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People v. Bland

OPINION FILED DECEMBER 29, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE,

v.

ALEXANDER BLAND, PETITIONER-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS B. GARIPPO, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 25, 1979.

Alexander Bland, petitioner, was found guilty of murder and armed robbery on March 9, 1973, following a bench trial in the criminal division of the Circuit Court of Cook County. He was sentenced to a term of 20 to 50 years. On direct appeal we affirmed the judgment of the trial court, resolving against petitioner the sole issue raised, whether an accomplice's testimony was sufficiently credible to establish defendant's guilt beyond a reasonable doubt. People v. Bland (1st Dist. 1974), 18 Ill. App.3d 994, 310 N.E.2d 658 (abstract).

On June 25, 1974, defendant filed a pro se post-conviction petition. Attorney George C. Hook entered an appearance as counsel for petitioner on October 31, 1974, and on March 29, 1977, defendant filed an amended petition for relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, pars. 122-1 through 122-7). The State filed a motion to dismiss the amended petition. After argument on the motion, the post-conviction judge, who also presided at petitioner's bench trial, granted the motion to dismiss as to all issues except one, relating to alleged in-court coercion of the accomplice witness by a police officer, on which issue the court ordered the State to file an answer. Petitioner then filed a motion for the judge's recusal, but the court ultimately ruled that recusal was not required as the court was able to decide the issue based on the conflicting affidavits filed, without holding a hearing. The court then decided the issue against the petitioner. From this adverse resolution and from the order of dismissal, petitioner now appeals.

The issues on appeal are: (1) whether the court erred in dismissing without a hearing a petition supplemented by affidavits containing, inter alia, a recantation by the chief witness against petitioner; (2) whether the court erred in deciding the issue of in-court coercion of the chief prosecution witness on the basis of affidavits after a motion for recusal had been made; (3) whether the petition alleged sufficient facts to support petitioner's claim that he was denied his right to effective assistance of counsel at his original trial; (4) whether the trial court's finding that the petition failed to state a claim of ineffective assistance of counsel was based on improper grounds; (5) whether the court erred in dismissing without a hearing petitioner's claim that the State concealed evidence favorable to the defense; (6) whether the court similarly erred in dismissing a claim that the State used other perjurious testimony; (7) whether the court erred in dismissing petitioner's claim that his conviction was based on an erroneous standard of proof; and (8) whether the court properly dismissed petitioner's other claims relating to alleged pretrial improprieties and denials of constitutional rights and to the alleged failure of the trial court to make further inquiry to resolve ambiguities and conflicts in the case against petitioner.

While the testimony adduced at petitioner's trial was summarized in our first opinion (People v. Bland (1st Dist. 1974), 18 Ill. App.3d 994, 310 N.E.2d 658 (abstract)) insofar as it is pertinent to this appeal, it is summarized again here. Dreamle Scott, then 17 years old, testified that at approximately 12 o'clock noon on September 17, 1972, she met defendant in front of her house on East 41st Street in Chicago and they discussed the possibility of robbing a cab. They hailed a cab driven by the victim, Eddie Moore, and petitioner told him to drive to 75th and Paulina and then around the corner; when the cab stopped, Ms. Scott got out and petitioner, pointing a handgun at Moore, ordered him from the cab. Ms. Scott testified that as petitioner took some money from Moore and as she approached Moore, Moore grabbed her and tried to push her into petitioner, knocking both to the ground. Ms. Scott got up and ran from the scene; as she ran, she looked back and saw nothing but heard three shots fired. Petitioner then joined her, they ran together, caught a bus to return home, and petitioner gave her some of the money he had taken from Moore.

On cross-examination by Andre Mandeville, the public defender who represented petitioner at trial, Ms. Scott admitted that she had never been indicted or arrested as a result of the murder. She was also impeached by conflicts between her direct testimony and certain exculpatory testimony she had given before the grand jury which indicted petitioner. However, her direct testimony regarding the specific circumstances surrounding the incident and petitioner's participation therein was not challenged on cross-examination and remained unshaken. In addition, the following exchange took place:

"Q. [by defense counsel] Did anyone ever say to you that if you did not come and testify that you would go to jail?

A. Yes.

THE COURT: Who said that?

THE WITNESS: A Officer, I don't know his name, Wiley."

Ms. Shirley Rushing, who lived near the scene of the incident, testified as a State's witness that at the time of the occurrence she heard about three shots fired; that she saw the man who shot Moore; and that she saw a lady and a man running from the scene of the shooting. The following exchange then took place:

"Q. [by prosecuting attorney] Was this the same man that you had just seen ...


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