People v. Cihlar

• Decision Date: 06 February 1986
• Docket Number: No. 60530,60530
• Citation: 95 Ill.Dec. 297,111 Ill.2d 212,489 N.E.2d 859
• Parties: , 95 Ill.Dec. 297 The PEOPLE of the State of Illinois, Appellant, v. Douglas CIHLAR, Appellee.
• Court: Illinois Supreme Court

Page 859

489 N.E.2d 859

111 Ill.2d 212, 95 Ill.Dec. 297

The PEOPLE of the State of Illinois, Appellant, v. Douglas CIHLAR, Appellee.

No. 60530.

Supreme Court of Illinois.

Feb. 6, 1986.

Neil F. Hartigan, Atty. Gen., Springfield, Mark L. Rotert, Asst. Atty. Gen., Chicago, for appellant; Richard M. Daley, State's Atty., Cook County, Chicago, Joan S. Cherry, Michael E. Shabat, Patrick J. Foley, Asst. State's Attys., of counsel.

Dennis M. Doherty, Chicago, for appellee.

WARD, Justice.

Following a jury trial in the circuit court of Cook County, Douglas Cihlar was found guilty of rape, burglary and home invasion and sentenced to six years in the penitentiary. The appellate court affirmed the conviction. (106 Ill.App.3d 824, 62 Ill.Dec. 739, 436 N.E.2d 1041.) Almost two years later the defendant filed a petition for relief under the Post-Conviction Hearing Act (Ill.Rev.Stat.1981, ch. 38, par. 122-1 et seq.) and a motion under section 72 of the Civil Practice Act (Ill.Rev.Stat.1981, ch. 110, par. 72) (now section 2-1401 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-1401)). Both were dismissed by the circuit court without an evidentiary hearing. The appellate court reversed the dismissals and remanded for an evidentiary hearing. (125 Ill.App.3d 204, 80 Ill.Dec. 513, 465 N.E.2d 625.) We allowed the People's petition for leave to appeal under our Rule 315 (94 Ill.2d R. 315).

The circumstances of the crimes are reported in the appellate court's opinion (106 Ill.App.3d 824, 62 Ill.Dec. 739, 436 N.E.2d 1041), and it is unnecessary to restate them.

In his petition and motion the defendant stated that, only a short time before, he had located Ronda Balla, a former neighbor of the victim. She was prepared to testify that the victim told her a day or two after the crimes that her assailant had worn a pair of panties over his head, covering his features, and that he was able to see only through legs in the panties. In a statement accompanying the petition, she said the victim had compared it to a person's looking through binoculars. The petition stated that this testimony of Balla would be in direct confict with the testimony of the victim, who at trial had stated that the assailant had worn the panties as a hairnet would be worn, and that they did not cover his face, so that she was able to identify the defendant in a lineup at the police station and also in court as her assailant. The petition stated, too, that shortly after the crimes Balla had changed her residence five times and had married and changed her name. When the petition and motion were called for hearing, the petitioner's attorney stated that in addition to the testimony of Balla he would offer that of Andrea Wilkens and Susie Wilkens. They were neighbors of the victim, who would testify, the attorney said, that shortly after the trial the victim made similar statements to them that contradicted her testimony. The petitioner was also proposing to call Marsha Londo to testify to statements the victim had made to her that differed from her testimony. Londo had testified at the trial, but simply to the effect that the victim had come to her reporting the attack and that she, Londo, had called the police. At a post-trial motion hearing, Londo had testified that the complainant had told her that the panties had covered the assailant's face. This contradiction of the victim's testimony had not been before the jury. The petition also alleged that the Wilkens and another witness, who was out of the country, "were not available" to petitioner until after Ronda Balla had been located. The circuit court dismissed the petition and motion without an evidentiary hearing on the ground that the proposed testimony of Balla and the Wilkens would be only cumulative, duplicating the testimony of Marsha Londo at trial. The petitioner's attorney pointed out to the court that the new evidence would not be cumulative, as the jury had not been informed at trial of Londo's contradiction of the victim. Londo's differing testimony came to light only at the hearing before the court on the post-trial motion. The trial court replied that these statements of the attorney might be correct but that "[t]he jury believed the girl, and those twelve people, like I say, sitting as a composite, theoretically perfect person their judgment is far better than mine. * * * I am saying the jury's verdict was a just one under the evidence and that's why it is."

The circuit court held that the defendant had had a fair trial, and the petition and motion were dismissed.

The design of the Post-Conviction Hearing Act is to provide a post-conviction remedy for violation of substantial constitutional rights at trial. (People v. Agnello (1966), 35 Ill.2d 611, 613, 221 N.E.2d 658; People v. Meeks (1975), 31 Ill.App.3d 396, 400, 334 N.E.2d 253; Ill.Rev.Stat.1983, ch. 38, par. 122-1.) To establish a constitutional violation entitling a defendant to a review of his conviction, which here would be a violation of his right to due process of law, the defendant must show that there was action by the State inconsistent with fundamental principles of liberty and justice reflecting the community's sense of fair play and decency. (People v. Cornille (1983), 95 Ill.2d 497, 508, 69 Ill.Dec. 945, 448 N.E.2d 857.) As we observed in Cornille, it has been long recognized that the deprivation of an individual's liberty based upon false testimony is contrary to fundamental principles of fairness in a civilized society. (People v. Cornille (1983), 95 Ill.2d 497, 509, 69 Ill.Dec. 945, 448 N.E.2d 857.) Here the testimony of the complainant identifying the defendant as her assailant was the only evidence connecting the defendant with the offenses. The defendant's claim that he was convicted on perjured testimony sufficiently alleged a violation of substantial constitutional rights.

The appellate court properly reversed the denial of an evidentiary hearing. It appears that the circuit court dismissed the petition and motion on the ground that the proposed testimony of the witnesses would be only cumulative, the court believing that Marsha Londo had testified before the jury that the victim had made statements to her that contradicted the victim's testimony. When the petitioner's attorney informed the court that Londo had not testified before the jury as to these contradictions but only at the post-trial hearing before the court, the court said that the attorney might be correct but that the jury's verdict was a just one under the evidence. This ignored the defendant's contention that the verdict was not just because it was founded on perjurious evidence. The defendant sought to challenge the testimony of the complainant...