Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Winnebago
County, the Hon. Philip G. Reinhard, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1983.
The defendant, Billy Wayne Yarbrough, was sentenced to a six-year prison term after a jury in the Winnebago County circuit court found him guilty of armed robbery. The principal issue raised by this appeal is whether the defendant should receive a new trial because immediately after the jury verdict was received the trial judge suggested that the State give the defendant a polygraph exam and then withheld decision on defendant's post-trial motions until after inquiring into the results of the exam. The defendant's post-trial motions set forth several grounds, including insufficiency of the evidence. The defendant relies heavily on our recent decision in People v. Baynes (1981), 88 Ill.2d 225, in which we held that polygraph evidence adverse to the defendant was not admissible in a criminal trial even when the parties, prior to the polygraph test, had stipulated that the results would be admissible. The decision in Baynes turned upon what this court regarded as the inherent deficiencies of the polygraph instrument. The defendant also relies on section 8b of the act relating to lie-detector tests (Ill. Rev. Stat. 1979, ch. 38, par. 155-11), which provides that in the course of a criminal trial the court shall not suggest that the defendant submit to a polygraph test.
The only substantive evidence offered against the defendant was the testimony of the two victims of the robbery. One of them was the owner of a disco in South Beloit and the other was his employee. In brief, they testified that they were accosted by an armed robber in the parking lot of the disco at 2:30 a.m. after they had closed it and were leaving the premises. The robber forced them back inside the disco, where the owner opened the safe. The robber removed two money bags and fled. The owner and the employee both described the robber to the police.
Six days later the police showed photographs of seven men, including the defendant, to the disco owner and the employee, and they each picked out the defendant. At the preliminary hearing the disco owner failed to identify the defendant, but the employee did point him out. At the trial, both the owner and the employee identified him.
The defense was an alibi. One witness testified that he and the defendant left South Beloit by automobile for Atlanta, Georgia, the afternoon before the robbery, arrived there approximately five hours after the robbery and stayed in Georgia for the next four days. The defendant testified to the same effect. The defendant and his friend both claimed they were on Interstate 65 headed south when the robbery took place. Relatives of the witness who said he traveled to Georgia with the defendant came from Georgia to appear at the trial. They testified that the defendant and his friend were in Atlanta a few hours after the robbery and in Georgia during the next four days.
The trial judge suggested a polygraph examination immediately after the jury was polled. He said:
"I am going to say this to the prosecution, again without any reflection on the facts of this case, and whatever they do is certainly up to them, and I am not — I don't want to know whether you do anything or not; but in some cases of this type where there is only identification by eyewitnesses and there is no other corroborating evidence and there appears to be an alibi, that from time to time the state's attorney's office has given lie detector tests to a Defendant to ensure that they do have the right man. While that isn't a sole test, by any means, nor is it one that is admissible in evidence, there are times when that can be used, along with all the other available facts that the State has, to determine whether, in fact, an innocent man may have been convicted. I want to make it clear that I am not stating an innocent man is convicted. I'm just saying under the evidence there is no corroboration. I would suggest that. I don't want to know the answer whether you do it or you don't do it, because it is only a matter that the State, if it conducts a lie detector test, felt that it was conclusive, the State would come in and move to vacate. The Court does not want to know the results or even whether you conducted one, because I cannot take that into consideration, but I suggest it. I know it has been done in the past in the state's attorney's office."
During argument on the defendant's timely filed motion for a new trial, which the trial court denied, the following colloquy took place:
"THE COURT: Thank you, Mr. Beu [defense counsel]. I take it, Mr. Fuenty [assistant State's Attorney], that there is no new evidence subsequent to the trial that would, in the interest of justice, be beneficial to the Defendant?
MR. FUENTY: Certain investigative procedures were performed subsequent to the trial. As a result of these investigative procedures which Mr. Beu participated in, there is no new evidence available to the Defendant. In fact, all the results of that investigative procedure are in the hands of Mr. Beu."
The trial judge again addressed himself to the subject of a polygraph exam when he denied the defendant's request for an appeal bond. On that occasion, he said:
"The Court considered in the motion for new trial the evidence in the case. The jury heard the facts, and I indicated to both lawyers at the conclusion of the trial and after the jury came in that in any of these type [sic] of armed robbery cases where there are eyewitnesses, sometimes it is in the interest of justice as to the benefit of the State as well as the Defendant that they take other means to explore whether there has been a just conviction. I don't know the results of any other investigation other than, apparently, as stated in open court, there was some investigation and that was made available to the defense."
The appellate court affirmed the conviction (103 Ill. App.3d 967), and we allowed the defendant's ...