Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EUGENE L. WACHOWSKI, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
About midnight on Thanksgiving eve, November 26, 1963, Mabel Hines, Lolita Davis, David Clifton, Thomas Scott and the defendant, Coylee Harris, left one Chicago tavern and started to walk to another one known as Pepper's Lounge. After walking part way Scott hailed a cab. On the way, Scott told the driver he had a stop to make. The cab stopped under a viaduct at 44th and Calumet and, when it did, Scott pulled out a gun and said, "Hand it over." Hines, Davis and Clifton jumped out of the cab and ran the rest of the way to Pepper's Lounge. Fifteen minutes later Scott and Harris entered the tavern.
In the early morning of November 27th police officers, responding to a radio call, came upon the cab in the middle of the street under the viaduct. They found the driver, James Arline, Jr., in the front seat. Blood was running from a bullet wound in the back of his head. He appeared to be dead and this was confirmed upon taking him to a hospital.
A few days later police officers arrested David Clifton. After talking to him they arrested his cousin, Coylee Harris. The arrest was made without a warrant at 6:15 a.m. at his home. About 10:35 that night he signed a statement in which he said that he and Scott had planned, the night before the shooting, to rob a cabdriver. The plan became concrete when they whispered together on the fatal ride. Scott asked, "how about it?" and Harris replied that he "was game." He said that when the cab stopped Clifton and the two women got out and he told them to run. Scott put a gun to the driver's head and instructed him to be still. Scott then reached over and went through the driver's pockets. As he did, Harris warned that the driver was moving his hand. Scott said "run" and Harris fled. Eventually he went to Pepper's Lounge and there joined Scott, Clifton and the two women. Scott told them not to say anything because they were all in the clear.
The five occupants of the cab were indicted for the murder. Harris' motion for a severance was allowed and he was tried alone. He was found guilty and sentenced to the penitentiary for a term of fourteen to twenty years.
At his trial he admitted giving a statement to the police but disclaimed making some of the answers attributed to him. He denied participating in the robbery or murder. He said he had no agreement with Scott to commit a robbery and had no conversation with him in the cab about robbing the driver, but learned of it at the same time as everyone else when Scott drew the gun. He said he fled with the others and that Scott did not warn him to keep quiet when they met later at the tavern. Mabel Hines and Lolita Davis testified for the State. They said that Harris did not flee but stayed in the cab with Scott and came to the tavern with him.
Five days after Harris' conviction, the State moved to nolle prosequi the indictments against Hines and Davis because of their cooperation with the State. The motion was allowed. In this appeal Harris contends that he was prejudiced by the failure of the State to reveal its intention to nolle prosequi the indictments, by the court's refusal to suppress his confession and by the court's refusal to submit an instruction on his theory of the case.
The defendant went outside the record in showing what took place five days after the conclusion of his trial. The State suggested in its brief that a proceeding under the Post-Conviction Act would be the appropriate way for the defendant to advance his contention that the State knowingly permitted Hines and Davis to testify falsely that no promise had been made to them in exchange for their testimony. In his reply brief the defendant said he would adopt the suggestion and, at his request, oral argument in the present case was postponed pending the disposition of his post-conviction petition. Upon inquiry we learned that the petition was denied and we set this case for argument. The defendant then informed us that the denial of the petition is being appealed and he suggested further postponement until the appeal is decided. Inasmuch as the post-conviction proceeding had caused a delay of nineteen months in this court, we refused further postponement.
However, in deciding this appeal, we will consider the defendant's claim pertaining to the alleged false testimony only to the extent that it can be done within the present record. What took place after the trial was over will be left to the post-conviction proceeding. People v. Macias, 39 Ill.2d 208, 234 N.E.2d 783 (1968); People v. Hoskins, 25 Ill.2d 333, 185 N.E.2d 214 (1962).
The two witnesses testified that they were not promised leniency or immunity in exchange for their testimony. The State also denied making such a promise. In his closing argument, the prosecutor said:
". . . Mabel Hines and Lolita Davis may walk out of this courtroom, they may walk out scott free, but it is not because of any deal I made . . . or anybody in the State's Attorney's office [made] as far as any of us know here.
"They got on the stand because they were willing to testify and we felt it would be of some value for you to listen to them."
The defendant admits that there is no proof that the State promised the witnesses leniency or consideration. His speculation that there was a commitment, which if known to the jury might have affected the weight to be given the witnesses' testimony, is based almost entirely upon the dismissal of their indictments. This, as we have noted, is de hors the record.
In all the authorities cited by the defendant the prosecution either stated falsely that no promises had been made or permitted a witness to testify falsely that none had been made. See Napue v. Illinois, 360 U.S. 264, 3 L Ed2d 1217, 79 S Ct 1173 (1959); People v. Coddington, 31 Ill.2d 468, 202 N.E.2d 509 (1964); People v. McKinney, 31 Ill.2d 246, 201 N.E.2d 431 (1964); People v. Lueck, 24 Ill.2d 554, 182 N.E.2d 733 (1962). In the present case the prosecutor informed the jurors that the two witnesses (who had been released on their own recognizance prior to the trial) might go free. He was under no obligation to tell them more if there was in fact no understanding with them which might have influenced their testimony. Further, there is nothing to substantiate the defendant's speculation that the witnesses testified falsely when they said they were not promised immunity. If the State intended not to prosecute them even if this intention were finalized before they testified it would have had no bearing on their credibility if the intention was not communicated to them before ...