Appeal from the Circuit Court of Cook County; the Hon Fred G.
Suria, Judge, presiding.
PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
This case is before this court for the second time. In our prior opinion (People v. Hilliard (1978), 65 Ill. App.3d 642, 382 N.E.2d 441), we held that Wilbur Hilliard's petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72, now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2-1401) should not have been dismissed without an evidentiary hearing on the validity of the recantation by the key prosecution witness. We also expressly held that we were not ruling on the other issues raised by Hilliard's direct appeal from his murder conviction and his appeal from the dismissal of his petitions for section 72 and post-conviction relief, which were consolidated by this court prior to our earlier opinion. We reserved ruling on them until the evidentiary hearing had been completed. On remand, an evidentiary hearing was held, and Hilliard was denied relief. He now appeals from that order, contending that the trial court's refusal to grant relief was contrary to the manifest weight of the evidence. In this opinion we address that issue and the remaining issues from the earlier consolidated appeal.
At the evidentiary hearing the State's primary witness, Johnny Obie, Hilliard's minor stepson who had recanted his trial and grand jury testimony, testified that he had lied in his previous testimony when he said that Hillard woke him at their home on the morning of March 16, 1974, and told him that he (Hilliard) was going to kill a man in the basement, and that he lied when he testified that he watched as Hilliard stabbed the man in the basement. Johnny was the State's only eyewitness. The trial judge correctly stated after the post-conviction hearing that the only issue which he had to determine was whether or not Johnny lied at Hilliard's murder trial. If he did lie, there was no question that the lies contributed to the guilty verdict. At trial the boy's account of the stabbing was bolstered by testimony relating to a knife in evidence. Johnny testified that after Hilliard told him he was going to kill the man, his stepfather went to the pantry and got the knife with which he did the stabbing. He testified that after the stabbing Hilliard and he went through a gangway and through an alley to a place where defendant threw the knife on a roof. Later when Johnny spoke to the police he told them about the knife and showed them where defendant threw it. At the post-conviction hearing Johnny testified that he also lied in this part of his trial testimony. He never saw his stepfather get a knife from the pantry, and a couple of weeks after the victim's body was found in the basement he saw the knife which was on a roof but could be seen from the street. This is the knife he pointed out to police officers. Johnny said his reason for lying to the grand jury and at trial was that his mother told him to do so. At the post-conviction hearing Hilliard's mother testified that Johnny's mother, Hilliard's wife, admitted to her that she told Johnny to lie.
A prosecutor at Hilliard's trial and two police officers involved in the investigation of the killing also testified at the evidentiary hearing. The prosecutor testified that Johnny never gave him any kind of problem as a witness and that he did not threaten Johnny or his mother. One of the officers also testified that he never made any threats to Johnny's mother and that she was not threatened by anyone in his presence.
The results of a polygraph examination taken by Johnny were also admitted into evidence at the evidentiary hearing. The conclusion of the examiner was that Johnny did not tell the truth in response to the following three questions:
"Q. Did you see your stepfather take the knife from the drawer?
Q. Did you see your stepfather throw the knife on the roof?
Q. Do you believe your stepfather stabbed the man?
There was no indication of deception as to the following response:
"Q. Did you see your stepfather stab the man?
At the conclusion of the evidentiary hearing the trial judge was of the opinion that Hilliard had not met his burden of showing perjury. He specifically noted that Johnny was "still lying at this point in time, even on the lie detector test." ...