¶1specially concurring:
¶2I concur in the conclusion of the principal opinion which affirms the finding of the trial court that defendant was guilty of negligence in failing to present his denial of guilt at trial, and that the relief sought is not available under the statute.
¶3I do not agree with the implicit assumption of the opinion that this record presents newly discovered evidence. If defendant’s testimony here is given credence it clearly demonstrates that the exculpatory facts asserted to exist were always known to him, albeit they were never presented to his counsel. By his present testimony defendant always knew that Watts did the killing. It can not be said that defendant was convicted “by some excusable mistake or ignorance of the accused and without negligence on his part 600 deprived of a defense which he could have used on his trial, and which, if known to the court, would have prevented conviction.” People v. Touhy (1947), 397 Ill. 19, 25, 72 N.E.2d 827, 831.
¶4This record discloses no “newly discovered evidence” which supports a defense made at trial. As disclosed in the opinion of this court affirming conviction, defendant undertook to present an alibi defense.
¶5At the most, defendant purports to present some witnesses who might undertake to impeach Watts’ denial of the murder with statements made at unspecified dates some period of time following the conviction of defendant. Neither the witnesses, Nikki Taylor nor Kathy Davis, testify to admissions by Watts of the killing, but rather as to threats against them which contained ambiguous references to the death of this victim. There is no showing of evidence admissible as the exception to the hearsay rule commonly known as a declaration against penal interest. Federal Rules of Evidence, Rule 804(b)(3), which we may consider as a standard, includes:
“A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
¶6This record discloses no admissible evidence of such quality.
¶7I do not agree with the implicit acceptance of defendant’s argument that he is deprived of “fundamental fairness” as a penalty for the exercise of his fifth amendment privilege if denied relief in these proceedings. While ordinarily one assumes that a failure to testify represents the exercise of a claim of privilege in these proceedings, it is not now claimed that he was, in fact, doing so. The principal opinion notes defendant’s testimony as to several contradictory reasons for not testifying. It is clear that if counsel did advise a claim of privilege it was in ignorance of defendant’s present claim of a defense.
¶8Assuming arguendo that defendant’s failure to testify was by reason of a claim of privilege, as was said in McGuatha v. California (1971), 402 U.S. 183, 213, 28 L. Ed. 2d 711, 729, 91 S. Ct. 1454:
“The criminal process, like the rest of the legal system, is replete with situations requiring ‘the making of difficult judgments’ as to which course to follow. [Citation.] Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.”
¶9As pointed out, it has long been held that a defendant who takes the stand in his own behalf can not then claim the privilege against cross-examination. It is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify. So, in Williams v. Florida (1970), 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893, the court rejected the contention that a notice of alibi statute which required defendant to choose between abandoning an alibi defense or giving discovery to the State compelled the defendant to incriminate himself. If a motion at the close of the prosecution is denied, defendant must decide whether or not to put on a defense. It was said response to that kind of pressure by offering evidence or testimony is compelled self-incrimination. McGautha v. California (1971), 402 U.S. 183, 216, 28 L. Ed. 2d 711, 731, 91 S. Ct. 1454.