Opinion
No. 40836. Reversed and remanded.
Opinion filed November 22, 1968.
APPEAL from the Circuit Court of Cook County; the Hon. HERBERT R. FRIEDLAND, Judge, presiding.
RICHARD M. HIRSCH, of Chicago, appointed by the court, for appellant.
WILLIAM G. CLARK, Attorney General, of Springfield, and JOHN J. STAMOS, State's Attorney, of Chicago, (FRED G. LEACH, Assistant Attorney General, and ELMER C. KISSANE and HOWARD LEVINE, Assistant State's Attorneys, of counsel,) for the People.
In July of 1964, a jury in the circuit court of Cook County found the defendant, John Teague, guilty of rape and robbery, and he was sentenced to imprisonment for a term of 30 to 60 years on the charge of rape and for a concurrent term of five to ten years on the charge of robbery. His conviction was affirmed by the appellate court. 66 Ill. App.2d 338.
On September 1, 1966, he filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1967, chap. 38, par. 122-1 through 122-7), in which he alleged that his constitutional rights were violated because evidence illegally seized was admitted in evidence against him, and because the attorney appointed to defend him did not competently represent him. The petition further alleged that the defendant was a poor person, and the Public Defender of Cook County was appointed to represent him in the post-conviction proceeding. The State moved to dismiss the petition on the grounds that it failed to raise any constitutional question and that the previous appeal foreclosed consideration of any questions which were presented, or could have been presented, on that appeal. The motion to dismiss was granted, and the defendant appeals.
The only significant problem in the case centers upon the admission into evidence of a leather jacket and army boots which were identified by the prosecutrix as those worn by her assailant when the offenses were committed. The post-conviction petition alleges that the defendant's constitutional rights were violated when the court "admitted in evidence certain exhibits, to wit, one pair of brown army boots and brown leather jacket, which a police officer, Henry Kaminski, of the City of Chicago in said County, without warrant and without petitioner's consent, claimed to have been taken (sic) from the petitioner's home and car." There was no objection at the trial to the admissibility of these exhibits, and no issue as to their admissibility was raised in the appellate court. The defendant now asserts that competent representation upon his trial would have resulted in the exclusion of these exhibits.
In the trial court the State met this objection by repeated assertions that the objection was waived since the defendant was represented by counsel of his own choice. These assertions were not challenged by the assistant public defender who appeared for the defendant. In this court the State concedes that the defendant was represented at his trial by appointed counsel, but now takes the position that since the judge who heard the post-conviction petition was the judge before whom the defendant was tried, he was undoubtedly aware of the relationship that existed between the defendant and the attorney who represented him at his trial.
We are unable to accept this argument. The trial took place in July of 1964 and the hearing upon the post-conviction petition occurred almost three years later on March 8, 1967. Nor can we agree that the defendant's contention as to the alleged error in admitting the evidence was waived because it was not raised upon his appeal to the appellate court. Since no objection had been made at the trial, the contention that this evidence was improperly admitted could not have been advanced by the appointed attorney who represented the defendant upon his appeal to the appellate court.
Upon this record we express no opinion as to the merits of the defendant's post-conviction petition. We hold, however, that he is entitled to a hearing at which the trial judge may be fully apprised as to the defendant's representation at his trial, and as to the admissibility of the challenged evidence and its significance. The judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
KLUCZYNSKI and WARD, JJ., took no part in the consideration or decision of this case.