*1 (No. 46644.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v. LYMAN MOORE, A. Appellant. Opinion January Rehearing denied March filed
WARD, J., part. took no
SCHAEFER, J., dissenting. Defender, of Public Chicago (Mat- Doherty, James J. Breeder, Assistant and Dale W. thew Beemsterboer J. Defenders, for Public counsel), appellant. General, Scott, Attorney Springfield, J. B. State’s Chicago
and Bernard Attorney, (James Carey, General, of and Patrick Assistant Chicago, Attоrney Zagel, Veldman, State’s Driscoll, S. Assistant T. Jr., James for the People. Attorneys, counsel), MR. KLUCZYNSKI delivered the opinion JUSTICE of the court:
After an circuit evidentiary court of Cook relief was denied to County, “post-conviction” defendant, We Moore. Lyman direct permitted appeal *2 this court R. Ill.2d which defendant (50 302(b)) contends the that evidence adduced establishes that he was denied due of law at his trial. process jury the defendant was convicted of the murder of a Illinois, owner, tavern Bernie Zitek. He Lansing, sentenced to death. Defendant’s direct to this court appeal was consolidated with an from a appeal judgment denying relief. This court affirmed his cоnviction and sentence with one Moore, v. justice dissenting. (People On 42 Ill.2d certiorari the United States 73.) Court, in a 5-to-4 decision, the affirmed conviction but reversed the death Illinois, sentence. v. 408 U.S. (Moore 33 L. Ed. Ct. S. After the cause 2562.) had been remanded to the circuit court for resentencing, counsel for defendant a “Petition” presented seeking new trial. It was based on an constitu specifically alleged tional violation that the State had failed to disclose to defendant’s trial counsel a statement signed by Virgle Sanders for use his cross-examination. during Defendant maintained that had this disclosure been made he would have been able to establish that Sanders had mistаkenly identified him as the man known as “Slick” who had admitted the of Zitek to Sanders.
The trial court denied “Petition,” summarily leave to file an unsuccessfully sought original action for writ of mandamus in this court. Ill.2d R. However, in the exercise of this court’s supervisory and in view of the authority circumstances extraordinary case, we directed that defendant’s “Pеtition” be treated aas the State file an petition, answer thereto and that an be evidentiary conduct ed. Following trial evidentiary court hearing, dismiss and appeal the State’s motion sustained of 60 a sentence Defendant is serving followed. presently murder. for the Zitek in the to 100 years penitentiary are extensively to this facts appeal background the United this court in the opinions reported set forth only and will be States Supreme raised. At the issue for consideration extent necessary 1962, two days testified April the trial Sanders in the he was sitting after shooting, he identified whom “Slick” and he knew as with a man had shot that he told Sanders This man defendant. ad- On cross-examination bartender Lansing. did not know that he anything a relative he told mitted he contact when she murder suggested about want to do and he told her that he “didn’t nothing police, with it.”
In the defendant claim- first post-conviction petition, ed that Sanders’ most damaging Moreover, evidence and that was him against perjured. *3 30, 1962, he maintained that on Sanders had given April written that he had statement met indicating police “Slick” about six months thereto. Defendant assert- prior ed that Sanders could not have met him at the latter time for he was not released Federal until from March custody 1962.
Sanders testified conducted evidentiary hearing in the first he regard post-conviction petition, reiterated his reluctance to become involved in the case as he described the circumstances at the time first police talked to him about the matter. Apparently, police contacted him when it was learned that he was a frequent of the Ponderosa where Zitek’s killer and patron Tap another have after the murder. may gone Sanders substantiated defend-
During proceeding 30, that he had ant’s statement on charge signed April he had met “Slick.” He also indicating previously testified that he had first become with “Slick” acquainted Christmas, 1961, before when “Slick” was
in local tavern another involved in an altercation with patron, no one ever mentioned Sanders claimed that Thompson. that defendant had been incarcerated in 1957 and had not been released until March authorities although Defense counsel then asked were aware of this fact. Sanders: on, you you did “Q. did tell me and also later And Attorney’s office that policeman from the State’s tell fellow, Moore, Lyman you had known
if that this 4, 1962, you would penitentiary the Federal until March you definitely being him as not have identified Slick knew? impossible been jail,
A. If he’s in it would have be same man.” defendant’s contention San
This court rejected and we observed that ders’ any perjured, indicated testimonial inconsistency. merely discrepancy had failed to establish that We held that defendant further to defend material evidence favorable the State suppressed 73, 80-81. ant which he had 42 Ill.2d requested. Court, the United observed: the aforesaid “Unquestion- colloquy reviewing concedes, was in error when now as State ably, Moore at Wanda and to the that he met indicated Del’s about six months prior April [tаvern] March at Leavenworth until shows Moore’s incarceration have been an instance of mistaken that conclusion to to the identification of But the mistake was as identity. at the ‘Slick,’ not as to the of Moore presence ‘Sanders’ to the Tap April effect that it was Moore he with at the Ponderosa spoke ” ***’ all, in itself is not if at significantly, impeached. 786, 795-96, And, L. Ed. 713-14.) *4 after consideration of the other identifications of positive defendant as the killer and the one in the Ponderosa Tap, evidence, concluded “in the of all the majority light that Sanders’ misidentification of Moore as Slick was not 786, 797, material to the issue of U.S. 33 L. (408 guilt.” 706, Ed. four 2d dissenting justices United construеd States Court Sanders’ testi- Supreme that have been for would mony indicating impossible Moore to been the have man to him the spoke 804, L. U.S. Ed. Tap 719) and that evidence such was material the defense (408 n.4, L. 33 Ed. 2d 720 n.4). to that court’s defense counsel
Subsequent opinion, contacted and statement, Sanders obtained his which was to the “Petition.” the recordation of this appended During statement, defense counsel to Sanders the explained to his the United interpretations given prior testimony by Court. concluded that the Supreme major- was construction that the man in ity wrong, “Slick,” defendant, was not that had met “Slick” at Wanda and and Del’s tavern that “Slick” and in almost that bar. Sanders Thоmpson fought also said he was 6 feet 1 inch and “Slick” was height about the same or an inch less. height possibly
At the March, 1974, conducted in evidentiary hearing directive, with accordance our Sanders testified he had seen defendant that defendant previously standing, was “Slick,” too short to be and it was “Slick” who talked about in the Ponderosa After Tap. defendant, near Sanders further testified that standing “Slick” was at least 6 feet in and defendant was 3 height or 4 inches On shorter. cross-examination this witness said that the “Slick” name in bars when an commonplace individual’s name unknown that he called many men that name. that he was denied law, due arguing process to the alludes to Sanders’ interpretation given first post-conviction hearing by of the United States its
conclusion that such was not material to the issue of He guilt. argues majority interpretation
384 has now been refuted Sanders’ statements. subsequent Defendant maintains is now established that Moore was not “Slick” and that it was latter who the confessed the he Sanders. Thus contends thаt this evidence was material to the of issue that Sanders’ of guilt, repudiation the trial' identification reversal of his conviction requires and, we assume, the be cause remanded for a new trial.
It is axiomatic in post-conviction proceedings bears the burden of a substantial establishing defendant Madison, constitutional v. 56 Ill.2d deprivation. (People 476, 490; 74, v. 55 While People Newberry, Ill.2d 75.) as to the and of the challenges sufficiency competency evidence are not in such cognizable properly proceedings Dunn, Southwood, v. 52 Ill.2d v. 402; People (People Vail, 49 Ill.2d v. due 229; People Ill.2d 591), to the we circumstances of this case have extraordinary reviewed rеcord. the again his trial stated in that a specifically in the Ponderosa told him that he shot a
person bartender and that was the defendant. Lansing person While Sanders was unable recall substance of precise the conversation at the two he hearings, has, trial a decade after and after nearly repeated case, reluctance to involved in this become unequivocally disavowed his trial of defendant as the identification one who made this admission at the Ponderosa incriminating However, has his belief that he reaffirmed met Tap. and “Slick” Wanda Del’s tavern when an altercation with William developed Thompson. of evidence summarizing
United Court stated “but served nothing the two-witness identification and destroy [Hill Powell] assailant, of Moore as Zitek’s the three-witness identifica- and tion as [Sanders, Joyce present Fair] Ponderosa the two-witness identification [Joyce Tap, one of Moore as the men requested Fair] in Dolton Harvey, a ride from obtained to the admission made Illinois, and Fair’s L. Ed. 786, 798, 33 that ride.” (408 from this has now factor that recapitula- changed only Moore as identification person tion is Sanders’ Tap. waitress, Patricia identification The positive to the Hill, only prior who observed feet under a distance good also from but shooting *6 murder, remains the time of conditions lighting Powell, saw who also shooting, Henley unchallenged. well as United court as Moore, and this identified to there was found that nothing Court States Supreme was false. that his indicate Ponderosa the incident in the to Tap, regard defend- constituted, does not diminish record, as presently bartender. ant’s identification by Joyce, of the Ponderosa Fair, the owner Nor has the testimony The four justices been dissenting challenged. Tap, the credibil- lessen Court United States sought Supreme that he had identification of by noting of Fair’s ity However, examination entire afternoon. been drinking two drinks he had indicates that only of Fair’s testimony with were consumed of these and both that afternoon “Barbee” during stops dеfendant and his companion to be Illinois. It is their Harvey, two taverns on way with that he was Fair’s testimony from further gathered one hour and for nearly these establishments defendant in another admission was ride, their at which time during the latter’s car. next to Fair in made, defendant sat is of credibility, significance In relation to Sanders’ when he able to recall that he was maintained that Sanders in an involved had been because “Slick” met “Slick” at Wanda and one William with Thompson altercation At the first hearing, Thomp- Del’s tavern. post-conviction tavern, Delbert and Del’s of Wanda son and operator this altercation the fact corroborated Jones, “Slick,” known as who was ensued and that the person fracas, Watts. The in the involved actually James the United States justices dissenting looked that Watts and very twice observed at the alike and “Sanders’ testimony much about the that it was Watts who indicates bragged 786, 805, 33 L. Ed. murder [defendant].” of this court reached justice dissenting 73, 88. Ill.2d the same conclusion in our prior opinion. exhibit аof showing Examination photographic the trial court at denied admission “Slick” Watts was by Defendant’s motion the first proceeding. said the record by including picture supplement This court in defendant’s previous appeal. granted defendant are each that Watts and indicates photograph to be If credence is given аbout the same any height. “Slick” as being Sanders’ subsequent testimony regarding be eliminated from tall, then Watts must also 6 feet James conversed with “Slick” who consideration as elusive because over 12 Sanders in years ago This would refute Sanders’ also.be too short. Watts would at Wanda and that he had met “Slick” consistent position with Watts when “Slick” Del’s tavern argued *7 Thompson. are of the
For this reason we opinion contained in Sanders’ statement matters given pertinent United after the decision of the defense counsel the second and his Court testimony post- Supreme of which lack that credibility conviction quantum hearing relief would this court to consider granting permit adhere to the defendant. We thеrefore interpretation of the United States given Supreme at the first Sanders’ hearing. testimony And even if we consider the confusing posture present identification, find that there is other we Sanders’ ample evidence, forth, which establishes defend- as set previously doubt. ant’s reasonable beyond guilt the circuit court of Accordingly, judgmеnt Cook is affirmed. County
Judgment affirmed. MR. WARD took no in the considera- part JUSTICE tion or decision of this case. SCHAEFER,
MR. dissenting: JUSTICE This case now stands on a different than very footing it did in when the Court of the United States, decision, in a five to four affirmed the conviction of the defendant for the murder of Bernard Zitek. The then, focus centered as it now, does primary upon of the witness Sanders that “two testimony after the days murder, he was in the Ponderosa and that a customer Tap there, whom ‘Slick,’ identified remarked Sanders that it was season on bartenders’ ‘open had shot one in At the trial Sanders identified Lansing. Moore as the man who was in the Ponderosa April Moore 27.” v. Illinois 408 U.S. 33 L. (1972), 706, 710, Ed. 2d S. Ct. that existed as to the ambiguity mеaning
Sanders’ at the first has now been removed. As the of this court present opinion states, Sanders disavowed his trial identifi- “unequivocally cation of defendant as the one who made incriminating words, admission.” In other not, it is now clear that it was as the told, had been the defendant jury admitted the Instead, murder. the admission was made by “Slick,” man known as whom Sanders had first met while the defendant Moore was in the penitentiary Leavenworth.
Sanders has testified that he had first met man he knew as “Slick” in Wanda and Dell’s Tavern in the fall of 1961, when “Slick” had an altercation with William This is not a recent fabrication. The Thompson. had Sanders’ to that effect on statement April *8 Moore was arrested for аn a full six months before offense, Both unrelated on October Thompson Dell’s, and the of Wanda and Delbert Jones, proprietor occurred, that an altercation have testified that such Moore, defendant but a involved in it was not the the man Watts, was known as “Slick.” man named who James that it was not of the to disclose failure police have been confessed to the may Moore of the accidental, From the outset or not. may of the existence of Sanders the knew investigation, police knew also of the to him. admission made They The defendant of the witnesses and Fair. existence Joyce arrest, his but after Moore numerous lineups apрeared of those was taken nor any neither Sanders Thompson trial, a witness at the was not called Thompson lineups. the defendant him had shown but picture police Moore was not had said that knew that he Moore, and they Sanders did not see he knew. whom the man named Slick For some until the trial May the defendant at the trial and еfforts, at both the State resisted reason neither that Joyce to establish hearing, of the incident the time from Fair saw the defendant nor first When Sanders the trial. until he knew man trial, he at the saw Moore protested His heavier than Moore. 30 or misgivings pounds “Well, however, were officer’s allayed, reply: trial, At the Fair was know how beans are.” you jailhouse “looks like one that the defendant Moore able only say A of the men” who was in responsible Tap. when first saw the offer to Joyce prove said, different,” “He looks trial sure rejected. that additional evidence has demon- fact
Despite was mis- strated that Sanders’ understood, court would now sustain convictiоn sua an attack on Sanders’ sponte, credibility. by mounting, E. That attack relates to the “Slick” height James *9 Watts, and it is rebutted the arrest records Police Chicago Department. case the State Illinois this knowingly permitted which it knew to be false to uncor- remain
rected. is no There doubt that have affected might trial, outcome of fоr it involves attribution a defendant of confession that someone else made. It will not do to there is no violation of the Constitution say because it was was known to falsity proved who tried the case. The actions of prosecutor for all other officers are actions of the State Illinois fourteenth and there is no reason amendment purposes, rule or different should be when life why liberty applied trial. outcome depends upon No. (Docket WILLIAMS,
INEZ v. MEDICAL CENTER Appellant,
COMMISSION, Appellee. Opinion March filed