People v. Bland

• Citation: 24 Ill.Dec. 222,384 N.E.2d 1380,67 Ill.App.3d 716
• Decision Date: 29 December 1978
• Docket Number: No. 78-98,78-98
• Parties: , 24 Ill.Dec. 222 PEOPLE of the State of Illinois, Respondent-Appellee, v. Alexander BLAND, Petitioner-Appellant.
• Court: United States Appellate Court of Illinois

Page 1380

384 N.E.2d 1380

67 Ill.App.3d 716, 24 Ill.Dec. 222

PEOPLE of the State of Illinois, Respondent-Appellee, v. Alexander BLAND, Petitioner-Appellant.

No. 78-98.

Appellate Court of Illinois, First District, Second Division.

Dec. 29, 1978.

Rehearing Denied Jan. 25, 1979.

George C. Hook, Chicago, for petitioner-appellant; Much, Shelist, Freed, Denenberg, Ament & Eiger, P. C., Chicago, of counsel.

Bernard Carey, State's Atty., Cook County, for respondent-appellee; Lee T. Hettinger, Iris E. Sholder, Ira H. Raphaelson, Asst. State's Attys., of counsel.

STAMOS, Presiding Justice:

Alexander Bland, petitioner, was found guilty of murder and armed robbery on March 9, 1973, following a bench trial in the criminal division of the Circuit Court of Cook County. He was sentenced to a term of 20 to 50 years. On direct appeal we affirmed the judgment of the trial court, resolving against petitioner the sole issue raised, whether an accomplice's testimony was sufficiently credible to establish defendant's guilt beyond a reasonable doubt. People v. Bland (1st Dist. 1974), 18 Ill.App.3d 994, 310 N.E.2d 658 (abst.).

On June 25, 1974, defendant filed a Pro se post-conviction petition. Attorney George C. Hook entered an appearance as counsel for petitioner on October 31, 1974, and on March 29, 1977, defendant filed an amended petition for relief pursuant to the Post-Conviction Hearing Act, Ill.Rev.Stat.1977, ch. 38, pars. 122-1 through 122-7. The State filed a motion to dismiss the amended petition. After argument on the motion, the post -conviction judge, who also presided at petitioner's bench trial, granted the motion to dismiss as to all issues except one, relating to alleged in-court coercion of the accomplice witness by a police officer, on which issue the court ordered the State to file an answer. Petitioner then filed a motion for the judge's recusal, but the court ultimately ruled that recusal was not required as the court was able to decide the issue based on the conflicting affidavits filed, without holding a hearing. The court then decided the issue against the petitioner. From this adverse resolution and from the order of dismissal, petitioner now appeals.

The issues on appeal are: (1) whether the court erred in dismissing without a hearing a petition supplemented by affidavits containing, Inter alia, a recantation by the chief witness against petitioner; (2) whether the court erred in deciding the issue of in-court coercion of the chief prosecution witness on the basis of affidavits after a motion for recusal had been made; (3) whether the petition alleged sufficient facts to support petitioner's claim that he was denied his right to effective assistance of counsel at his original trial; (4) whether the trial court's finding that the petition failed to state a claim of ineffective assistance of counsel was based on improper grounds; (5) whether the court erred in dismissing without a hearing petitioner's claim that the State concealed evidence favorable to the defense; (6) whether the court similarly erred in dismissing a claim that the State used other perjurious testimony; (7) whether the court erred in dismissing petitioner's claim that his conviction was based on an erroneous standard of proof; and (8) whether the court properly dismissed petitioner's other claims relating to alleged pretrial improprieties and denials of constitutional rights and to the alleged failure of the trial court to make further inquiry to resolve ambiguities and conflicts in the case against petitioner.

While the testimony adduced at petitioner's trial was summarized in our first opinion (People v. Bland (No. 59200, 1st Dist. 1974), 18 Ill.App.3d 994, 310 N.E.2d 658 (abst.), insofar as it is pertinent to this appeal, it is summarized again here. Dreamle Scott, then 17 years old, testified that at approximately 12 o'clock noon on September 17, 1972, she met defendant in front of her house on East 41st Street in Chicago and they discussed the possibility of robbing a cab. They hailed a cab driven by the victim, Eddie Moore, and petitioner told him to drive to 75th and Paulina and then around the corner; when the cab stopped, Ms. Scott got out and petitioner, pointing a handgun at Moore, ordered him from the cab. Ms. Scott testified that as petitioner took some money from Moore and as she approached Moore, Moore grabbed her and tried to push her into petitioner, knocking both to the ground. Ms. Scott got up and ran from the scene; as she ran, she looked back and saw nothing but heard three shots fired. Petitioner then joined her, they ran together, caught a bus to return home, and petitioner gave her some of the money he had taken from Moore.

On cross-examination by Andre Mandeville, the Public Defender who represented petitioner at trial, Ms. Scott admitted that she had never been indicted or arrested as a result of the murder. She was also impeached by conflicts between her direct testimony and certain exculpatory testimony she had given before the grand jury which indicted petitioner. However, her direct testimony regarding the specific circumstances surrounding the incident and petitioner's participation therein was not challenged on cross-examination and remained unshaken. In addition, the following exchange took place:

Q. (by defense counsel) Did anyone ever say to you that if you did not come and testify that you would go to jail?

A. Yes.

THE COURT: Who said that?

THE WITNESS: A Officer, I don't know his name, Wiley.

Ms. Shirley Rushing, who lived near the scene of the incident, testified as a State's witness that at the time of the occurrence she heard about three shots fired; that she saw the man who shot Moore; and that she saw a lady and a man running from the scene of the shooting. The following exchange then took place:

Q. (by the prosecuting attorney) Was this the same man that you had just seen shooting the cab driver?

A. No.

Q. Which man was the lady running with?

A. I don't see him.

She was then asked to look around the courtroom and indicate whether she saw the man who had the gun, whereupon defense counsel objected, and no identification was ever made.

On cross-examination, Ms. Rushing acknowledged that she had described the man who did the shooting as six feet tall in her statement to the police after the incident, although in her direct testimony she described him as five feet nine inches to six feet tall. No questions relating to the identity of the man or men whom she had seen were asked.

On appeal, petitioner was represented by a different attorney from the Public Defender's office, Thomas Finegan. Petitioner argued that Ms. Scott's testimony was insufficiently credible to establish his guilt beyond a reasonable doubt and that Ms. Rushing's testimony contradicted Ms. Scott's at several junctures. Nevertheless, the court affirmed petitioner's conviction on the ground that it was certainly not plainly apparent that petitioner had not been proven guilty beyond a reasonable doubt.

Petitioner's amended petition, prepared by appointed counsel outside the Public Defender's office, is voluminous in itself, and appended thereto are thirty-eight separate exhibits, many of which are made up of several parts. We have considered the petition in its entirety, but rather than attempt to detail the contents of each allegation and exhibit at this point, we will discuss the material as it arises in our consideration of the issues petitioner has raised on appeal, as set out above.

We consider first the issue of whether the lower court erred in dismissing without a hearing a petition supplemented, Inter alia, by an affidavit containing a recantation by the chief prosecution witness. Exhibit 4 of the amended petition consists of an affidavit by Dreamle Scott, the accomplice witness who implicated petitioner in a statement to the police and whose testimony established petitioner's participation in the murder and armed robbery. In her affidavit Ms. Scott avers that her statement and testimony were false, that petitioner did not participate in the crimes, and that another man altogether, named Melvin Jones, actually killed the cab driver. The affidavit set forth the same basic fact pattern as Ms. Scott had described in her direct testimony, only with Melvin Jones as the participant, rather than petitioner. Ms. Scott further averred that Melvin Jones threatened to kill her if she implicated him and did not accuse petitioner instead. Ms. Scott stated that the police told her that if she made a statement against petitioner, she would not be prosecuted. Ms. Scott further averred that it was only this promise and the threat by Jones against her life that led her to implicate petitioner. The affidavit was corroborated by two affidavits which stated that the affiants had once seen petitioner beat up Jones and heard Jones threaten petitioner with a "big pay-back," other than physical harm, and which recited that Ms. Scott had told the affiants shortly after the murder that petitioner had not done anything.

The trial court dismissed this portion of the petition on the ground that it did not allege sufficient facts to demonstrate that the prosecution knowingly used perjured testimony, and therefore did not allege a substantial constitutional violation. However, in People v. Shannon (1st Dist. 1975), 28 Ill.App.3d 873, 329 N.E.2d 399, this court held that a post-conviction petition establishing perjury need not also allege facts showing that the perjury was used knowingly. And in People v. Hilliard (1st Dist. 1978), 65 Ill.App.3d 642, 22 Ill.Dec. 121, 382 N.E.2d 441, the court reversed the dismissal without a hearing of a petition alleging perjury by the chief prosecution witness, holding that an evidentiary hearing should have been held to search out the truth. While the post-conviction judge in the instant case was the same judge who presided at petitioner's trial and found Ms. Scott's testimony credible, in view...