Appeal from the Circuit Court of Cook County; the Hon. Joseph
A. Power, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the circuit court of Cook County in February, 1964, defendant, Percy Nelson, was convicted of murder. He was sentenced to a term of 50 to 80 years in the penitentiary, and his conviction was affirmed on direct appeal. (33 Ill.2d 48.) Thereafter, defendant filed a petition seeking relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1965, ch. 38, par. 122-1 et seq.), but it was dismissed without an evidentiary hearing. On appeal we noted the serious nature of defendant's contention that the trial judge made a private investigation during the trial, and we directed that an evidentiary hearing be conducted if a sufficient petition was presented. (45 Ill.2d 1, 3.) Additional affidavits were submitted and an evidentiary hearing commenced in June, 1971, before a judge other than the one who presided at defendant's trial as directed by our order remanding the cause. Relief was denied and an appeal was permitted to be taken directly to this court. 50 Ill.2d R. 302(b).
Defendant's conviction was primarily based upon the testimony of Harold Newell, who testified the first day of trial that he and the victim stopped at the former's house where the defendant was waiting. There Newell got out of the victim's car, defendant entered it and forced the victim to drive away at gunpoint. The victim's body, containing five bullet wounds, was later discovered in the car. Newell was thoroughly cross-examined by the defense counsel and contradicted prior statements he had made to the police. At this juncture Newell left the stand, and it appeared that neither side had any further questions of the witness.
The following morning, however, Newell was recalled and contradicted his prior testimony. He testified that he, rather than the defendant, killed the victim, but that it was done at the instigation of the defendant, who had promised him $500. Defense counsel again conducted a thorough cross-examination of the witness.
The issue presented in defendant's post-conviction petition was whether the trial judge, at any time, engaged in a private investigation outside the presence of the defendant or his counsel in violation of defendant's right to due process of law. The defendant maintains that prior to Newell's second appearance two conferences were held in the judge's chambers at which neither he nor his counsel was present. Defendant specifically alleges that the first occurred between the trial judge and the assistant State's Attorney, Samuel Banks, at which time the trial judge was informed of Newell's confession. He asserts that the second conference was among the trial judge, Banks, Newell, and the public defender who represented Newell.
At the evidentiary hearing four witnesses testified as to direct knowledge of a meeting in the judge's chambers on the morning that Newell recanted his testimony. Banks, who prosecuted the case, said that he had received a letter which had been written by Newell. The substance of the letter contradicted Newell's prior testimony. However, Banks did not remember its actual contents, but believed it may have contained a confession to the murder. He further testified that he informed the trial judge of the matter in a meeting before court convened. Defense counsel was present and Banks thought that Newell may have been in the anteroom near the judge's chambers before he was recalled to testify.
The trial judge testified that he did not think he saw the letter until after it was introduced into evidence, but that he was informed of the situation prior thereto, although he could not recall who notified him. He then summoned the public defender to consult with Newell. He further testified that he told defense counsel of the situation in the presence of the assistant State's Attorney. At this meeting the trial judge said that he indicated that defense counsel might consider proffering a motion for a mistrial, but the suggestion was rejected. He denied that Newell was ever in his chambers.
Defendant's trial counsel testified that he believed a meeting was taking place in chambers but that he was not present at the meeting. He said that he had an "impression" Newell would recant, but he did not know in what respect the testimony would be changed until Newell testified. Counsel was unable to recall exactly the events occurring at the trial due to the time which had elapsed.
An examination of the trial record discloses that defense counsel interposed a general objection prior to Newell's testimony claiming that the proceeding was "unusual." The trial judge questioned the reason for such an objection, and said "The State is going to recall this man to the stand. You have been apprised of what his testimony may be. Now, if you want to make an objection, you may specifically say why you object to this particular proceeding." Counsel did not dispute that he had been made aware of the matters of which the trial judge spoke. Thereafter, no basis for an objection was stated. Counsel further testified that he remembered the trial judge asking if he might consider a motion for a mistrial, although he could not remember when this occurred.
Defendant testified that his counsel informed him that a meeting was held in the judge's chambers but that neither he nor his counsel was permitted to attend. Defendant admitted that prior to Newell's testimony his counsel did apprise him of the fact that Newell had confessed to the murder.
Due to various continuances Newell was not called as a witness at the evidentiary hearing until February, 1972. Before his substantive testimony at this hearing Newell expressed hostility toward both the State and the defendant. He was angered by the sentence he had received for his part in the murder, which was similar to that imposed upon the defendant. During his subsequent testimony he expressed the view that his confession had been obtained by a prosecutorial "threat," and he attempted to interject matters pertaining to his confession which had been previously resolved when this court denied his petition for post-conviction relief. People v. Newell, 41 Ill.2d 329.
Newell testified that on the second day of trial, the day he delivered his letter, a recess was called after he began to testify. He was taken into the judge's chambers for a meeting where he met the public defender for the first time, but he could not recall what was said. He did not think defense counsel was present. An examination of the trial transcript discloses that no recess occurred during Newell's testimony on the second day of trial. Moreover, the transcript indicates a colloquy between the public defender and the trial judge immediately before Newell testified. The public defender informed the court that he had spoken to Newell for more than an hour concerning his letter.
Newell's testimony was in conflict with the testimony of Officer Renfroe, who, along with Officer Wiley, had custody of Newell the entire morning in question. Renfroe testified that he could not recall Newell leaving his presence or attending any meeting conducted in the judge's chambers. Additionally, he testified he had no direct knowledge of a conference held in chambers.
Wiley stated that he was uncertain as to the events of that morning. He related that after he delivered Newell's letter to Banks, he and Renfroe were then called into the anteroom near the judge's chambers. Wiley could only recall that he, Renfroe, and Banks were present at this time, although he did see defense counsel in the judge's chambers prior to Newell's testimony, but he did not know the reason for defense counsel's presence. Wiley admitted that he had previously told defendant's present counsel that there was a conference in chambers among the trial judge, Banks, Newell and himself at which defendant and his counsel were not present. However, ...