Appeal from the Circuit Court of Cook County. Honorable Edward Fiala, Judge Presiding.
Released for Publication November 26, 1997.
The Honorable Justice Leavitt delivered the opinion of the court. Cousins, P.j., and Cahill, J., concur.
The opinion of the court was delivered by: Leavitt
The Honorable Justice LEAVITT delivered the opinion of the court:
Defendant Umberto Perkins was a probational corrections officer at the Cook County jail in August 1992 when a new inmate, Erdogan Kurap, escaped. In September 1994, a jury convicted defendant of official misconduct (720 ILCS 5/33-3 (West 1992)) and aiding an escape (720 ILCS 5/31-7 (West 1992)) for his role in Kurap's escape. Defendant was sentenced to four years imprisonment for each count, to run concurrently. Defendant now appeals, arguing, among other things, he should be granted a new trial due to the State's knowing use of the perjured testimony of two eyewitnesses, who denied receiving favorable treatment in exchange for their testimony. Because we find this contention has sufficient merit to justify a new trial, we do not address defendant's additional claimed points of error.
The evidence at trial revealed the following. Kurap had been the subject of an intense investigation by the State's Attorney's Office Drug Task Force and was eventually arrested and charged with a number of drug offenses. A $5 million cash bond was set, and he was sent to the Cook County jail, Division 5, Tier 1A. Defendant was assigned to this location at the time. Edward Kmet and Michael Hamilton, the two eyewitnesses for the State, were inmates in Tier 1A when Kurap escaped.
Both Kmet and Hamilton testified about the events leading up to Kurap's escape. On August 12, 1992, Hamilton observed defendant taking a prisoner count, after which defendant entered the interlock and opened two cells. Kurap and his cellmate Mark Hawkins walked out of their cell, as did Peter Jones from the adjacent cell. Kurap spoke with defendant and held up a pair of pants he had been given "like he was seeing if they'd fit." Kurap put the pants in a bag and returned to his cell. He then asked for a razor and proceeded to shave his mustache.
At approximately 1:00 a.m. on August 13, Kurap again met defendant in the interlock. Kurap used the phone, returned to his cell, and re-entered the interlock wearing a correctional officer's cadet uniform. He exited a side door and was not seen again by either Kmet or Hamilton. Defendant went to lunch ten minutes after Kurap had exited the building. Defendant's shift ended that morning at 8:00 a.m., and Kurap's escape was not discovered until approximately 3:00 p.m.
Another correctional officer, Steven Dinkins, testified that on August 13 he had noticed defendant's wing was unusually dark and no televisions were on. Dinkins told defendant that some lights should be turned on and that defendant's supervisor would not be happy to find the wing as dark as it was. Defendant responded that he would "take care of it." Another correctional officer testified that the lights and televisions remained off throughout defendant's shift.
Taylan Ozaksut, owner of Milano's Pizza on Western Avenue and friend of Kurap and his family, testified that Kurap's father, Akif, came by Milano's on August 6, 1992, bringing with him a Turkish sausage and an envelope containing $100. Akif also questioned Ozaksut about a possible apartment for Kurap, which Ozaksut laughed off because he was aware of the $5 million bond set in Kurap's case. After receiving a call from Kurap, Ozaksut made three pizzas with the Turkish sausage. Ozaksut testified that someone, whom he identified in court as defendant, came by at 11:00 p.m. with a note from Kurap. The note said, "Taylan, give the pizzas to this friend." Ozaksut gave defendant the pizzas, along with the envelope from Akif.
According to Ozaksut, he received a call from defendant on August 13. Defendant asked whether Kurap had called, whether Akif had called, and whether either had left anything at Milano's for him. Ozaksut replied negatively and asked defendant why he just did not speak to Kurap directly about whatever was supposed to be left for him. Defendant then answered that he could not speak with Kurap because Kurap had gone on a "trip."
Ozaksut testified that defendant again came by Milano's on August 13, around 2:00 p.m., before business hours. Defendant again inquired as to whether Kurap or his father had left anything for him. After telling defendant nothing had been left for him, Ozaksut informed defendant that he had called the police and that they had denied Kurap was missing. When Ozaksut suggested defendant should inform the police of his knowledge of Kurap's escape, defendant replied that he did not want to "get involved."
Telephone records indicated a series of collect calls from the Cook County jail to Akif's residence on August 10. Each collect call was followed immediately by an outgoing call from Akif's residence to what was later revealed to be defendant's pager number.
Defendant was arrested on August 14 and, after being advised of his rights, gave a statement to the police. In that statement, defendant admitted that shortly after being assigned to Division 5, Tier 1A, he was approached by two inmates on at least three occasions. These inmates informed defendant that they had a rich friend, Erdogan Kurap, who wanted some favors, and that defendant could make $50,000 to $100,000 for assisting in Kurap's escape. Defendant stated that one day soon thereafter he went by a pizza place at 110th and Western on his way to work. There, he spoke with the owner, whom he knew as "John" (Ozaksut went by this name) and who informed him that there was $50,000 to $100,000 to be made in assisting Kurap's escape. This same "offer" was made to defendant over the telephone as well, by a woman claiming to be Kurap's girlfriend.
Defendant admitted going to the same pizza place at 1:00 p.m. on August 15. The restaurant was closed at the time, but "John" allowed him inside. When questioned by the detective as to why he had gone in excess of eight miles from his house for pizza, defendant admitted he had received another telephone call from Kurap's girlfriend, who had informed defendant that Kurap was out of jail. Defendant admitted he never told his superiors about any of these conversations.
A jury convicted defendant of both official misconduct and aiding an escape. He was sentenced to four years imprisonment for each count, to run concurrently.
Defendant contends that his constitutional right to due process of law was violated because the State knowingly elicited false testimony from both Kmet and Hamilton regarding consideration they received for cooperating in the investigation of defendant. At trial, the State, on its own initiative, sought to establish that neither eyewitness to the escape had received favorable treatment in return for his testimony. Edward Kmet denied as much on direct:
"Q. Now in exchange for your testimony here today were you made any promises of leniency in order to testify not only today but before a grand jury that you've done previously?
Q. You in fact did testify before a grand jury on October 1st of 1992, is that correct?
Q. And were any promises made to you at that time in order to have you testify?
The State elicited similar testimony from Michael Hamilton on direct:
"Q. Now in order for you to testify today were any promises made to you by anyone in order to get you to testify?
Q. And in fact you testified before the grand jury on August 26th of 1992, is that correct?
Q. And at that time you were placed under oath just as you were today, is that correct?
Q. And were any promises made to you at ...