dissenting:
The gravamen of the defendant’s petition for post-conviction relief lies in two pretrial statements of Buddy Williams, the State’s key witness who testified against the defendant. A careful reading of these two statements reveals that Williams was an accomplice in the murder of Elgin Evans and had a motive or bias for testifying against the defendant. Williams’ motive was an expectation of favorable treatment in exchange for his testimony against the defendant in the prosecution of the Evans murder. The failure to disclose to the jury Williams’ bias and motive to testify falsely violated fundamental principles of due process.
The primary issue in the case at bar is whether the defendant’s due process rights were violated. The appellate court, in the appeal of the conviction of the codefendant, Marion Holmes, held that Holmes was entitled to a new trial because the failure to disclose Williams’ expectation of leniency, under the facts of this case, denied Holmes a fair trial. (People v. Holmes (1992), 238 Ill. App. 3d 480.) The majority of this court relies upon principles of collateral estoppel to deny the defendant a new trial, the same relief that Holmes received from the appellate court under the same facts. However, reliance on collateral estoppel principles does not consider the defendant’s due process rights. The collateral estoppel issue is a secondary issue relevant only to whether the State is estopped from contesting issues decided by the appellate court in Holmes. Because the primary issue before us is whether the defendant’s due process rights were violated, the majority’s analysis of estoppel principles fails to dispose of the central issue in this case. An examination of the facts of this case and an application of the holdings in People v. Jimerson (1995), 166 Ill. 2d 211, and People v. Holmes reveals that the defendant’s due process rights were violated.
At the defendant’s trial, Williams testified that on the day of the murder, he was at the home of Marion Holmes, and that the defendant drove there with Evans in his car. The defendant allegedly went into the house and then came out with Holmes. Williams testified that Holmes and the defendant then told him, Williams, that the four were going to "take a ride” in the defendant’s car, and that Holmes directed Williams where to drive. When the four arrived at a location in Chicago Heights, Holmes told Williams that "we don’t need you for this.” Then the defendant, Evans and Holmes went to the trunk of the car. Williams testified that in the rearview mirror he saw the defendant pull out a small pistol and shoot Evans in the head and that he heard a second gunshot as he saw the defendant bend over Evans.
Williams also testified that he was not aware beforehand that Evans’ life was in danger, and that he believed the purpose of the drive was to find a place to dispose of stolen auto parts. Williams stated that in exchange for his testimony in the trials of the defendant and Holmes, the State agreed to recommend a six-year prison sentence for his part in an unrelated armed robbery charge and relocate Williams’ family. Williams testified that the State made no promise of leniency to him with respect to his testimony in the prosecution of the Evans murder.
In separate trials, defendant and Holmes were convicted by juries of the murder of Evans. The convictions were based primarily on the testimony of Williams, the State’s sole eyewitness to the murder. The jury further found no mitigating factors sufficient to preclude imposition of the death penalty, and sentenced the defendant to death.
Williams testified at the defendant’s trial and at the Holmes trial. In addition, Williams gave a statement to authorities in Will County which reveals that Williams testified falsely at trial as to his role in the Evans murder, and that he was inaccurately portrayed at trial as an innocent bystander to the murder, with no fear of prosecution. Additionally, at the March 9, 1982, preliminary hearing on the murder charges against both defendant and codefendant, Williams’ testimony reveals that Williams expected leniency in the Evans murder in exchange for his testimony against the defendant and Holmes. His expectation was never revealed to either jury.
Williams testified to the following during the March 9, 1982, preliminary hearing when counsel for Holmes asked Williams if he had been promised or expected anything in return for his testimony against the defendant and Holmes:
"A. [Williams:] I don’t know how to answer that. When you say expectation, are you talking about what I hope, or what I have been promised?
Q. [Defense counsel:] What you hope?
A. Yes. I Do.
Q. And you have discussed that with law enforcement agencies, at least as to what your expectations are, have you not?
A. Yes.
Q. Would you tell his honor what some of those expectations are?
A. I hope that I would be, my part in this particular crime would be considered for the part that it was.
Q. And that is to say you were an innocent bystander to an uncertain event?
A. Yes.” (Emphasis added.)
Williams also testified at the preliminary hearing that the police had threatened to charge him with the murder of Evans.
Subsequent to his testifying at the preliminary hearing, Williams gave a statement to authorities in Will County in September 1992 which indicated that he was not an innocent bystander but, rather, was an accomplice in the murder of Evans. In that statement, Williams related:
"Eddie’s lounge had been robbed. They found out who had set it up, his name was Elgin [Evans], [Holmes] was known to be a hit man for Eddie and just a killer anyway. He had, he was the bouncer of the lounge at one time, he shot someone in the lounge, and, uh, it’s just known in the Heights that Holmes was dangerous. So when we started asking for [Evans], people would say, 'Marion, we don’t know where [Evans] is.’ But [Evans has] got problems, Eddie got a hit on him 'cuz [Eddie] knew [Evans] robbed his place. *** [Holmes] took the hit from Eddie. *** So, we went in a couple places, and no one knew me from the Heights and I would ask for [Evans] and people had the plague about that; they knew what was happening. So, maybe three or four days passed by *** when Franklin pulls up in his car with someone in there. He tells us, I got [Evans] in the car.
* * *
And I, Holmes had stipulated that he was supposed to whoop his ass or break his nose or something. So we got in [the defendant’s] car and I drove; we went to Chicago Heights.
* * *
Yes, it was actually supposed to have been Holmes’ contract *** because Eddie paid [Holmes] x number of dollars and [Holmes] gave [the defendant] some cocaine ***.”
In the appeal of the Holmes conviction, the appellate court concluded that "the evidence overwhelmingly shows (in fact the State concedes) that Williams performed acts before, during and after the commission of the murder of Evans that support his accountability” for the murder. (Holmes, 238 Ill. App. 3d at 489.) The State possessed evidence to support probable cause to reindict Williams for the murder of Evans on an accountability theory based on his statements, yet declined to do so. See Holmes, 238 Ill. App. 3d at 489.
It is also apparent from Williams’ testimony at the defendant’s preliminary hearing that in exchange for his testimony, Williams expected the State to forgo charging him as an accomplice in the Evans murder. Indeed, Williams admitted that he had discussed his expectations with State authorities. However, the jury was never apprised of Williams’ expectations regarding his testimony in the defendant’s murder prosecution or the fact that he had discussed his expectations with State authorities. In fact, Williams was not reindicted in the Evans murder.
When the State permits false testimony to be presented to the jury, the resulting conviction cannot stand under the fourteenth amendment. (People v. Jimerson (1995), 166 Ill. 2d 211, 225; Napue v. Illinois (1959), 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221, 79 S. Ct. 1173, 1177.) This is true regardless of the good faith or bad faith of the government, and applies to testimony relevant to the credibility of a witness. (Giglio v. United States (1972), 405 U.S. 150, 154, 31 L. Ed. 2d 104, 108, 92 S. Ct. 763, 766; People v. Martin (1970), 46 Ill. 2d 565, 567-68.) "A new trial is required if 'the false testimony could ... in any reasonable likelihood have affected the judgement of the jury.’ ” Giglio, 405 U.S. at 154, 31 L. Ed. 2d at 108, 92 S. Ct. at 766, quoting Napue, 360 U.S. at 271, 3 L. Ed. 2d at 1222, 79 S. Ct. at 1178.
At trial, the State elicited testimony from Williams that he did not expect Evans to be killed on February 6, 1980. Williams testified that he was surprised by the killing. This testimony cannot be harmonized with Williams’ statements describing, in detail, his awareness that Holmes, who was "just a killer anyway, *** took the hit from Eddie” and that when he went with Holmes to look for Evans and asked people where Evans could be found, "people had the plague about that; [because] they knew what was happening.” Williams’ statements that "I would ask for [Evans]” and "it was actually supposed to have been Holmes’ contract” demonstrate that he also "knew what was happening.”
Williams’ statement to authorities in Will County belies his trial testimony that he was an innocent bystander who had no idea what was going to happen the day he drove Holmes, Franklin and Evans to the murder scene. Furthermore, the State argued to the jury that Williams had nothing more to gain by cooperating with the prosecution.1
The majority’s assertion that "the State did not characterize Williams as an 'innocent bystander’ to the commission of a crime” is unfounded. The State concedes in its brief that at trial the prosecution presented arguments and evidence to establish that Williams’ role in the murder was that of an "unknowing and unwitting spectator.” I fail to see the difference between an "innocent bystander” and an "unknowing and unwitting spectator.” Williams’ testimony and the State’s portrayal of Williams in its arguments misled the jury as to Williams’ role in the Evans murder and, consequently, concealed his motives for testifying against the defendant. Williams’ bias and motive for testifying should have been exposed and presented to the jury. The concealment of such bias and motive denied the defendant due process.
The majority adopts the State’s contention that because Williams stated that he was not explicitly promised leniency in the Evans prosecution but only expected leniency in return for his testimony, there was nothing of which to inform the jury. However, the reason that a jury in a criminal trial should be informed of any self-serving motive a witness may have for testifying at trial is so that the jury can evaluate the testimony and weigh it in view of all the circumstances. Considering this purpose, it should not matter whether the witness was explicitly promised leniency in exchange for testifying or whether the witness expressed to the State an expectation of leniency in exchange for testifying.
At the preliminary hearing of Holmes and Franklin, Williams unequivocally stated that he expected to be treated as an innocent bystander in the Evans murder (i.e., not to be charged) in exchange for his testimony, and that he had discussed his expectations with State authorities. However, at trial Williams informed the jury only that he was to receive leniency in the unrelated armed robbery charge and to be relocated with his family after his release from prison. I "do not believe the constitutional safeguard of due process of law can be made to hinge upon the gossamer distinctions indulged in by the [majority].” (People v. McKinney (1964), 31 Ill. 2d 246, 250.) The jury "should have been informed of all circumstances affecting the credibility and reliability of the witness ***.” (Emphasis in original.) McKinney, 31 Ill. 2d at 250.
In light of the foregoing, I conclude, as the appellate court concluded in the appeal of the codefendant, Holmes, that Williams misled the jury by consciously relating to the jury only a portion of the circumstances behind his cooperation with the State’s Attorney. The omission of a material fact under these circumstances implicitly denies the existence of such fact, and is equally as damaging to the truth-seeking process as if Williams had expressly denied having any expectations regarding his testimony at the defendant’s trial. This court recently stated in People v. Jimerson that a conviction cannot stand under the fourteenth amendment when the State, " 'although not soliciting false evidence, allows it to go uncorrected when it appears.’ ” Jimerson, 166 Ill. 2d at 224, quoting Napue, 360 U.S. at 269, 3 L. Ed. 2d at 1221, 79 S. Ct. at 1177.
The violation of due process in the present case is similar to the recent Jimerson case in which the prosecution’s key witness denied the "deal” of leniency promised her by the prosecution at Jimerson’s murder trial. In Jimerson, the State argued that because there had been no "meeting of the minds” between the witness and prosecutors regarding the deal, it was not inclined to inform the jury of the agreement. (Jimerson, 166 Ill. 2d at 227.) This court rejected the State’s contention and ruled that the defendant’s due process rights had been violated because facts relevant to the credibility of the key witness were withheld from the jury. Although Jimerson involved an explicit promise of leniency rather than a defendant’s expressed expectation of leniency as in the present case, the applicable due process principles are the same. As in Jimerson, the jury in the case at bar was never enlightened as to the witness’ true role in the crime or self-serving motive for testifying.
The majority addresses the procedural issue of whether the State is collaterally estopped from challenging the appellate court’s conclusions in Holmes (that Williams was an accomplice in the Evans murder and entertained an expectation of leniency) in this post-conviction proceeding. However, this procedural issue fails to dispose of the substantive issue of whether the defendant’s right to due process of law has been violated. I believe this is the central issue in. this case. Notwithstanding whether the trial court was bound to follow the conclusions of the Holmes decision in this post-conviction petition, we must determine whether Williams’ statements which were not revealed at trial and Williams’ expectation of leniency that was never presented to the jury establish new evidence uncovering a due process violation at the defendant’s trial. As discussed above, I cannot agree with the majority’s assertion that the defendant received a fair trial. Codefendant Holmes received a new trial based on the facts revealed in this post-conviction proceeding, and I believe that the defendant should also receive a new trial in which the jury may consider the facts which establish Williams’ motives for testifying against the defendant. See People v. Jimerson (1995), 166 Ill. 2d 211.
Apart from the Holmes decision and the principles of collateral estoppel, we should analyze due process rights and the defendant’s right to a fair trial under the principles set forth by the United States Supreme Court and this court. (Giglio v. United States (1972), 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763; Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173; People v. Jimerson (1995), 166 Ill. 2d 211; People v. Martin (1970), 46 Ill. 2d 565; People v. McKinney (1964), 31 Ill. 2d 246.) Accordingly, I find the majority’s discussion of collateral estoppel and the mutuality requirement inapposite to the constitutional issue that is raised in this case.
Finally, I do not believe waiver should be applied to the constitutional issues raised by the defendant in the case at bar. "[T]his issue implicates principles of fundamental fairness,” and we will relax a strict application of the waiver doctrine where fundamental fairness requires. (Jimerson, 166 Ill. 2d at 230, citing People v. Cihlar (1986), 111 Ill. 2d 212, 218, and People v. Burns (1979), 75 Ill. 2d 282, 290.) As previously stated, this is a capital case, and Williams was the sole eyewitness who testified at the two trials. The convictions of the defendant and Holmes were dependant on Williams’ testimony. In the interest of fundamental fairness, the fair trial issues raised by the defendant should be addressed in the case at bar. Williams’ hope for leniency and his true role in the murder of Evans were facts that would not only have related to Williams’ credibility, but may have supported the defendant’s contention at trial that Williams was the person who shot Evans. (See Alcorta v. Texas (1957), 355 U.S. 28, 31-32, 2 L. Ed. 2d 9, 12, 78 S. Ct. 103, 105.) In cases such as this, where the conviction is largely based on the testimony of a single witness, "[t]he 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.” (Napue, 360 U.S. at 269, 3 L. Ed. 2d at 1221, 79 S. Ct. at 1177; see Jimerson, 166 Ill. 2d at 224.) The testimony of an accomplice witness is " 'fraught with dangers of motives such as malice towards the accused, fear, threats, promises or hopes of leniency, or benefits from the prosecution,’ ” and should be considered with suspicion and caution. (People v. Williams (1991), 147 Ill. 2d 173, 232, quoting People v. Young (1989), 128 Ill. 2d 1, 47-48; see also People v. Wilson (1977), 66 Ill. 2d 346, 349.) I am "not prepared to say that the spark of hope kindled by [Williams’ expectation] of leniency was not an influencing factor on the appearance and testimony of [Williams] at *** trial.” See McKinney, 31 Ill. 2d at 251; Jimerson, 166 Ill. 2d at 226;
In light of the foregoing discussion, precedent of this court (People v. Jimerson (1995), 166 Ill. 2d 211; People v. Martin (1970), 46 Ill. 2d 565; People v. McKinney (1964), 31 Ill. 2d 246; People v. Lueck (1962), 24 Ill. 2d 554; see Holmes, 238 Ill. App. 3d 480; cf. People v. Harris (1973), 55 Ill. 2d 15) and the principles established by the United States Supreme Court (Giglio v. United States (1972), 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763; Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173; Alcorta v. Texas (1957), 355 U.S. 28, 2 L. Ed. 2d 9, 78 S. Ct. 103), I would hold that the defendant’s due process rights were violated and reverse and remand for a new trial.
Williams’ statement to authorities in Will County in September 1982 was given after his preliminary hearing on March 19, 1982, at which the judge dismissed the murder charge against Williams based on a lack of probable cause. The September 1982 statement constituted new evidence which the prosecutor could have used, but did not use, in a prosecution against Williams for the Evans murder.