Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Lake County,
the Hon. Harry D. Strouse, Judge, presiding.
CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
The defendant, Ronnie L. Starks, was indicted for the armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2) of the Libertyville Federal Savings and Loan Association branch in Gurnee, Illinois. A jury in Lake County convicted him and he was sentenced to 11 years' imprisonment. The defendant filed a motion for a new trial which was denied. On defendant's appeal, the appellate court affirmed the circuit court. (122 Ill. App.3d 228.) The defendant then petitioned this court for leave to appeal, and we granted the defendant's petition.
The facts of this case are that Jalena Gutman, a teller at Libertyville Federal Savings and Loan Association branch in Gurnee, testified that while she was working as a teller she was robbed at gunpoint at about 6:30 p.m. on Friday, January 15, 1982. Gutman, as well as Donna Vasey, another teller on duty that evening, identified the defendant as the bank robber. They identified the defendant on three separate occasions: (1) from photos shown to them the evening of the robbery; (2) in an in-person lineup on March 10, 1982; and (3) in court.
The defendant did not testify in his own defense. However, Starks' uncle, aunt, mother and a friend testified that Starks was in East Bernstadt, Kentucky, from December 25, 1981, until his arrest by the Kentucky police on January 20, 1982. The defendant's sister testified that the day of the robbery she phoned her mother in Kentucky at approximately 3:30 p.m., which was three hours before the robbery. She testified that during the conversation, she heard the defendant's voice in the background. The defendant also called one of the State's witnesses, Gurnee police sergeant Sheldon, who testified that Gutman and Vasey described the robber as being 6 feet tall, 185 pounds, with grey or green eyes. The defendant's actual physical description is 5 feet 8 inches tall, 156 pounds, with blue eyes.
Based upon the aforementioned testimony, the jury found the defendant guilty of armed robbery, and the trial court entered judgment on the verdict.
The defendant's attorney filed a motion for a new trial. After this motion was filed, the defendant dismissed his attorney and retained new counsel. The defendant's newly retained counsel filed a supplement to the motion for a new trial. The supplemented motion identified seven alibi witnesses who were not called by defendant's trial counsel. The affidavits of these witnesses were attached to the motion. The motion also alleged that the defendant had submitted himself to a polygraph examination based upon a representation by the Lake County State's Attorney's office that the charge would be dismissed if the defendant passed the test. The motion further alleged that the defendant passed the test, but that the State's Attorney's office reneged on its part of the agreement.
Another supplement to the motion for a new trial was filed, alleging that the defendant's appointed trial counsel failed to provide the defendant with effective assistance of counsel. The circuit court denied the defendant's motion for a new trial.
The defendant raises three issues in this appeal, namely: (1) whether the State is bound by a pretrial agreement in which the State agreed to dismiss its case against the defendant if the defendant took and passed a polygraph test; (2) whether the defendant was denied effective assistance of counsel at his trial; and (3) whether defendant was denied his right to a fair trial by the introduction of evidence regarding an alleged previous assault and battery.
First, we will address the issue regarding the pretrial agreement. Starks contends that a Lake County assistant State's Attorney agreed to dismiss the charge against him if he would submit to and pass a polygraph examination conducted by Libertyville police lieutenant Danny McCormick. Pursuant to the agreement, Starks was transported from the Lake County jail on March 30, 1982, to the Libertyville police department, where the polygraph examination was conducted. Starks further contends that McCormick specifically questioned him as to his involvement in the January 15, 1982, armed robbery and that McCormick found him to be truthful in his denial of any knowledge of or involvement in the robbery.
There was no mention of the polygraph examination in the pretrial motions. The first reference in the record to the polygraph examination was on June 29, 1982, after the jury was sworn in, when the State made a motion in limine to bar any reference during trial to the polygraph examination. The motion in limine stated that "the defendant, his attorney and all witnesses be precluded from committing [sic] upon, testifying about or questioning about the defendant taking a polygraph exam or the results thereof." The trial judge granted the State's motion, and told the defendant:
"What has occurred here is, they have asked that everybody be precluded from talking about a lie detector test, okay. Our Supreme Court has said a lie detector test is not evidence in a case, and in any case, and even if the parties agreed its going to be evidence in the case, it can't be evidence in the case, and therefore, you are precluded from ever mentioning that as evidence; and I would not just tell you, and I will caution [your attorney], and neither you nor any of the witnesses can testify about the fact there has been any polygraph or lie detector evidence. * * *"
The first reference in the record to the agreement regarding the polygraph examination was when the circuit court heard oral arguments on the supplemented motion for a new trial. However, the trial judge refused to consider the pretrial agreement regarding the polygraph examination and refused to allow counsel to make any record pertaining to the agreement. The trial judge's refusal was based upon this court's decision in People v. Baynes (1981), 88 Ill.2d 225.
Starks moved to supplement the record on appeal with affidavits which tended to establish that there was a pretrial agreement. One of the affidavits, which was unsigned, was from the defendant's trial counsel. That affidavit stated that there was a pretrial agreement. The other affidavit was from the defendant's present counsel. That affidavit stated that the defendant's trial counsel had told him that the unsigned affidavit was accurate, but the reason it was unsigned was because the Lake County State's Attorney's office (the trial counsel's present employer) would not allow the defendant's trial counsel to sign the affidavit. The appellate court denied the defendant's motion to supplement the record with these affidavits. Although the appellate court stated that the trial judge had misapplied this court's holding in Baynes, the appellate court did affirm the circuit court's judgment. The appellate court stated, with regard to the pretrial agreement:
"During the post-trial hearing concerning this issue, the court may have misapprehended the thrust of counsel's argument and, therefore, did not fully consider whether the defendant was entitled to relief. The defendant's point was not that the favorable results of the polygraph examination should have been allowed in evidence clearly that would not have been permissible; rather, that the defendant gave up his right against self-incrimination in reliance upon the promise of the State's Attorney to dismiss the charge if he passed the examination.
However, the record here is not complete enough to allow the conclusion that there was, in fact, an agreement or if there was what its terms were. The defendant has failed to show us evidence which would support his argument on this issue. He, therefore, cannot sustain his position and no reversal is therefore mandated." 122 Ill. App.3d 228, 239.
It is also important to note that the State does not deny the existence of the agreement. In addition, at the post-trial hearing the defendant testified that the prosecution told him that if he took the polygraph test and passed, then the armed-robbery charge would be dismissed. During this post-trial hearing, the trial judge asked the defendant: "And on what basis did you take that polygraph examination? What was your understanding if you passed it?" In response Starks testified: "The understanding that I had got from him, that the State told him if I passed the polygraph test they would drop the charge."
In Starks' brief before this court, he states that the issue is whether the State is bound by a pretrial agreement in which the State agreed to dismiss its case against him if he passed a polygraph test. Such a statement presumes that an agreement existed. As this matter stands before us, proof of such an agreement consists of: (1) the trial counsel's unsigned affidavit stating that there was a pretrial agreement; (2) a signed affidavit by the defendant's present counsel which stated that the trial counsel told him that the unsigned affidavit was accurate; and (3) ...