{ "id": 5414370, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LYMAN A. MOORE, Appellant", "name_abbreviation": "People v. Moore", "decision_date": "1975-01-30", "docket_number": "No. 46644", "first_page": "379", "last_page": "389", "citations": [ { "type": "official", "cite": "60 Ill. 2d 379" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "46 Ill.2d 589", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899359 ], "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0589-01" ] }, { "cite": "49 Ill.2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911139 ], "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0228-01" ] }, { "cite": "52 Ill.2d 400", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395036 ], "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0400-01" ] }, { "cite": "55 Ill.2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2939834 ], "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0074-01" ] }, { "cite": "56 Ill.2d 476", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404599 ], "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0476-01" ] }, { "cite": "408 U.S. 786", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782921 ], "weight": 15, "pin_cites": [ { "page": "795-96" }, { "page": "713-14" }, { "page": "797" }, { "page": "714" }, { "page": "804" }, { "page": "719" }, { "page": "798" }, { "page": "715" }, { "page": "805" }, { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/us/408/0786-01" ] }, { "cite": "42 Ill.2d 73", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2850043 ], "weight": 3, "pin_cites": [ { "page": "80-81" }, { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0073-01" ] }, { "cite": "408 U.S. 786", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782921 ], "weight": 3, "pin_cites": [ { "page": "789" }, { "page": "710" } ], "opinion_index": 1, "case_paths": [ "/us/408/0786-01" ] } ], "analysis": { "cardinality": 779, "char_count": 19133, "ocr_confidence": 0.876, "pagerank": { "raw": 2.1312336272127027e-07, "percentile": 0.7659062362323055 }, "sha256": "eb8eafa57eb04ef3da434ca257132a23ba8deccf1eb344c3fc24d37de58273a9", "simhash": "1:f2dd2f753728ab7d", "word_count": 3182 }, "last_updated": "2023-07-14T21:03:54.846971+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LYMAN A. MOORE, Appellant." ], "opinions": [ { "text": "MR. JUSTICE KLUCZYNSKI\ndelivered the opinion of the court:\nAfter an evidentiary hearing in the circuit court of Cook County, \u201cpost-conviction\u201d relief was denied to defendant, Lyman Moore. We permitted a direct appeal to this court (50 Ill.2d R. 302(b)) in which defendant contends that the evidence adduced establishes that he was denied due process of law at his jury trial.\nIn 1964 the defendant was convicted of the murder of a Lansing, Illinois, tavern owner, Bernie Zitek. He was sentenced to death. Defendant\u2019s direct appeal to this court was consolidated with an appeal from a judgment denying post-conviction relief. This court affirmed his conviction and sentence with one justice dissenting. (People v. Moore, 42 Ill.2d 73.) On certiorari the United States Supreme Court, in a 5-to-4 decision, affirmed the conviction but reversed the death sentence. (Moore v. Illinois, 408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct. 2562.) After the cause had been remanded to the circuit court for resentencing, counsel for defendant presented a \u201cPetition\u201d seeking a new trial. It was specifically based on an alleged constitutional violation that the State had failed to disclose to defendant\u2019s trial counsel a statement signed by Virgle Sanders for use during his cross-examination. Defendant maintained that had this disclosure been made he would have been able to establish that Sanders had mistakenly identified him as the man known as \u201cSlick\u201d who had admitted the killing of Zitek to Sanders.\nThe trial court summarily denied the \u201cPetition,\u201d and defendant unsuccessfully sought leave to file an original action for writ of mandamus in this court. (50 Ill.2d R. 381.) However, in the exercise of this court\u2019s supervisory authority and in view of the extraordinary circumstances of the case, we directed that defendant\u2019s \u201cPetition\u201d be treated as a post-conviction petition, that the State file an answer thereto and that an evidentiary hearing be conducted. Following the evidentiary hearing, the trial court sustained the State\u2019s motion to dismiss and this appeal followed. Defendant is presently serving a sentence of 60 to 100 years in the penitentiary for the Zitek murder.\nThe background facts to this appeal are extensively reported in the opinions of this court and the United States Supreme Court and will be set forth only to the extent necessary for consideration of the issue raised. At the trial Sanders testified that on April 27, 1962, two days after the shooting, he was sitting in the Ponderosa Tap with a man he knew as \u201cSlick\u201d and whom he identified as defendant. This man told Sanders that he had shot a bartender in Lansing. On cross-examination Sanders admitted he told a relative that he did not know anything about the murder when she suggested he contact the police, and he told her that he \u201cdidn\u2019t want nothing to do with it.\u201d\nIn the first post-conviction petition, defendant claimed that Sanders\u2019 testimony was the most damaging evidence against him and that it was perjured. Moreover, he maintained that on April 30, 1962, Sanders had given a written statement to police indicating that he had met \u201cSlick\u201d about six months prior thereto. Defendant asserted that Sanders could not have met him at the latter time for he was not released from Federal custody until March 1962.\nSanders testified at the evidentiary hearing conducted in regard to the first post-conviction petition, and he reiterated his reluctance to become involved in the case as he described the circumstances at the time the police first talked to him about the matter. Apparently, the police had contacted him when it was learned that he was a frequent patron of the Ponderosa Tap where Zitek\u2019s killer and another may have gone after the murder.\nDuring this proceeding Sanders substantiated defendant\u2019s charge that he had signed the statement on April 30, 1962, indicating he had previously met \u201cSlick.\u201d He also testified that he had first become acquainted with \u201cSlick\u201d in a local tavern before Christmas, 1961, when \u201cSlick\u201d was involved in an altercation with another patron, William Thompson. Sanders claimed that no one ever mentioned that defendant had been incarcerated in 1957 and had not been released until March 1962, although the authorities were aware of this fact. Defense counsel then asked Sanders:\n\u201cQ. And did you tell me and also later on, did you tell the policeman from the State\u2019s Attorney\u2019s office that if you had known that this fellow, Lyman Moore, was in the Federal penitentiary until March 4, 1962, you would definitely not have identified him as being Slick that you knew?\nA. If he\u2019s in jail, it would have been impossible to be the same man.\u201d\nThis court rejected defendant\u2019s contention that Sanders\u2019 testimony was perjured, and we observed that any discrepancy merely indicated testimonial inconsistency. We further held that defendant had failed to establish that the State suppressed material evidence favorable to defendant which he had requested. 42 Ill.2d 73, 80-81.\nThe majority of the United States Supreme Court, in reviewing the aforesaid colloquy observed: \u201cUnquestionably, as the State now concedes, Sanders was in error when he indicated to the police that he met Moore at Wanda and Del\u2019s [tavern] about six months prior to April 30, 1962. Moore\u2019s incarceration at Leavenworth until March shows that conclusion to have been an instance of mistaken identity. But the mistake was as to the identification of Moore as \u2018Slick,\u2019 not as to the presence of Moore at the Ponderosa Tap on April 27. \u2018Sanders\u2019 testimony to the effect that it was Moore he spoke with at the Ponderosa Tap in itself is not significantly, if at all, impeached. ***\u2019 \u201d (408 U.S. 786, 795-96, 33 L. Ed. 2d 706, 713-14.) And, after consideration of the other positive identifications of defendant as the killer and the one in the Ponderosa Tap, the majority concluded \u201cin the light of all the evidence, that Sanders\u2019 misidentification of Moore as Slick was not material to the issue of guilt.\u201d (408 U.S. 786, 797, 33 L. Ed. 2d 706, 714.) The four dissenting justices of the United States Supreme Court construed Sanders\u2019 testimony as indicating that it would have been impossible for Moore to have been the man who spoke to him at the Ponderosa Tap (408 U.S. 786, 804, 33 L. Ed. 2d 706, 719) and that such evidence was material to the defense (408 U.S. 786, 807 n.4, 33 L. Ed. 2d 706, 720 n.4).\nSubsequent to that court\u2019s opinion, defense counsel contacted Sanders and obtained his statement, which was appended to the \u201cPetition.\u201d During the recordation of this statement, defense counsel explained to Sanders the interpretations given to his prior testimony by the United States Supreme Court. Sanders concluded that the majority construction was wrong, that the man in the Ponderosa Tap was \u201cSlick,\u201d not the defendant, that he had met \u201cSlick\u201d at Wanda and Del\u2019s tavern and that \u201cSlick\u201d and William Thompson had almost fought in that bar. Sanders also said he was 6 feet 1 inch in height and \u201cSlick\u201d was about the same height or possibly an inch less.\nAt the evidentiary hearing conducted in March, 1974, in accordance with our directive, Sanders testified he had not previously seen defendant standing, that defendant was too short to be \u201cSlick,\u201d and that it was \u201cSlick\u201d who talked about the killing in the Ponderosa Tap. After standing near defendant, Sanders further testified that \u201cSlick\u201d was at least 6 feet in height and defendant was 3 or 4 inches shorter. On cross-examination this witness said that the name \u201cSlick\u201d was commonplace in bars when an individual\u2019s name was unknown and that he called many men by that name.\nIn arguing that he was denied due process of law, defendant alludes to the interpretation given to Sanders\u2019 testimony at the first post-conviction hearing by the majority of the United States Supreme Court and its conclusion that such testimony was not material to the issue of guilt. He argues that the majority interpretation has now been refuted by Sanders\u2019 subsequent statements. Defendant maintains it is now established that Moore was not \u201cSlick\u201d and that it was the latter who confessed the killing to Sanders. Thus he contends that this evidence was material to the issue of guilt, that Sanders\u2019 repudiation of the trial' identification requires reversal of his conviction and, we assume, that the cause be remanded for a new trial.\nIt is axiomatic that in post-conviction proceedings a defendant bears the burden of establishing a substantial constitutional deprivation. (People v. Madison, 56 Ill.2d 476, 490; People v. Newberry, 55 Ill.2d 74, 75.) While challenges as to the sufficiency and competency of the evidence are not properly cognizable in such proceedings (People v. Dunn, 52 Ill.2d 400, 402; People v. Southwood, 49 Ill.2d 228, 229; People v. Vail, 46 Ill.2d 589, 591), due to the extraordinary circumstances of this case we have again reviewed the record.\nSanders specifically stated in his trial testimony that a person in the Ponderosa Tap told him that he shot a bartender in Lansing and that person was the defendant. While Sanders was unable to recall the precise substance of the conversation at the two post-conviction hearings, he has, nearly a decade after the trial and after repeated reluctance to become involved in this case, unequivocally disavowed his trial identification of defendant as the one who made this incriminating admission at the Ponderosa Tap. However, he has reaffirmed his belief that he met \u201cSlick\u201d in Wanda and Del\u2019s tavern when an altercation developed with William Thompson.\nIn summarizing the evidence the majority of the United States Supreme Court stated \u201cbut nothing served to destroy the two-witness identification [Hill and Powell] of Moore as Zitek\u2019s assailant, the three-witness identification [Sanders, Joyce and Fair] of Moore as present at the Ponderosa Tap, the two-witness identification [Joyce and Fair] of Moore as one of the men who requested and obtained a ride from the Ponderosa in Dolton to Harvey, Illinois, and Fair\u2019s testimony as to the admission made on that ride.\u201d (408 U.S. 786, 798, 33 L. Ed. 2d 706, 715.) The only factor that has now changed from this recapitulation is Sanders\u2019 identification of Moore as the person at the Ponderosa Tap.\nThe positive identification of the waitress, Patricia Hill, who observed defendant not only prior to the shooting but also from a distance of 6 feet under good lighting conditions at the time of the murder, remains unchallenged. Henley Powell, who also saw the shooting, identified Moore, and this court as well as the United States Supreme Court found that there was nothing to indicate that his testimony was false.\nIn regard to the incident in the Ponderosa Tap, the record, as presently constituted, does not diminish defendant\u2019s identification by Joyce, the Ponderosa bartender. Nor has the testimony of Fair, the owner of the Ponderosa Tap, been challenged. The four dissenting justices of the United States Supreme Court sought to lessen the credibility of Fair\u2019s identification of Moore by noting that he had been drinking the entire afternoon. However, examination of Fair\u2019s testimony indicates that he had only two drinks that afternoon and both of these were consumed with defendant and his companion \u201cBarbee\u201d during stops at two taverns on their way to Harvey, Illinois. It is to be further gathered from Fair\u2019s testimony that he was with defendant in these establishments for nearly one hour and that during their ride, at which time another admission was made, defendant sat next to Fair in the latter\u2019s car.\nIn relation to Sanders\u2019 credibility, it is of significance that Sanders maintained that he was able to recall when he met \u201cSlick\u201d because \u201cSlick\u201d had been involved in an altercation with one William Thompson at Wanda and Del\u2019s tavern. At the first post-conviction hearing, Thompson and the operator of Wanda and Del\u2019s tavern, Delbert Jones, corroborated the fact that this altercation had ensued and that the person known as \u201cSlick,\u201d who was involved in the fracas, was actually James Watts. The dissenting justices of the United States Supreme Court twice observed that Watts and defendant looked very much alike and \u201cSanders\u2019 testimony at the post-conviction hearing indicates that it was Watts who bragged about the murder not [defendant].\u201d (408 U.S. 786, 805, 33 L. Ed. 2d 706, 719.) The dissenting justice of this court reached the same conclusion in our prior opinion. 42 Ill.2d 73, 88.\nExamination of a police photographic exhibit showing \u201cSlick\u201d Watts was denied admission by the trial court at the first post-conviction proceeding. Defendant\u2019s motion to supplement the record by including said picture was granted by this court in defendant\u2019s previous appeal. This photograph indicates that Watts and defendant are each about the same height. If any credence is to be given to Sanders\u2019 subsequent testimony regarding \u201cSlick\u201d as being 6 feet tall, then James Watts must also be eliminated from consideration as the elusive \u201cSlick\u201d who conversed with Sanders in the Ponderosa Tap over 12 years ago because Watts would also.be too short. This would refute Sanders\u2019 consistent position that he had met \u201cSlick\u201d at Wanda and Del\u2019s tavern when \u201cSlick\u201d Watts argued with William Thompson.\nFor this reason we are of the opinion that the pertinent matters contained in Sanders\u2019 statement given to defense counsel after the decision of the United States Supreme Court and his testimony at the second post-conviction hearing lack that quantum of credibility which would permit this court to consider granting relief to defendant. We therefore adhere to the interpretation of the majority of the United States Supreme Court given to Sanders\u2019 testimony at the first post-conviction hearing. And even if we consider the present confusing posture of Sanders\u2019 identification, we find that there is other ample evidence, as previously set forth, which establishes defendant\u2019s guilt beyond a reasonable doubt.\nAccordingly, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nMR. JUSTICE WARD took no part in the consideration or decision of this case.", "type": "majority", "author": "MR. JUSTICE KLUCZYNSKI" }, { "text": "MR. JUSTICE SCHAEFER,\ndissenting:\nThis case now stands on a very different footing than it did in 1972, when the Supreme Court of the United States, in a five to four decision, affirmed the conviction of the defendant for the murder of Bernard Zitek. The primary focus centered then, as it does now, upon the testimony of the witness Sanders that \u201ctwo days after the murder, he was in the Ponderosa Tap and that a customer there, whom Sanders identified as \u2018Slick,\u2019 remarked to Sanders that it was \u2018open season on bartenders\u2019 and that he had shot one in Lansing. At the trial Sanders identified Moore as the man who was in the Ponderosa Tap on April 27.\u201d Moore v. Illinois (1972), 408 U.S. 786, 789, 33 L. Ed. 2d 706, 710, 92 S. Ct. 2562.\nThe ambiguity that existed as to the meaning of Sanders\u2019 testimony at the first post-conviction hearing has now been removed. As the present opinion of this court states, Sanders \u201cunequivocally disavowed his trial identification of defendant as the one who made the incriminating admission.\u201d In other words, it is now clear that it was not, as the jury had been told, the defendant Moore who admitted the murder. Instead, the admission was made by a man known as \u201cSlick,\u201d whom Sanders had first met while the defendant Moore was in the penitentiary at Leavenworth.\nSanders has testified that he had first met the man he knew as \u201cSlick\u201d in Wanda and Dell\u2019s Tavern in the fall of 1961, when \u201cSlick\u201d had an altercation with William Thompson. This testimony is not a recent fabrication. The police had Sanders\u2019 statement to that effect on April 30, 1962, a full six months before Moore was arrested for an unrelated offense, on October 31, 1962. Both Thompson and Delbert Jones, the proprietor of Wanda and Dell\u2019s, have testified that such an altercation occurred, and that the man involved in it was not the defendant Moore, but a man named James Watts, who was known as \u201cSlick.\u201d\nThe failure of the police to disclose that it was not Moore who had confessed to the killing may have been accidental, or it may not. From the outset of the investigation, the police knew of the existence of Sanders and of the admission made to him. They knew also of the existence of the witnesses Joyce and Fair. The defendant Moore appeared in numerous lineups after his arrest, but neither Sanders nor Thompson was taken to any of those lineups. Thompson was not called as a witness at the trial, but the police had shown him a picture of the defendant Moore, and they knew that he had said that Moore was not the man named Slick whom he knew. Sanders did not see the defendant until the trial in May of 1964. For some reason the State resisted efforts, both at the trial and at the post-conviction hearing, to establish that neither Joyce nor Fair saw the defendant from the time of the incident at the Ponderosa Tap until the trial. When Sanders first saw Moore at the trial, he protested that the man he knew was 30 or 40 pounds heavier than Moore. His misgivings were allayed, however, by the police officer\u2019s reply: \u201cWell, you know how jailhouse beans are.\u201d At the trial, Fair was able only to say that the defendant Moore \u201clooks like one of the men\u201d who was in the Ponderosa Tap. A responsible offer to prove that when Joyce first saw the defendant Moore at the trial he said, \u201cHe sure looks different,\u201d was rejected.\nDespite the fact that additional evidence has demonstrated that Sanders\u2019 post-conviction testimony was misunderstood, this court would now sustain the conviction by mounting, sua sponte, an attack on Sanders\u2019 credibility. That attack relates to the height of James E. \u201cSlick\u201d Watts, and it is rebutted by the arrest records of the Chicago Police Department.\nIn this case the State of Illinois knowingly permitted testimony which it knew to be false to remain uncorrected. There is no doubt that it might have affected the outcome of the trial, for it involves attribution to this defendant of a confession that someone else made. It will not do to say that there is no violation of the Constitution because it was not proved that the falsity was known to the prosecutor who tried the case. The actions of police officers are actions of the State of Illinois for all other fourteenth amendment purposes, and there is no reason why a different rule should be applied when life or liberty depends upon the outcome of a trial.", "type": "dissent", "author": "MR. JUSTICE SCHAEFER," } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Matthew J. Beemsterboer and Dale W. Breeder, Assistant Public Defenders, 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, of Chicago, and Patrick T. Driscoll, Jr., and James S. Veldman, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 46644.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LYMAN A. MOORE, Appellant.\nOpinion filed January 30, 1975.\nRehearing denied March 24, 1975.\nWARD, J., took no part.\nSCHAEFER, J., dissenting.\nJames J. Doherty, Public Defender, of Chicago (Matthew J. Beemsterboer and Dale W. Breeder, Assistant Public Defenders, 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, of Chicago, and Patrick T. Driscoll, Jr., and James S. Veldman, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0379-01", "first_page_order": 401, "last_page_order": 411 }