Opinion
No. 52378 Judgment affirmed.
October 20, 1971.
APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM S. WHITE, Judge, presiding.
Gerald W. Getty, Public Defender, of Chicago, (Harold A. Cowen, Ronald P. Katz, and James J. Doherty, of Defender Project, of counsel,) for appellant.
Edward V. Hanrahan, State's Attorney, of Chicago, (Robert A. Novelle, and Terrence Mahoney, Assistant State's Attorneys, of counsel,) for the People.
Defendant, Henry Prokop, a suburban police officer, pleaded not guilty of a charge of perjury and waived a jury. He was found guilty on each count of the indictment and received a sentence of two years probation and a fine of $1,000. The chronology of events leading up to his conviction is as follows:
1. On April 13, 1964, Prokop arrested one of five defendants who were subsequently prosecuted for theft.
2. On June 2, 1964, Prokop testified in a motion to suppress evidence in Niles.
3. On August 1, 1964, Prokop was interviewed by an Assistant State's Attorney, in preparation to his testifying before the Cook County Grand Jury.
4. On August 14th and 18th, 1964, Prokop testified before the Cook County Grand Jury.
5. On or about the third week of April, 1965, Prokop was interviewed by an Assistant State's Attorney at the scene of the arrest of the five men charged with theft.
6. On May 3, 1965, said Assistant State's Attorney interviewed Prokop in his office and accused Prokop of lying. He showed Prokop transcripts of his previous testimony at the motion to suppress in Niles and at the Grand Jury proceedings and asked him questions in an attempt to refresh his memory.
7. On or about May 5, 1965, after Prokop had testified in a motion to suppress in the trial court, said Assistant State's Attorney spoke to Prokop in the jury room attached to Judge Dahl's courtroom. He had a transcript of Prokop's testimony before the Grand Jury.
8. On or about May 12, 1965, Prokop appeared in Judge Dahl's courtroom represented by counsel, the late John Coughlan, Esquire. Mr. Coughlan told the Assistant State's Attorney that if Prokop were put on the stand he would take the Fifth Amendment.
9. On petition by the State, Judge Dahl granted immunity to Prokop.
10. On advice of counsel, given in six or seven consultations, Prokop was told that if he did not remember he should state that he did not remember; that if he did remember he should so state; that he should utter the truth as best he could recall.
11. On May 18, 1965, Prokop was called as a court's witness in the trial of the five defendants accused of theft. He was cross-examined by the prosecutor who read verbatim excerpts from Prokop's testimony given at the motion to suppress in Niles on June 2, 1964, at a conference with an Assistant State's Attorney on August 1, 1964, and his testimony at the Grand Jury. When asked if he was asked those questions and gave those answers, he testified, "I don't remember."
12. On August 30, 1965, Prokop was indicted for perjury and charged with testifying falsely when he testified that he did not remember.
Defendant was indicted and convicted of the criminal offense of perjury pursuant to section 32-2(a) of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, par. 32-2(a)), which provides:
"A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true."
Defendant claims on appeal that he was not proven guilty of perjury beyond a reasonable doubt in that the State failed to prove defendant's intent to deceive the jury and that the matters as to which perjury is alleged were not so material to the issues as to have probably controlled the result. Defendant also claims that all that the State showed were the prior statements made by the defendant, one year prior to the date of the trial at which defendant testified under oath that he did not remember the series of questions and answers read to him in haec verba.
On three occasions, on August 1, 1964, in the State's Attorney's office and on August 14th and 18th of the same year, before the Grand Jury, defendant Prokop unequivocably stated that he observed one Angelo Pettit on Marino's property prior to defendant's arrest of Pettit. At the trial, however, the defendant, testifying as the court's witness was asked, "Did you, before you arrested Pettit over on Dickens Avenue, see him on Marino's property?" Defendant answered, "I don't remember." The Assistant State's Attorney, in an attempt to refresh defendant's memory, precisely recalled Prokop's previous testimony specifically inquiring after each occasion of admission whether defendant recalled being asked those questions and gave such answers. Prokop on each occasion reinterated, "I don't remember."
On August 18, 1964, before the August term of the Grand Jury, Prokop testified that as he approached the fence on the North boundary of Marino's property, he noticed a man climbing over said fence. Defendant stated further that the man caught and ripped his trousers while attempting to flee over the fence and while in flight glanced at Prokop which aided defendant's subsequent identification of the subject as Frank Rago. At the trial on May 18, 1965, Prokop was asked, "Now when you were on this fence overlooking Dickens Avenue, did you see anybody else beside Pettit?" Defendant answered, "I don't remember."
• 1 Defendant was then asked the following questions which he answered as follows:
"Q. You saw subject go around the corner?
A. Yes.
Q. Which way was he going?
A. I don't know because he almost got out of sight on account of a house over there.
Q. And can you identify that man as the man you saw go over the side fence when you saw the man get hung up?
A. No, I cannot.
Q. Did you ever see that man again?
A. There was a man the Franklin Park Police brought in with ripped pants.
Q. Did you recognize the man who was brought in by the Franklin Park Police as the man you saw go over that second fence and the man you saw run around the corner on Roy Street by his description?
A. No, I didn't see his face."
We are mindful of the contention of the defense that "lapse of time, emotions and faulty memory" may cause some individuals to experience a lapse of memory. However, defendant was a Sergeant of Police whose duty required, and experience taught him to be aware of occurrences which were part of his work. It is inconceivable that he did not remember any of the circumstances to which he positively attested to on three previous occasions. He could not have completely forgotten the facts of the arrest or his previous statements in the execution of such arrests. Common sense forbids us to accept defendant's explanation.
Defendant further claims that the matters as to which perjury is alleged were not so material to the issues as to have probably controlled the result. Defendant seems to imply that there are degrees of perjury and that the defendant's alleged perjury was of trivial or lesser degree for which defendant should not be held legally accountable. We do not accept this argument.
In the appeal of the matter involving certain defendants, some of whom Prokop arrested and in whose trial Prokop did not remember many occurrences, the Illinois Supreme Court held that defendant Prokop's previous inconsistent statements were of material consequence to the question in issue, the innocence or guilt of one of the defendants, one Angelo Pettit. The Illinois Supreme Court stated:
"In addition, the impeaching statements were largely germane to the issues in the case. Defendants do not question the propriety of the trial court's decision in making Sgt. Prokop its own witness; the State needed his testimony in order to establish defendant Pettit's participation in the crime, * * *" People v. Marino, 44 Ill.2d 562, 578.
Having carefully considered the entire record, the briefs and arguments of counsel, it is our decision that the defendant was proved guilty of perjury beyond a reasonable doubt.
The judgment of the circuit court of Cook County is affirmed.
Judgment affirmed.
BURMAN and DIERINGER, JJ., concur.