People v. Hilliard, s. 62960
Citation | 65 Ill.App.3d 642,382 N.E.2d 441,22 Ill.Dec. 121 |
Decision Date | 11 October 1978 |
Docket Number | Nos. 62960,77-287,s. 62960 |
Parties | , 22 Ill.Dec. 121 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Wilbur N. HILLIARD, Jr., Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
James J. Doherty, Public Defender of Cook County, Chicago (Allan R. Sincox, Frances Sowa, Asst. Public Defenders, of counsel), for defendant-appellant.
Bernard Carey, State's Atty. of Cook County, Chicago (Lee T. Hettinger, Mary Ellen Dienes, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.
The defendant, Wilbur N. Hilliard, was found guilty by a jury of murdering James Dulin. While his direct appeal was pending in this court, the defendant filed petitions for relief in the alternative under section 72 of the Illinois Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, par. 72) or under the Illinois Post Conviction Hearing Act (Ill.Rev.Stat.1975, ch. 38, pars. 122-1 through 122-7). The defendant contended in his petitions as supplemented that perjury by the State's two primary witnesses, his stepson, Johnny Obie, who recanted his trial and grand jury testimony and his wife, Mary Hilliard, entitled him to section 72 relief and constituted a due process violation cognizable in a post-conviction petition. The defendant's petition also questioned whether prosecutorial misconduct had denied him a fair trial and whether he was denied effective assistance of counsel by the way his retained counsel conducted his trial. The defendant's direct appeal raised the issues of proof beyond a reasonable doubt and prosecutorial misconduct in instances other than those relied upon in the post-conviction petition which defendant contended denied him a fair trial. At the defendant's request, his direct appeal was stayed pending a hearing in the circuit court on his petitions for section 72 and post-conviction relief. The circuit court dismissed the petitions on the State's motion without an evidentiary hearing; this court has consolidated the defendant's appeal from that dismissal with his direct appeal.
In this opinion we consider only the propriety of the dismissal without an evidentiary hearing of the section 72 petition which alleged Obie's recantation and Mary Hilliard's perjury.
Hilliard's defense at trial was that he never knew Dulin and never saw him alive. He testified that in the early morning hours of the day of the murder he opened the basement door of his residence to let his two dogs into the basement. He did not enter the basement at that time, but returned to his bedroom and went to sleep. A few minutes later, at approximately 6 a. m., his wife told him the dogs were barking and fighting in the basement and asked him to investigate. When he entered the basement, the defendant discovered Dulin's body with numerous stab wounds; he then notified the police.
The only witness who testified that he saw the murder take place was the defendant's stepson, Johnny Obie. Obie was 11 years old at the time of the murder and 12 years old when he testified at trial. Approximately 20 months after the trial he recanted both his trial and grand jury testimony by executing an affidavit stating that he had lied both at trial and before the grand jury, when he testified he saw his stepfather stab a man to death. He stated in his recanting affidavit that his mother had told him what to say to the police and at trial because she wanted to get rid of the defendant, her husband. To corroborate Obie's recantation, defendant submitted a lie detector test Obie took about the time he executed the affidavit in which his answers completely contradicted his grand jury and trial testimony. In the report, the examiner who administered the test concluded that Obie told the truth during the polygraph examination.
As additional support for his section 72 plea that Obie's recantation was valid and entitled him to relief, the defendant pointed out that several significant discrepancies existed between Obie's testimony at trial and his grand jury testimony. At trial Obie testified that he watched his stepfather stab the victim repeatedly although he had testified before the grand jury that he saw his stepfather stab the man only once. He testified before the grand jury that the defendant cut their two dogs loose with a wire cutter in their apartment and took both of them with him when he went into the basement where the victim's body was found. At trial, however, Obie testified that he untied the dogs and kept one, while the defendant took the other when they entered the basement. Before the grand jury, Obie testified that he followed his stepfather to the basement, and then waited outside the door until the defendant called for him. But at trial he testified that he and his stepfather entered the basement at the same time with the dogs. Obie's grand jury testimony was that after the stabbing, the defendant put the knife in a sink in the basement and washed it off; however at trial Obie stated that the knife was wiped off with a rag, and emphatically denied it was cleaned in any other manner.
In support of his section 72 petition, the defendant also filed the affidavit of his mother, Evelyn Hilliard, sworn to on the same date as Obie's affidavit. His mother's affidavit stated that on several occasions since trial the defendant's wife, Mary, had admitted to Evelyn Hilliard and other members of her family that she lied at the trial; that in the year following defendant's conviction Mary gave her some money as a birthday present and then started to cry, saying she was sorry she had lied to put the defendant in jail; and that Mary's testimony at trial that she had not read a statement which defense counsel used in examining her was not true because Evelyn saw and heard Mary Hilliard give and read the statement before she signed it.
Initially, we note that the judge who presided at trial became a member of this court before the defendant's post-conviction petitions were considered by the circuit court, and the circuit court judge who dismissed the petitions had neither observed Obie nor heard any of the witnesses in this case. For that reason the observation in People v. DeMario (1969), 112 Ill.App.2d 420, 425, 251 N.E.2d 274, that the credibility of the witnesses at such a hearing is a matter primarily for the trial court, has no application to this proceeding because there the same judge presided at the trial and at the section 72 hearing. Because the section 72 petition was dismissed without an evidentiary hearing, this court is in as advantageous a position as the circuit court judge to assess Obie's recantation.
The State, relying on People v. Marquis (1931), 344 Ill. 261, 176 N.E. 314 and De Mario, argues that a showing of mere recantation of prior testimony is not sufficient to require an evidentiary hearing. The defendant argues in reply that the record demonstrates more than mere recantation of prior testimony. He contends that Obie's recantation is corroborated by the polygraph examination and supported by the inconsistencies between his trial and grand jury testimony. The defendant also argues that Obie's recantation, insofar as it states that his mother told him to lie, is supported by Evelyn Hilliard's sworn statement that Mary Hilliard admitted she had lied, as well as by Mary's admissions at trial that previous statements she had given were untrue. In addition, the defendant notes that the trial testimony of Mary and Obie was that before the police arrived they watched a certain television program together. The defendant contends his petitions demonstrate that this was manufactured testimony because the program was not shown on television until after the police had arrived. The defendant also argues that both witnesses testifying to the same falsehood demonstrates that Obie's mother told him what to say, as Obie's affidavit alleged.
Section 72 affords a remedy to obtain relief, where warranted, from a judgment based on perjured testimony. (People v. Jennings (1971), 48 Ill.2d 295, 298, 269 N.E.2d 474; People v. Lewis (1961), 22 Ill.2d 68, 70, 174 N.E.2d 197.) The purpose of such a petition is to bring before the court facts which, had they been known at the time judgment was entered, would have prevented its rendition. (People v. Hinton (1972), 52 Ill.2d 239, 243, 287 N.E.2d 657; People v. Yarbar (1976), 43 Ill.App.3d 668, 670, 2 Ill.Dec. 189, 357 N.E.2d 166.) Thus, the question raised by the defendant's petition is whether Obie's recantation was credible, for if Obie had testified at trial in a manner consistent with his recantation affidavit, we do not see how the defendant could have been found guilty. Section 72 petitions alleging recantation of prior testimony may not require an evidentiary hearing in every instance where the trial judge does not preside at the post-conviction proceeding; but, on the record before us, we do not understand how the question of the credibility of Obie's recantation could be resolved by a judge who never heard Obie testify. It is not necessary to decide whether the circuit court judge or this court should consider the polygraph examination result because sufficient evidence to require an evidentiary hearing on the section 72 petition has been offered. It...
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