People v. Myers

• Citation: 263 N.E.2d 113,46 Ill.2d 270
• Decision Date: 29 September 1970
• Docket Number: No. 42744,42744
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Jim E. MYERS, Appellant.
• Court: Supreme Court of Illinois

Page 113

263 N.E.2d 113

46 Ill.2d 270

The PEOPLE of the State of Illinois, Appellee, v. Jim E. MYERS, Appellant.

No. 42744.

Supreme Court of Illinois.

Sept. 29, 1970.

Marshall A. Susler, Decatur, appointed by the court, for appellant.

William J. Scott, Atty. Gen., Springfield, and Basil G. Greanias, State's Atty., Decatur (Fred G. Leach, Asst. Atty. Gen., and Thomas J. Yockey, Asst. State's Atty., of counsel) for the People.

UNDERWOOD, Chief Justice.

Defendant, Jim E. Myers, was convicted in the circuit court of Macon County of deviate sexual assault; his conviction was affirmed by the Appellate Court for the Fourth Judicial District (92 Ill.App.2d 129, 234 N.E.2d 811), and this court denied leave to appeal. (38 Ill.2d 629.) Defendant's subsequent amended petition for post-conviction relief (Ill.Rev.Stat.1967, ch. 38, par. 122--1 et seq.) was dismissed on the State's motion without an evidentiary hearing, and defendant appeals directly to this court. See 43 Ill.2d R. 651(a), Ill.Rev.Stat.1969, c. 110A, § 651(a).

The petition alleges that the State was permitted to call two persons as hostile witnesses without proper foundation, and that the State was permitted to impeach defendant through use of an involuntary confession previously undisclosed to defense counsel. These contentions arise from the record as it stood on appeal; not having been raised in the appellate court review, the issues are deemed waived. People v. Kamsler, 40 Ill.2d 532, 533, 240 N.E.2d 590.

The defendant also alleges that the indictment on which he was convicted was obtained through the use of perjured testimony before the grand jury. The record contains his pretrial motion to dismiss the indictment on this ground. In support of the motion, defendant submitted a transcript of a statement by, and the affidavit of, one of the two grand jury witnesses, Larry Lobb, wherein he stated that his grand jury testimony, as well as the testimony of the other grand jury witness was untrue. The motion was denied following a hearing. The post-conviction petition relies exclusively upon this material, and clearly the issue was available on the record before the appellate court. As indicated above, failure to raise it there constitutes a waiver, for the Post-Conviction Hearing Act is not available for review of claims which were or could have been presented on the direct review of the conviction. People v. Thomas, 38 Ill.2d 321, 323, 231 N.E.2d 436; People v. Armes, 37 Ill.2d 457, 227 N.E.2d 745; People v. Ashley, 34 Ill.2d 402, 216 N.E.2d 126.

The final allegation is that the indictment was void because based upon testimony of an incompetent witness. An affidavit attached to the post-conviction petition gives a psychiatrist's opinion that Larry Lobb is of subnormal intelligence and consequently incompetent as a witness. We do not pause to consider the State's contention that this allegation has also been waived, since it is abundantly clear that the...