APPEAL from the Circuit Court of Peoria County; the Hon.
CHARLES W. IBEN, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
On June 10, 1970, defendant was indicted for attempted armed robbery and for murder of Sergeant Raymond Espinoza of the Peoria County Sheriff's Department. The officer was shot in the head when he officially interrupted the progress of an attempted armed robbery at the Bellevue Drive-In Theatre westerly of Peoria on May 26, 1970; he died instantly of the wounds. Defendant indicated to the court that he was indigent and was thereafter at various times represented by several different court appointed counsel and also at times, pro se, as hereinafter detailed. A four-week trial commenced November 16, 1970, and on December 15 verdicts were returned finding defendant guilty of all charges. After post-trial motions were heard and denied on January 25, 1971, judgments were entered on the verdicts, and defendant was sentenced to the Illinois State Penitentiary for consecutive terms of not less than 10 years nor more than 14 years for the attempted armed robbery and of not less than 99 years nor more than 175 years for the murder. The court advised defendant of his right to appeal but neglected to advise him as to the time within which notice of appeal was required to be filed, in accordance with Supreme Court Rule 605 (Ill. Rev. Stat., ch. 110A, § 605). No notice of appeal was filed within 30 days of January 25.
On February 23, 1971, defendant filed, pro se, a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, § 72) to vacate the conviction and sentence and for a new trial. On December 2, 1971, defendant filed in this court a pro se motion dated June 16, 1971, for leave to proceed with an appeal from the conviction order entered January 25, 1971, together with a proposed notice of appeal supported by affidavit tending to show excusable neglect. He also filed a motion for appointment of counsel to prosecute the appeal. Later the section 72 petition was dismissed by the circuit court on April 25, 1973. On May 7, 1973, defendant filed, pro se, a notice of appeal from the said final order entered April 25 "in a proceeding under section 72 * * *" and asked appointment of counsel. The appellate defender was appointed counsel on this appeal also, and has filed a 56-page brief on defendant's behalf. In addition, defendant has filed, pro se, another brief of 76 pages. The State has responded to both. It is apparent from the briefs of all parties, and the issues argued, that all parties consider the scope of this "consolidated appeal" to involve a direct review of the record of conviction as well as a review of the order dismissing the section 72 petition.
• 1 In the absence of any objection by the State to a consideration of the issues raised on direct review of the conviction and sentencing order entered on January 25, 1971; and considering that defendant was indigent and that the trial court did not advise him of the time within which notice of appeal was required to be filed; *fn1 considering also that the case has been fully briefed and argued, and that a request for leave to file late notice was made, even though filed after the expiration of 60 days; we have elected without meaning to establish precedent (cf. People v. Sweeney, 114 Ill. App.2d 81 (2nd Dist. 1969)), that we will not dismiss sua sponte. (See People v. Williams, 59 Ill.2d 243, 320 N.E.2d 13 (1974); People v. Brown, 54 Ill.2d 25, 294 N.E.2d 267 (1973).) Accordingly, rather than to put defendant and the State to the expense and delay of exercising a different remedy (People v. Scott, 43 Ill.2d 135, 251 N.E.2d 190, 194 (1969)), we shall consider in this consolidated appeal the merits of all issues raised which the records of the separate causes preserve.
A discussion of the evidence given at the criminal trial is essential for an understanding of the section 72 petition and of how some of the other issues arise.
At 1 a.m. on May 26, 1970, a film showing was nearing completion at the Bellevue Drive-In Theatre. Twenty-year-old Maurice Creemans, a projectionist, was on duty in the projection booth with Mrs. Mayme Manuel, the theatre manager, who at the time of trial was 78 years of age. *fn2 The room was lighted by a 100-watt bulb, another 15-watt bulb, and by light shining from the lamphousing of the projector. A ticket booth or box office was located at the entrance drive.
Creemans and Mrs. Manuel both testified that about 1 a.m., a man came to the window of the booth and mumbled something neither could discern. Creemans directed him to go to the men's restroom from which a door opened into the booth. When Creemans opened that door, the light from two 60-watt bulbs in the restroom added further illumination to the form of a Negro male, 6 feet tall, weighing about 175 lbs. and wearing a grey sports coat, dark pants and a light blue shirt. The man asked that Sonya Jackson be paged. When no one answered the page, the man drew a silver-barreled gun, saying, "This is a stick up, I am not fooling, I'll kill you." The gunman continued to hold his weapon on both Creemans and Mrs. Manuel for 15 minutes until the show was completed at 1:17 a.m. He then tied Creemans with speaker wires and, leaving him tied on the floor, dragged or pulled Mrs. Manuel across the parking ramps to the box office where he demanded money. Thirty to sixty seconds after Creemans had been left tied, he freed himself, and after calling the sheriff, waited in the booth for police to arrive.
Jerry Lucas, an ex-convict who was employed as a paid informer for the Peoria County Sheriff's Department testified that he was riding as a passenger in the squad car with Sergeant Espinoza when the latter received the call that an attempted robbery was in progress at the Bellevue. He testified that when they entered the theatre drive, he saw a woman with her hands in the air standing beside a parked blue car and a man nearby. As they approached closer, he saw the man run toward the sheriff's car and fire from a distance of 10 feet. Sergeant Espinoza slumped in his seat; Lucas threw himself to the floor and the police car crashed into a wall. As he was running toward the sheriff's car, said Lucas, the headlights shown on the gunman and he could clearly see the man's face and recognized him as defendant whom Lucas said he had known for 10 years. After the squad car crashed, Lucas drew Espinoza's gun to protect himself, according to his testimony, and radioed for help. He gave a description of his own clothing so he would not be mistaken for the assailant. He saw defendant drive off with the woman. There was evidence that Espinoza's gun had not been fired, and that no other weapon was found on Lucas.
City and county lawmen dispatched to the area quickly picked up the trail of defendant's automobile, and after a high-speed chase through the streets of Peoria it finally crashed into a parked automobile while negotiating a turn at an intersection. Mrs. Manuel was found in the automobile and was removed to the hospital; a lone gunman was seen fleeing the area on foot. With the help of a canine unit, defendant was apprehended a short time later standing in the dark on the rear porch of a house not far from his abandoned automobile. He was bleeding from an injury over the eye, was sweating and breathing heavily. A silver-barreled .38 revolver was found in his car. He was wearing a grey coat, light blue shirt and dark denim pants. Creemans, Mrs. Manuel and Jerry Lucas positively identified defendant at the trial as the man who committed the crimes. Several police officers who engaged in the pursuit of defendant's automobile positively identified defendant as the driver.
At the conclusion of the State's case, defense testimony began in support of the alibi that defendant at the time of the alleged crimes was at the TT Club and Dimp's Place in Peoria. Junius Whitt was a principal witness who testified that during the late evening hours of May 25 and the early morning hours of May 26, he had been with Lester Mason, Matthew Clark, Mike Biehl "and a person known as Curtis Smith." They had defendant's auto which Mason had borrowed from defendant. Whitt testified that said Smith had instigated a plan to rob the drive-in but that Matthew Clark, Biehl and he dropped out of the plan, and let Smith take defendant's car. Whitt said that he loaned to said Smith his silver-barreled .38 revolver which was the one later recovered from defendant's wrecked automobile. Whitt testified that at the time of the occurrence, he lived about 4 or 5 blocks from the intersection where the chase later ended, and that he was awakened shortly after 2 a.m. on May 26 by said Smith's pounding on the door. When he let him in, Smith was dirty, said Whitt, and was out of breath and made a couple of quick telephone calls asking for Lester Mason and saying "things didn't turn out right," and "talked in riddles." Whitt said Smith also told him that he had lost the .38 revolver but would replace it. Smith spent the night with Whitt, according to the latter's testimony, but left at 5:30 a.m., and had not been seen by Whitt since. Whitt said Smith was wearing dark bell-bottom pants, a yellow and green shirt and a light jacket. Whitt admitted to a previous felony conviction for burglary. He also testified that Smith at that time had not lived in Peoria except for a day or two and that he did not know how he knew about the drive-in. On several matters pertaining to the acquisition and sale of weapons, he refused to testify, claiming fifth amendment rights.
Thomas McLain testified that he arrived at the TT Club about 11:30 p.m. on May 25; that he saw Lester Mason and Matt Clark in defendant's car in the parking lot; when he went inside he saw defendant there, they had a beer and left together about 12:30 a.m. to look for defendant's car. They went to Dimp's place he said, and not noticing it there, returned to the TT Club about 12:45. Around 1 a.m., at closing time for the TT Club, McLain said that he, defendant and Leon Hays walked out together and stood visiting about 5 minutes. Defendant asked to be dropped off at Dimp's. McLain said further that they dropped defendant off at Dimp's about 1:10, that they went to the Blue Shadow for an hour and afterwards came back to Dimp's where they saw defendant outside. Defendant asked them for a ride, and they dropped him off near the Butternut Bakery, which apparently was located near the intersection where defendant's automobile had been abandoned. McLain also testified that he saw Lester Mason and Matt Clark outside the TT Club. But as to Curtis Smith, he said he didn't "know who he is by that name."
Jay Van Russell testified for defendant that in the early morning hours of May 26 he was working at "Dimp's," which is an after-hours establishment in Peoria, and that he saw defendant there about 1:15 a.m. playing pool and that defendant remained there until 1:40 a.m. Lester he said he didn't know whether defendant played pool. He also testified defendant asked to borrow his car. He also stated, however, that when defendant was leaving, Matthew Clark and Lester Mason came to the door, and that this would have been approximately 1:20. The inference argued from this testimony was that Mason at the time of this meeting with defendant had already spoken with Smith in the telephone conversation the latter supposedly placed from Whitt's house, and communicated to defendant the location of defendant's wrecked automobile. The validity of that version, however, was substantially diminished by the conflict in times given by the defense witnesses. Whitt had said Smith called Mason after 2 a.m., while Van Russell said that Mason and defendant visited outside "Dimp's" at 1:20 a.m. and that defendant left at 1:40 a.m. The jury could find that the alibi testimony and the alleged involvement of a "Curtis Smith" by any name was a pure fabrication.
Leon Hays testified for the defense substantially as McLain, but added that when they arrived in the area of the bakery where defendant was let out, he observed police cars in the general area. He had no recollection of having seen Lester Mason, Junius Whitt or Matt Clark at the TT Club. He attempted to avoid cross-examination by requiring the prosecutor to repeat questions three or four times; to define terms like "morning," "noon" and "afternoon"; by referring to the prosecutor as "boy," and answering ultimately that he couldn't remember and that the prosecutor "ain't gonna make me remember." When asked whether he'd worked the day before, Hays responded, "I told you I am on vacation. I am subpoenaed. Any other little tricks."
Charles Bloomfield and Sharon Ford also testified they had seen the defendant at the TT Club at closing time. The TT Club bartender testified that he had seen defendant there some time during the evening but could not recall that defendant was there at closing time.
Defense witness, Matthew Clark, refused to answer any questions under his rights against self-incrimination. Lester Bobby Mason appeared by writ of habeas corpus ad testificandum addressed to the warden of Stateville at Joliet, but invoked the Fifth Amendment as to most questions admitting only to his height and weight, that he had been convicted of "quite a few" felonies, and had been at Stateville for 6 months. "I will tell the judge and jury one thing," he said, "that I remain with the Fifth."
We find no merit in the appeal from the order dismissing the section 72 petition. While that petition alleged fraud, deception and suppression of evidence by the State as to the identity and whereabouts of Curtis Smith, who was really James Clark, those allegations as to fraud, deception and suppression are entirely unsupported by the record or by the contents of any supporting affidavit, as required by section 72(2). The affidavits filed in support of the petition are executed by defendant himself, who exercised his right not to testify at the trial. While one of the affidavits executed by defendant states that Lester Mason related to him that the States Attorney's office and sheriff had threatened him should he reveal the real identity of "Curtis Smith" as being James Clark, and that Mason is now willing to so testify, it is apparent (1) that defendant could not competently testify to the truth of such facts; (2) that all said facts, if true, were known to Mason at the time of trial; (3) that Mason invoked the Fifth Amendment at the trial and refused to testify; and (4) that Mason himself has given no supporting affidavit that he would testify at a new trial as to any of the facts defendant asserts. Other supporting affidavits were given by defendant's attorney, Jack Vieley (who merely recites his pretrial unsuccessful efforts to locate "Curtis Smith"), and by T.B. McLain (who merely reaffirms the testimony he gave at the trial), and by James Clark as to his alias, Curtis Smith, and that he committed the crimes. None of the affidavits support allegations of perjury, fraud, deception or suppression on the part of the State, nor do they show that the defendant and Mason would testify at a new trial as to matters they refused to testify to at the original trial. The State filed an affidavit of John Stenson, a Peoria police officer, that he has personally known defendant, Matthew Clark and James Clark about 20 years, that the Clarks are brothers, and that all three of said individuals have been personally acquainted with each other since their childhood.
• 2, 3 It was appropriate that the petition be decided on the basis of the affidavits alone (A.C. Allyn & Co. v. Tager, 78 Ill. App.2d 228, 223 N.E.2d 405 (1st Dist. 1966)). The law also contemplates that the section 72 petition should be heard by the same judge who rendered the original judgment which the petition collaterally attacks, since he would have better knowledge as to whether the new facts alleged would have prevented rendition of the judgment attacked (People v. Mamolella, 42 Ill.2d 69, 245 N.E.2d 485 (1969)). Moreover, the record shows that defendant himself called the petition for hearing before Judge Iben who had entered the judgment of conviction. Being aware of the many witnesses, including some who had known defendant for many years, who positively identified defendant as the gunman, the circuit judge did not err in concluding that a confession by James Clark would not have prevented rendition of the judgment against defendant.
In People v. Sheppard, 405 Ill. 79, 90 N.E.2d 78 (1950), it was held that neither the common law writ of error coram nobis nor its statutory substitute in section 72 of the Civil Practice Act were designed as means for correcting alleged false testimony or for procuring a new trial on the basis of newly discovered evidence. In Williams v. People, 31 Ill.2d 516, 202 N.E.2d 468 (1964), a prisoner obtained an affidavit from his brother that it was the brother who committed the crime of which the prisoner was convicted. The prisoner attached this affidavit in support of his petition under section 72. The court said in that case that the writ of coram nobis does not lie for newly discovered evidence. The court also made note that the record disclosed in that case, as is true in the case at bar, that defendant was positively identified in lineups and at the trial by a ...