgment.

JUSTICE FREEMAN joins this special concur- rence.

JUSTICE BILANDIC, in concurring and part dis- senting part:

This case involves two and separate distinct appeals. The first is defendant’s direct from his appeal conviction and sentence. Based upon record, briefs argu- and ments, I concur with the majority affirming defend- ant’s conviction and death penalty.

The second appeal involves the dismissal, without an evidentiary hearing, defendant’s post-conviction peti- tion. The majority affirms the trial court’s dismissal of the post-conviction petition without an hear- evidentiary At ing. this significant juncture, I must dis- respectfully sent.

The Post-Conviction Act Hearing Rev. Stat. (111. 1987, 38, ch. par. 122—1 et seq.) is designed provide a post-conviction for violations remedy of a defendant’s substantial constitutional at trial. rights v. (People Cihlar (1986), 212, 111 Ill. 2d 216.) In order to prevail

66 Act, under a defendant must establish that there was action the State inconsistent with fundamental by and which reflect commu justice principles liberty v. Cornille (People of fair play sense nity’s decency. 497, 95 2d A defendant un (1983), proceeding Ill. hearing the Act is entitled to an when evidentiary der of his allegations petition, supported by accompany make showing affidavits or a substantial ing transcripts, have been vio rights fundamental v. Caballero (People 248, 259.) 126 Ill. 2d (1989), lated. of a defendant’s the State moves for the dismissal When the truth of the factu petition’s post-conviction petition, is assumed and the issue is ally supported allegations if would consti allegations, proved, whether solely v. Wilson People 39 (1968), tute a constitutional defect. v. Brumas 142 Ill. 275, 277; (1986), App. Ill. 2d 178, 180. 3d both the United recognized, by

It has been long court, the depriva States Court and this Supreme false upon testimony tion of an individual’s based liberty of fairness a civ is to fundamental contrary principles v. Illinois Napue (See, e.g., (1959), ilized society. 1173, 1217, 1221, 79 S. Ct. 264, 269, 3 L. Ed. 2d U.S. 1177; Cornille, mortal is the 509.) “Perjury v. Shannon justice” (People Ill. App. enemy Court, and, as 873, 878), Supreme stated free nation does not of a government strong “[t]he Mesarosh such upon testimony.” need convictions based 1, United States 1, 14, 1 L. Ed. 2d 352 U.S. S. 77 Ct. 8. Moore was the recognizes Darryl The majority information witness that provided key prosecution of Carl Gibson. arrest for the murder led to defendant’s the success of trial contributed His at testimony 2, 1985. July was convicted Defendant prosecution. later, on August two years Approximately for the in an- witness key prosecution Moore was Freeman, homicide No. (People other Cook County case, his in that Moore CR—2090). During testimony 86— trial oath that he had lied at defendant’s testified under earlier. Moore testified that he was two further years to do so a detective members paid by police State’s office. Attorney’s conviction,

On another occasion after defendant’s that he lied at trial. Moore stated had defendant’s Darryl 20, 1986, Moore state- August gave On video-taped he ment which repudiated testimony incriminating defendant. He also stated facts and circumstances that conduct on the of law enforcement alleged improper part which Moore fi- agencies with to obtain cooperating nancial rewards and lenient treatment for crimes he had committed. affidavits post-conviction petition, supported by Moore’s at transcripts containing testimony

Freeman trial and his statement, was never video-taped answered A motion prosecution. to dismiss was filed approximately months later. As previously stated, a motion to dismiss admits all facts well-pleaded in the Wilson, 39 Ill. 2d at 277. post-conviction petition.

Therefore, the sole is whether issue trial court dismissed properly defendant’s post-conviction petition as a matter of law.

The record reveals that Moore on three Darryl spoke occasions on critical separate matters which resulted conviction. The first statement was at occasions, defendant’s trial. On two the video subsequent statement and the trial, Freeman Moore stated that his a lie. testimony against Darryl defendant was Moore is a self-confessed liar. The is when only question the lie occurred. the life is at When stake, it is to search for the truth an better eviden- on the discretion of the trial than to hearing rely

tiary judge. decision conflicts with

I that the majority’s believe v. Cihlar People 111 Ill. 2d in holding this court’s filed a Therein, post-conviction peti 212. the defendant claimed to have dis recently tion in which the defendant show whose would testimony covered several witnesses also had lied on the stand. petition that the victim who had the of witness testimony to present proposed revealed, during trial had not at defendant’s but testified to her the victim had made a statement testimony, that trial The trial testimony. the victim’s which contradicted an evi conducting the without petition court dismissed and remanded This court reversed hearing. dentiary 217.) 111 Ill. 2d at Rec (Cihlar, an evidentiary hearing. a con when rights implicated the fundamental ognizing this court deter testimony, is on perjured viction based sufficiently alleged that the defendant had mined en and was rights constitutional violation substantial Cihlar, his hearing petition. on evidentiary titled to an 217. 111 Ill. 2d at case, perjury the of possible

In the instant evidence Cihlar. Here, that was even than stronger presented at testimony himself stating witness is key Cihlar, of the veracity false. In defendant’s was the testi being challenged by testimony victim’s Further, herself. not the victim of third mony parties, Cihlar, noted that the fact of proposed this court testified at who had additional witness testimony but appeal, raised on direct trial could have been this ostensible Despite failed to raise it. fairness determined fundamental waiver, this court evidentiary at an the issue be adjudicated required (Cihlar, is noteworthy Also 111 Ill. 2d hearing. Cihlar, the additional that, testimony the proposed petition, set out in the defendant’s was fully witnesses the trial bare judge’s this court did not find that yet was an sub- adequate of the reading proposed testimony of those witnesses. Like- stitute for the live testimony wise, bar, in the case at the trial review judge’s cannot take of Moore’s recantation testimony transcripts of a full evidentiary hearing pe- place tition. Cihlar, cases, other from this

In addition to several court, court undermine the majority’s appellate In this holding. Sawyer court remanded for an where the evidentiary hearing defendant’s that the alleged post-conviction petition to prosecutor failed correct the record when the key prosecution witness testified her criminal falsely about record. The court found that these allegations, supported counsel, the affidavit of defense were by sufficient make a substantial that the defendant’s consti showing tutional rights were violated and thus to entitle the an 48 Ill. evidentiary hearing. (Sawyer, 2d In People v. Martin po lice informer and a officer both police testified at defendant’s trial informer was never paid by for his informer services. The police trial court dis missed, without an the defendant’s evidentiary hearing, post-conviction petition that, later, which at a un alleged trial, related another police officer testified that this par was, occasion, ticular informer for his paid services This court held that these by police. allegations were sufficient to make a of a constitu showing substantial tional violation and that an re evidentiary hearing was if quired to determine the violation did in fact occur. Martin, 568; 46 Ill. 2d at see also v. Spicer 42 Ill. without evi App. (dismissal an dentiary hearing where improper post-conviction petition contained allegations, supported affidavit, that the allowed its witness prosecution key that he had no consider- testify been offered falsely

ation his testimony). of this court and of funda- precedents principles mental fairness an The evi- require evidentiary hearing. confirm the fact the trial dentiary hearing may exercised sound discretion in defend- judge dismissing However, under the petition. ant’s facts post-conviction case, I do not this believe we should permit safeguard extreme to be inflicted without penalty reasons, I hearing. an For these evidentiary respectfully dissent. in this concurrence joins partial

JUSTICE CLARK dissent. partial (No. 69991. ILLINOIS, STATE Appel-

THE PEOPLE OF THE OF PALMER, lant, Appellee. v. STEVEN 12, 1992. Rehearing Opinion March — filed denied June 1992.

Case Details

Case Name: People v. Griffin

Court Name: Illinois Supreme Court

Date Published: Mar 12, 1992

Citation: 592 N.E.2d 930

Docket Number: 62397, 69286 cons.

Court Abbreviation: Ill.