APPEAL from the Circuit Court of Peoria County; the Hon.
RICHARD EAGLETON, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
The defendant, William Griswold, was charged with armed robbery on December 24, 1975, and was tried by jury on March 23 and 24, 1976. Because the jury could not reach a verdict, a mistrial was declared, and the defendant was tried a second time by jury on April 26 and 28, 1976. At this trial the defendant was convicted and received a sentence of 15 to 30 years' imprisonment.
The defendant's conviction was affirmed by this court in People v. Griswold (1977), 54 Ill. App.3d 246, 369 N.E.2d 392, appeal denied (1978), 71 Ill.2d 611. Because the facts pertaining to the defendant's conviction and sentence were amply set forth in our earlier opinion, we will include here only those facts relevant to the defendant's efforts to seek post-conviction relief.
Following his unsuccessful appeal, the defendant filed a document entitled "Petition for Relief under Illinois Revised Statutes, Chapter 110, Section 72, or alternatively Post-Conviction Relief" in the trial court on February 2, 1978. In his petition, the defendant raised various grounds for relief pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) or to section 122-1 et seq. of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1979, ch. 38, par. 122-1 et seq.). The first ground alleged was that the identification of the defendant at trial by Officer Robert Keckler was the tainted product of an unnecessarily suggestive pretrial identification procedure. Keckler had identified the defendant as the driver of the getaway car in an armed robbery actually committed by one Clark Eggers. In the petition, after disputing Keckler's identification, the defendant made the following series of allegations:
"7. That only after his incarceration did Petitioner acquire knowledge of the true identity of the driver of the car, one Robert Powell, also presently incarcerated at Menard Correctional Center; that Robert Powell now admits to being the driver of the car (See attached Affidavit).
8. That Clark Eggers, who committed the armed robbery of the Oakford SuperValue, also admits that Robert Powell was the driver of the car on that night, and that he did not previously implicate Powell because he did not want Powell's parole to be revoked (See attached Affidavit and Appendix A). Further, that Eggers refused to implicate Petitioner despite repeated offers of significant sentence reduction by the Peoria County State's Attorney.
9. That the knowledge of Powell's part as the driver of the car was known to neither Petitioner nor his counsel at the time of his trials, nor could it become so known through the exercise of due diligence; that such facts became known to Petitioner only after his arrival at Menard Correctional Center, where he came into contact with Eggers and Powell."
The defendant then made various allegations of incompetent representation against his trial attorney as additional grounds for relief. The defendant concluded by arguing that the combination of the weak identification by Keckler with the newly-discovered evidence from the affidavits of Eggers and Powell gave rise to a reasonable doubt of his guilt so that the State failed to meet its burden of proof. The defendant prayed that his conviction be reversed.
Appended to the petition were the affidavits of Powell, Eggers and the defendant. Powell stated that he met Eggers around 11 p.m. on December 23, 1975, the night of the offense, and drove a tan 1964 Ford to the store which Eggers entered and robbed. Powell indicated that a police car had entered the parking lot of the store while Eggers was inside, but that the officer did not get a good look at Powell in the car. Powell did not know that the car had been loaned to the defendant earlier on December 23 or that the defendant had been convicted for driving the car, until the defendant and Powell met at the Menard Correctional Center. Powell was free on parole for a prior offense on December 23, 1975.
Eggers' affidavit stated that Eggers had met the defendant at a tavern on the afternoon of December 23, 1975. Eggers took the 1964 tan Ford which the defendant was using on that date without the defendant's knowledge, the car being one which Eggers had used before. Eggers met Powell at another bar and then committed the offense around 11 p.m. with Powell as the driver. Eggers stated that the defendant had no prior knowledge of the robbery and did not drive the getaway car. Eggers had not referred to Powell earlier because Eggers did not want Powell's parole to be revoked. Eggers noted that he had refused to implicate the defendant at defendant's first trial as he referred to the driver only as "Joe."
"Eggers' testimony at the first trial was in accord with the affidavit concerning how Eggers obtained the car and the role of `Joe'. Also, appended to the petition and presented earlier at the hearing on defendant's motion for a new trial, was a portion of a letter from Eggers to the defendant's ex-wife in which Eggers asserted that the defendant did not participate in the offense but explained that he could not come forward sooner because `Joe' was on parole."
Eggers was convicted and sentenced for the armed robbery.
The defendant's own affidavit corroborated the meeting with Eggers at the tavern on December 23, 1975, and the subsequent disappearance of the car. The defendant assumed that Eggers, who knew the owner of the car, had taken it. The defendant denied any knowledge of why Eggers took the car and denied his participation in the offense.
Following the appointment of counsel to represent him in post-conviction proceedings, the defendant filed an amended petition raising as a further ground for relief the allegation that the testimony of Keckler was perjured and that the State knowingly used the allegedly perjured testimony. Subsequently, the defendant filed a motion for default judgment based on the failure of ...