People v. Hilliard

• Decision Date: 13 October 1982
• Docket Number: No. 80-477,80-477
• Citation: 109 Ill.App.3d 797,65 Ill.Dec. 343,441 N.E.2d 135
• Parties: , 65 Ill.Dec. 343 PEOPLE of the State of Illinois, Respondent-Appellee, v. Wilbur N. HILLIARD, Petitioner-Appellant.
• Court: United States Appellate Court of Illinois

Page 135

441 N.E.2d 135

109 Ill.App.3d 797, 65 Ill.Dec. 343

PEOPLE of the State of Illinois, Respondent-Appellee, v. Wilbur N. HILLIARD, Petitioner-Appellant.

No. 80-477.

Appellate Court of Illinois First District, Third Division.

Oct. 13, 1982.

James J. Doherty, Public Defender, Chicago (Frances Sowa, Asst. Public Defender, Chicago, of counsel), for petitioner-appellant.

Richard M. Daley, State's Atty., Chicago (Marcia B. Orr and Mary Ellen Dienes, Asst. State's Attys., Chicago, of counsel), for respondent-appellee.

WHITE, Presiding Justice.

This case is before this court for the second time. In our prior opinion ((1978), 65 Ill.App.3d 642, 22 Ill.Dec. 121, 382 N.E.2d 441), we held that Wilbur Hilliard's petition under section 72 of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, par. 72, now codified as Ill.Rev.Stat.1981, ch. 110, par. 2-1401), should not have been dismissed without an evidentiary hearing on the validity of the recantation by the key prosecution witness. We also expressly held that we were not ruling on the other issues raised by Hilliard's direct appeal from his murder conviction and his appeal from the dismissal of his petitions for section 72 and post-conviction relief, which were consolidated by this court prior to our earlier opinion. We reserved ruling on them until the evidentiary hearing had been completed. On remand, an evidentiary hearing was held, and Hilliard was denied relief. He now appeals from that order, contending that the trial court's refusal to grant relief was contrary to the manifest weight of the evidence. In this opinion we address that issue and the remaining issues from the earlier consolidated appeal.

At the evidentiary hearing the State's primary witness, Johnny Obie, Hilliard's minor stepson who had recanted his trial and grand jury testimony, testified that he had lied in his previous testimony when he said that Hilliard woke him at their home on the morning of March 16, 1974, and told him that he (Hilliard) was going to kill a man in the basement, and that he lied when he testified that he watched as Hilliard stabbed the man in the basement. Johnny was the State's only eyewitness. The trial judge correctly stated after the post-conviction hearing that the only issue which he had to determine was whether or not Johnny lied at Hilliard's murder trial. If he did lie, there was no question that the lies contributed to the guilty verdict. At trial the boy's account of the stabbing was bolstered by testimony relating to a knife in evidence. Johnny testified that after Hilliard told him he was going to kill the man, his stepfather went to the pantry and got the knife with which he did the stabbing. He testified that after the stabbing Hilliard and he went through a gangway and through an alley to a place where defendant threw the knife on a roof. Later when Johnny spoke to the police he told them about the knife and showed them where defendant threw it. At the post-conviction hearing Johnny testified that he also lied in this part of his trial testimony. He never saw his stepfather get a knife from the pantry, and a couple of weeks after the victim's body was found in the basement he saw the knife which was on a roof but could be seen from the street. This is the knife he pointed out to police officers. Johnny said his reason for lying to the grand jury and at trial was that his mother told him to do so. At the post-conviction hearing Hilliard's mother testified that Johnny's mother, Hilliard's wife, admitted to her that she told Johnny to lie.

A prosecutor at Hilliard's trial and two police officers involved in the investigation of the killing also testified at the evidentiary hearing. The prosecutor testified that Johnny never gave him any kind of problem as a witness and did not threaten Johnny or his mother. One of the officers also testified that he never made any threats to Johnny's mother and that she was not threatened by anyone in his presence.

The results of a polygraph examination taken by Johnny were also admitted into evidence at the evidentiary hearing. The conclusion of the examiner was that Johnny did not tell the truth in response to the following three questions:

"Q. Did you see your stepfather take the knife from the drawer?

A. No.

Q. Did you see your stepfather throw the knife on the roof?

A. No.

Q. Do you believe your stepfather stabbed the man?

A. No."

There was no indication of deception as to the following response:

"Q. Did you see your stepfather stab the man?

A. No."

At the conclusion of the evidentiary hearing the trial judge was of the opinion that Hilliard had not met his burden of showing perjury. He specifically noted that Johnny was "still lying at this point in time, even on the lie detector test." Accordingly, the trial court entered an order denying section 72 relief.

The only issue presented on appeal from this order denying relief under section 72 is whether such denial was contrary to the manifest weight of the evidence. We conclude that it was not.

Several Illinois supreme court cases involving petitions for relief under section 72 have stated that in order for a conviction to be disturbed on the basis of perjured testimony, the defendant must show by clear and convincing evidence that the claimed perjured testimony was not merely false, but was knowingly and purposely falsely given. (People v. Bracey (1972), 51 Ill.2d 514, 519, 283 N.E.2d 685; see People v. Jennings (1971), 48 Ill.2d 295, 299, 269 N.E.2d 474; People v. Lewis (1961), 22 Ill.2d 68, 71, 174 N.E.2d 197, cert. denied 368 U.S. 876, 82 S.Ct. 124, 7 L.Ed.2d 77, overruled in part by Bracey.) If this burden is met, then the State has the burden of establishing beyond a reasonable doubt that the perjured testimony did not contribute to the verdict. (Bracey, 51 Ill.2d at 520, 283 N.E. 685.) Like the judge below, we do not reach the latter "harmless error" inquiry, because we are of the opinion that the trial court did not err in holding that Hilliard did not establish the use of perjured testimony.

Before determining the propriety of the denial of relief, we must determine whether it was appropriate for the court below in arriving at this decision to consider the results of a polygraph examination taken by Johnny. This court, in its prior opinion, specifically stated that it was not deciding the question of the admissibility of polygraph results. (65 Ill.App.3d at 646, 22 Ill.Dec. 121, 382 N.E.2d 441.) The issue of the admissibility of such results was raised, however, in the briefs in the first appeal and the issue should be resolved.

Neither party cites us to any Illinois case addressing the question of the admissibility of polygraph results at a post-conviction hearing, and our research has disclosed no such case. It is well established in Illinois that the results of a polygraph examination cannot properly be introduced as evidence of either the guilt or innocence of the accused. (People v. Baynes (1981), 88 Ill.2d 225, 238, 58 Ill.Dec. 219, 430 N.E.2d 1070; People v. Nicholls (1970), 44 Ill.2d 533, 539, 256 N.E.2d 818; People v. Zazzetta (1963), 27 Ill.2d 302, 306, 189 N.E.2d 260.) In Baynes, the court specifically found that polygraph evidence is not reliable enough to be admitted at trial, even if the parties stipulate that the results of such an examination would be admissible. (88 Ill.2d at 244, 58 Ill.Dec. 219, 430 N.E.2d 1070.) This prohibition against the use of polygraph evidence at trial extends to both examinations taken by defendants (see Baynes ) and examinations taken by witnesses (see People v. Vriner (1978), 74 Ill.2d 329, 347, 24 Ill.Dec. 530, 385 N.E.2d 671), and we further observe that our General Assembly has expressed distrust of the reliability of polygraph tests, both in criminal trials and in civil cases. People v. Triplett (1967), 37 Ill.2d 234, 238, 226 N.E.2d 30; Ill.Rev.Stat.1979, ch. 38, par. 155-11; Ill.Rev.Stat.1979, ch. 110, par. 54.1, now codified as Ill.Rev.Stat.1981, ch. 110, par. 2-1104.

But the general rule is not necessarily applicable to a post-conviction proceeding, where the question of guilt or innocence of the person seeking relief is not before the court. Nevertheless, Illinois courts have held that polygraph evidence is not admissible even when no question of guilt or innocence is presented. Thus, in People v. Ackerman (1971), 132 Ill.App.2d 251, 254, 269 N.E.2d 737, the court held that polygraph evidence should not be used at the sentencing stage of criminal proceedings. The court stated: "[T]he use * * * of a process which has not been considered a valid method of determining truthfulness would seem to be no more reliable or valid in the sentencing proceedings than in the determination of guilt or innocence." (132 Ill.App.2d at 254-55, 269 N.E.2d 737.) In People v. Reese (1980), 90 Ill.App.3d 284, 290, 45 Ill.Dec. 597, 412 N.E.2d 1179, the court held that the results of polygraph examinations are not admissible at juvenile transfer hearings.

On the basis of these authorities, we feel compelled to conclude that the court below erred when it admitted into evidence the results of Johnny's polygraph examination. Hilliard cites People v. Barbara (1977), 400 Mich. 352, 255 N.W.2d 171, 197, which held that a judge in a post-conviction hearing may in his discretion consider the results of a polygraph examination. We are of the opinion, however, that Illinois case law precludes such a holding.

Since the court below also ruled that Hilliard was not entitled to section 72 relief on the basis of Johnny's recantation, even if the polygraph results were not admitted, we next address the propriety of that determination.

The credibility of the testimony of the witnesses in a post-conviction hearing is a matter for determination by the trial judge. Unless it can be said that the determination of the trial judge was manifestly erroneous, he will be upheld, since he had an opportunity to see and...