People v. Perkins
State: Illinois
Court: 1st District Appellate
Docket No: 1-95-0218
Case Date: 09/30/1997
THIRD DIVISION
September 30, 1997
No. 1-95-0218
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
UMBERTO PERKINS,
Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County
Honorable
Edward Fiala,
Judge Presiding.
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?
A. No.
Q. You in fact did testify before a grand jury on
October 1st of 1992, is that correct?
A. Yes.
Q. And were any promises made to you at that time
in order to have you testify?
A. None."
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?
A. No, sir.
Q. And in fact you testified before the grand
jury on August 26th of 1992, is that correct?
A. Yes, sir.
Q. And at that time you were placed under oath
just as you were today, is that correct?
A. Yes, sir.
Q. And were any promises made to you at that
time?
A. No, sir.
Q. As to what you would receive for the cases
that you had pending before a different Court, is that
correct?
A. That's correct."
On cross-examination, defense counsel attempted--
unsuccessfully in each case--to establish that both witnesses
received favorable treatment for their cooperation in the present
case. Kmet was cross-examined as follows:
"Q. Tell us this: You had to come to this
courtroom today to testify about something that you
said you saw Mr. Kurap do and a man named Hawkins and
Mr. Perkins, right?
A. Yes, sir.
Q. Why is it that you've come here today?
A. I was asked to come here by the State's
Attorney.
Q. Oh.
A. I was writted to be here.
Q. The State's Attorney came to see you in the
jail?
A. No, sir.
Q. Did you make yourself known to some State's
Attorneys early on in 1992?
A. Yes, sir.
Q. Why did you do that?
A. Because I felt it was the right thing to do."
Defense counsel similarly cross-examined Hamilton:
"Q. How many times have you served time in the
penitentiary?
A. This is my second time.
Q. It's not a pleasant place to be, is it?
A. No.
Q. You would do most anything not to be there,
wouldn't you?
A. Apparently not. I'm back.
Q. Well, you're back now but you want to get out,
don't you?
A. Sure.
Q. And you would do most anything to get out,
wouldn't you?
A. I don't understand your meaning.
Q. You don't want to be there, right?
A. Sir, it's like this here, I committed a crime;
I'm paying my debt.
Q. And you're going to have to pay it?
A. Exactly.
Q. But you don't want to pay it all, do you?
A. But there's no way around that.
Q. You would do something -- if somebody made you
an offer for instance if you would help us out in a
case would you do that in order to shorten your time if
such an offer was made to you?
[Assistant State's Attorney]: Objection, Judge.
Counsel knows that's legally impossible. He has to do
his 12 [years, on a sentence imposed while defendant's
case was pending].
THE COURT: I don't want any dialogue as to what
the law is unless you're going to have some basis to
predicate. The objection is sustained.
[Defense counsel]: My question, Judge, is simply
would he do something, would he testify in an effort to
get his time cut. That's all.
THE COURT: Counsel, I'm going to suggest you ask
him if in fact there's been any promises made to him.
That would be the basis for your question. Otherwise
that answer is ambiguous and calls for more than one
different response. That being the case propound a
question.
[Defense counsel]: Would you like to have your
time cut?
A. Sure.
Q. And is there anything that you wouldn't do to
get your time cut?
A. Sure, there's [sic] a lot of things I wouldn't
do."
In his recross of Hamilton, defense counsel again probed for
potential bias:
"Q. This is the first time you ever came to court
and testified against any officer in your life, isn't
that right?
A. Yes.
Q. That's because you're trying to get your time
cut?
A. No.
Q. You're looking for a favor from the State,
aren't you?
[Assistant State's Attorney]: Objection.
THE COURT: He may answer the question.
A. No, I'm not looking for a favor from the
State, Your Honor.
[Defense counsel]: You're in the habit of just
helping them out?
A. No."
Prior to trial, defense counsel, as a result of the State's
responses during initial discovery, filed a motion for
supplemental discovery which specifically sought any and all
information regarding benefits received by inmates who might
testify against defendant at trial. Apparently no disclosures
about either Kmet or Hamilton were made in the State's response
to defense counsel's motion for supplemental discovery.
Defense counsel offered evidence at a hearing on defendant's
motion for a new trial that both witnesses testified falsely and
that the State had been aware of the perjurious nature of their
testimony. By way of proffer, defendant introduced evidence that
John Armelino represented Kmet on his earlier plea; that he
sought to work out a plea agreement concerning Kmet before Kmet
began to cooperate in the Kurap investigation; that the State
recommended over 20 years imprisonment in the course of Kmet's
plea negotiations; and that after the judge was informed of
Kmet's cooperation in the present case, Kmet was sentenced to
only eight and one half years imprisonment.
Defense counsel also introduced evidence that Hamilton
received favorable treatment in exchange for his testimony
against defendant. Peter Vilkelis testified that he had
represented Hamilton in his earlier case; that the State
recommended over 20 years imprisonment for a plea of guilty; that
the trial judge initially offered Hamilton 17 years imprisonment;
that Vilkelis then learned of Hamilton's cooperation in the Kurap
investigation and reconferenced the case; that at the second
conference the assistant State's Attorney told him the trial
judge would be informed of Hamilton's participation in the Kurap
investigation; that the trial judge was so informed; and that, as
a result, Hamilton received a sentence of only 12 years.
On appeal, the State concurs in the above recitation of
events. The State argues such facts need not have been disclosed
to the jury since it was the trial judge's decision to reduce
both witnesses' sentences and there was no evidence the State
specifically asked for or offered sentence reductions.
We reject this attempted distinction as illusory. Both Kmet
and Hamilton received sentences significantly lower than those
recommended by the State after a judge was informed--by the
State, no less--of each individual's cooperation in an ongoing
investigation. Nor can the State claim there was no perjury here
because it was the trial judge's ultimate decision to impose
lesser sentences. Informing the trial judges about each witness'
cooperation was intended to bring about lower sentences for both
Kmet and Hamilton--which it did. That no formal contract was
signed to which the State lent its signature is of no import.
Both witnesses were placed under oath and brought before the
grand jury, subjecting each to a perjury charge in the event
either reneged on his implicit agreement with the State to
testify adversely to defendant at his trial.
Thus, the testimony of both Kmet and Hamilton regarding
what, if any, favorable treatment they received in exchange for
their cooperation was either substantially misleading or outright
false. As our supreme court has just recently emphasized, the
State's knowing use of perjured testimony to obtain a criminal
conviction violates a defendant's right to due process of law.
People v. Olinger, 176 Ill. 2d 326, 345, 680 N.E.2d 321 (1997);
see also Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3
L.Ed. 2d 1217 (1959); People v. Jimerson, 166 Ill. 2d 211, 223,
652 N.E.2d 278 (1995); People v. McKinney, 31 Ill. 2d 246, 247,
201 N.E.2d 431 (1964); People v. Lueck, 24 Ill. 2d 554, 556, 182
N.E.2d 733 (1962). The same principles apply even when the
State, although not soliciting the false evidence, allows it to
go uncorrected when it appears. Olinger, 176 Ill. 2d at 345.
Nor does it matter that the witness' false testimony goes only to
that witness' credibility; the resulting conviction is
nonetheless tainted. Jimerson, 166 Ill. 2d at 224. This is so
because the "jury's estimate of the truthfulness and reliability
of a given witness may well be determinative of guilt or
innocence, and it is upon such subtle factors as the possible
interest of the witness in testifying falsely that a defendant's
life or liberty may depend." Olinger, 176 Ill. 2d at 345,
quoting Napue, 360 U.S. at 269.
In Olinger, a key prosecution witness, Edward Stalder,
testified against the defendant and admitted that, in exchange
for his testimony, the State had agreed to dismiss a burglary
charge then pending against him. Stalder had, in fact, obtained
a multijurisdictional deal whereby a number of other charges
pending against him in other jurisdictions were dropped as well.
Olinger, 176 Ill. 2d at 347-48. Stalder was questioned on direct
about any deals he had with the State's Attorney of Whiteside
County, and he testified the "only agreement" he had involved
dropping a burglary charge. Olinger, 176 Ill. 2d at 346. Our
supreme court found the defendant had made a substantial showing
that Stalder committed perjury and that the State had allowed
Stalder's false testimony to go uncorrected. Olinger, 176 Ill.
2d at 348. The Olinger court then remanded the matter for an
evidentiary hearing to determine whether the defendant's right to
due process of law had been violated. Olinger, 176 Ill. 2d at
352.
Olinger makes clear that even where a jury is misled only as
to the extent of a witness' potential bias, a due process
violation may result, and the literal truth of a disclosure will
not necessarily guarantee an untainted conviction. It could be
argued that Stalder's testimony in Olinger was technically
truthful, since Stalder was only questioned about what Whiteside
County officials had agreed to do for him in exchange for his
testimony. (Those officials had agreed to drop a burglary
charge, but that was all they could have done for Stalder. The
other charges which were dropped or compromised as part of the
"global settlement" were in other state and federal
jurisdictions.) Yet the Olinger court concluded the defendant
was entitled to an evidentiary hearing on his claim, since the
extent of Stalder's bargain (and thus the extent of his motive to
testify falsely) was understated to the jury.
The situation in this case is worse. While the colloquy
between the State, Kmet, and Hamilton at trial was, as in
Olinger, literally true (it is true that no promises of leniency
were made by the State in this case), the jury was, nevertheless,
misled. The jury here was never informed of any motive of either
witness to fabricate his testimony, much less the extent of such
a motive. Even if it is technically true the State made no
specific promises to each witness in exchange for his testimony,
the fact remains that each witness did receive a reduced sentence
as a result of his cooperation in the present case. Leniency
bargained for and received went undisclosed to both defense
counsel and the jury. See Jimerson, 166 Ill. 2d at 227 ("[t]he
fact that [the agreement between the witness and the State] may
not have satisfied the traditional requirements for an
enforceable contract is immaterial" to due process analysis);
McKinney, 31 Ill. 2d at 250-51 (holding that State was required
to disclose an offer of leniency made to a witness prior to
defendant's first trial, even though the offer was allegedly
withdrawn by the State prior to defendant's second trial, since
due process cannot hinge upon such "gossamer distinctions");
People v. Nino, 279 Ill. App. 3d 1027, 1037, 665 N.E.2d 847
(1996) (finding State's witness' denial of favorable treatment
impermissibly misleading where, although there were no specific
promises of leniency by the State, common sense dictated that
there was an "unspoken understanding" that the witness would be
treated favorably in exchange for his testimony).
Further, it is clear the prosecution knew of the lenient
treatment received by both Kmet and Hamilton in exchange for
their testimony and, nevertheless, let the misleading testimony
go uncorrected. See People v. Brown, 169 Ill. 2d 94, 106, 660
N.E.2d 964 (1995) (State's use of perjured testimony must be
"knowing" to rise to the level of a due process violation). One
of the prosecutors who tried this case participated in the
earlier negotiations with Hamilton and was, therefore, aware of
his potential motive to testify falsely. Regardless, the
prosecutor actually trying a case need not have known that the
relevant testimony was false in order to establish a due process
violation; knowledge on the part of any representative or agent
of the prosecution is sufficient. Olinger, 176 Ill. 2d at 348.
No argument can be made in this case that the sentencing of both
Kmet and Hamilton proceeded without the participation of one or
more members of the State's Attorney's office.
Rather than admit both Kmet's and Hamilton's testimony was
substantially misleading, if not outright false, the State claims
the record shows the jury was, in fact, informed of the
witnesses' potential biases. However, the State can only point
to one statement, made in the course of closing argument, which
could have disclosed to the jury the lenity received by Kmet and
Hamilton in exchange for their cooperation. Regarding Kmet and
Hamilton, the prosecutor stated during rebuttal:
"They're not getting a break. Was a judge told -- were
we advised before they were on our side? Sure. Did
they plead guilty? No. They helped us on a
significant case? Sure did. But they're not getting
more of a break then [sic] they got. They got eight
and a half and 12 [years] and that may not sound like
much but we're not doing the time." (Emphasis added.)
We disagree with the State that the previous passage demonstrates
"the prosecutor could not have been more direct" in bringing out
the fact that both witnesses' sentences were reduced as a result
of their cooperation in this case. In fact, we can hardly
imagine a more obfuscating attempt. The first sentence above
suggests no breaks were given, while the latter statement
cryptically hints otherwise. Even if it could be discerned from
the prosecutor's single, self-contradictory remark that both Kmet
and Hamilton had been treated leniently in exchange for their
testimony, no indication is given as to extent of such favorable
treatment. See Olinger, 176 Ill. 2d at 350-51 (holding
disclosure of mere fact of "a motive" insufficient where extent
of such motive is not revealed).
The context of the remark further diminishes the
possibility--already remote--that the jury learned anything of
both witnesses' potential motives to lie. The prosecutor's lone
comment was made in rebuttal in his closing argument, long after
defense counsel's opportunity for cross-examination and
exploitation of the witnesses' motives to lie had expired. We
hold that such a comment could not have saved the prosecution's
earlier, knowing failure to divulge the potential biases of its
two occurrence witnesses, Kmet and Hamilton. See People v.
Tidwell, 88 Ill. App. 3d 808, 812, 410 N.E.2d 1163 (1980)
(prosecutor's admission in closing argument that State's witness
had, contrary to his testimony, been promised leniency in
exchange for his testimony insufficient to cure error).
A conviction obtained by the knowing use of perjured
testimony must be set aside if there is any reasonable likelihood
the false testimony could have affected the jury's verdict.
Olinger, 176 Ill. 2d at 349; Jimerson, 166 Ill. 2d at 224. While
we acknowledge there is other, substantial evidence of
defendant's guilt in this case, the State has not argued the
evidence against defendant was otherwise overwhelming. In light
of defense counsel's repeated and strenuous attempts to uncover
both Kmet's and Hamilton's potential biases and the fact that the
perjurious testimony in this case came from the only two State's
witnesses who allegedly observed Kurap's escape, we cannot
reasonably conclude there is no likelihood the false testimony
affected the jury's verdict. Olinger, 176 Ill. 2d at 349.
For the foregoing reasons, we reverse defendant's conviction
and remand this matter for a new trial.
Reversed and remanded.
COUSINS, P.J., and CAHILL, J., concur.
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