Appeal from the Circuit Court of Cook County; the Hon. EDWARD
E. PLUSDRAK, Judge, presiding. Reversed and remanded.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
The defendant, Lex Robert Lowe, was indicted for robbery, tried before a jury which found him guilty, and was sentenced to a term in the penitentiary of not less than three nor more than seven years.
The complaining witness, Helen Pryor, testified that on December 31, 1964, between 9:00 and 9:15 a.m., she was robbed of $7 by a male Negro youth. She stated that as she was descending the stairs leading to the ground level within the apartment building in which she lived, Lowe was coming up the stairs; that as they passed he grabbed her from behind, put his hand over her mouth, placed an object next to her back and said, "Don't scream, I got a knife." She stated that he then took the money from her purse, after which he began to fondle her body and told her to kiss him; that he turned her around and tried to kiss her, at which time a door opened somewhere in the building, and Lowe fled. The police were called and Lowe was subsequently arrested and identified by the complaining witness.
The complaint is made in this court that Lowe's counsel was incompetent; that disbarrment proceedings were pending against him, and he was subsequently disbarred. He was the attorney the defendant selected to represent him. During the trial, after the State had concluded its direct examination of the complaining witness the Assistant State's Attorney, in the presence of the jury, made the following statement: "Mr. Reporter, will you mark these People's Exhibits No. 1 and 2 for identification respectively." The documents were marked, and the Assistant State's Attorney then said:
"For the record, People's Exhibit No. 1 is a two page typewritten document purporting to be the testimony of this witness before the Cook County Grand Jury, and People's Exhibit No. 2 for identification is a one page typewritten document purporting to be a police report of this witness's statement. At this time the State turns over to the Defense People's Exhibits No. 1 and 2 for identification."
Defense counsel made no motion to strike the remarks of the Assistant State's Attorney. The defense counsel did cross-examine the complaining witness about what she told the police and the Grand Jury, and subsequently the State asked the complaining witness whether what she had testified to in court was the same as she had told the police officer, and she said it was. She also said that what she testified to in court was the same she had testified to before the Grand Jury. In his closing argument the Assistant State's Attorney made the following statement:
"On top of that she has always told a consistent story. She told police officer Ali, she told the Grand Jury the entire story and you saw that we turned over any history that exists of what she told at those moments to the Defense and you have not yet one iota of serious impeachment out of those statements."
And in rebuttal, the Assistant State's Attorney said:
"Now, we supplied the officer's report and the officer testified here today. The Defense called him and the officer said he talked to her on the stairs. She pointed out what had happened, where it had happened, went upstairs, he talked to her in the apartment and then he made out a report and the report that was given to the Defense yesterday was then phoned in."
No objection was made by defense counsel to this argument.
"`Accordingly, we adopt the view that where no privilege exists, and where the relevancy and competency of a statement or report has been established, the trial judge shall order the document delivered directly to the accused for his inspection and use for impeachment purposes. However, if the prosecution claims that any document ordered to be produced contains matter which does not relate to the testimony of the witness sought to be impeached, the trial judge will inspect the document and may, at his discretion, delete unrelated matters before delivery is made to the accused.' . . . The trial court should have made these reports available to defendant. Where it appears that there is evidence in the possession and control of the prosecution favorable to the defendant, a right sense of justice demands that it should be available, unless there are strong reasons otherwise. (People v. Moses, 11 Ill.2d 84.)"
In People v. Beard, 67 Ill. App.2d 83, 214 N.E.2d 577, it was urged by the defendant that the jury was improperly informed of the existence of prior statements made by witnesses for the State. In that case the court said, at page 88:
"At three points in the trial the defense, out of the presence of the jury, requested the People to deliver over any statements which the State's witness may have given to the State's Attorney or to the police prior to the trial. Each time the court told the defense that such a request had to be made in the presence of the jury and overruled defendant's objections to such procedure. On each occasion the court instigated the request by asking in the presence of the jury if the defendant wanted the statements. The defendant answered that he did, and in each case moved for a ...