{ "id": 3558756, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOREN E. BANKS II, Defendant-Appellant", "name_abbreviation": "People v. Banks", "decision_date": "1984-01-17", "docket_number": "Nos. 81\u20142727, 82\u20142798 cons.", "first_page": "279", "last_page": "289", "citations": [ { "type": "official", "cite": "121 Ill. App. 3d 279" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "431 N.E.2d 1130", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 679", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5479968 ], "year": 1979, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0679-01" ] }, { "cite": "360 U.S. 264", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9052 ], "weight": 3, "pin_cites": [ { "page": "269" }, { "page": "1221" }, { "page": "1177" } ], "opinion_index": 0, "case_paths": [ "/us/360/0264-01" ] }, { "cite": "283 N.E.2d 685", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391261 ], "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0514-01" ] }, { "cite": "383 N.E.2d 1179", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 342", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3316540 ], "pin_cites": [ { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0342-01" ] }, { "cite": "385 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994719 ], "weight": 2, "pin_cites": [ { "page": "316" }, { "page": "313-14" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0286-01" ] }, { "cite": "382 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 642", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3327231 ], "year": 1978, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0642-01" ] }, { "cite": "394 N.E.2d 1044", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 9", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3279534 ], "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0009-01" ] }, { "cite": "391 N.E.2d 366", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] } ], "analysis": { "cardinality": 1054, "char_count": 27072, "ocr_confidence": 0.756, "pagerank": { "raw": 1.2925746034441512e-07, "percentile": 0.6202954303513448 }, "sha256": "7fac9f9ac6139a990ab37a0a2effffccf09eb8efacc756adc98ff5a102319054", "simhash": "1:07a07d9bfe01ae82", "word_count": 4496 }, "last_updated": "2023-07-14T21:31:09.364868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOREN E. BANKS II, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nLoren E. Banks II (defendant) was indicted on two counts of murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9 \u2014 1(a)(1), 9 \u2014 1(a)(2)) and one count of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A \u2014 2). Prior to trial, the court approved the State\u2019s motion to nolle prosequi the armed-violence count. On October 7, 1981, following a jury trial, defendant was found guilty of the murder of Peter Mazik, Sr. (Mazik). Defendant\u2019s motion for a new trial was denied by the trial court, and on October 29, 1981, defendant was sentenced to serve 25 years with the Illinois Department of Corrections.\nOn November 12, 1981, defendant filed a notice of appeal (case No. 81 \u2014 2727) challenging his conviction. On January 25, 1982, some three months after sentence was imposed on defendant, the supervisor of the Markham felony trial division of the Cook County State\u2019s Attorney\u2019s Office forwarded to defendant\u2019s trial counsel a letter containing a memorandum prepared by George Coston, a Cook County sheriff\u2019s officer, detailing the officer\u2019s recollection of a January 11, 1981, telephone conversation he allegedly had with \u201cMrs. Mazik.\u201d Also enclosed was a memorandum prepared by radio operator Linda Fisher. This information led defendant to contend that his conviction was based, in part, upon the \u201cperjured testimony\u201d of a State\u2019s witness, Linda Mazik, deceased\u2019s wife. Based upon this alleged newly discovered evidence, defendant, on September 14, 1982, filed a \u201cPetition to Vacate Judgment of Conviction\u201d pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1979, ch. 38, par. 122 \u2014 1 et seq.) and section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), now section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1401).\nOn November 10, 1982, a hearing on defendant\u2019s petition was held before the same judge who conducted the trial. After Officer Coston testified and argument was presented, the court denied defendant\u2019s petition. On November 17, 1982, defendant filed a second notice of appeal (case No. 82 \u2014 2798), this time from the trial court\u2019s denial of his post-conviction petition. Upon defendant\u2019s motion in this court, his direct appeal from conviction and his appeal from the denial of his post-conviction petition have been consolidated.\nOn appeal defendant raises a number of issues including (1) whether the trial court erred in excluding certain evidence offered by him at trial; (2) whether the trial court erred in restricting testimony of an expert defense witness; (3) whether the sequestrating of defendant during a lunch break at trial, prior to the completion of his testimony, amounted to a denial of his right to the effective assistance of counsel; (4) whether certain prosecutorial remarks made throughout the trial deprived defendant of a fair trial; (5) whether the State failed to prove defendant guilty beyond a reasonable doubt; and (6) whether the trial court erred in denying defendant\u2019s post-conviction relief. In view of our disposition, for reasons hereinafter set forth, we find it necessary to address only issues 5 and 6.\nWe reverse the trial court\u2019s denial of defendant\u2019s post-conviction petition and remand this cause for a new trial.\nOn January 11, 1981, defendant fatally wounded Peter Mazik, Sr. (Mazik), by shooting him twice in the chest with a .22 derringer. At the beginning of his trial on September 29, 1981, defendant admitted shooting Mazik but claimed that he acted in self-defense. Two guns, the derringer and a .357 magnum, were recovered at the scene at the time of the shooting. Defendant admitted ownership of the derringer but claimed that Mazik carried the .357 magnum.\nThe following events were elicited at trial:\nMazik and Alice Banks (Alice), presently the wife of defendant, were divorced in April 1978 after a 12-year marriage. Three children were born of that marriage: At the time of trial, Brenda was aged 14; Karen, aged 10; and Peter, Jr., aged eight. Pursuant to their divorce decree, Mazik remained in the former marital home in unincorporated Orland Park, Illinois, and retained custody of Peter, Jr. In April 1979 Mazik married Linda. Alice retained custody of Brenda and Karen and resided in Rolling Meadows, Illinois. In May 1980 Alice married defendant. Mazik and Alice were granted reciprocal rights of visitation with their children.\nBecause of the custody and visitation arrangements, Mazik and Alice remained in frequent contact. From August 1979, when Alice first met defendant, to the date of Mazik\u2019s death on January 11, 1981, occasional confrontations erupted between Mazik, Alice and defendant. These disputes were generally caused by disagreement over the custody and treatment of Brenda and Karen, the two daughters of Mazik and Alice. During one such dispute on September 16, 1979, a physical struggle between Mazik (6 feet tall, 185 pounds) and defendant (6 feet tall, 115-120 pounds) occurred. Following this altercation Mazik halted Peter, Jr.\u2019s visits to his mother and began legal proceedings seeking permanent custody of his two daughters.\nOn June 30, 1980, the Rolling Meadows police were called to defendant\u2019s home to break up another dispute between Mazik and defendant. Between 1979 and the day Mazik was fatally wounded, Mazik allegedly made several threatening telephone calls to Alice and defendant.\nThe record indicates that on January 5, 1981, six days before his death, Mazik\u2019s custody petition was dismissed by the circuit court.\nOn January 11, 1981, the night Mazik was killed, Peter, Jr., had been visiting Alice, who at that time was eight months pregnant. Together with Alice\u2019s two daughters and defendant, they attended a family gathering at the home of Alice\u2019s mother. At the conclusion of the evening, Alice\u2019s uncle was expected to accompany Alice to Mazik\u2019s home when she returned Peter, Jr. However, Alice\u2019s uncle was unavailable for this purpose, and defendant accompanied Alice on the drive to Mazik\u2019s home. Defendant admitted to drinking IV2 cans of beer during the drive to Mazik\u2019s home.\nThe testimony regarding the events that transpired upon their arrival at Mazik\u2019s home is unclear and conflicting. Peter, Jr., testified to the following:\nUpon arriving at the Mazik house, Alice exited the car, leaving the motor running. Peter, Jr., exited the back seat and began removing his Christmas presents. Defendant remained seated in the front passenger seat. Linda Mazik, the victim\u2019s wife, had been walking her dog. She approached the car to help carry Peter, Jr.\u2019s presents into the house. Peter, Jr., noticed his father standing on the \u201cdeck\u201d of the house. Peter, Jr., then saw Mazik walking towards the car. He could see Mazik\u2019s hands as Mazik approached but observed nothing in them. When Mazik reached the front passenger side of the car where defendant sat, Mazik opened the door \u201chalfway.\u201d Looking through the front driver\u2019s side window, Peter, Jr., could see only Mazik\u2019s head and the back and arms of defendant. Peter, Jr., denied seeing Mazik reach into the car and grab defendant by his clothing.\nPeter, Jr., stated that after Mazik opened the car door, \u201cLoren [defendant] shot him.\u201d Although unable to see Mazik, Peter, Jr., testified that Mazik was on the ground and \u201cwas starting to get up and then [defendant] shot him again.\u201d After the second shot, defendant ran around the side of the car and \u201ctold us to go *** call an ambulance.\u201d As he came around the car defendant was holding a gun in his left hand (later identified as a .357 magnum). After the shooting, Peter, Jr., went into the house with Linda Mazik.\nLinda Mazik, the victim\u2019s wife, testified to the following:\nOn the night of January 11, 1981, she was walking her dog when defendant, Alice and Peter, Jr., drove into her driveway. She approached the driver\u2019s side of the car to help carry Peter, Jr.\u2019s Christmas presents into the house. As she was helping with the presents, she heard the storm door of the house \u201cslam\u201d and, \u201cout of the comer of her eye,\u201d she saw Mazik come out of the house \u201cpretty fast.\u201d Although it was \u201cvery dark,\u201d the area was illuminated by a driveway spotlight and the headlights of Alice\u2019s car. Linda could see Mazik across the top of the car on the passenger side but stated that she \u201cwasn\u2019t really paying a lot of attention.\u201d Linda next heard a gunshot. She looked over the car but could not see Mazik; she looked through the driver\u2019s side front window and saw defendant \u201cgetting out of the car and [she] heard another shot.\u201d Defendant then came around the car and said: \u201cSomebody call the police.\u201d Linda stated that defendant also said \u201cyou might as well get an ambulance.\u201d Linda and Peter, Jr., went into the house and she telephoned the police.\nDuring cross-examination, Linda was asked to describe the guns normally found in her house. These included a .41 pistol, a silver derringer, a deer rifle and three shotguns. Linda, however, denied that her husband owned a .357 magnum pistol or that such a gun or ammunition for such a gun were ever in her home. She also stated that Mazik had been drinking beer during the day of January 11, 1981, but that she did not know in what amount.\nCook County sheriff\u2019s officer Alan Kulovitz, an evidence technician, testified that he recovered a black holster from the floor of the front passenger side of Alice\u2019s car. The holster was free of moisture although there was snow on the ground near the car. Officer Kulovitz opined that the .357 magnum pistol found at the scene fit the holster. He did not know how the holster came to be on the floor of the car and he could not say whether others handled the holster or the .357 magnum between the time of the shooting and his arrival on the scene. Officer Kulvitz acknowledged that he made no effort to determine the ownership of the .357 magnum or to obtain fingerprints from that gun.\nFollowing this testimony and the placing in evidence of the gun and holster, the State rested. Defendant\u2019s motion for directed verdict was denied.\nAlice Banks testified that she had warned defendant of Mazik\u2019s reputation for violence and that Mazik owned \u201cquite a few guns\u201d and \u201calways carried a gun on his person.\u201d She stated that during her marriage to Mazik he purchased a .357 magnum and kept it under the mattress of their bed. Alice stated further that at no time during the drive to the Mazik house did she see a .357 magnum in the Banks\u2019 automobile.\nIn his own defense, defendant testified to the following:\nHe shot Mazik in self-defense after Mazik \u201creached for a gun\u201d which defendant saw under Mazik\u2019s coat. Defendant identified People\u2019s exhibit No. 1, a .357 magnum, as the gun Mazik carried under his coat at the time of the shooting. Defendant denied ownership of the .357 magnum or that he had brought the gun with him to Mazik\u2019s home.\nWhen defendant, Alice and Peter, Jr., arrived at Mazik\u2019s house on January 11, 1981, defendant remained in the car. He saw Mazik \u201crunning\u201d toward the car and he \u201cfigured he [Mazik] was coming to kill\u201d him. As Mazik approached, defendant placed his derringer \u201cunderneath his right leg.\u201d Mazik then opened the car door and grabbed defendant\u2019s collar with both hands. Mazik started to pull defendant out of the car but defendant struck his head on the interior of the car roof, knocking him back into the seat. At that time defendant saw that in Mazik\u2019s right hand, \u201cin the area of his belt was the butt end of a revolver.\u201d \u201cBelieving\u201d that Mazik intended to kill him, defendant shot Mazik with his derringer and both he and Mazik fell to the ground. They struggled. Defendant \u201cfelt he was losing\u201d the struggle. He saw Mazik\u2019s gun aimed at him and he heard the hammer of the gun \u201cclick back.\u201d Defendant shot Mazik again with his derringer.\nFollowing the second shot, defendant stood up holding the .357 magnum in his left hand and told Linda to call for an ambulance and police. He then followed Alice to a neighbor\u2019s house where Alice called an attorney. Defendant waited for police to arrive and was immediately arrested.\nFollowing this testimony, closing arguments were presented, the jury was instructed and retired to deliberate. Defendant asserts that the jury deliberated more than nine hours. Twice during that time the jury notified the court that it was unable to reach a verdict. However, the jury continued to deliberate and finally returned a verdict finding defendant guilty of murder. On October 21, 1981, defendant moved for a new trial which the trial court denied on October 29, 1981. Defendant was sentenced to serve 25 years with the Illinois Department of Corrections.\nAlmost three months after defendant filed his notice of appeal on November 12, 1981, his trial attorney received the January 25, 1982, letter from the State\u2019s Attorney\u2019s office enclosing a memorandum that had been prepared by Officer George Coston at the request of the internal affairs department of the office of the Cook County sheriff. The memorandum summarized Officer Coston\u2019s recollection of a January 11, 1981, telephone conversation which he allegedly had with \u201cMrs. Mazik.\u201d A second memo prepared by radio officer Fisher corroborated Coston\u2019s receipt of the telephone call and the fact that Cos-ton mentioned a .357. A copy of the State\u2019s Attorney\u2019s letter was not forwarded by trial counsel to defendant\u2019s appellate counsel until July 14, 1982.\nOn September 14, 1982, defendant filed a \u201cPetition to Vacate Judgment of Conviction.\u201d At a November 10, 1982, hearing on defendant\u2019s petition, Officer Coston testified to the following:\nOn November 12, 1981, after he had read a newspaper account of defendant\u2019s conviction and sentence, he prepared a \u201cmemorandum report\u201d addressed to Major Lowthorp summarizing his recollection of a telephone conversation he had on January 11, 1981, while he was at work in the communications room of the Cook County sheriff\u2019s office in Maywood.\nAt 9:18 p.m. that evening he received a telephone call from a woman who identified herself as \u201cMrs. Mazik.\u201d\n\u201cMrs. Mazik told me that her husband was outside. She believed he had been shot, and he \u2014 I asked her exactly what happened and she stated that, what I believed at the time to be . her ex-husband and her present husband, that they had some sort of argument out there, and what I believe to be the ex-husband shot her present husband at least twice.\nI immediately dispatched a squad car to the scene and also transmitted on the ISPEEN directly to the Orland Park unit in the area close to Orland Park Town.\u201d\nOfficer Coston stated that he \u201cinsisted\u201d that the caller remain on the telephone and he questioned her further about the incident. He asked her if there were any guns involved and \u201cif her husband had a gun.\u201d The woman responded she \u201cbelieved he did.\u201d In response to his question as to the kind of gun, \u201cshe said a revolver. A magnum, I think. I think a .357 is what she said.\u201d Officer Coston then asked \u201cMrs. Mazik\u201d if she knew where her husband kept \u201cthis gun.\u201d He asked her to see if the gun was in place. At the November 10, 1982, hearing the following colloquy took place between defendant\u2019s counsel and Officer Coston:\n\u201cQ. Did she then leave the phone for a period of time?\nA. No, it sounded to me at the time that she was hanging onto the phone. I heard some background noises, and she came almost immediately back to the phone, back on the line, and told me that the gun was not there. I asked her \u2014 Well, if there were any other weapons in the house, any guns. She said there were a number of guns, or something to that effect. That there were more weapons in the house.\u201d\nOfficer Coston then by radio informed the officers en route to the Mazik house that \u201cboth subjects [were] possibly armed.\u201d\nOfficer Coston acknowledged that he made no report at the time of his conversation with \u201cMrs. Mazik.\u201d Tape recordings of calls coming into the communications room are preserved for only three months.\nOn cross-examination, Officer Coston admitted that he could not at the time of the hearing recognize Mrs. Mazik\u2019s voice and that he had never heard her voice before January 11, 1981. He stated that although he may have erred \u201con some points\u201d in recalling the conversation, he \u201cbelieve[d] that generally [his] recall is fairly good about it.\u201d\nPredicated on Officer Coston\u2019s testimony, defendant contended that because at trial Linda Mazik denied ever having seen a .357 magnum in her house, her testimony was \u201cperjured.\u201d Defendant argued that the State in its closing argument at trial had acknowledged that \u201cthe key to the case\u201d was the .357 magnum which the prosecutor asserted was brought to the scene by defendant as a \u201cbackup weapon.\u201d Defendant also noted that the trial judge, in denying defendant\u2019s post-trial motion on October 21, 1981, had stated that \u201cthe jury discounted that theory [self-defense] *** or they would not have found him guilty of murder.\u201d\nFollowing argument, the trial court on November 10, 1982, denied defendant\u2019s petition to vacate the judgment stating:\n\u201c*** with any diligence at all the defense counsel who tried this case initially could have discovered this information and it could have been produced at trial.\n* * *\nThere has been no showing here that the testimony produced at the trial was, in fact, perjured. There hasn\u2019t been anything other than \u2014 no other testimony produced at this hearing to justify or to satisfy the requirement of setting this judgment aside.\u201d\nOn November 17, 1982, defendant filed a notice of appeal from the trial court\u2019s November 10, 1982, order denying his post-conviction relief. The direct appeal of defendant\u2019s conviction and his post-conviction appeal have been consolidated.\nI\nFor the reasons hereinafter set forth, we propose to reverse and to remand this cause for a new trial. To forestall any risk of subjecting defendant to double jeopardy, as suggested by our supreme court in People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366, we address defendant\u2019s contention that the evidence at trial was insufficient to support the jury\u2019s verdict.\nThe evidence in the case at bar is in our opinion conflicting and not overwhelming. It is well established in Illinois that where testimony is conflicting, the resolution of such conflict is for the jury as the trier of fact. (People v. Smylie (1981), 103 Ill. App. 3d 679, 690, 431 N.E.2d 1130.) The jury may accept all, part or none of the evidence presented at trial, and its determination should not be disturbed upon review unless it is so contrary to the evidence as to raise a reasonable doubt of defendant\u2019s guilt. People v. Seiber (1979), 76 Ill. App. 3d 9, 13, 394 N.E.2d 1044.\nIn finding defendant guilty of murder, based on the conflicting evidence submitted to it, the jury in this case obviously rejected defendant\u2019s account of the events of January 11, 1981. It is apparent that the jury did not accept defendant\u2019s testimony that Mazik possessed the .357 magnum and that defendant acted in self-defense.\nOur review of the record persuades our conclusion that, if believed by the jury, the evidence received by the jury at trial was sufficient to support its verdict.\nII\nWe find more difficult, however, acceptance of the trial court\u2019s rationale in denying defendant\u2019s post-judgment petition predicated, in part, upon section 72. Defendant\u2019s petition contended that the evidence discovered several months after defendant was convicted and sentenced, viz., the memorandum of Officer Coston and his testimony, indicated that defendant\u2019s conviction was possibly based upon the \u201cperjured testimony\u201d at trial offered by Linda Mazik.\nIt is well established that \u201c[sjection 72 affords a remedy to obtain relief, where warranted, from a judgment based on perjured testimony.\u201d (People v. Hilliard (1978), 65 Ill. App. 3d 642, 645, 382 N.E.2d 441; People v. Berland (1978), 74 Ill. 2d 286, 316, 385 N.E.2d 649.) \u201cA section 72 proceeding is the forum in which \u2018to correct all errors of fact occurring in the prosecution of a cause, unknown to the petitioner and court at the time of trial, which, if then known, would have prevented the judgment.\u2019 \u201d (People v. Berland (1978), 74 Ill. 2d 286, 313-14.) In order for defendant to avail himself of section 72 relief, \u201che must not only show adequate grounds for relief exist, but also that, through no fault or neglect of his own, the error of fact *** was not made to appear at the trial.\u201d People v. Stewart (1978), 66 Ill. App. 3d 342, 347, 383 N.E.2d 1179.\nThus, defendant\u2019s petition in the instant case raises two questions: whether the information received by defendant from the State\u2019s Attorney\u2019s office provided him with \u201cadequate grounds for relief\u201d and whether such information could have been \u201cmade to appear at trial\u201d by defendant.\nOn October 7, 1981, defendant was found guilty of the murder of Peter Mazik, Sr. On October 29, 1981, he was sentenced to 25 years imprisonment. On October 30, 1981, the article which allegedly stirred Officer Coston\u2019s belated recollection of the January 11, 1981, telephone conversation with \u201cMrs. Mazik\u201d appeared in the \u201cDaily Southwest Suburban Economist\u201d newspaper. On November 12, 1981, Officer Coston prepared a memorandum for the internal affairs division of the Cook County sheriff\u2019s department detailing his recollection of the January 11,1981, telephone conversation with \u201cMrs. Mazik.\u201d\nOn January 25, 1982, the supervisor of the Markham felony trial division of the Cook County State\u2019s Attorney\u2019s office forwarded to defendant\u2019s trial counsel a letter enclosing a copy of Officer Coston\u2019s memorandum. The supervisor\u2019s letter stated that \u201c[t]he information contained in the memo was not known until after the sentencing of Mr. Banks.\u201d Some six months later this information was forwarded by defendant\u2019s trial counsel to his court appointed appellate counsel, and on September 14, 1982, defendant\u2019s section 72 post-conviction hearing petition was filed.\nFollowing Officer Coston\u2019s testimony and counsels\u2019 argument at the November 10, 1982, post-conviction hearing, the trial court denied defendant\u2019s petition. The court concluded that \u201cwith any diligence\u201d defendant\u2019s initial trial counsel could have \u201cdiscovered this information and it could have been produced at trial.\u201d\nOur review of this record does not compel agreement with the trial court\u2019s conclusion that defendant\u2019s trial counsel lacked diligence in this matter. In his January 25, 1982, letter to defendant\u2019s counsel, the assistant State\u2019s Attorney acknowledged that \u201cthe information contained in the memos was not known until after the sentencing of Mr. Banks.\u201d In view of the fact that defense counsel was not privy to the operation of the internal affairs division of the Cook County sheriff\u2019s department and had no way of knowing that an Officer Coston existed and possessed knowledge pertinent to this case, there is assuredly no reason to believe that even the most diligent defense counsel could have unilaterally uncovered this information prior to trial.\nGenerally, the determination of a trial judge in post-conviction proceedings will, in the absence of manifest error, be upheld. (People v. Bracey (1972), 51 Ill. 2d 514, 517, 283 N.E.2d 685.) Where, however, such error is suggested by the record, a court of review should not and will not hesitate to set aside the determination of the trial court.\nAt trial in this case, the ownership of the .357 magnum revolver was key to defendant\u2019s claim of self-defense. This was acknowledged by the prosecution during trial and by the trial court during the post-trial hearing. Defendant testified that Mazik reached under his coat for a gun, identified as the .357, allegedly causing defendant to act in claimed self-defense. Linda Mazik, however, denied that her husband owned such a gun. She testified that she had never seen that gun until the night of Mazik\u2019s death. Defendant\u2019s wife, Alice, the victim\u2019s former wife, testified that while she was married to Mazik he had purchased a .357 and kept it under the mattress of their bed.\nOfficer Coston\u2019s testimony, if available at trial and heard by the jury could conceivably, if believed by the jury, have supported defendant\u2019s argument and weighed heavily against Linda Mazik\u2019s credibility. Her denial that Mazik owned a .357 magnum, and Peter, Jr.\u2019s testimony that he did not observe anything in Mazik\u2019s hands the night Mazik was killed, is all that controverts defendant\u2019s claim that Mazik had a gun under his coat and Alice\u2019s testimony that Mazik had in fact owned such a gun. Although undoubtedly each party who testified at defendant\u2019s trial had a personal interest in the outcome of the proceedings, it is apparent that Officer Coston would have had no such personal interest. \u201cThe jury\u2019s 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 in testifying falsely that a defendant\u2019s life or liberty may depend.\u201d Napue v. Illinois (1959), 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221, 79 S. Ct. 1173,1177.\nA careful review of both the trial record and the post-conviction hearing record leads us to conclude that Officer Coston\u2019s memorandum and the evidence presented at the November 10, 1982, hearing was sufficient to raise reasonable doubt of the veracity and accuracy of Linda Mazik\u2019s trial testimony as contrasted with that of defendant. Because it is not, in our opinion, possible with certainty to speculate on the effect which Officer Coston\u2019s memorandum and testimony could have had on the trial jury\u2019s deliberations in this case, we believe the ends of justice would be better served by remandment of this cause for a new trial.\nFor the reasons herein stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nHARTMAN, P.J., and DOWNING, J., concur.\nGenerally, a friend or relative would accompany Alice to Mazik\u2019s home which was about an hour\u2019s drive from her home. Defendant seldom accompanied Alice on these drives because he feared a confrontation with Mazik. On one occasion when defendant did accompany Alice a van, similar to one owned by Mazik and allegedly bearing Mazik\u2019s license plate number, appeared to defendant and Alice to be chasing them and attempting to run them off the road.\nThe record does not indicate whether the jury was further instructed by the court. The record reflects only that the jury continued deliberations until it reached a verdict.", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "Steven Clark, of State Appellate Defender\u2019s Office, of Chicago, and Carl P. Clavelli, Sherman C. Magidson, and Mary Rosiek, all of Chicago, pro bono, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Jane E. Liechty, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOREN E. BANKS II, Defendant-Appellant.\nFirst District (2nd Division)\nNos. 81\u20142727, 82\u20142798 cons.\nOpinion filed January 17, 1984.\nRehearing denied February 15, 1984.\nSteven Clark, of State Appellate Defender\u2019s Office, of Chicago, and Carl P. Clavelli, Sherman C. Magidson, and Mary Rosiek, all of Chicago, pro bono, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Jane E. Liechty, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0279-01", "first_page_order": 301, "last_page_order": 311 }