APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Following a jury trial, the defendant, Lamonte Reed, was convicted of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2) and sentenced to the Illinois State Penitentiary for a term of from five to ten years. His direct appeal has been consolidated with his appeal from the dismissal of his post-conviction petition which alternatively sought relief pursuant to the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122-1 et seq.), section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72), and the Habeas Corpus Act (Ill. Rev. Stat. 1977, ch. 65, par. 1 et seq.). In his direct appeal the defendant contends: (1) that he was not proven guilty beyond a reasonable doubt; (2) that the trial court erroneously allowed the defendant to be impeached on a collateral matter; (3) that the trial court erroneously refused to allow defense counsel to rehabilitate a defense witness after he was impeached by a prior material omission; and (4) that his sentence was excessive. In his post-conviction petition the defendant asserts that the perjury of the complaining witness entitles him to section 72 relief or relief under the Post-Conviction Hearing Act. Relief under the Post-Conviction Hearing Act is also asserted due to both the State's failure to disclose a witness favorable to the defense and the defense counsel's failure to properly investigate the case which the defendant asserts denied his right to effective assistance of counsel. The defendant also sought a new trial under the Habeas Corpus Act on the basis of newly discovered evidence.
The following testimony was given at the trial. According to Terry Weatherspoon, the complaining witness, on August 31, 1975, Jacqueline Miller, Eddleavy Steele, and he left the home of Eddleavy Steel's mother at about 10 p.m. and proceeded west on Garfield Road which is also known as 55th Street. Ms. Miller, Steele's girlfriend, walked ahead of the others because she and Steele had previously had a fight. As Weatherspoon and Steele approached a bus stop at 55th and Normal they observed three youths. One of them, Lamonte Reed, was a 10-year acquaintance of Weatherspoon, having attended grammar and high school with him. The other two individuals were unknown to him. Weatherspoon testified that he and Steele had proceeded past the bus stop to a viaduct about half a block west of Normal when someone came up from behind them and touched him on the back. When he stopped and turned around he found Lamonte Reed standing there. He was alone. Steele was standing next to him at this time. Reed asked Weatherspoon whether he remembered Reed's having robbed him in grade school and then told him that he was going to rob him now. Reed then pulled a gun from his left side, pointed the gun at Weatherspoon, and demanded that he give him whatever money he had in his wallet. Weatherspoon handed him $40 from his wallet. At this time Reed informed him that if he told anyone about the robbery he would jump him. After the robbery, Weatherspoon walked a short distance and then began running. He ran until he flagged down a police car at which time he told the police officers what happened.
On cross-examination, Weatherspoon stated that, while he assumed Steele had been standing next to him during the robbery, he never looked over at him during the robbery because Reed had a gun pointing at his stomach. He also stated that the defendant held the gun on him with one hand and took the money from him with his other hand. Weatherspoon could not remember whether he had told the police that three men with two blue steel revolvers and a knife robbed him, or that one of the three wore a leather jacket and an earring. Nor could he recall whether he gave a police officer a description of two other robbers, or whether he told an officer that he was told by the defendant to hand over his money or he'd shoot his brains out. However, while he did admit that he had been just a little bit mad that Reed had robbed him while they were in school, he denied having ever gotten into a fight with Reed at anytime in the past.
Eddleavy Steele, also testifying for the State, stated that he and Weatherspoon left his mother's house on the night of August 31, 1975, at approximately 10 p.m. and began walking west on 55th. Jacqueline Miller, his girlfriend, walked in front of them because she was mad at him. As he and Weatherspoon reached the corner of 55th and Normal they met three youths; one of them yelled at Weatherspoon, "that's the punk I used to rob in school." Steele didn't know which of the youths had shouted nor did he know any of the three. He and Weatherspoon kept on walking and soon the three youths began to follow them. As they reached a viaduct one of the three ran up behind Weatherspoon and Weatherspoon stopped. Steele, assuming that Weatherspoon had met a friend, continued walking. He stated that he was unaware that a robbery was taking place. Shortly thereafter, he turned around to see where Weatherspoon was. He saw him at the viaduct but did not see anyone with him, nor did he see a weapon of any type. A few minutes later Weatherspoon ran past him towards Halsted. When Steele reached 55th and Halsted, Weatherspoon told him that he had been robbed and so they flagged down a squad car.
On cross-examination Steele stated that he did not observe whether any of the three youths had worn a leather jacket or gold earring on the night of the robbery nor did he hear anyone threaten to blow Weatherspoon's brains out if he didn't give him money. Moreover, he did not tell the police that three men robbed Weatherspoon, or that two blue steel revolvers and a knife were used in the robbery. No one had tried to rob him. He admitted that his ability to see Weatherspoon on the night of the robbery while he was standing under the viaduct might have been affected by the fact that there was a street light out under the viaduct. He also testified that Weatherspoon was wearing a straw hat that evening and that he could not remember seeing a bandage on any of the three youths on that occasion.
Officer Frank Parrott testified that on August 31, 1975, at approximately 10:30 p.m. he responded to a dispatch call by going to 55th and Halsted. While there, he and his partner, Officer Nelson, interrogated Weatherspoon and Steele regarding an alleged robbery of Weatherspoon. During this interrogation, Weatherspoon told him that he had been robbed by three individuals, one of whom was Lamonte Reed. Weatherspoon also gave him a description of each offender, stating that one was wearing a black leather jacket, and that all carried a weapon. Moreover, Weatherspoon told him that two blue steel .38 revolvers and a knife had been used in the execution of the robbery. Weatherspoon also told Parrot that one of the offenders had threatened to blow out his brains if he told anyone about the robbery.
Arresting officer Earl Zuelke testified that he arrested the defendant on October 2, 1975, at Mercy Hospital where the defendant was being treated as a patient for a hand injury. After the testimony of Officer Zuelke, the State rested.
Derrick Stevenson, the first defense witness, stated that at 10 or 10:30 p.m. on the night of August 31, 1975, he was with his friends, Sidney Clark and Lamonte Reed, when they encountered Steele and Weatherspoon at the corner of 55th and Normal. At that time Reed made the comment to Clark and Stevenson that "there is that punk kid I used to go to school with." Reed then stomped his feet. Weatherspoon, after looking back at him, ran away. No one tried to rob either Weatherspoon or Steele at this time. Nor did he or any of his friends carry a gun or knife or wear a black jacket or gold earring. He did testify that Reed had a gauze bandage on his left hand and substantiated Steele's testimony that Weatherspoon was wearing a straw hat that night.
The defendant, testified in his own behalf that Stevenson, Clark, and he had been together on the evening of August 31, 1975, at about 10 or 10:30 p.m. near 55th and Normal when they happened to meet Terry Weatherspoon and Eddleavy Steele walking west on 55th Street. Thereafter, he and his friends began walking west on 55th behind Steele and Weatherspoon. At this time he turned to Stevenson and told him that Weatherspoon was a sissy boy that he had gone to school with. After making this comment, he stomped his feet at which time Weatherspoon turned around, looked at him, and ran away. According to Reed, Weatherspoon's hat fell off at this time. Later, however, when Reed tried to return it, Weatherspoon denied that it was his. Reed denied robbing either Weatherspoon or Steele or that he or any of his friends had a gun or a knife. Reed stated that he had known Weatherspoon for about 10 years and had attended school with him. He said that he had gotten into fights with him during their school days but denied ever robbing Weatherspoon or brandishing a knife or gun during their fights. Reed testified that his left hand was swollen on the night of the 31st and had a gauze bandage on it.
On cross-examination, Reed testified that he was treated at Mercy Hospital during the summer of 1975 for a hand infection which later became abscessed. Dr. Loftus, a specialist, treated his hand during the period of the infection. He also noted that he had two operations on his hand due to the infection: one prior to August 31 and one after that date in September.
Sidney Clark's testimony closely paralleled the testimony of Stevenson and Reed as to the events of August 31. On cross-examination, counsel for the State read into the record certain of Clark's answers from his preliminary hearing testimony in order to impeach Clark's trial testimony that Reed made a remark to his friends about the defendant and then stomped his feet prior to Weatherspoon running away. At the preliminary hearing Clark had failed to mention either of these facts. On redirect, defense counsel attempted to rehabilitate Clark by asking him whether he was asked at the preliminary hearing if Reed did anything prior to Weatherspoon's flight. The trial court sustained the State's objection to this question. The defense rested at this point.
In rebuttal, the State introduced the testimony of Dr. Krishna Swamy, a resident at Mercy Hospital in September 1975, when Reed was a patient at the hospital for hand surgery. Dr. Swamy testified that he prepared a medical history of Reed at that time. A medical history, according to Swamy, contains information supplied by the patient as to his present and past medical history and constitutes a part of the patient's medical chart. Dr. Swamy testified at trial that, after reviewing the history and the defendant's medical chart, he found no reference to any operation Reed might have had prior to the September surgery. Moreover, the defendant made no reference to any prior operation to Swamy during the taking of the history. Dr. Swamy admitted on cross-examination that the defendant had ...