People v. Hamby

• Decision Date: 28 March 1968
• Docket Number: No. 39775,39775
• Citation: 235 N.E.2d 572,39 Ill.2d 290
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Carl HAMBY, Appellant.
• Court: Illinois Supreme Court

Page 572

235 N.E.2d 572

39 Ill.2d 290

The PEOPLE of the State of Illinois, Appellee, v. Carl HAMBY, Appellant.

No. 39775.

Supreme Court of Illinois.

March 28, 1968.

Peter R. Kolker, Chicago, appointed by the court, for appellant.

William G. Clark, Atty. Gen., and John J. Stamos, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and Joel M. Flaum, Asst. State's Attys., of counsel), for appellee.

SCHAEFER, Justice.

In June of 1956 the defendant, Carl Hamby, was found guilty of armed robbery and sentenced to imprisonment for not less than 25 years nor more than life. That judgment was affirmed on writ of error in People v. Hamby, 27 Ill.2d 493, 190 N.E.2d 289. While the case was pending in this court on writ of error, the defendant filed a post-conviction petition. After the judgment was affirmed, the People amended their motion to dismiss the post-conviction petition by adding as a ground of dismissal an assertion that the contentions advanced were Res judicata by reason of the judgment of this court. The motion to dismiss was allowed.

In People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456, the judgment dismissing the post-conviction petition was reversed and the cause remanded. Our opinion cited People v. Sprinkle, 27 Ill.2d 398, 189 N.E.2d 295, and People v. Davies, 354 Ill. 168, 188 N.E. 337, and pointed out that 'where fundamental fairness so requires,' the court has not hesitated to relax the doctrine that those claims are waived which might have been, but were not, raised upon an earlier review. Waiver was not applicable, we held, because certain contentions that the defendant had sought to raise on his writ of error had not been advanced by his appointed attorney and had not been considered by the court.

After the cause was remanded, arguments were again heard upon the People's motion to dismiss on the ground that, apart from considerations of Res judicata, the amended post-conviction petition did not allege facts that would justify the granting of legal relief. After argument the petition was again dismissed, and the defendant has again appealed.

The defendant's primary contention in this court is that an adequate review of his claims required that he be present in court to aid his appointed attorney in the argument upon the legal sufficiency of his post-conviction petition. But it has been generally recognized that hazards, as well as expense, are involved in transporting prisoners to court- rooms for hearings in collateral proceedings, and these considerations have precluded acceptance of the defendant's contention. The Illinois Post-Conviction Hearing Act, for example, provides that the judge hearing the post-conviction proceeding may, in his discretion, order the defendant brought before the court. (Ill.Rev.Stat.1967, chap. 38, par. 122--6; see, People v. Ashley, 34 Ill.2d 402, 412, 216 N.E.2d 126; People v. Jennings, 11 Ill.2d 610, 614, 144 N.E.2d 612.) It is only when factual issues are to be determined that the presence of the defendant at the hearing may be necessary. (Second Revised Uniform Post-Conviction Procedure Act, sec. 7; American Bar Association, Tentative Draft of Standards Relating to Post-Conviction Remedies (Standard 4.6).) The Supreme Court of the United States has pointed out that an evidentiary hearing is required only in those situations in which an 'applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief.' (Townsend v. Sain (1963), 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770, 785; see also, Sanders v. United States (1963), 373 U.S. 1, 20, 83 S.Ct. 1068, 10 L.Ed.2d 148, 164.

Whether the defendant's amended petition could properly be disposed of without an evidentiary hearing, is to be determined by an analysis of its allegations. In addition to the contentions disposed of by our former opinion in 27 Ill.2d 493, 190 N.E.2d 289, the amended petition alleged that the defendant was photographed twice while in police custody, once shortly after he was arrested, and again after he had confessed. He alleges that at the hearing on the motion to suppress his confession the first photograph was fraudulently offered and received in evidence as depicting his condition after he had confessed. But the photographer who took the pictures testified at the hearing on the motion to suppress, and was available for cross-examination, so that the alleged fraud could then have been exposed.

The amended petition also alleged that upon his motion to suppress certain articles on the ground that they had been illegally seized, the defendant testified that certain pistols were taken by the police from his car at the time of his arrest, and that the court denied his motions to suppress without hearing testimony from the prosecution upon the authority of a decision of this court which sustained the search of an automobile in conjunction with an arrest. At the trial a police officer testified that the pistols were found in the apartment of a co-defendant. The defendant's position is that by citing the decision involving the search of the car the...