Moore v. Illinois 8212 5001

• Citation: 408 U.S. 786,33 L.Ed.2d 706,92 S.Ct. 2562
• Decision Date: 29 June 1972
• Docket Number: No. 69,69
• Parties: Lyman A. MOORE, Petitioner, v. State of ILLINOIS. —5001
• Court: United States Supreme Court

408 U.S. 786

92 S.Ct. 2562

33 L.Ed.2d 706

Lyman A. MOORE, Petitioner,

v State of ILLINOIS.

No. 69—5001.

Argued Jan. 18, 1972.

Decided June 29, 1972.

Rehearing Denied Oct. 10, 1972.

See 93 S.Ct. 87.

Syllabus

Moore, who was convicted of murder and sentenced to death for the shotgun slaying of a bartender at a Lansing, Illinois, tavern, claimed that he was denied a fair trial and due process because the State failed to make pretrial disclosure of several items of evidence helpful to the defense, failed to correct false testimony of one Powell, and succeeded in introducing into evidence a shotgun that was not the murder weapon. The evidence not disclosed consisted of a pretrial statement by one Sanders that Moore was known to him as 'Slick' and that he had first met 'Slick' some six months before the killing, and documents and testimony that established that Moore was not the man known to others in the area as 'Slick.' Powell testified that he observed the killing, and the State did not introduce into evidence a diagram that, Moore claims, illustrates that Powell could not see the shooting. The State Supreme Court rejected the claim that evidence had been suppressed and false evidence had been left uncorrected, and held that the shotgun was properly admitted into evidence as a weapon in Moore's possession when he was arrested and suitable for commission of the crime charged. Moore also attacked the imposition of the death penalty for noncompliance with the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. Held:

1. The evidentiary items (other than the diagram) on which Moore bases his suppression claim relate to Sanders' misidentification of Moore as 'Slick' and not to the identification, by Sanders and others, of Moore as the person who made incriminating statements in the Ponderosa Tap. These evidentiary items are not material under the standard of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The diagram does not support Moore's contention that the State knowingly permitted false testimony to remain uncorrected, in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217, since the diagram does not show that it was impossible for Powell to see the shooting. Pp. 794—798.

2. Moore's due process claim as to the shotgun was not previously raised and therefore is not properly before this Court, and in any event the introduction of the shotgun does not constitute federally reversible error. Pp. 798—800.

3. The sentence of death may not be imposed on Moore. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. P. 800.

42 Ill.2d 73, 246 N.E.2d 299, reversed in part and remanded.

James J. Doherty, Chicago, Ill., for petitioner.

Thomas J. Immel, Springfield, Ill., for respondent.

Elmer Gertz and Willard J. Lassers, Chicago, Ill., for American Civil Liberties Union, Illinois Division, and Illinois Committee for Abolition of Capital Punishment.

Mr. Justice BLACKMUN delivered the opinion of the Court.

This state murder case, with the death penalty imposed by a jury, comes here from the Supreme Court of Illinois. The grant of certiorari, 403 U.S. 953, 91 S.Ct. 2280, 29 L.Ed.2d 864 (1971), was limited to three of four questions presented by the petitioner. These concern the nondisclosure to the defense of allegedly exculpatory evidence possessed by the prosecution or the police; the admission into evidence of a shotgun that was not the murder weapon; and the rejection of eight veniremen who had voiced general objections to capital punishment. The first and third issues respectively focus on the application of Brady v Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

I

Petitioner Lyman A. Moore was convicted in 1964 of the first-degree murder of Bernard Zitek. Moore's appeal to the Supreme Court of Illinois was held in abeyance while he petitioned the trial court for post-conviction relief. After a hearing in January 1967, that petition was denied. Moore's appeal from the denial was consolidated with his appeal from the conviction and sentence. With one justice dissenting and another not participating, the Illinois court affirmed the judgments. 42 Ill.2d 73, 246 N.E.2d 299 (1969).

II

The homicide was committed on April 25, 1962. The facts are important:

A. The victim, Zitek, operated a bar-restaurant in the village of Lansing, southeast of Chicago. Patricia Hill was a waitress there. Donald O'Brien, Charles A. Mayer, and Henley Powell were customers.

Another bar called the Ponderosa Tap was located in Dolton, also southeast of Chicago. It was owned by Robert Fair. William Joyce was the bartender. One of Fair's customers was Virgle Sanders.

A Third bar known as Wanda and Del's was in Chicago. Delbert Jones was the operator. William Leon Thompson was a patron.

The Westmoreland Country Club was in Wilmette, about 50 miles north of Lansing. The manager there was Herbert Anderson.

B. On the evening of April 25 Zitek was tending bar at his place in Lansing. Shortly before 10 p.m. two men, one with a moustache, entered and ordered beer. Zitek admonished the pair several times for using pro- fane language. They continued in their profanity and, shortly, Zitek ejected them. About an hour later a man carrying a shotgun entered. He laid the weapon on the bar and shot and killed Zitek. The gunman ran out, pursued by patrons, and escaped in an automobile.

C. At the trial waitress Hill positively identified Moore as one of the two men ejected from the bar and as the one who returned and killed Zitek. She testified that she had a clear and close view from her working area at the bar and that she observed Zitek's ejection of the two men and the shotgun killing an hour later.

D. A second in-court identification of Moore as the man who killed Zitek was made by the customer Powell. Powell, who at the time was playing pinochle with others, testified that he observed Moore enter the bar with a shotgun and shoot Zitek; that after the shooting he pursued Moore; and that outside the bar Moore stopped momentarily, turned, and shouted, 'Don't come any further or I'll shoot you, too.'

E. Sanders testified that on April 27, two days after the murder, he was in the Ponderosa Tap and that a customer there, who Sanders identified as 'Slick,' remarked to Sanders that it was 'open season on bartenders' and that he had shot one in Lansing. At the trial Sanders identified Moore as the man who was in the Ponderosa Tap on April 27. Moore was with another man who had a moustache. The two asked for a ride to Harvey, Illinois. The owner, Fair, agreed to give them the ride.

F. Fair testified that Moore was one of the two men who requested and were given the ride; that during the journey one of them was referred to as 'Barbee'; and that one said 'something like, 'Well, if we hadn't had that trouble with the bartender in Lansing, we'd have been all right."

G. The Ponderosa bartender, Joyce, testified that San- ders and Fair were in that tavern on April 27; that Moore was there at the same time; and that he arranged with Fair for Fair to give Moore and his companion a ride.

It is thus apparent that there were positive in-court identifications of Moore as the slayer by the waitress Hill and by the customer Powell, and that there were in-court identifications of Moore as having been present at the bar in Dolton two days later by Sanders, by Fair, and by Joyce.

H. Six months after the slaying, in the early morning hours of October 31, 1962, a Chicago police officer was shot at from a 1957 Ford automobile. Two men fled the scene. The police 'staked out' the car, and several hours later Moore and a moustached man, later identified as Jerry Barbee, were arrested when they approached and entered the vehicle. The automobile proved to be owned by Barbee. A fully loaded sawed-off 16-gauge shotgun was in the car. ¹ The shotgun was introduced in evidence at Moore's trial.² The State conceded that the gun so introduced was not the murder weapon, and that the State's ballistics technician, if called, would testify that the waddings taken from Zitek's body came, in his opinion, from a 12-gauge shotgun shell.

I. The defense called manager Anderson of the Westmoreland Country Club as a witness. He testified that Moore had been hired as a waiter there on April 24 (the day before the murder); that the club records indicated there was a special party at the club on the evening of April 25; and that Moore was paid for work- ing until sometime between 10 p.m. and midnight. The club's bartender testified to the same effect. Each of these witnesses nevertheless admitted that he could not remember seeing Moore at the club that night, but said that he would have known if he had been absent for any substantial period of time. The club records also indicated that Moore worked at the club the afternoon of April 27, when, according to the testimony of Sanders, Fair, and Joyce, Moore was at the Ponderosa Tap in Dolton.³

J. O'Brien, a customer at Zitek's, testified for the defense that he observed Zitek eject two men the evening of the 25th, and that Moore was not one of them. Although he was in the restaurant at the time of the homicide, he did not see the person who shot Zitek. A police officer testified that in his opinion O'Brien was drunk at the time.

III

Prior to the trial, the defense moved for disclosure of all written statements taken by the police from any witness. The State agreed to furnish existing statements of prosecution witnesses. At the post-conviction hearing, Moore argued, and the claim is presented here, that he was denied a fair trial because six items of evidence, unknown to him at the time of the trial, were not produced and, in fact, were suppressed by the State:

A. On April 30, 1962, Sanders gave a statement to the police that he had met the man 'Slick' for the first...