APPEAL from the Circuit Court of Whiteside County; the Hon.
PAUL E. RINK, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant Robert Boyd was convicted by a jury of perjury and sentenced to a term of imprisonment of two years with credit for time served. He appeals from both the conviction and sentence.
At the trial Stewart Opdycke testified that he had been the prosecuting attorney in the case of People v. Wilder tried in March of 1978. In that case he had attempted to prove that Fletcher Wilder murdered Mattie Worthon on September 24, 1976, between 10 p.m. and midnight. Wilder's testimony at that trial raised the alibi defense that he had been in East Moline, Illinois, at the time in question, which was about a 65-minute drive from the scene of the murder. Opdycke stated that Boyd, testifying on Wilder's behalf, said that he had seen Wilder at a gas station on the border between East Moline and Silvis, Illinois, at about 10:30 p.m. on September 24, 1976. Opdycke stated that Boyd testified that he recalled the date because he was on his way to a birthday party when he observed Wilder.
Mark Wilson, a supervisor for Northwestern Steel and Wire in Sterling, Illinois, also testified for the State at Boyd's perjury trial. He said that personnel records of the company indicated that Boyd worked from 2:50 p.m. until 11 p.m. on September 24, 1976. Phyllis Dillard then testified that she had been at a dance with Boyd at the Emerald Hills Country Club near Sterling, Illinois, at about 11:30 p.m. on the date in question. The country club was located about 58 miles from the gas station where defendant claimed to have seen Wilder. Victoria Logan testified that Boyd had called her in March of 1978 to remind her of a party she had attended with him in September of 1976. Logan testified that she could not recall such a party, but that she had attended two parties with defendant in April of 1976.
Defendant, testifying on his own behalf, admitted that at the Wilder trial he testified falsely that he had seen Wilder at the gas station at 10:30 p.m. on September 24, 1976. He stated, however, that at the time he gave the testimony, he believed it to be true. He first had become involved in Wilder's case after reading a newspaper article on the morning of March 23, 1978, dealing with Wilder's whereabouts on the night of September 24, 1976. It occurred to defendant that he had seen Wilder, who had been a fellow employee of defendant's at Northwestern Steel and Wire, at the East Moline gas station at about 10:30 p.m. on that date. According to Boyd, he contacted Wilder's attorneys and testified at trial later the same day. Defendant said that when another witness in the Wilder trial, Bruce Winans, indicated that defendant had been working on the night of September 24, 1976, he began to suspect he had testified falsely.
During cross-examination of defendant at his perjury trial, the State elicited the fact that defendant testified a second time at the Wilder trial, after Winans testified, and defendant persisted in his testimony that he had seen Wilder at the gas station at 10:30 p.m. on the date in question. He also said that on more than one occasion he had left work early, having another employee punch out for him. At his perjury trial defendant stated that he did not leave work early on September 24, 1976, and that he could not recall having someone punch out for him. The indictment charging Boyd alleged only that he had perjured himself the first time he testified at the Wilder trial, not the second time.
The defense was subsequently precluded from introducing the testimony of defendant and Ana Harris that after Winans testified at the Wilder trial, Boyd indicated to one of Wilder's attorneys that he might have testified falsely. According to this testimony, Wilder's attorney then told defendant not to change his testimony.
After Boyd was found guilty, at the sentencing hearing the trial court denied him probation, indicating that to do otherwise would deprecate the seriousness of the offense.
1 Defendant's first contention is that he was not proved guilty beyond a reasonable doubt. An essential element of the crime of perjury is knowledge of the falsity of the statements at the time of their utterance. (Ill. Rev. Stat. 1977, ch. 38, par. 32-2(a); People v. Taylor (1972), 6 Ill. App.3d 961, 286 N.E.2d 122.) Defendant acknowledges that such knowledge may be inferred from proof that the statements were in fact false (People v. Toner (1977), 55 Ill. App.3d 688, 694, 371 N.E.2d 270), but maintains that such an inference cannot support a conviction in the instant case because he gave a reasonable explanation for the false testimony consistent with his innocence.
We find this argument unpersuasive. A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence, and should not reverse a conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313.) Under the circumstances of this case, defendant's explanation for the false testimony did not raise such a reasonable doubt. At the outset we note the improbability that, upon reading the article, defendant would have a detailed memory of a chance observation of Wilder a year and a half earlier when, in fact, it did not take place. More specifically, we note the improbability that defendant would mistakenly remember the date of the birthday party he attended with Victoria Logan was September 24, when, at his trial, defendant testified that it was "in April or maybe after that." Finally, defendant's assertion that he believed his false testimony to be true at the time he gave it was discredited by his admission on cross-examination that he persisted in his false testimony even after he heard the testimony of Winans indicating that he had been at work on the evening of September 24, 1976.
Another essential element of the crime of perjury is that the statements be factually false and not merely erroneous and illogical conclusions. (People v. Toner (1977), 55 Ill. App.3d 688, 371 N.E.2d 270.) Defendant contends that the State failed to prove that his false testimony was not merely an erroneous conclusion on his part. However, there is no evidence in the record tending to show that Boyd's statement could have been an erroneous conclusion based on a mistaken belief. Boyd testified quite simply that he had seen Wilder at a gas station near the border between East Moline and Silvis at about 10:30 p.m. on September 24, 1976, and the jury found that he had not.
Defendant's next contention is that the trial court should have given the jury an instruction explaining the limited purpose for which evidence was introduced concerning the second time he testified at the Wilder trial. This evidence included defendant's admission on cross-examination that when he testified the second time, he falsely stated that on more than one occasion he left work early and had another employee punch out for him. This evidence was admitted for the limited purpose of rebutting defendant's assertion that when he testified the first time at the Wilder trial, he believed his testimony to be true, by showing that even after he heard Winans' testimony he persisted in his false testimony. Defendant maintains that without a proper limiting instruction the jury could have improperly convicted him of perjuring himself the second time he testified, a crime with which he was not charged.
Defendant neither requested the court to give a limiting instruction at the time this evidence was introduced, nor tendered such an instruction at the instructions conference. This issue was not raised in his post-trial motion, and the general rule is that under such circumstances, the issue is considered waived. (People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331.) Defendant, however, urges us to consider the issue pursuant to Supreme Court Rule 451(c) which provides that substantial defects are not waived if the interests of justice require. Ill. Rev. Stat. 1977, ch. 110A, par. 451(c).
2, 3 In People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331, the Illinois Supreme Court reiterated that the Rule 451(c) exception to the waiver rule is a limited exception to be used to correct grave errors, or to be applied where the case is close factually and fundamental fairness requires that the jury be properly instructed. This case was not particularly close factually, and in closing arguments both the defense counsel and the prosecutor indicated that the issue to be decided was whether defendant perjured himself the first time he testified at the Wilder trial. Under these ...