{ "id": 2939834, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GEORGE NEWBERRY, Appellant", "name_abbreviation": "People v. Newberry", "decision_date": "1973-09-25", "docket_number": "No. 44753", "first_page": "74", "last_page": "77", "citations": [ { "type": "official", "cite": "55 Ill. 2d 74" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "52 Ill.2d 466", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395247 ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0466-01" ] }, { "cite": "34 Ill.2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2880599 ], "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0402-01" ] }, { "cite": "32 Ill.2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2840958 ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0291-01" ] }, { "cite": "45 Ill.2d 136", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895217 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-2d/45/0136-01" ] }, { "cite": "127 Ill. App. 2d 322", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2474080 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/127/0322-01" ] } ], "analysis": { "cardinality": 376, "char_count": 5086, "ocr_confidence": 0.865, "pagerank": { "raw": 5.987792060047423e-07, "percentile": 0.9540658548046623 }, "sha256": "5d8519406e754b5442b65f2a7f678331a250dad44337daa65d4bbf5af9940bf3", "simhash": "1:f4010f03dfb875d3", "word_count": 773 }, "last_updated": "2023-07-14T19:15:48.278665+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GEORGE NEWBERRY, Appellant." ], "opinions": [ { "text": "MR. CHIEF JUSTICE UNDERWOOD\ndelivered the opinion of the court:\nPetitioner George Newberry was indicted for murder, convicted of voluntary manslaughter following a bench trial in Cook County, and sentenced to imprisonment of 4 to 15 years. The appellate court affirmed. (People v. Newberry (1970), 127 Ill. App. 2d 322.) Petitioner then sought relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1969, ch. 38, par. 122\u20141 et seq.) in the circuit court of Cook County, and his pro se petition was denied without an evidentiary hearing. It is from that denial that this appeal comes.\nTo be cognizable under the Post-Conviction Hearing Act, a claim must assert the substantial denial of a constitutional right; a number of petitioner\u2019s arguments, however, have been or should have been adjudicated in his prior direct appeal and we do not believe that the facts of this case warrant their examination under the \u201cfundamental fairness\u201d exception to the doctrine of res judicata. (People v. Weaver (1970), 45 Ill.2d 136; People v. Hamby (1965), 32 Ill.2d 291.) Of the several remaining allegations of constitutional error made by petitioner, only the following concerning the right to effective assistance of counsel, are pleaded with sufficient clarity to permit review:\n\u201c4. Petitioner\u2019s court-appointed lawyer did not afford him effective assistance of counsel which is in violation of the Sixth (6th) and Fourteenth (14th) Amendments to the Constitution of the United States and Illinois Constitution, Article II, paragraphs nine (9) and two (2) as pointed out.\na. ) Counsel was changed without petitioner\u2019s permission by the court.\nb. ) Court-appointed counsel had been original prosecutor of this case.\nc. ) Court-appointed counsel refused to subpoena essential defense witness or obtain continuance until recovery of \u2018sick\u2019 witness.\nd. ) Counsel lied when he answered \u2018ready,\u2019 or said he was ready for trial \u2014 knowing he was lying \u2014 that he was not prepared to defend petitioner, had not subpoenaed defense witnesses.\u201d Petitioner\u2019s subparagraphs 4c and 4d are inadequate.\nIt is not sufficient to merely allege the existence of an \u201cessential defense witness,\u201d without identifying him and providing an adequate description of his testimony upon which a judicial determination of its importance may be predicated. As we have heretofore said:\n\u201cWe believe that it was incumbent upon petitioner in his petition or accompanying affidavits to identify with reasonable certainty the source from which the alleged evidence *** would be forthcoming, that it was available, and of what it would consist, for this is the purpose of the statutory requirement that affidavits, records or other materials supporting the allegations of the petition accompany it, or their absence be explained.\u201d People v. Ashley (1966), 34 Ill.2d 402, 411.\nHere petitioner has advanced an unsupported conclusion of error without a substantial showing of facts necessary to obtain an evidentiary hearing. E.g., People v. Williams (1972), 52 Ill.2d 466.\nSubparagraph 4b alleges that counsel for petitioner had been the \u201coriginal prosecutor of this case.\u201d During oral argument of this appeal, counsel further refined this assertion to a more limited one: that petitioner\u2019s trial and appellate counsel had served as head of the criminal division of the Cook County State\u2019s Attorney\u2019s office while this case was being prepared. No further facts concerning counsel\u2019s involvement, if any, in this particular prosecution were alleged either in the post-conviction petition or during argument. Moreover, no suggestion is offered as to how any acts or omissions of counsel in this case might have produced any other result. We do not believe the premise urged by defendant \u2014 that a disqualifying conflict of interest requiring reversal exists whenever a former assistant prosecutor, employed as such at the time of defendant\u2019s indictment, subsequently is appointed defense counsel \u2014 is either necessary or desirable. We perceive no inherent prejudice to defendant in that factual setting, and, conceivably, some advantage could inure to defendant, although it is neither claimed nor established here that defense counsel, while assistant State\u2019s Attorney, had any actual knowledge of defendant\u2019s case. Under these circumstances, we believe that petitioner\u2019s general allegation of constitutionally defective representation is insufficient to require an evidentiary hearing.\nAccordingly, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nMR. JUSTICE SCHAEFER took no part in the consideration or decision of this case.", "type": "majority", "author": "MR. CHIEF JUSTICE UNDERWOOD" } ], "attorneys": [ "RODNEY D. JOSLIN, of Chicago (JENNER & BLOCK, of counsel), for appellant.", "WILLIAM J. SCOTT, Attorney General, of Springfield, and BERNARD CAREY, State\u2019s Attorney, of Chicago (JAMES B. ZAGEL, Assistant Attorney General, and KENNETH L. GILLIS and PATRICIA C. BOBB, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 44753.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GEORGE NEWBERRY, Appellant.\nOpinion filed September 25, 1973.\nSCHAEFER, J., took no part.\nRODNEY D. JOSLIN, of Chicago (JENNER & BLOCK, of counsel), for appellant.\nWILLIAM J. SCOTT, Attorney General, of Springfield, and BERNARD CAREY, State\u2019s Attorney, of Chicago (JAMES B. ZAGEL, Assistant Attorney General, and KENNETH L. GILLIS and PATRICIA C. BOBB, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0074-01", "first_page_order": 104, "last_page_order": 107 }