APPEAL from the Circuit Court of Cook County; the Hon. HARRY
S. STARK, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE MODIFIED OPINION OF THE COURT:
Ernest Sawyer, Floyd Cummings and John Robinson (plus Thomas Baggett, since deceased) were found guilty by a jury of the murder of Sam Gerrick and sentenced to 50 to 75 years in the penitentiary. They appealed to this court, which affirmed. (People v. Robinson (1972), 3 Ill. App.3d 858, 279 N.E.2d 515.) That opinion sets out the evidence in considerable detail and we shall not do so here.
Sawyer then filed a section 72 petition and two post-conviction petitions which were dismissed without an evidentiary hearing. On appeal the supreme court, in People v. Sawyer (1971), 48 Ill.2d 127, 268 N.E.2d 689, affirmed the dismissal of the section 72 petition but reversed the dismissal of the post-conviction petitions in part and remanded on two specific issues which will subsequently be discussed in detail. Cummings also filed a post-conviction petition which was then joined with the Sawyer post-conviction remand for hearing.
Robinson had filed a separate post-conviction petition alleging errors not raised here and that was dismissed without a hearing. This was affirmed by the supreme court in People v. Robinson (1969), 42 Ill.2d 371, 247 N.E.2d 898. He then filed a section 72 petition which was dismissed without an evidentiary hearing. During an appeal from this, Robinson and the State agreed to an order reversing the dismissal and to a remand for a consolidated hearing with that of his co-defendants Sawyer and Cummings, pursuant to the supreme court's remandment.
All three defendants joined in a full evidentiary hearing before Judge Stark during which a total of 13 witnesses testified, including the four defendants, their trial counsel, the two prosecutors, various police officers and others. At the conclusion of said hearing, all petitions were dismissed and all relief denied. The appeal now before us is from that dismissal. Two issues are presented by all three defendants and a third issue only by Sawyer.
The first issue, as stated by the supreme court in its opinion (People v. Sawyer (1971), 48 Ill.2d 127, 129, 268 N.E.2d 689), is the defendants' contention that their constitutional right to a fair trial was violated when:
"* * * the prosecution permitted Carrie Lee Hyde to testify that she had not `been arrested except for this incident, when the prosecution knew that she had a prior arrest and conviction record for prostitution and use of narcotics.'"
The evidence does not support this contention.
• 1 In the first place, as shown by the transcript of the 1967 trial, which was in evidence here, Carrie Lee Hyde did not testify that "she had not been arrested except for this incident."
What she actually testified (1967 Transcript at 117), on cross-examination was that "I have never been in jail but once and that was when they locked me up for this."
The record of arrests and convictions upon which the defendants rely so heavily demonstrates that her said statement was true in the sense that her prior offenses had resulted in nothing more than a series of fines and one suspended jail sentence.
In the second place, the evidence at the evidentiary hearing on the remand does not demonstrate that either of the prosecutors knew of her said previous record. On the contrary, Gino Divito (Record at 173-174) and James Schrier (Record at 191) both testified that they did not know that she had a prior criminal record.
• 2 The defendants cite People v. Martin (1970), 46 Ill.2d 565, 264 N.E.2d 147, for the proposition that because one of the police officers here had a check made on Miss Hyde's background, the prosecution must be charged with that information. Martin, in our opinion, was controlled by the fact that a police officer who knew the key witness in a narcotics case was a paid informer got on the stand and testified to the contrary. There the court reasonably concluded, at page 567, that:
"* * * where, as here, the falsity lies in the testimony of a law enforcement officer giving evidence favorable to the prosecution, * * * it matters not that the prosecuting attorney ...