Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. ALFONSE F. WELLS, Judge, presiding. Reversed
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Defendant appeals from the convictions of the crimes of armed robbery and of battery. The defendant was found guilty after a trial by jury and sentenced to the Illinois State Penitentiary for concurrent terms of 15 to 35 years and 5 to 10 years.
The defendant contends that the court erred in not permitting his defense counsel to examine grand jury testimony of the complaining witness, after she had testified on direct examination; that the court improperly instructed the jury; that the defendant's record of prior convictions was improperly read to the jury since the defendant admitted to such convictions during the course of his testimony, and that the prosecutor's statement to the jury immediately prior to the reading of the record of defendant's convictions contained an erroneous statement of law and invaded the province of the court.
The State's evidence indicated that on the evening of September 18, 1964, while walking in the street, Mrs. Camadeca was assaulted by the defendant, who struck her with a metal object, causing damage to her eye which required several stitches. The defendant took approximately $2 from the woman. The screams of Mrs. Camadeca were heard by several neighbors and pedestrians in the area, none of whom saw the assault. The defendant, a colored man, was seen in the area five minutes after the screams were heard, was chased and caught by the civilian pedestrians. During the chase the defendant was seen to drop several items which could not be identified by the pursuers. A purse and a gun were later found by investigating police officers over the route of the chase. A cosmetic case and a wallet were found in the defendant's coat pocket by the police. These were identified by the complaining witness as belonging to her. The raincoat worn by the defendant was also identified by Mrs. Camadeca as the coat worn by the defendant at the time of the assault.
Mrs. Camadeca testified that she was treated for shock at the hospital; that the police came to the hospital and told her they had the man and she was taken from the hospital immediately by the police and identified the only man in the lineup who was wearing a raincoat.
The defendant, during direct examination, testified that he had been in the penitentiary from 1960 to 1964. When asked what crime he had been sent up for he answered, "Armed Robbery." He was then asked how many charges of armed robbery, to which he answered, "Two, Two or Three." He further testified that he was, at the time of trial, on parole.
The defendant testified that he had fallen asleep on a bus, and that when he awakened he alighted from the bus in a strange neighborhood, and was walking in the street; that he was chased by strangers and caught, and that none of the identified materials were found in his pocket or were ever in his possession. On cross-examination by the State the defendant admitted that he had been convicted on two or three charges of armed robbery. The State, in rebuttal, introduced into evidence and read to the jury, three certified copies of court records of the defendant's three prior convictions for armed robbery.
The defense first contends that it was error for the court to deny defendant the right to examine grand jury testimony during cross-examination of the complaining witness.
In People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399, the court pointed out that the policy of grand jury secrecy is intended to prevent the accused from escaping before he is indicted and from tampering with witnesses; to protect an accused person who is not indicted against unwarranted exposure; to encourage uninhibited deliberations by the grand jurors, and to encourage witnesses to testify before the grand jury without fear of public disclosure. The court in that case held, on page 606:
"None of those reasons is applicable in the present case, where the accused seeks only the transcript of the testimony of a witness who has testified at the trial. Plainly the disclosure of grand jury minutes after an indictment is returned and the case proceeds to trial will involve no danger of flight by the accused and no risk of damage to his reputation. Nor is it to be expected that he will tamper with a witness who has already testified against him. There will be no impediment to future grand jury deliberations since such deliberations will remain secret. Finally, it is in no sense unfair to a witness who testifies at the trial to reveal his previous testimony."
The court in the Johnson case, supra, adopted the reasoning in Bressler v. People, 117 Ill. 422, 8 N.E. 62: "When the indictment is returned, and the defendant arrested and placed upon trial, neither the statutory nor common law reasons for secrecy can apply. There can be no reason, then, why evidence given before a grand jury should not be made known and proved, if the ends of justice require it." The court in Johnson, supra, reversed the conviction and remanded the cause, because the prosecutrix's testimony before the grand jury was not turned over to the defense.
The State argued that at the time the defendant requested the transcript of the testimony before the grand jury of the complaining witness, at the close of her direct evidence, he did not pursue his request and therefore he waived his right to the production. After the defense attorney had brought out from the complaining witness that she had testified before the grand jury in the case, the defendant's attorney said:
"Mr. Hartman: Your Honor, I would like to ask for a copy of the officer's report respecting her, any statement she made to the officers. Also, I would like to ask for a copy of the Grand Jury minutes ...