Appeal from the Circuit Court of Cook County; the Hon. Fred G.
Suria, Jr., Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 5, 1983.
Petitioner, Albert Berland, appeals from the denial of his petition for post-conviction relief. (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.) The issue is whether petitioner established that his conviction resulted from the State's use of perjured testimony. For the reasons set forth below, the judgment of the circuit court is affirmed.
Petitioner and his co-defendant, Louis Wolff, were convicted of having committed arson with intent to defraud an insurer in violation of section 20(1)(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 20(1)(b)). Berland's conviction was based on an accountability theory. (Ill. Rev. Stat. 1969, ch. 38, par. 5-2.) Each defendant was sentenced to a penitentiary term of 1 1/2 to 4 1/2 years and was fined $10,000. The convictions were reversed on direct appeal by this court on the grounds that: (1) defendants had conflicting interests such that their representation by single retained counsel was improper and (2) that the evidence was insufficient to sustain the convictions. (People v. Berland (1977), 52 Ill. App.3d 96, 367 N.E.2d 181.) The Illinois Supreme Court later reversed the appellate court decision and affirmed the circuit court. (People v. Berland (1978), 74 Ill.2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L.Ed.2d 42, 100 S.Ct. 63.) The supreme court held that: (1) the joint legal representation was not improper because the record did not show any actual conflict of interest between the co-defendants; (2) that the evidence was sufficient to sustain the convictions; and (3) that a challenge by Wolff to the identification testimony given by two eyewitnesses, Albert Kyles and Evelyn Mayberry, based upon Wolff's contention that their identification of him was suggested by a mug shot shown to them prior to trial, had been waived. In addition the supreme court explicitly upheld a finding which had been made by the trial court that the testimony given by Kyles and Mayberry was credible. In the petition for post-conviction relief, petitioner alleged, inter alia, that Kyles and Mayberry gave perjured testimony in order to bolster their identification of Wolff.
The contention with regard to Kyles is premised upon a claim that, in a deposition taken five years after the trial, Kyles recanted that portion of his trial testimony in which he said he recognized Wolff on the day of the fire because of prior encounters with him. According to the supreme court opinion, *fn1 the fire occurred in November 1969, the indictments were returned in May 1973, and the trial was held in January 1974. Kyles testified at the trial that he could identify Wolff because he had seen Wolff on three or four occasions before the fire at a paint store and one other time when he paid Wolff the rent on an apartment which his aunt had leased in the building which was burned. (People v. Berland (1978), 74 Ill.2d 286, 298.) Thereafter, in a deposition taken in March 1979, and again during the hearing on the petition for post-conviction relief in July 1981, Kyles stated that he never had an aunt living in the building which was burned and that he never paid rent to Wolff for an apartment in that building. Kyles also stated that he did not know Wolff and could not identify him.
• 1 On appeal, petitioner argues that Kyles' recantation demonstrates that his identification of Wolff at the trial was based on perjured testimony. We disagree.
The post-conviction hearing transcript indicates that during cross-examination of Kyles, the following colloquy took place:
"THE COURT: You're saying you don't know Mr. Wolff and you couldn't identify him if you — if I pointed out, said is this Mr. Wolff, you can say it was or wasn't?
[Kyles]: I did at that time when I first went to court, I knowed him, but I don't know him now because it's been so many years since that happened.
THE COURT: Okay. We just want to get your answer clear. You did not know a Mr. Wolff at the time of the fire?
MR. ROBBINS [assistant State's Attorney]: Q. Did you have any dealings —
A. If he walked in now, I wouldn't know the man.
Q. That's what I asked you. At the time of the fire, did you ...