APPEAL from the Circuit Court of Morgan County; the Hon. J.
WALDO ACKERMAN, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 29, 1977.
On November 1, 1973, after a trial by jury in the Circuit Court of Morgan County, defendant Martin Hammers was convicted of the July 10, 1973, murder of Rose Ann Charapata. He was sentenced to 50 to 150 years imprisonment. Upon direct appeal, we affirmed the conviction and sentence in People v. Hammers (1976), 35 Ill. App.3d 498, 341 N.E.2d 471. On February 25, 1975, defendant filed in the trial court a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72) requesting that he be granted a new trial. After a hearing on the merits, relief upon that petition was denied. He appeals.
The petition alleged that: (a) defendant did not testify at trial, and testified incompletely at sentencing, because of fear for his safety and that of others close to him including one who subsequently became his wife; (b) Lanier "Bubba" Watts, and not defendant, killed Ms. Charapata; (c) defendant did not assist in the killing; (d) subsequent to defendant's sentencing, Watts told several persons that he killed the victim; and (e) if the foregoing information had been presented to the jury, defendant would not have been convicted. Section 72 is described by its drafters as prescribing "one simple but comprehensive procedure, applicable alike to law, equity and statutory proceedings, by which after 30 days a litigant may seek to be relieved from a final judgment or decree for reasons that supported a motion under section 72 of the former act, a bill of review, a bill in the nature of a bill of review, other remedies which are abolished by this revised section, or otherwise." Ill. Ann. Stat., ch. 110, par. 72, Joint Committee Comments, at 286 (Smith-Hurd 1968).
The relief available under section 72 of the former act was principally that available at common law pursuant to a writ of error coram nobis. In People v. Touhy (1947), 397 Ill. 19, 25, 72 N.E.2d 827, 831, the court stated:
"The statutory substitute, namely, a petition or motion in the nature of a writ of error coram nobis has been adjudged an appropriate remedy in criminal cases, as well as civil, and lies to set aside a conviction obtained by duress or fraud, or where, by some excusable mistake or ignorance of the accused and without negligence on his part, he has been deprived of a defense which he could have used on his trial, and which, if known to the court, would have prevented conviction. (People v. Dabbs, 372 Ill. 160; People v. Green 355 Ill. 468.)"
In People v. Colletti (1971), 48 Ill.2d 135, 138, 268 N.E.2d 397, 399, the supreme court again stated that relief under section 72 upon the grounds of a "fraudulently caused omission to interpose a valid defense is available only in the absence of negligence on the part of the defendants." In the instant case, the trial judge filed a memorandum explaining his ruling on the petition. He stated that he denied the relief requested because he found defendant to have been negligent in not presenting at trial the defense that Watts was the killer.
To understand the significance of the testimony at the hearing on the petition, it must be considered in light of the evidence at trial as summarized in our opinion of direct appeal. At the hearing, defendant testified as follows. He and Watts were together on the evening of the crime and went to Anna Davis' house on bicycles. Each had a gun. After giving his gun to Watts, defendant went inside the house while Watts waited outside at the side of the house. Hammers talked to Anna Davis inside the house and during the conversation, she called his attention to a girl walking by. He then left the house, got on his bicycle and caught up to Watts who was then also riding away from the house on his bicycle. The two men then caught up with this girl. Watts was talking and walking along with her. He heard Watts invite her over to his house and she said she had to be going home. As they were walking, Watts put his arm around the girl and she pulled his arm off and started running. He dropped his bike and caught up with her and the girl started hollering. Watts was slapping her with the gun. Watts told him to bring him his bike and he did so. He heard the girl say that she was going over to Watts' place. They then rode away with Watts and the girl on Watts' bike and defendant on the other. Watts told defendant he wanted to talk with the girl so defendant rode ahead.
Defendant stopped by a bridge and while waiting heard a noise and saw two flashes; he heard two more noises, along with the flashes. He saw Watts come running and get on his bike. Defendant took off. Watts caught up and told him to say nothing about what happened and defendant said he would not. Watts gave him his gun back and told him to shoot it, but defendant refused. They then parted company and defendant went home. It is implicit in defendant's version of the occurrence that he heard shots and must have known that Ms. Charapata was either wounded or killed yet he made no attempt to determine what had happened or whether she was merely wounded and needed assistance. He did nothing to either assist the victim or to bring the offender to justice.
Defendant admitted that he had not given the information that Watts was the killer to his trial counsel before or at trial. The reasons defendant gave for not testifying were varied. At one point he stated that he did not testify implicating Watts because he was afraid of him. Substantial evidence was introduced showing that Watts was a feared person. Defendant testified that prior to trial he heard that Watts had threatened to harm his child if he testified implicating Watts. At another point in his testimony, however, he said that he wanted to testify but that his counsel would not let him, thus negating the theory that fear prevented him from testifying. Also lessening the force of his claim that fear prevented him from testifying is the fact that at sentencing hearing, he testified indicating that Watts was the killer. He further admitted that he had not been completely truthful at sentencing. Defendant also admitted that he had attempted to get others to lie for him at trial.
Watts testified at the hearing denying that he was with defendant on the evening in question and denying that he killed Ms. Charapata. He also denied making the threats attributed to him.
Anna Davis had testified at trial that on the evening of the killing, after defendant had left her house, she looked out the window and saw defendant and a girl crossing the railroad tracks. At the hearing on the petition Cheryl Kroush testified that the morning after the killing Ms. Davis had told her that she saw two boys with the girl as she crossed the tracks. No explanation was given as to why Ms. Kroush was not called by the defense at trial.
Defendant's own testimony and that of Cheryl Kroush was available to defendant at trial but not used. At the hearing on the petition, defendant also presented evidence that was newly discovered. Three persons testified that Watts had admitted to them after the trial that he had killed Ms. Charapata. Another admitted that he had made a statement that Watts had made such an admission to him but testified that he was lying when he made the statement. Marlow Johnson testified that he was in the house with Anna Davis, although in another room, when defendant arrived. Johnson stated that he saw an unidentified male at the side of the house and that after defendant left, he and Anna Davis both saw Watts and defendant with a girl crossing the railroad tracks. Anna Davis testified, denying that Johnson was present or that two males were seen with the girl.
The State contends that newly discovered evidence may not be considered as grounds in support of a section 72 petition. In Touhy, the supreme court ruled directly that neither under writ of error coram nobis nor its statutory substitute, section 72, may relief be granted for newly discovered evidence. After the 1947 Touhy ruling, the supreme court held in Ellman v. De Ruiter (1952), 412 Ill. 285, 106 N.E.2d 359, that when necessary to prevent injustice, courts> should apply equitable principals. In 1955, section 72 was amended (1955 Ill. Laws 2238, § 1) to codify Ellman v. De Ruiter and to provide that relief formerly available by the equitable remedy of bill of review became available under section 72. Relief for newly discovered evidence had been available pursuant to a bill of review (Waterman v. Hall (1921), 298 Ill. 75, 131 N.E. 145). In Williams v. People ...