APPEAL from the Circuit Court of Vermilion County; the Hon.
RALPH S. PEARMAN, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
After jury trial before the Circuit Court of Vermilion County, defendant Guy Martin and Charles Heard were convicted of the offense of rape. Defendant Martin was sentenced to 25 to 50 years' imprisonment. Upon appeal to the Supreme Court both sentence and conviction were affirmed in People v. Heard, 48 Ill.2d 356, 270 N.E.2d 18. Subsequently defendant Martin filed the instant petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122-1 et seq.). Upon motion of the State, that petition was dismissed without an evidentiary hearing. Defendant appeals.
The petition is voluminous, containing 25 pages in its body and is supported by more than 150 pages of exhibits including the abstract of the record of the trial. The post-conviction proceeding is a remedy for a violation of substantial constitutional rights of an accused which results in his "conviction" (Ill. Rev. Stat. 1973, ch. 38, par. 122-1). The basic contention of the petition here is that defendant was denied due process of law both in the trial court and on appeal. The People argue that defendant's claim of deprivation of constitutional rights at trial is barred by res judicata or waiver because of the affirmance of his conviction and sentence on direct appeal. Before discussing this question, however, we consider first whether the petition is sufficient to set forth a deprivation of any of defendant's constitutional rights at trial.
The specific claims of defendant require consideration in the context of the evidence as set forth in the abstract of the record incorporated in the petition. Linda Moore, Judy Pittman and Larry Lowe testified for the prosecution. The substance of their combined testimony was that they, together with James Evans, were leaving Kags Bar-B-Q in Danville between 3 and 5 a.m. on the morning of May 17, 1969. Three partially-masked male Negroes, one of whom carried a shotgun, confronted them. Lowe was struck on the back of the head and Evans on the side of the head with the gun. Mrs. Pittman managed to get into an automobile where she locked the doors. One of the three black assailants forced her to leave the car but as she did, she was able to get into a passing car and escape.
The other three victims were forced across the street to the porch of an abandoned house. Attempts to enter the house were unsuccessful. Both the male victims were robbed. One of the assailants grabbed Mrs. Moore saying "This one will do." Evans attempted to help her, but the assailant carrying the gun fired it into the porch floor. Evans and Lowe were warned not to follow as Mrs. Moore was dragged down the porch stairs, across the walk and down an alley. Her clothes were torn off from the waist down, and she was thrown on the ground. Her face was covered, and she stated that three black men took turns having sexual intercourse with her and she was forced to engage in deviate sexual acts. None of the victims were able to identify any of the assailants.
Much of the prosecution's case depended upon the testimony of the admitted accomplice, Peter Collins. He testified that he and Charles Heard were outside Kags Restaurant when Heard suggested that they rob the four victims whom they had seen entering the restaurant. After Collins agreed, Heard went away and returned with a gun. Defendant was sitting in a car nearby and they walked up to him. At that time Heard said that he would like to have sexual intercourse with one of the girls. Defendant made no response. The occurrence related by the victims happened about 15 minutes later. Collins substantiated the testimony of the victims as to what happened at the house.
Collins said that he and Heard then dragged the girl down the alley and in the meantime defendant was "supposed" to be with the girl at the car. After Collins and Heard had engaged in the acts related by Linda Moore, Collins heard someone coming through the bushes. He then ran to the end of the alley to pick up Mrs. Moore's purse which had been left there. He then ran back down the alley where she was and at the time saw defendant coming out of the bushes. He then ran to Carver Park where he saw Roland Lewis, Mac Coe, Cleo Westland and Paul Hurt. Collins stated that Heard followed him into the park in about five minutes and defendant arrived there about five minutes after Heard. Collins admitted that he disliked defendant because defendant had arranged a date between a male friend of defendant's and a girl friend of Collins'.
Lewis, Coe, Westland and Hurt were younger boys, some of whom had charges pending against them at the time of the trial. They all testified that Heard, Collins and defendant were in the park at the time in question and that Heard said something about a rape at Kags' and some said he admitted participation. None said defendant had made any admission. A previous trial of the case had resulted in a mistrial, and three of these witnesses had testified then that they did not hear either defendant or Heard say anything in the park.
Defendant testified that he left Danville earlier that day and was at his home in Springfield that evening. His testimony was substantiated by his father who was with him in Springfield that evening. Several others stated that they saw him in Springfield on the following day.
Defendant was represented throughout the trial by the Vermilion County public defender. The defendant's affidavit attached to the petition states that before trial he asked counsel to ask for a severance but counsel did not do so. He maintains that the failure to obtain a severance and to obtain separate counsel violated his constitutional rights particularly in view of the introduction into evidence of a letter written by his co-defendant Heard while the latter was in jail. This letter was written to Paul Hurt, one of the boys who testified to seeing Heard, Collins and defendant in the park. It had apparently been intercepted.
The letter was offered in evidence in the case in chief. It was not admitted then but was reoffered and admitted, over defense objection, in rebuttal. The letter asked Hurt to change his testimony to say that defendant and Heard were not in the park that night. Defense counsel's objection was that since Heard had admitted in his testimony that he had made the statements in the letter, it was not an impeaching document. The People countered that it was an admission of Heard who was a defendant and therefore admissible as such and not merely for impeachment.
The jury could infer from the letter that Heard was saying that he and defendant were in fact present at the park on the early morning in question and asking Hurt to lie about this. As to defendant, this document was hearsay and quite prejudicial. Counsel should have objected to its admission on this ground and if it was admitted, requested that its consideration be limited to Heard.
Defendant argues that admission of this letter violated his right to confront the witnesses against himself. In Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620, one of two jointly tried defendants had made a confession which stated that he had an accomplice but did not name that individual. It was admitted into evidence with an instruction that it be considered by the jury only as to the confessing defendant. That defendant did not testify. The Court held the admission of the confession to violate the other defendant's right of confrontation because the document implicated him and he had no opportunity to cross-examine the confessing defendant. The limiting instruction was held to be insufficient to remove from the minds of the jurors the prejudice arising from the implication of guilt.
The prosecution distinguishes the instant case from Bruton first in that there the document admitted was a confession whereas here it is merely a letter with implications of guilt. In Bruton, however, the nonconfessing defendant was not named and the connection to him was by implication. They also argue that here Heard took the stand. His testimony is not part of the abstract attached to the petition. Defendant has, without objection, placed excerpts from Heard's testimony at trial in the supplemental record on file. These excerpts indicate that Heard was cross-examined about this document by the prosecution without any objection by defense counsel as to its prejudice to defendant. During the course of this cross-examination Heard did say that he meant to tell Hurt to tell the truth. ...