People v. Diaz modified June 11
Annotate this Case
FOURTH DIVISION
JUNE 11, 1998
No. 1--95--4273
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 94--CR--7849
)
SAMUEL DIAZ, ) Honorable
) Joseph G.
Defendant-Appellant. ) Kazmierski,
) Judge Presiding.
OPINION ON REHEARING
PRESIDING JUSTICE CERDA delivered the opinion of the court:
Following a jury trial, defendant, Samuel Diaz, was convicted
of possession of a controlled substance with intent to deliver (720
ILCS 570/401(c)(2)(West 1994)), unauthorized delivery of contraband
in a penal institution by an employee (720 ILCS 5/31A--
1.2(c)(2)(West 1994)), and official misconduct (720 ILCS 5/33--
3(c)(West 1994)). He was sentenced to 10 years' imprisonment for
the unauthorized delivery of contraband in a penal institution by
an employee. On appeal, defendant asserts that (1) there was
insufficient evidence to convict him; (2) the State violated Brady
v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963)
in that it withheld evidence that its main witness received a
greatly reduced sentence in exchange for his testimony; and (3) the
State allowed perjured testimony from its main witness to go
uncorrected. For the following reasons, we reverse.
Cook County deputy sheriff, Maria Johnson, testified that she
had a conversation with George Muriel, an inmate at Cook County
Jail, at 3:15 p.m. on January 4, 1994. Muriel told her that
defendant, a lieutenant at the jail, was willing to bring cocaine
into the jail for $100. Johnson, who was assigned to the Sheriff's
Criminal Corruption Unit, instructed Muriel to give defendant her
pager number and her code name, Rosa.
At 5:46 p.m., Johnson received a page. When she returned the
call, defendant answered the telephone and asked Johnson whether
the food was ready. Johnson responded that it was not a matter of
food. Defendant acknowledged that he knew it was not food, but did
not want to talk about it over the phone. There was a disagreement
about the amount of money defendant was charging, so defendant told
Johnson that he would call her back. Ten minutes later, Johnson
was again paged from the same number. She called defendant, who
put Muriel on the phone. After Muriel told Johnson that the amount
was $175, defendant spoke with Johnson. He offered to meet Johnson
at a restaurant, but she refused because the price had gone up $75.
Muriel got back on the phone and told Johnson to page defendant
when she was ready.
On January 10, 1994, at 9:58 p.m., Johnson received a page.
When she called the number, defendant answered the phone,
identifying himself as Lt. Diaz. Defendant asked Johnson whether
the package was ready. Because Johnson had not yet obtained court
authorization to record conversations with defendant, she told him
she was upset with Muriel and was not sure that Muriel would get
his cocaine and defendant his money. Defendant admonished her not
to talk about those things on the phone.
Two days later, Johnson obtained a court order allowing her to
record conversations between herself and defendant until January
22, 1994, but defendant was absent from work from January 16 until
January 23 due to a death in his family. When Johnson spoke with
Muriel on January 24, 1994, he said that defendant was back at work
and was willing to take $100 to bring cocaine into the jail. The
next day, Johnson obtained another court order to record
conversations with defendant.
On January 26, 1994, at 4:15 p.m., Johnson received a page.
She returned the call from the State's Attorney's Office and
activated a tape recorder. After defendant identified himself,
Johnson spoke with Muriel, who told her in Spanish that the purpose
of defendant's call was to ask "if the stuff was ready." Further,
Muriel told Johnson that defendant wanted to be called Pito rather
than his real name.
Defendant then spoke to Johnson in Spanish. After agreeing on
a price of $100, they agreed Johnson would page Diaz before 3 p.m.
the next day. An audiotape of the conversation was played for the
jury.
The next day at 11:41 a.m., Johnson dialed defendant's pager
number. When he returned the call, they agreed to meet at a
restaurant at 2:30 p.m. Johnson asked if defendant "would take
care of the white stuff," but defendant replied that he did not
like to talk about that over the phone. He advised her to come
alone and described his car. An audiotape of that conversation was
played for the jury.
After the conversation, Johnson obtained and photocopied five
$20 bills with clearly legible serial numbers as well as cocaine
supplied by the State's Attorney's Office. She did not weigh the
cocaine before placing it in a small clear plastic baggie, knotting
and burning the end, and placing a small red mark near the burn
mark.
Johnson and four other officers went to the restaurant, but
she received a page from defendant at 2:10 p.m. Defendant changed
the meeting place to a Walgreen's parking lot near 26th and Albany
Streets. An audiotape of that conversation was played for the
jury.
At the Walgreen's parking lot, when Johnson saw defendant's
car, she approached defendant and asked if he were Pito. After
Johnson got into defendant's car, defendant asked her for
identification so that he could be sure she was not a Drug
Enforcement agent. Without showing any identification, Johnson
gave defendant the $100 and the cocaine. At trial, she identified
the bag, with the red mark, that she had given defendant.
Defendant put the cocaine in his pocket and told Johnson that
Muriel would get the cocaine that day. An audiotape of that
conversation was played for the jury.
At 9:30 a.m. on January 28, 1994, State's Attorney
Investigator Robert Sullivan, an investigator in the Internal
Affairs Division of the Cook County Jail, gave Johnson the package
of cocaine he received from Muriel. Johnson identified the package
as the same sealed bag that she had given defendant. Sgt. James
Houlihan, commander of the Criminal Corruption Unit of the Cook
County Sheriff's Department, testified that he was present in the
State's Attorney's Office on January 13, 1994, when assistant
State's Attorney Christopher Donnelly took a plastic bag of cocaine
from the office's narcotics vault, opened it, poured half a baggie
full of the cocaine, and gave it to Johnson, who put a marble-sized
amount of cocaine into a baggie, then knotted and burned the end.
Sgt. Houlihan then went with other surveillance officers to the
Walgreen's parking lot, where he saw Johnson meet with defendant.
George Muriel testified that he contacted Johnson, whom he
knew as Rosa, at 3:15 p.m. on January 4, 1994, and told her that
defendant was willing to bring cocaine into the jail for $175.
Muriel's testimony about the events from January 4 until January
26, 1994, was substantially the same as Johnson's testimony.
Further, Muriel stated that he was called to defendant's office
between 5 and 5:30 p.m. on January 27, 1994. After he sat down,
defendant tossed him a pack of cigarettes and said, "I take care of
my business." When he returned to his cell, he opened the pack and
pulled out some cigarettes. The cigarettes were chopped off and
the cigarette box contained cocaine in a plastic bag, which was
tied, with the tip burned to seal it. Muriel identified the bag in
court. He tried to contact Investigator Robert Sullivan that
night, but there was no answer in his office, so Muriel contacted
Sullivan the next morning. Muriel denied opening the bag or doing
anything to the cocaine while it was in his possession. He also
stated that he received no promises for his testimony.
The parties stipulated that Chicago Police Department chemist,
Linda Jenkins, tested 4,839.67 grams of cocaine on February 22,
1989, and that the cocaine remained in the proper custody of the
State's Attorney's Office until it was withdrawn on January 27,
1994. There was a further stipulation to the chain of custody of
the package from the time Muriel gave it to Investigator Sullivan.
The package was tested by Illinois State Police chemist Fella
Johnson, who determined that it contained 1.5 grams of cocaine. It
was also stipulated that defendant was a public employee on January
27, 1994.
In his defense, defendant testified that Muriel asked him on
January 4, 1994, if he would bring drugs into the jail. Even
though he had no intention of doing so, he told Muriel he would
think about it. Defendant explained that he wanted to conduct his
own investigation. The inmates were angry with him because they
thought he had authorized food containing drugs to come into the
jail, then ordered the food thrown away.
On January 24, 1994, Muriel told defendant that a large
quantity of drugs would be dropped off in front of Division 6 next
to a flower bed. He asked defendant to bring the drugs into the
jail and Muriel would pay him after he distributed the drugs. At
7:30 p.m., defendant went outside, picked up a plastic Coca-Cola
cup, brought it inside, called Captain Davis, and opened the
package in Davis's presence. The package contained six ziplock
bags of suspected crack cocaine, five yellow envelopes of suspected
marijuana, three red and gray capsules, and three white tablets.
The captain instructed defendant to take the drugs to the division
chief's office. At trial, defendant produced a copy of the
narcotics logbook, which contained an inventory of the confiscated
drugs undersigned by Chief Holly.
When Muriel approached defendant on January 26, 1994, and said
that his girlfriend was ready, defendant agreed to meet Rosa.
Defendant admitted meeting Johnson and receiving five $20 bills and
a clear plastic bag containing white powder, but he claimed he was
only doing his job because he was conducting his own investigation.
However, he never told anyone of that investigation. Further, he
denied giving Muriel a cigarette package or any drugs and claimed
that he destroyed the plastic bag and changed the bills at a
currency exchange.
After deliberations, the jury convicted defendant of
unauthorized delivery of contraband in a penal institution by an
employee, official misconduct, and possession of a controlled
substance with the intent to deliver. The trial court denied
defendant's motion for a new trial, which was based on the
following notes in the State's files. The first note stated:
"3-4-94 Gaughan (c) i/c BA 3/14/94 PG/?FG 6 yrs conc. to
93-9338. As Class X per Wayne Meyer ok to concurrent (
worked as informant for Public Integrity)
The second note read:
"3-4-94 Gaughan (c) i/c BA 3/14/94 per Wayne Meyer - 6
yrs. DOC case. on both cases 230 days TCS. per Wayne
Meyer ok to run concurrent on 93-16315 b/c worked as
informant for public Integrity PG/?FG 6 yrs DOC conc to
93-16315 As Class X."
The trial court found that the jury had sufficient information,
along with the jury instruction, that Muriel had acted with a view
toward obtaining some benefit so that the jury could have
discounted his testimony had they chosen to do so. The trial court
then sentenced defendant to 10 years' imprisonment.
Defendant first contends that the State failed to prove him
guilty beyond a reasonable doubt. He argues that the State's case
was based almost entirely on the inherently unreliable and
uncorroborated testimony of George Muriel, who was not credible
because he is a convicted felon and a drug addict, and that his
testimony was "fanciful and bizarre." Defendant also asserts that
there was no independent corroboration that he delivered the
cocaine to Muriel.
Defendant correctly states that testimony by an informant who
himself abuses unlawful substances and who participates in an
undercover operation to minimize punishment for his own illegal
activity should be closely scrutinized. People v. Anders, 228 Ill.
App. 3d 456, 464, 592 N.E.2d 652 (1992). However, there was no
evidence in the record that Muriel is a drug addict. Muriel's
uncontradicted testimony was that he did not abuse drugs or
alcohol. While Muriel's testimony is suspect due to his criminal
background, the reasonable doubt threshold can be overcome if the
testimony is partially corroborated. Anders, 228 Ill. App. 3d at
464.
The State argues that Muriel's testimony was not as crucial as
defendant asserts and was corroborated by the testimony of Officer
Johnson. Furthermore, the State stresses, the jury was well aware
of Muriel's prior criminal history and was instructed as follows:
"Evidence that a witness has been convicted of an offense
may be considered by you only as it will affect the
believability of a witness."
The State compares this case to People v. Foules, 258 Ill.
App. 3d 645, 630 N.E.2d 895 (1993), where police officers arrested
the defendant for possession of cocaine with intent to deliver
after they made an investigatory stop. The defendant argued that
the testimony of the arresting officers lacked credibility because
their version of events was inherently improbable, unsatisfactory,
unconvincing, and contrary to human experience. Among other
things, the defendant complained that the officers failed to
inventory and fingerprint the bag in which the cocaine and drug
paraphernalia were discovered and failed to photograph the car to
corroborate their testimony. Foules, 258 Ill. App. 3d at 652-53.
The reviewing court rejected the defendant's argument because a
review of all the evidence revealed nothing to impugn the officers'
credibility. Foules, 258 Ill. App. 3d at 654.
Another case on which the State relies is Anders, 228 Ill.
App. 3d 456, where the conviction for unlawful delivery of a
controlled substance was affirmed despite the fact the undercover
police officer was not present when the drug transaction took place
between the defendant and the government informant, an admitted
cocaine addict who had initiated the undercover operation to clear
a charge of driving while his license was suspended. Anders, 228
Ill. App. 3d at 463. The cigarette package that contained the
cocaine was never tested for fingerprints, the informant's home and
the bathroom where the drug transaction took place were not
searched prior to the drug buy, and only a pat-down search was
performed on the informant before he purchased the drugs from the
defendant. Anders, 228 Ill. App. 3d at 463-64. The court
concluded that the jury could have reasonably concluded that the
defendant was guilty and held that the inaction went only to the
weight of the informant's testimony. Anders, 228 Ill. App. 3d at
463-64.
A similar case to this one is People v. Thomas, 222 Ill. App.
3d 1051, 1052-53, 584 N.E.2d 1030 (1991), where the defendant's
conviction for delivery of a controlled substance was affirmed
despite there being no testimony that the defendant ever handled
the drugs and the co-defendant testified that he did not see the
defendant take money from the undercover police officer who set up
the drug buy. In addition to an audiotape, which revealed that an
undercover police officer arranged a narcotics purchase from the
defendant, the officer testified that he gave the money to the
defendant and was later told to pick up the narcotics in a certain
location, which he did. Thomas, 222 Ill. App. 3d at 1053.
In People v. LeCour, 273 Ill. App. 3d 1003, 1007, 652 N.E.2d 1221 (1995), the defendant argued that the evidence was
insufficient to sustain his conviction because the police failed to
uncover narcotics or money from him and because the State's case
was based primarily on the unreliable testimony of an informant, a
drug addict, who was not searched for cocaine prior to his meeting
with the defendant. The appellate court affirmed the conviction
because the officers conducting the surveillance corroborated the
informant's testimony about his meetings with the defendant and the
informant either produced cocaine for the officers or tried to
discard the cocaine after each of his three meetings with the
defendant. LeCour, 273 Ill. App. 3d at 1008.
A criminal conviction will not be set aside unless the
evidence is so improbable or unsatisfactory that it creates a
reasonable doubt of the defendant's guilt. People v. Gilliam, 172 Ill. 2d 484, 515, 670 N.E.2d 606 (1996); People v. McDonald, 168 Ill. 2d 420, 443, 660 N.E.2d 832 (1995). The court's duty is not
to ask itself whether it believes the evidence establishes guilt,
but whether the evidence viewed in a light most favorable to the
prosecution would allow any rational trier of fact to find the
essential elements of the crime proved beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); Gilliam, 172 Ill. 2d at 515.
A conviction shall not be reversed simply because the
defendant claims a witness was not credible. People v. Smith, 177 Ill. 2d 53, 74, 685 N.E.2d 880 (1997); People v. Byron, 164 Ill. 2d 279, 299, 647 N.E.2d 946 (1995). Instead, determinations of
credibility of the witnesses, the weight given their testimony, and
the reasonable inferences to be drawn from the evidence are the
responsibilities of the trier of fact. People v. Enis, 163 Ill. 2d 367, 393, 645 N.E.2d 856 (1994); People v. Mullen (1990), 141 Ill. 2d 394, 403, 566 N.E.2d 222. A reviewing court may not override a
determination on credibility unless those findings are unreasonable
and not based on the evidence. Enis, 163 Ill. 2d at 393.
It is clear, upon reviewing all the evidence, that if the
State's witnesses, including Muriel, were believed, there was
sufficient evidence to support the conviction. Although there are
inherent problems with Muriel's credibility due to his criminal
background and his incarceration at the time of the trial, the jury
heard that evidence and was instructed to consider Muriel's
background when deciding on his credibility. As a result, a
rational trier of fact could have resolved the conflicts in the
testimony in the prosecution's favor. There is nothing inherently
improbable about Muriel's testimony and the evidence was not so
unreasonable or unsatisfactory that it raises a reasonable doubt of
defendant's guilt.
Defendant's other arguments are both based on alleged
violations of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and its progeny. Defendant contends that the State
violated Brady by withholding evidence that Muriel received a
greatly reduced sentence in exchange for his testimony against
defendant and by allowing Muriel's perjured testimony that he did
not receive any deal with the government for his testimony.
The rule of Brady, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1962), applies in three different situations involving the
discovery, after trial, of information favorable to the defendant
that had been known to the prosecution but unknown to the defense.
United States v. Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 491-
92, 105 S Ct. 3375, 3381 (1985); United States v. Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 349, 96 S. C.t 2392, 2397 (1976). When
the prosecution's case includes perjured testimony and the
prosecution knew, or should have known, of the perjury, the
conviction must be set aside if there is any reasonable likelihood
that the false testimony could have affected the judgment of the
jury. Agurs, 427 U.S. at 103, 49 L. Ed. 2d at 349-50, 96 S. Ct. at
2397; Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104,
108, 92 S. Ct. 763, 766 (1972). The second situation occurs when
the prosecution suppresses evidence favorable to the defendant
after a pretrial request for specific evidence. Brady, 373 U.S. at
87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. If the suppressed
evidence is material in that it might have affected the outcome of
the trial, the conviction must be reversed. Agurs, 427 U.S. at
104, 49 L. Ed. 2d at 350, 96 S. Ct. at 2398. The third situation
is where there is a general request or no request for evidence.
Agurs, 427 U.S. at 107, 49 L. Ed. 2d at 351, 96 S. Ct. at 2399. If
the omitted evidence creates a reasonable doubt that did not
otherwise exist, a constitutional error occurred. Agurs, 427 U.S.
at 112, 49 L. Ed. 2d at 355, 96 S. Ct. at 2402. In that case, the
omission must be evaluated in the context of the entire record.
Agurs, 427 U.S. at 112, 49 L. Ed. 2d at 355, 96 S. Ct. at 2402.
This third situation is not involved in this appeal.
Regarding disclosure of Muriel's sentence, defendant's pre-
trial discovery motion requested the following:
"Any record of any criminal or civil action pending
against any persons whom the State intends to call as
witnesses in any hearing or trial involving the People of
the State of Illinois***or whether there has been any
such action pending since the date of the alleged offense
which is the basis for this prosecution, the nature of
such action and any outcome thereof." Emphasis added.
At the time of defendant's arrest, Muriel was in jail awaiting
trial on two unrelated burglary cases. Before this trial was held,
Muriel pleaded guilty to both burglary charges and received two
concurrent sentences of six years' imprisonment. Although the
sentence for each offense was a minimum of six years' imprisonment,
Muriel could not properly be sentenced to concurrent sentences
because he committed one of the burglaries while on bond for the
other, which required consecutive sentencing. The Code of Criminal
Procedure provides: "If a person charged with a felony commits a
separate felony while on pre-trial release***the sentences imposed
upon conviction of these felonies shall be served consecutively
regardless of the order in which the judgment of conviction are
entered." 730 ILCS 5/5-8-4(h)((West 1996); People v.Wilson, No.
82930 (Ill. S. Ct. January 23, 1998). Moreover, the State's
Attorney's file, discovered by the defense after defendant was
convicted, showed that Muriel's illegal sentence was "OK'd" by a
supervisor in the State's Attorney's office because Muriel had
worked as an informant for the State's Attorney's public integrity
unit.
The State argues, as it did in People v. Nino, 279 Ill. App.
3d 1027, 665 N.E.2d 847 (1996), that the information in its file
does not establish that the State agreed to a reduced sentence in
exchange for Muriel's testimony or what, if anything, was
communicated to Muriel. We disagree. There is no doubt that
before this trial Muriel received, with the State's assent, an
unlawful sentence.
As the Illinois Supreme Court has stated, this court does not
have to ignore common sense. People v. Jimerson, 166 Ill. 2d 211,
227, 652 N.E.2d 278 (1995). One consideration in determining
whether there was a deal between the State and one of it witnesses
is the ultimate disposition of the witness's criminal case.
Jimerson, 166 Ill. 2d at 227. An agreement between the State and
its witness does not have to be so specific that it satisfies the
traditional requirements for an enforceable contract. Jimerson,
166 Ill. 2d at 227.
There was testimony by Investigator Sullivan that Muriel came
to him looking for special treatment in exchange for his
cooperation in the arrest of a correctional officer for delivering
drugs into the jail. Sullivan explained that Muriel knew that he
had to go to the State's Attorney for any such deal. Subsequently,
Muriel received concurrent sentences for his two burglary
convictions even though the law requires that the sentences be
consecutive. Moreover, a supervisor in the State's Attorney's
office approved the sentence as part of the plea agreement because
Muriel had cooperated with the State's Attorney's public integrity
unit. Those circumstances, taken as a whole, indicate that a deal
was made between Muriel and the State whereby Muriel would testify
in this trial in exchange for a lower sentence in his own
conviction. While the deal may not have been voiced, it is clear
that there was at least an implicit agreement made.
Consequently, we find that the State committed a Brady
violation when it neither showed the concurrent sentence approval
memo to defense counsel nor told him about the deal for an unlawful
sentence. We also find that the State violated Brady by allowing
Muriel's perjured testimony to go uncorrected.
At trial, Muriel falsely testified that he did not seek or
receive any promises of leniency, that his motive was to rid the
county jail of drug dealing. Instead of correcting Muriel's false
testimony, as it is required to do, the State compounded its error
by telling the jury during its closing argument that there was in
fact no agreement between the State and Muriel. During final
argument, in rebuttal, the prosecutor stated:
"[I]t was a judge who sentenced George Muriel to six
years, it was not the State's Attorney's office.
Unfortunately the State's Attorney's office cannot
sentence convicted felons.
It would be nice but that isn't the way it is. The
judge sentenced him to six years for stealing a lawn
mower and guitar and that's not too shabby of a sentence.
There's absolutely no evidence presented and you can only
consider evidence that there was any sort of deal and
there wasn't." Emphasis added.
The State's knowing use of perjured testimony to obtain a
criminal conviction constitutes a violation of due process of law.
People v. Steidl, 177 Ill. 2d 239, 261, 685 N.E.2d 1335 (1997);
People v. Olinger, 176 Ill. 2d 326, 345, 680 N.E.2d 321 (1997);
People v. Jimerson, 166 Ill. 2d 211, 223, 652 N.E.2d 278 (1995).
The law is well-settled that a prosecutor cannot knowingly use, or
allow to go uncorrected, perjured testimony that goes to the
substance of a witness's testimony or to facts that bear on the
witness's credibility. Bagley, 473 U.S. at 678, 87 L. Ed. 2d at
492, 105 S. Ct. at 3381-82; Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 96 S. Ct. at 2397 (1976); People v. Brown, 169 Ill. 2d 94,
103, 660 N.E.2d 964 (1995). This includes both exculpatory
evidence and impeachment evidence. Bagley, 473 U.S. at 676, 87 L. Ed. 2d at 490, 105 S. Ct. at 3380. Evidence of any understanding
or agreement between a witness and the prosecution as to any future
prosecution is relevant to the witness's credibility and the jury
is entitled to know about it. Giglio, 405 U.S. at 155, 31 L. Ed. 2d at 109, 92 S. Ct. at 766. To establish a due process violation,
the trial prosecutor need not have known that the testimony was
false; it is enough that there was knowledge by representatives or
agents of the prosecution. Giglio, 405 U.S. at 154, 31 L. Ed. 2d
at 109, 92 S. Ct. at 766; Brown, 169 Ill. 2d at 103.
The following cases are helpful.
In Napue v. Illinois, 360 U.S. 264, 265, 3 L. Ed. 2d 1217,
1218, 79 S. Ct. 1173, 1175 (1959), the principal state witness
testified that he had received no promise of consideration in
return for his testimony. Even though the assistant State's
Attorney had in fact promised him consideration if he would testify
at trial, he did nothing to correct the witness's false testimony.
Napue, 360 U.S. at 265, 3 L. Ed. 2d at 1218, 79 S. Ct. at 1175.
The U.S. Supreme Court held that the prosecutor's failure to
correct the witness's testimony resulted in a due process violation
despite the fact the jury had been apprised of other grounds for
believing that the witness may have had an interest in testifying
against the defendant. Napue, 360 U.S. at 270, 3 L. Ed. 2d at
1221-22, 79 S. Ct. at 1177. The Court concluded that the false
testimony may have had an effect on the outcome of the trial.
Napue, 360 U.S. at 272, 3 L. Ed. 2d at 1223, 79 S. Ct. at 1179.
In Giglio, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763, a
new trial was ordered because the prosecution failed to disclose an
alleged promise made to its key witness that he would not be
prosecuted if he testified for the prosecution. Although the
witness testified that he had not received any promises for his
testimony, an assistant State's Attorney who did not try the case
had in fact promised the witness that he would not be prosecuted if
he testified. Giglio, 405 U.S. at 152, 31 L. Ed. 2d at 107, 92 S. Ct. at 765. Despite that prosecutor telling the trial prosecutor
no promises had been made, the defendant's due process rights were
violated by the non-disclosure. Giglio, 405 U.S. at 152, 155, 31 L. Ed. 2d at 104, 109, 92 S. Ct. at 765-66.
Based on the record in this case and the case law, it is clear
that the State improperly failed to disclose Muriel's sentence
agreement with the State before trial and improperly allowed
Muriel's false testimony to go uncorrected. Therefore, we must
decide whether the failure to disclose the sentence and to correct
the perjured testimony may have contributed to defendant's
convictions.
Before the violation of defendant's constitutional right to
due process can be held to be harmless, this court must be able to
declare a belief that the violation was harmless beyond a
reasonable doubt. In this case, the State had the burden to
demonstrate beyond a reasonable doubt that the violation did not
contribute to defendant's conviction. Chapman v. California, 386 U.S. 18,24,26, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967); People v.
Smith, 38 Ill. 2d 13, 230 N.E.2d 188 (1967). This is because it
was the prosecution that violated the constitution. If the
prosecution knowingly permits false testimony to be used, the
defendant is entitled to a new trial. Napue, 360 U.S. at 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959); Steidl, 177 Ill. 2d at 261-262.
Also, the question is not whether admission of the evidence
would have more likely than not resulted in a different verdict,
but whether, in the absence of the evidence, the defendant received
a fair trial, which is a trial resulting in a verdict worthy of
confidence. Kyles, 514 U.S. at 434, 131 L. Ed. 2d at 506, 115 S. Ct. at 1566. We consider the State's conduct to have been
outrageous and we will not tolerate it. The State made a deal with
Muriel whereby he would get a lower, illegal sentence in exchange
for his testimony in this case. That action raises questions about
the State's integrity and goes to the heart of the judicial system
-- confidence in the factfinding process.
A conviction obtained by the knowing use of perjured testimony
must be set aside if there is any reasonable likelihood that the
false testimony could have affected the jury's verdict. Bagley,
473 U.S. at 678-80, 87 L. Ed. 2d at 492, 105 S. Ct. at 3381-82
(1985); Steidl, 177 Ill. 2d at 261-62; Olinger, 176 Ill. 2d at 345.
The State has not demonstrated that the use of Muriel's testimony
and the State's denial of a deal did not contribute to defendant's
conviction. Muriel was an important State witness. While his
testimony was not the only evidence, it was crucial.
In the final analysis, the real question is whether defendant
received a fair trial, a trial resulting in a "verdict worthy of
confidence." Kyles, 514 U.S. at 434, 131 L. Ed. 2d at 506, 115 S. Ct. at 1566. We think not. Because we believe this defendant did
not receive a fair trial and because we believe the integrity of
our criminal justice system has been tainted by what happened here,
we reverse the conviction and remand for a new trial.
For double jeopardy purposes, we conclude that the evidence
presented at trial was sufficient for a jury to decide that
defendant was guilty beyond a reasonable doubt. We are not making
a finding as to defendant's guilt or innocence that will be binding
in a new trial, but rather our consideration of the evidence
admitted at trial will protect defendant's constitutional right
against double jeopardy. See People v. Olivera, 164 Ill. 2d 382,
393, 647 N.E.2d 926 (1995); People v. Taylor, 76 Ill. 2d 289, 309-
310, 391 N.E.2d 366 (1979).
Reversed and remanded.
McNamara, J., and Wolfson, J., concur.
JUNE 11, 1998
No. 1--95--4273
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 94--CR--7849
)
SAMUEL DIAZ, ) Honorable
) Joseph G.
Defendant-Appellant. ) Kazmierski,
) Judge Presiding.
OPINION ON REHEARING
PRESIDING JUSTICE CERDA delivered the opinion of the court:
Following a jury trial, defendant, Samuel Diaz, was convicted
of possession of a controlled substance with intent to deliver (720
ILCS 570/401(c)(2)(West 1994)), unauthorized delivery of contraband
in a penal institution by an employee (720 ILCS 5/31A--
1.2(c)(2)(West 1994)), and official misconduct (720 ILCS 5/33--
3(c)(West 1994)). He was sentenced to 10 years' imprisonment for
the unauthorized delivery of contraband in a penal institution by
an employee. On appeal, defendant asserts that (1) there was
insufficient evidence to convict him; (2) the State violated Brady
v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963)
in that it withheld evidence that its main witness received a
greatly reduced sentence in exchange for his testimony; and (3) the
State allowed perjured testimony from its main witness to go
uncorrected. For the following reasons, we reverse.
Cook County deputy sheriff, Maria Johnson, testified that she
had a conversation with George Muriel, an inmate at Cook County
Jail, at 3:15 p.m. on January 4, 1994. Muriel told her that
defendant, a lieutenant at the jail, was willing to bring cocaine
into the jail for $100. Johnson, who was assigned to the Sheriff's
Criminal Corruption Unit, instructed Muriel to give defendant her
pager number and her code name, Rosa.
At 5:46 p.m., Johnson received a page. When she returned the
call, defendant answered the telephone and asked Johnson whether
the food was ready. Johnson responded that it was not a matter of
food. Defendant acknowledged that he knew it was not food, but did
not want to talk about it over the phone. There was a disagreement
about the amount of money defendant was charging, so defendant told
Johnson that he would call her back. Ten minutes later, Johnson
was again paged from the same number. She called defendant, who
put Muriel on the phone. After Muriel told Johnson that the amount
was $175, defendant spoke with Johnson. He offered to meet Johnson
at a restaurant, but she refused because the price had gone up $75.
Muriel got back on the phone and told Johnson to page defendant
when she was ready.
On January 10, 1994, at 9:58 p.m., Johnson received a page.
When she called the number, defendant answered the phone,
identifying himself as Lt. Diaz. Defendant asked Johnson whether
the package was ready. Because Johnson had not yet obtained court
authorization to record conversations with defendant, she told him
she was upset with Muriel and was not sure that Muriel would get
his cocaine and defendant his money. Defendant admonished her not
to talk about those things on the phone.
Two days later, Johnson obtained a court order allowing her to
record conversations between herself and defendant until January
22, 1994, but defendant was absent from work from January 16 until
January 23 due to a death in his family. When Johnson spoke with
Muriel on January 24, 1994, he said that defendant was back at work
and was willing to take $100 to bring cocaine into the jail. The
next day, Johnson obtained another court order to record
conversations with defendant.
On January 26, 1994, at 4:15 p.m., Johnson received a page.
She returned the call from the State's Attorney's Office and
activated a tape recorder. After defendant identified himself,
Johnson spoke with Muriel, who told her in Spanish that the purpose
of defendant's call was to ask "if the stuff was ready." Further,
Muriel told Johnson that defendant wanted to be called Pito rather
than his real name.
Defendant then spoke to Johnson in Spanish. After agreeing on
a price of $100, they agreed Johnson would page Diaz before 3 p.m.
the next day. An audiotape of the conversation was played for the
jury.
The next day at 11:41 a.m., Johnson dialed defendant's pager
number. When he returned the call, they agreed to meet at a
restaurant at 2:30 p.m. Johnson asked if defendant "would take
care of the white stuff," but defendant replied that he did not
like to talk about that over the phone. He advised her to come
alone and described his car. An audiotape of that conversation was
played for the jury.
After the conversation, Johnson obtained and photocopied five
$20 bills with clearly legible serial numbers as well as cocaine
supplied by the State's Attorney's Office. She did not weigh the
cocaine before placing it in a small clear plastic baggie, knotting
and burning the end, and placing a small red mark near the burn
mark.
Johnson and four other officers went to the restaurant, but
she received a page from defendant at 2:10 p.m. Defendant changed
the meeting place to a Walgreen's parking lot near 26th and Albany
Streets. An audiotape of that conversation was played for the
jury.
At the Walgreen's parking lot, when Johnson saw defendant's
car, she approached defendant and asked if he were Pito. After
Johnson got into defendant's car, defendant asked her for
identification so that he could be sure she was not a Drug
Enforcement agent. Without showing any identification, Johnson
gave defendant the $100 and the cocaine. At trial, she identified
the bag, with the red mark, that she had given defendant.
Defendant put the cocaine in his pocket and told Johnson that
Muriel would get the cocaine that day. An audiotape of that
conversation was played for the jury.
At 9:30 a.m. on January 28, 1994, State's Attorney
Investigator Robert Sullivan, an investigator in the Internal
Affairs Division of the Cook County Jail, gave Johnson the package
of cocaine he received from Muriel. Johnson identified the package
as the same sealed bag that she had given defendant. Sgt. James
Houlihan, commander of the Criminal Corruption Unit of the Cook
County Sheriff's Department, testified that he was present in the
State's Attorney's Office on January 13, 1994, when assistant
State's Attorney Christopher Donnelly took a plastic bag of cocaine
from the office's narcotics vault, opened it, poured half a baggie
full of the cocaine, and gave it to Johnson, who put a marble-sized
amount of cocaine into a baggie, then knotted and burned the end.
Sgt. Houlihan then went with other surveillance officers to the
Walgreen's parking lot, where he saw Johnson meet with defendant.
George Muriel testified that he contacted Johnson, whom he
knew as Rosa, at 3:15 p.m. on January 4, 1994, and told her that
defendant was willing to bring cocaine into the jail for $175.
Muriel's testimony about the events from January 4 until January
26, 1994, was substantially the same as Johnson's testimony.
Further, Muriel stated that he was called to defendant's office
between 5 and 5:30 p.m. on January 27, 1994. After he sat down,
defendant tossed him a pack of cigarettes and said, "I take care of
my business." When he returned to his cell, he opened the pack and
pulled out some cigarettes. The cigarettes were chopped off and
the cigarette box contained cocaine in a plastic bag, which was
tied, with the tip burned to seal it. Muriel identified the bag in
court. He tried to contact Investigator Robert Sullivan that
night, but there was no answer in his office, so Muriel contacted
Sullivan the next morning. Muriel denied opening the bag or doing
anything to the cocaine while it was in his possession. He also
stated that he received no promises for his testimony.
The parties stipulated that Chicago Police Department chemist,
Linda Jenkins, tested 4,839.67 grams of cocaine on February 22,
1989, and that the cocaine remained in the proper custody of the
State's Attorney's Office until it was withdrawn on January 27,
1994. There was a further stipulation to the chain of custody of
the package from the time Muriel gave it to Investigator Sullivan.
The package was tested by Illinois State Police chemist Fella
Johnson, who determined that it contained 1.5 grams of cocaine. It
was also stipulated that defendant was a public employee on January
27, 1994.
In his defense, defendant testified that Muriel asked him on
January 4, 1994, if he would bring drugs into the jail. Even
though he had no intention of doing so, he told Muriel he would
think about it. Defendant explained that he wanted to conduct his
own investigation. The inmates were angry with him because they
thought he had authorized food containing drugs to come into the
jail, then ordered the food thrown away.
On January 24, 1994, Muriel told defendant that a large
quantity of drugs would be dropped off in front of Division 6 next
to a flower bed. He asked defendant to bring the drugs into the
jail and Muriel would pay him after he distributed the drugs. At
7:30 p.m., defendant went outside, picked up a plastic Coca-Cola
cup, brought it inside, called Captain Davis, and opened the
package in Davis's presence. The package contained six ziplock
bags of suspected crack cocaine, five yellow envelopes of suspected
marijuana, three red and gray capsules, and three white tablets.
The captain instructed defendant to take the drugs to the division
chief's office. At trial, defendant produced a copy of the
narcotics logbook, which contained an inventory of the confiscated
drugs undersigned by Chief Holly.
When Muriel approached defendant on January 26, 1994, and said
that his girlfriend was ready, defendant agreed to meet Rosa.
Defendant admitted meeting Johnson and receiving five $20 bills and
a clear plastic bag containing white powder, but he claimed he was
only doing his job because he was conducting his own investigation.
However, he never told anyone of that investigation. Further, he
denied giving Muriel a cigarette package or any drugs and claimed
that he destroyed the plastic bag and changed the bills at a
currency exchange.
After deliberations, the jury convicted defendant of
unauthorized delivery of contraband in a penal institution by an
employee, official misconduct, and possession of a controlled
substance with the intent to deliver. The trial court denied
defendant's motion for a new trial, which was based on the
following notes in the State's files. The first note stated:
"3-4-94 Gaughan (c) i/c BA 3/14/94 PG/?FG 6 yrs conc. to
93-9338. As Class X per Wayne Meyer ok to concurrent (
worked as informant for Public Integrity)
The second note read:
"3-4-94 Gaughan (c) i/c BA 3/14/94 per Wayne Meyer - 6
yrs. DOC case. on both cases 230 days TCS. per Wayne
Meyer ok to run concurrent on 93-16315 b/c worked as
informant for public Integrity PG/?FG 6 yrs DOC conc to
93-16315 As Class X."
The trial court found that the jury had sufficient information,
along with the jury instruction, that Muriel had acted with a view
toward obtaining some benefit so that the jury could have
discounted his testimony had they chosen to do so. The trial court
then sentenced defendant to 10 years' imprisonment.
Defendant first contends that the State failed to prove him
guilty beyond a reasonable doubt. He argues that the State's case
was based almost entirely on the inherently unreliable and
uncorroborated testimony of George Muriel, who was not credible
because he is a convicted felon and a drug addict, and that his
testimony was "fanciful and bizarre." Defendant also asserts that
there was no independent corroboration that he delivered the
cocaine to Muriel.
Defendant correctly states that testimony by an informant who
himself abuses unlawful substances and who participates in an
undercover operation to minimize punishment for his own illegal
activity should be closely scrutinized. People v. Anders, 228 Ill.
App. 3d 456, 464, 592 N.E.2d 652 (1992). However, there was no
evidence in the record that Muriel is a drug addict. Muriel's
uncontradicted testimony was that he did not abuse drugs or
alcohol. While Muriel's testimony is suspect due to his criminal
background, the reasonable doubt threshold can be overcome if the
testimony is partially corroborated. Anders, 228 Ill. App. 3d at
464.
The State argues that Muriel's testimony was not as crucial as
defendant asserts and was corroborated by the testimony of Officer
Johnson. Furthermore, the State stresses, the jury was well aware
of Muriel's prior criminal history and was instructed as follows:
"Evidence that a witness has been convicted of an offense
may be considered by you only as it will affect the
believability of a witness."
The State compares this case to People v. Foules, 258 Ill.
App. 3d 645, 630 N.E.2d 895 (1993), where police officers arrested
the defendant for possession of cocaine with intent to deliver
after they made an investigatory stop. The defendant argued that
the testimony of the arresting officers lacked credibility because
their version of events was inherently improbable, unsatisfactory,
unconvincing, and contrary to human experience. Among other
things, the defendant complained that the officers failed to
inventory and fingerprint the bag in which the cocaine and drug
paraphernalia were discovered and failed to photograph the car to
corroborate their testimony. Foules, 258 Ill. App. 3d at 652-53.
The reviewing court rejected the defendant's argument because a
review of all the evidence revealed nothing to impugn the officers'
credibility. Foules, 258 Ill. App. 3d at 654.
Another case on which the State relies is Anders, 228 Ill.
App. 3d 456, where the conviction for unlawful delivery of a
controlled substance was affirmed despite the fact the undercover
police officer was not present when the drug transaction took place
between the defendant and the government informant, an admitted
cocaine addict who had initiated the undercover operation to clear
a charge of driving while his license was suspended. Anders, 228
Ill. App. 3d at 463. The cigarette package that contained the
cocaine was never tested for fingerprints, the informant's home and
the bathroom where the drug transaction took place were not
searched prior to the drug buy, and only a pat-down search was
performed on the informant before he purchased the drugs from the
defendant. Anders, 228 Ill. App. 3d at 463-64. The court
concluded that the jury could have reasonably concluded that the
defendant was guilty and held that the inaction went only to the
weight of the informant's testimony. Anders, 228 Ill. App. 3d at
463-64.
A similar case to this one is People v. Thomas, 222 Ill. App.
3d 1051, 1052-53, 584 N.E.2d 1030 (1991), where the defendant's
conviction for delivery of a controlled substance was affirmed
despite there being no testimony that the defendant ever handled
the drugs and the co-defendant testified that he did not see the
defendant take money from the undercover police officer who set up
the drug buy. In addition to an audiotape, which revealed that an
undercover police officer arranged a narcotics purchase from the
defendant, the officer testified that he gave the money to the
defendant and was later told to pick up the narcotics in a certain
location, which he did. Thomas, 222 Ill. App. 3d at 1053.
In People v. LeCour, 273 Ill. App. 3d 1003, 1007, 652 N.E.2d 1221 (1995), the defendant argued that the evidence was
insufficient to sustain his conviction because the police failed to
uncover narcotics or money from him and because the State's case
was based primarily on the unreliable testimony of an informant, a
drug addict, who was not searched for cocaine prior to his meeting
with the defendant. The appellate court affirmed the conviction
because the officers conducting the surveillance corroborated the
informant's testimony about his meetings with the defendant and the
informant either produced cocaine for the officers or tried to
discard the cocaine after each of his three meetings with the
defendant. LeCour, 273 Ill. App. 3d at 1008.
A criminal conviction will not be set aside unless the
evidence is so improbable or unsatisfactory that it creates a
reasonable doubt of the defendant's guilt. People v. Gilliam, 172 Ill. 2d 484, 515, 670 N.E.2d 606 (1996); People v. McDonald, 168 Ill. 2d 420, 443, 660 N.E.2d 832 (1995). The court's duty is not
to ask itself whether it believes the evidence establishes guilt,
but whether the evidence viewed in a light most favorable to the
prosecution would allow any rational trier of fact to find the
essential elements of the crime proved beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); Gilliam, 172 Ill. 2d at 515.
A conviction shall not be reversed simply because the
defendant claims a witness was not credible. People v. Smith, 177 Ill. 2d 53, 74, 685 N.E.2d 880 (1997); People v. Byron, 164 Ill. 2d 279, 299, 647 N.E.2d 946 (1995). Instead, determinations of
credibility of the witnesses, the weight given their testimony, and
the reasonable inferences to be drawn from the evidence are the
responsibilities of the trier of fact. People v. Enis, 163 Ill. 2d 367, 393, 645 N.E.2d 856 (1994); People v. Mullen (1990), 141 Ill. 2d 394, 403, 566 N.E.2d 222. A reviewing court may not override a
determination on credibility unless those findings are unreasonable
and not based on the evidence. Enis, 163 Ill. 2d at 393.
It is clear, upon reviewing all the evidence, that if the
State's witnesses, including Muriel, were believed, there was
sufficient evidence to support the conviction. Although there are
inherent problems with Muriel's credibility due to his criminal
background and his incarceration at the time of the trial, the jury
heard that evidence and was instructed to consider Muriel's
background when deciding on his credibility. As a result, a
rational trier of fact could have resolved the conflicts in the
testimony in the prosecution's favor. There is nothing inherently
improbable about Muriel's testimony and the evidence was not so
unreasonable or unsatisfactory that it raises a reasonable doubt of
defendant's guilt.
Defendant's other arguments are both based on alleged
violations of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and its progeny. Defendant contends that the State
violated Brady by withholding evidence that Muriel received a
greatly reduced sentence in exchange for his testimony against
defendant and by allowing Muriel's perjured testimony that he did
not receive any deal with the government for his testimony.
The rule of Brady, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1962), applies in three different situations involving the
discovery, after trial, of information favorable to the defendant
that had been known to the prosecution but unknown to the defense.
United States v. Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 491-
92, 105 S Ct. 3375, 3381 (1985); United States v. Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 349, 96 S. C.t 2392, 2397 (1976). When
the prosecution's case includes perjured testimony and the
prosecution knew, or should have known, of the perjury, the
conviction must be set aside if there is any reasonable likelihood
that the false testimony could have affected the judgment of the
jury. Agurs, 427 U.S. at 103, 49 L. Ed. 2d at 349-50, 96 S. Ct. at
2397; Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104,
108, 92 S. Ct. 763, 766 (1972). The second situation occurs when
the prosecution suppresses evidence favorable to the defendant
after a pretrial request for specific evidence. Brady, 373 U.S. at
87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. If the suppressed
evidence is material in that it might have affected the outcome of
the trial, the conviction must be reversed. Agurs, 427 U.S. at
104, 49 L. Ed. 2d at 350, 96 S. Ct. at 2398. The third situation
is where there is a general request or no request for evidence.
Agurs, 427 U.S. at 107, 49 L. Ed. 2d at 351, 96 S. Ct. at 2399. If
the omitted evidence creates a reasonable doubt that did not
otherwise exist, a constitutional error occurred. Agurs, 427 U.S.
at 112, 49 L. Ed. 2d at 355, 96 S. Ct. at 2402. In that case, the
omission must be evaluated in the context of the entire record.
Agurs, 427 U.S. at 112, 49 L. Ed. 2d at 355, 96 S. Ct. at 2402.
This third situation is not involved in this appeal.
Regarding disclosure of Muriel's sentence, defendant's pre-
trial discovery motion requested the following:
"Any record of any criminal or civil action pending
against any persons whom the State intends to call as
witnesses in any hearing or trial involving the People of
the State of Illinois***or whether there has been any
such action pending since the date of the alleged offense
which is the basis for this prosecution, the nature of
such action and any outcome thereof." Emphasis added.
At the time of defendant's arrest, Muriel was in jail awaiting
trial on two unrelated burglary cases. Before this trial was held,
Muriel pleaded guilty to both burglary charges and received two
concurrent sentences of six years' imprisonment. Although the
sentence for each offense was a minimum of six years' imprisonment,
Muriel could not properly be sentenced to concurrent sentences
because he committed one of the burglaries while on bond for the
other, which required consecutive sentencing. The Code of Criminal
Procedure provides: "If a person charged with a felony commits a
separate felony while on pre-trial release***the sentences imposed
upon conviction of these felonies shall be served consecutively
regardless of the order in which the judgment of conviction are
entered." 730 ILCS 5/5-8-4(h)((West 1996); People v.Wilson, No.
82930 (Ill. S. Ct. January 23, 1998). Moreover, the State's
Attorney's file, discovered by the defense after defendant was
convicted, showed that Muriel's illegal sentence was "OK'd" by a
supervisor in the State's Attorney's office because Muriel had
worked as an informant for the State's Attorney's public integrity
unit.
The State argues, as it did in People v. Nino, 279 Ill. App.
3d 1027, 665 N.E.2d 847 (1996), that the information in its file
does not establish that the State agreed to a reduced sentence in
exchange for Muriel's testimony or what, if anything, was
communicated to Muriel. We disagree. There is no doubt that
before this trial Muriel received, with the State's assent, an
unlawful sentence.
As the Illinois Supreme Court has stated, this court does not
have to ignore common sense. People v. Jimerson, 166 Ill. 2d 211,
227, 652 N.E.2d 278 (1995). One consideration in determining
whether there was a deal between the State and one of it witnesses
is the ultimate disposition of the witness's criminal case.
Jimerson, 166 Ill. 2d at 227. An agreement between the State and
its witness does not have to be so specific that it satisfies the
traditional requirements for an enforceable contract. Jimerson,
166 Ill. 2d at 227.
There was testimony by Investigator Sullivan that Muriel came
to him looking for special treatment in exchange for his
cooperation in the arrest of a correctional officer for delivering
drugs into the jail. Sullivan explained that Muriel knew that he
had to go to the State's Attorney for any such deal. Subsequently,
Muriel received concurrent sentences for his two burglary
convictions even though the law requires that the sentences be
consecutive. Moreover, a supervisor in the State's Attorney's
office approved the sentence as part of the plea agreement because
Muriel had cooperated with the State's Attorney's public integrity
unit. Those circumstances, taken as a whole, indicate that a deal
was made between Muriel and the State whereby Muriel would testify
in this trial in exchange for a lower sentence in his own
conviction. While the deal may not have been voiced, it is clear
that there was at least an implicit agreement made.
Consequently, we find that the State committed a Brady
violation when it neither showed the concurrent sentence approval
memo to defense counsel nor told him about the deal for an unlawful
sentence. We also find that the State violated Brady by allowing
Muriel's perjured testimony to go uncorrected.
At trial, Muriel falsely testified that he did not seek or
receive any promises of leniency, that his motive was to rid the
county jail of drug dealing. Instead of correcting Muriel's false
testimony, as it is required to do, the State compounded its error
by telling the jury during its closing argument that there was in
fact no agreement between the State and Muriel. During final
argument, in rebuttal, the prosecutor stated:
"[I]t was a judge who sentenced George Muriel to six
years, it was not the State's Attorney's office.
Unfortunately the State's Attorney's office cannot
sentence convicted felons.
It would be nice but that isn't the way it is. The
judge sentenced him to six years for stealing a lawn
mower and guitar and that's not too shabby of a sentence.
There's absolutely no evidence presented and you can only
consider evidence that there was any sort of deal and
there wasn't." Emphasis added.
The State's knowing use of perjured testimony to obtain a
criminal conviction constitutes a violation of due process of law.
People v. Steidl, 177 Ill. 2d 239, 261, 685 N.E.2d 1335 (1997);
People v. Olinger, 176 Ill. 2d 326, 345, 680 N.E.2d 321 (1997);
People v. Jimerson, 166 Ill. 2d 211, 223, 652 N.E.2d 278 (1995).
The law is well-settled that a prosecutor cannot knowingly use, or
allow to go uncorrected, perjured testimony that goes to the
substance of a witness's testimony or to facts that bear on the
witness's credibility. Bagley, 473 U.S. at 678, 87 L. Ed. 2d at
492, 105 S. Ct. at 3381-82; Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 96 S. Ct. at 2397 (1976); People v. Brown, 169 Ill. 2d 94,
103, 660 N.E.2d 964 (1995). This includes both exculpatory
evidence and impeachment evidence. Bagley, 473 U.S. at 676, 87 L. Ed. 2d at 490, 105 S. Ct. at 3380. Evidence of any understanding
or agreement between a witness and the prosecution as to any future
prosecution is relevant to the witness's credibility and the jury
is entitled to know about it. Giglio, 405 U.S. at 155, 31 L. Ed. 2d at 109, 92 S. Ct. at 766. To establish a due process violation,
the trial prosecutor need not have known that the testimony was
false; it is enough that there was knowledge by representatives or
agents of the prosecution. Giglio, 405 U.S. at 154, 31 L. Ed. 2d
at 109, 92 S. Ct. at 766; Brown, 169 Ill. 2d at 103.
The following cases are helpful.
In Napue v. Illinois, 360 U.S. 264, 265, 3 L. Ed. 2d 1217,
1218, 79 S. Ct. 1173, 1175 (1959), the principal state witness
testified that he had received no promise of consideration in
return for his testimony. Even though the assistant State's
Attorney had in fact promised him consideration if he would testify
at trial, he did nothing to correct the witness's false testimony.
Napue, 360 U.S. at 265, 3 L. Ed. 2d at 1218, 79 S. Ct. at 1175.
The U.S. Supreme Court held that the prosecutor's failure to
correct the witness's testimony resulted in a due process violation
despite the fact the jury had been apprised of other grounds for
believing that the witness may have had an interest in testifying
against the defendant. Napue, 360 U.S. at 270, 3 L. Ed. 2d at
1221-22, 79 S. Ct. at 1177. The Court concluded that the false
testimony may have had an effect on the outcome of the trial.
Napue, 360 U.S. at 272, 3 L. Ed. 2d at 1223, 79 S. Ct. at 1179.
In Giglio, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763, a
new trial was ordered because the prosecution failed to disclose an
alleged promise made to its key witness that he would not be
prosecuted if he testified for the prosecution. Although the
witness testified that he had not received any promises for his
testimony, an assistant State's Attorney who did not try the case
had in fact promised the witness that he would not be prosecuted if
he testified. Giglio, 405 U.S. at 152, 31 L. Ed. 2d at 107, 92 S. Ct. at 765. Despite that prosecutor telling the trial prosecutor
no promises had been made, the defendant's due process rights were
violated by the non-disclosure. Giglio, 405 U.S. at 152, 155, 31 L. Ed. 2d at 104, 109, 92 S. Ct. at 765-66.
Based on the record in this case and the case law, it is clear
that the State improperly failed to disclose Muriel's sentence
agreement with the State before trial and improperly allowed
Muriel's false testimony to go uncorrected. Therefore, we must
decide whether the failure to disclose the sentence and to correct
the perjured testimony may have contributed to defendant's
convictions.
Before the violation of defendant's constitutional right to
due process can be held to be harmless, this court must be able to
declare a belief that the violation was harmless beyond a
reasonable doubt. In this case, the State had the burden to
demonstrate beyond a reasonable doubt that the violation did not
contribute to defendant's conviction. Chapman v. California, 386 U.S. 18,24,26, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967); People v.
Smith, 38 Ill. 2d 13, 230 N.E.2d 188 (1967). This is because it
was the prosecution that violated the constitution. If the
prosecution knowingly permits false testimony to be used, the
defendant is entitled to a new trial. Napue, 360 U.S. at 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959); Steidl, 177 Ill. 2d at 261-262.
Also, the question is not whether admission of the evidence
would have more likely than not resulted in a different verdict,
but whether, in the absence of the evidence, the defendant received
a fair trial, which is a trial resulting in a verdict worthy of
confidence. Kyles, 514 U.S. at 434, 131 L. Ed. 2d at 506, 115 S. Ct. at 1566. We consider the State's conduct to have been
outrageous and we will not tolerate it. The State made a deal with
Muriel whereby he would get a lower, illegal sentence in exchange
for his testimony in this case. That action raises questions about
the State's integrity and goes to the heart of the judicial system
-- confidence in the factfinding process.
A conviction obtained by the knowing use of perjured testimony
must be set aside if there is any reasonable likelihood that the
false testimony could have affected the jury's verdict. Bagley,
473 U.S. at 678-80, 87 L. Ed. 2d at 492, 105 S. Ct. at 3381-82
(1985); Steidl, 177 Ill. 2d at 261-62; Olinger, 176 Ill. 2d at 345.
The State has not demonstrated that the use of Muriel's testimony
and the State's denial of a deal did not contribute to defendant's
conviction. Muriel was an important State witness. While his
testimony was not the only evidence, it was crucial.
In the final analysis, the real question is whether defendant
received a fair trial, a trial resulting in a "verdict worthy of
confidence." Kyles, 514 U.S. at 434, 131 L. Ed. 2d at 506, 115 S. Ct. at 1566. We think not. Because we believe this defendant did
not receive a fair trial and because we believe the integrity of
our criminal justice system has been tainted by what happened here,
we reverse the conviction and remand for a new trial.
For double jeopardy purposes, we conclude that the evidence
presented at trial was sufficient for a jury to decide that
defendant was guilty beyond a reasonable doubt. We are not making
a finding as to defendant's guilt or innocence that will be binding
in a new trial, but rather our consideration of the evidence
admitted at trial will protect defendant's constitutional right
against double jeopardy. See People v. Olivera, 164 Ill. 2d 382,
393, 647 N.E.2d 926 (1995); People v. Taylor, 76 Ill. 2d 289, 309-
310, 391 N.E.2d 366 (1979).
Reversed and remanded.
McNamara, J., and Wolfson, J., concur.
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