APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
J. KAPLAN, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Petitioners Allen Spicer and Douglas Streeter were found guilty of murder in the circuit court of Cook County, Spicer by jury verdict and Streeter by court finding. On direct appeal to this court both convictions were affirmed. (People v. Anderson (1st Dist. 1973), 14 Ill. App.3d 925, 303 N.E.2d 793.) Petitioners subsequently filed a petition for post-conviction relief, which was dismissed pursuant to the State's motion. They now appeal contending that the dismissal of their petition without an evidentiary hearing was improper.
Because the facts of the original case were fully discussed in People v. Anderson, they will not be repeated except where necessary to understand the present appeal. Petitioners allege in the petition that an evidentiary hearing should have been held because (1) their convictions were obtained by the use of perjured testimony; (2) the State deliberately withheld evidence favorable to them; (3) the State suppressed evidence by threatening a potential defense witness; and (4) petitioner Spicer was denied effective assistance of adequate counsel at the trial. In support of these allegations, petitioners present affidavits from Anna Langford (Streeter's trial counsel), Charles Buchholz (Cook County Public Defender office investigator), Delores Long (Spicer's mother), Michael Lavin (counsel for Benjamin Smothers, co-defendant at the trial and key witness for the State), and petitioners themselves.
• 1, 2 Petitioners contend that they were denied their rights to due process because the State elicited allegedly perjurious testimony from its key witness, Benjamin Smothers. The petition alleges that although Smothers testified he was offered consideration by the State for his testimony, on cross-examination he denied that the State had made any promises or offered any deals. The assistant State's attorney argued to the jury that no deal had been offered to Smothers and made the same argument to the court on Streeter's motion for a new trial. Petitioners claim, however, that a deal had been offered prior to trial that the murder indictment pending against Smothers would be dropped following the sentencing of petitioners and the other co-defendants. To support this claim, they refer us to the affidavit of Michael Lavin. In his affidavit, sworn to on January 3, 1975, Lavin specifically states that he met with the assistant State's attorney Virgilio, that as a result of such conference, his client, Smothers, had been offered such a deal by Virgilio, and that through Lavin, Smothers knew of, understood, and agreed to the deal.
It appears from the record that both Virgilio and Langford, Streeter's trial counsel, were aware that Smothers' testimony was incomplete; yet neither took steps to clarify or eradicate the alleged perjury. When Langford presented Streeter's motion for a new trial, she informed the trial court of the purported deal, but that claim was never pursued in the direct appeal. Evidently no effort was made to secure Lavin's affidavit until petitioners sought post-conviction relief. The Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122-1 et seq.) was not intended to provide a method of presenting issues which might have been raised on appeal but were not. (People v. McCracken (1969), 43 Ill.2d 153, 155, 251 N.E.2d 212.) Further, issues not properly preserved for review are generally deemed waived. (People v. Ward (1971), 48 Ill.2d 117, 121, 268 N.E.2d 692, cert. denied (1971), 404 U.S. 849, 30 L.Ed.2d 87, 92 S.Ct. 155.) In this case, however, Smothers' credibility was a critical issue at trial and could have been instrumental in petitioners' convictions. (Cf. People v. Somerville (1969), 42 Ill.2d 1, 11-12, 245 N.E.2d 461.) Where fundamental fairness so requires, the usual rule of waiver may be relaxed. People v. Weaver (1970), 45 Ill.2d 136, 138, 256 N.E.2d 816; People v. Hamby (1965), 32 Ill.2d 291, 294, 205 N.E.2d 456.
Under some circumstances a witness's credibility may affect an accused's right to due process. (Napue v. Illinois (1959), 360 U.S. 264, 3 L.Ed.2d 1217, 79 S.Ct. 1173, Giglio v. United States (1972), 405 U.S. 150, 31 L.Ed.2d 104, 92 S.Ct. 763.) In Napue the defendant's conviction was reversed where a prosecution witness testified that the State had made no offers of consideration to him; yet the witness, who was an alleged accomplice of the defendant, had been offered consideration, and the prosecutor knew of it when the witness lied on the stand. Napue was extended in Giglio to a situation where the particular prosecutor did not even know of the offer made by another prosecutor in the same office. Furthermore, the State has a duty to disclose to the jury false testimony supplied by one of its witnesses. (People v. Bolton (3rd Dist. 1973), 10 Ill. App.3d 902, 908, 295 N.E.2d 11.) If petitioners' allegation in the case at bar is substantiated, that jury should have been informed that Smothers was testifying with the understanding that petitioners' conviction could mean his own release.
From the record before us we are unable to determine if perjury was committed; however, fundamental fairness to petitioners requires an evidentiary hearing on this issue only. If available, Virgilio, Lavin, and Smothers should testify for complete and final resolution of the matter.
• 3 Petitioners also contend that an evidentiary hearing should have been held on their allegations of the State's intimidation of a potential witness, the State's failure to turn over favorable evidence, and Spicer's denial of adequate counsel. However, petitioners' direct appeal invokes the general rules of res judicata and waiver. Where an appeal is taken from a judgment of conviction, the judgment of a reviewing court is res judicata as to all issues actually raised; and those issues that could have been presented, but were not, are deemed waived. People v. Adams (1972), 52 Ill.2d 224, 225, 287 N.E.2d 695; People v. Ikerd (1970), 47 Ill.2d 211, 214, 265 N.E.2d 120; People v. French (1970), 46 Ill.2d 104, 107, 262 N.E.2d 901, cert. denied (1971), 400 U.S. 1024, 27 L.Ed.2d 636, 91 S.Ct. 590; People v. Beckham (1970), 46 Ill.2d 569, 571, 264 N.E.2d 149; People v. Kamsler (1968), 40 Ill.2d 532, 533, 240 N.E.2d 590, cert. denied (1969), 394 U.S. 911, 22 L.Ed.2d 224, 89 S.Ct. 1027, rehearing denied (1969), 394 U.S. 967, 22 L.Ed.2d 571, 89 S.Ct. 1313.
Petitioners claim that the State suppressed evidence favorable to the defense by intimidating and harassing Mrs. Ineary Liddell, the deceased's mother. Mrs. Liddell, erroneously referred to as Mrs. Strong at trial and on appeal, told Streeter's attorney Langford that she wished to testify because Smothers' testimony had been false. After the State's interview with Mrs. Liddell, she no longer wished to testify because she feared that she might incriminate herself on a pending weapons charge. Upon the court's inquiry, the various State's attorneys said that they had told Mrs. Liddell that the choice to testify was hers. On appeal this court held that the trial court's decision to accede to her wishes was harmless error. (People v. Anderson (1st Dist. 1973), 14 Ill. App.3d 925, 930-31, 303 N.E.2d 793.) Petitioners claim, however, that at that time neither the trial court, nor this court, knew that an assistant State's attorney had in fact intimidated Mrs. Liddell. According to Langford's affidavit, Virgilio stated that he had told Mrs. Liddell that the choice was hers but if she did testify he would ask her questions about the weapons charge.
Since Langford knew of the alleged intimidation at the time of trial, petitioners could have preserved the error for our review in their direct appeal. Well settled principles of res judicata bar this argument now. Post-conviction proceedings are not intended to be used as a device to obtain further consideration of claims of denial of constitutional rights where the claims were or could have been raised previously. People v. Ward (1971), 48 Ill.2d 117, 121, 268 N.E.2d 692, cert. denied (1971), 404 U.S. 849, 30 L.Ed.2d ...