APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
536 N.E.2d 481, 180 Ill. App. 3d 781, 129 Ill. Dec. 641 1989.IL.468
Appeal from the Circuit Court of Champaign County; the Hon. John R. DeLaMar, Judge, presiding.
JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and LUND, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
On August 19, 1982, defendant Jerome White, Bernice Caldwell, and Jerome's brothers Derrick White and Michael Johnson were charged by a multicount indictment in the circuit court of Champaign County with the offenses of murder, felony murder, armed robbery, conspiracy to commit murder, and conspiracy to commit armed robbery in violation of sections 9-1(b)(5), 9-1(a)(3), 18-2, and 8-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(b)(5), 9-1(a)(3), 18-2, 8-2). Following a jury trial, that court entered judgment on February 15, 1983, on a general verdict finding defendant guilty of murder and conspiracy to commit murder but not guilty of armed robbery. The court subsequently sentenced defendant to a term of natural life imprisonment.
The conviction and sentence were affirmed on direct appeal. (People v. White (1984), 122 Ill. App. 3d 24, 460 N.E.2d 802.) On October 11, 1985, the circuit court dismissed a pro se petition for post-conviction relief filed by defendant as "frivolous and patently without merit." This court reversed that dismissal and remanded with directions to appoint counsel to represent defendant (People v. White (1987), 152 Ill. App. 3d 404, 504 N.E.2d 520) and to proceed to the second stage of inquiry in the post-conviction process.
On October 28, 1987, defendant's attorney filed a supplemental post-conviction petition adopting and incorporating the pro se petition alleging in part: (1) defendant was denied due process because the multicount indictment was based in part on the State's knowing use of perjured testimony which it never sought to correct; and (2) defendant's trial attorneys were ineffective for (a) failing to consult with defendant regarding trial preparation; (b) failing to call an exculpatory witness; and (c) failing to explain to defendant his right to testify. Other issues raised in the petition are not raised on this appeal. On July 7, 1988, following a hearing, the circuit court allowed the State's motion to dismiss the amended petition, noting it failed to allege facts sufficient to warrant the relief requested.
On appeal, defendant maintains the amended post-conviction petition was sufficient to require the court to hold an evidentiary hearing to determine whether: (1) the State knowingly used perjured testimony before the grand jury thus depriving him of due process; and (2) defendant was deprived of his sixth amendment right to effective assistance of counsel at trial. We agree with the circuit court that the amended petition and supporting documents failed to set forth facts showing a deprivation of defendant's rights in either respect. Thus, we affirm.
We consider first the allegations of the State's knowing use of perjured testimony before the grand jury in obtaining the indictment of defendant. In Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173, the United States Supreme Court held that an accused was denied due process in a State criminal proceeding partly because the State knowingly used perjured testimony at trial. However, neither that Court nor the Illinois Supreme Court has ever held that due process was violated by the use of perjured testimony before a grand jury. Moreover, the United States Supreme Court has expressed a great reluctance to pass upon the propriety of evidence used to indict. In Costello v. United States (1956), 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406, the Court rejected a defendant's claim that his indictment should have been dismissed because the grand jury did not have sufficient competent evidence to indict. The Court said, "[if] indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed." (Costello, 350 U.S. at 363, 100 L. Ed. at 402, 76 S. Ct. at 408.) Similarly, unwillingness to examine the evidence leading to indictments has been expressed by that Court in Lawn v. United States (1958), 355 U.S. 339, 2 L. Ed. 2d 321, 78 S. Ct. 311, and United States v. Calandra (1974), 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613.
A fairly recent decision of the United States Supreme Court indicates a particular reluctance of that court to examine the evidentiary procedures before a grand jury after an accused has been convicted. In United States v. Mechanik (1986), 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938, late in trial in a Federal district court, the defense learned that a rule prohibiting witnesses to be present before the grand jury while others were testifying had been violated in the proceedings where the accused was indicted. The defense raised the issue in its post-trial motion after conviction. The United States Supreme Court ultimately held that any error was cured by the conviction.
No claim of constitutional deprivation was asserted in Mechanik and the rule violation was comparatively minor, but the strong language of the opinion is significant. The Court pointed out that the rule violation could have enabled pressure to be put on a witness which would cause the witness to give testimony influencing the grand jury to indict when it would not otherwise have done so "[but] the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt." (Mechanik, 475 U.S. at 70, 89 L. Ed. 2d at 56, 106 S. Ct. at 942.) The opinion then explained the social costs incurred any time a new trial is ordered and concluded such clearly was not justified there.
On the grounds of knowing presentation of perjured testimony before the indicting grand jury, various Federal Circuit Courts of Appeal have set aside convictions. (See United States v. Ciambrone (2d Cir. 1979), 601 F.2d 616; United States v. Basurto (9th Cir. 1974), 497 F.2d 781; 2 W. LaFave & J. Israel, Criminal Procedure § 15.4, at 307-08 (1984).) In United States v. Samango (9th Cir. 1979), 607 F.2d 877, a Federal district court was held to have properly discharged its supervisory powers in its pretrial dismissal of an indictment obtained through the use of known perjury. Other circuit courts of appeal have refused to set aside convictions obtained even though perjury occurred before the grand jury when the evidence before the grand jury (1) was sufficient "to support the indictment" (United States v. Claiborne (9th Cir. 1985), 765 F.2d 784, 791), such "that the grand jury may have indicted without giving any weight to the perjured testimony" (United States v. Udziela (7th Cir. 1982), 671 F.2d 995, 1001); or (2) contained " some competent evidence to sustain the charge" (emphasis in original) (Coppedge v. United States (D.C. Cir. 1962), 311 F.2d 128, 132). The Udziela opinion contains an excellent Discussion of the question of when the use of perjured testimony before the grand jury is cured by other evidence presented.
No substantial ruling by a court of review of this State regarding the effect upon an indictment of perjured testimony has been called to our attention. In People v. Rivera (1979), 72 Ill. App. 3d 1027, 1037-38, 390 N.E.2d 1259, 1267, the court stated that when the record showed (1) a dispute as to whether a police officer lied before the grand jury; and (2) two other witnesses, one of whom identified the defendant as the perpetrator of the crime, also testified ...