Appeal from the Circuit Court of Cook County; the Hon. Richard
A. Harewood, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 24, 1975.
After an evidentiary hearing in the circuit court of Cook County, "post-conviction" relief was denied to defendant, Lyman Moore. We permitted a direct appeal to this court (50 Ill.2d R. 302(b)) in which defendant contends that the evidence adduced establishes that he was denied due process of law at his jury trial.
In 1964 the defendant was convicted of the murder of a Lansing, Illinois, tavern owner, Bernie Zitek. He was sentenced to death. Defendant's direct appeal to this court was consolidated with an appeal from a judgment denying post-conviction relief. This court affirmed his conviction and sentence with one justice dissenting. (People v. Moore, 42 Ill.2d 73.) On certiorari the United States Supreme Court, in a 5-to-4 decision, affirmed the conviction but reversed the death sentence. (Moore v. Illinois, 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562.) After the cause had been remanded to the circuit court for resentencing, counsel for defendant presented a "Petition" seeking a new trial. It was specifically based on an alleged constitutional violation that the State had failed to disclose to defendant's trial counsel a statement signed by Virgle Sanders for use during his cross-examination. Defendant maintained that had this disclosure been made he would have been able to establish that Sanders had mistakenly identified him as the man known as "Slick" who had admitted the killing of Zitek to Sanders.
The trial court summarily denied the "Petition," and defendant unsuccessfully sought leave to file an original action for writ of mandamus in this court. (50 Ill.2d R. 381.) However, in the exercise of this court's supervisory authority and in view of the extraordinary circumstances of the case, we directed that defendant's "Petition" be treated as a post-conviction petition, that the State file an answer thereto and that an evidentiary hearing be conducted. Following the evidentiary hearing, the trial court sustained the State's motion to dismiss and this appeal followed. Defendant is presently serving a sentence of 60 to 100 years in the penitentiary for the Zitek murder.
The background facts to this appeal are extensively reported in the opinions of this court and the United States Supreme Court and will be set forth only to the extent necessary for consideration of the issue raised. At the trial Sanders testified that on April 27, 1962, two days after the shooting, he was sitting in the Ponderosa Tap with a man he knew as "Slick" and whom he identified as defendant. This man told Sanders that he had shot a bartender in Lansing. On cross-examination Sanders admitted he told a relative that he did not know anything about the murder when she suggested he contact the police, and he told her that he "didn't want nothing to do with it."
In the first post-conviction petition, defendant claimed that Sanders' testimony was the most damaging evidence against him and that it was perjured. Moreover, he maintained that on April 30, 1962, Sanders had given a written statement to police indicating that he had met "Slick" about six months prior thereto. Defendant asserted that Sanders could not have met him at the latter time for he was not released from Federal custody until March 1962.
Sanders testified at the evidentiary hearing conducted in regard to the first post-conviction petition, and he reiterated his reluctance to become involved in the case as he described the circumstances at the time the police first talked to him about the matter. Apparently, the police had contacted him when it was learned that he was a frequent patron of the Ponderosa Tap where Zitek's killer and another may have gone after the murder.
During this proceeding Sanders substantiated defendant's charge that he had signed the statement on April 30, 1962, indicating he had previously met "Slick." He also testified that he had first become acquainted with "Slick" in a local tavern before Christmas, 1961, when "Slick" was involved in an altercation with another patron, William Thompson. Sanders claimed that no one ever mentioned that defendant had been incarcerated in 1957 and had not been released until March 1962, although the authorities were aware of this fact. Defense counsel then asked Sanders:
"Q. And did you tell me and also later on, did you tell the policeman from the State's Attorney's office that if you had known that this fellow, Lyman Moore, was in the Federal penitentiary until March 4, 1962, you would definitely not have identified him as being Slick that you knew?
A. If he's in jail, it would have been impossible to be the same man."
This court rejected defendant's contention that Sanders' testimony was perjured, and we observed that any discrepancy merely indicated testimonial inconsistency. We further held that defendant had failed to establish that the State suppressed material evidence favorable to defendant which he had requested. 42 Ill.2d 73, 80-81.
The majority of the United States Supreme Court, in reviewing the aforesaid colloquy observed: "Unquestionably, as the State now concedes, Sanders was in error when he indicated to the police that he met Moore at Wanda and Del's [tavern] about six months prior to April 30, 1962. Moore's incarceration at Leavenworth until March shows that conclusion to have been an instance of mistaken identity. But the mistake was as to the identification of Moore as `Slick,' not as to the presence of Moore at the Ponderosa Tap on April 27. `Sanders' testimony to the effect that it was Moore he spoke with at the Ponderosa Tap in itself is not significantly, if at all, impeached. * * *'" (408 U.S. 786, 795-96, 33 L.Ed.2d 706, 713-14.) And, after consideration of the other positive identifications of defendant as the killer and the one in the Ponderosa Tap, the majority concluded "in the light of all the evidence, that Sanders' misidentification of Moore as Slick was not material to the issue of guilt." (408 U.S. 786, 797, 33 L.Ed.2d 706, 714.) The four dissenting justices of the United States Supreme Court construed Sanders' testimony as indicating that it would have been impossible for Moore to have been the man who spoke to him at the Ponderosa Tap (408 U.S. 786, 804, 33 L.Ed.2d 706, 719) and that such evidence was material to the defense (408 U.S. 786, 807 n. 4, 33 L.Ed.2d 706, 720 n. 4).
Subsequent to that court's opinion, defense counsel contacted Sanders and obtained his statement, which was appended to the "Petition." During the recordation of this statement, defense counsel explained to Sanders the interpretations given to his prior testimony by the United States Supreme Court. Sanders concluded that the majority construction was wrong, that the man in the Ponderosa Tap was "Slick," not the defendant, that he had met "Slick" at Wanda and Del's tavern and that "Slick" and William Thompson had almost ...