People v. Nino

PRESIDING JUSTICE HOLDRIDGE, specially concurring in part and dissenting in part:

I agree that the conviction must be reversed and the matter remanded for a new trial because the People: (1) improperly commented on the defendant’s right to remain silent; (2) engaged in improper closing argument; and (3) introduced evidence of other crimes. I believe the cumulative impact of these errors warrants a new trial. I write separately because I do not believe the People’s handling of Victor Aldava’s testimony should be considered as grounds for reversal. I respectfully dissent from that portion of the majority’s opinion.

The majority notes that it is well settled that a prosecutor may not knowingly use, or allow to go uncorrected, perjured testimony that goes to the substance of a witness’ testimony or facts which bear on the witness’ credibility. Napue v. Illinois, 360 U.S. 264, 269 , 3 L. Ed. 2d 1217, 1221 , 79 S. Ct. 1173, 1177 (1972). It is clear that the knowing use of perjured testimony by the prosecution is a denial of due process and requires that the defendant be granted a new trial. People v. Jimerson, 166 Ill. 2d 211, 223 (1995). However, the defendant must prove that the People knowingly used perjured testimony. People v. Brown, 169 Ill. 2d at 103; People v. Bassett, 56 Ill. 2d 285 (1974).

In the matter sub judice, as the majority acknowledged, the defendant did not prove that Aldava’s testimony was perjured, nor did he prove that the People knowingly used false or perjured testimony. I would hold therefore that the defendant’s argument that he suffered prejudice must be rejected unless he can present evidence to show that there were promises made to Aldava that the prosecutor knew about but failed to disclose to the jury. I believe that it is unwise to extend to defendants who have failed to meet the burden of proving the knowing use of perjured testimony those protections afforded defendants who have met that burden.

I also note that the facts in this case are very similar to those in People v. McMillan, 239 Ill. App. 3d 467 (1993). In McMillan, the court held that the defendant had failed to prove the witness against him testified falsely when he stated that he did not have a deal with prosecutors, but merely "hoped” to get a deal after his testimony against the defendant. In rejecting the defendant’s argument for a new trial, the court noted:

"The only evidence to suggest that a deal was made is the records of Johnston’s case which indicate that after defendant’s trial, the murder charges against Johnston were dropped and he pleaded guilty to a charge of armed robbery. Johnston, the prosecutor, and Johnston’s attorney all indicated there were no deals made, no promises of leniency, and that Johnston only hoped to get something. The jury was able to judge the credibility of Johnston and was fully informed of any motive or bias he might have for testifying. The jury was well aware of the leverage the State had over Johnston and that that could have been the basis for his cooperation in this matter. Defendant cannot show that he was prejudiced by any promises of leniency when there is no evidence to suggest that there were any such promises made.” (Emphasis omitted.) McMillan, 239 Ill. App. 3d at 494 .

As in McMillan, the defendant in the instant matter failed to prove that Aldava testified falsely when he stated that he did not have a deal of leniency in exchange for his testimony. The jury knew that Aldava was in custody charged with residential burglary and arson. The jury also knew that, if convicted of those charges, Aldava faced 4 to 15 years in prison. The jury likewise knew that Aldava "hoped” to get something and the People could therefore potentially exert some leverage over Aldava. All these facts were before the jury when it assessed Aldava’s credibility. The defendant herein, as in McMillan, failed to show that the witness testified falsely. Although the defendant could show that Aldava was given favorable treatment after the defendant’s trial, the mere fact, however, that charges against a State witness were reduced or dropped after trial does not, standing alone, raise an inference of prior favorable consideration. People v. Sheridan, 57 Ill. App. 3d 765, 775 (1978).

I would also note that all the case law cited by the defendant in this matter concerned instances where the witness was either an accomplice or a person to whom the defendant had allegedly made admissions. Here, Aldava testified as a victim. I believe that this distinction is important when weighing the impact of Aldava’s testimony upon the jury.

Finally, I also disagree with the majority’s characterization of Aldava’s testimony as essential to the People’s case. Aldava did not identify the defendant. While his testimony corroborated the testimony of other witnesses concerning the discharge of a firearm and the use of an incendiary device, I believe that Aldava’s testimony was cumulative.

For the reasons indicated, I concur in part and dissent in part.