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People v. Thomas

MARCH 9, 1971.




APPEAL from the Circuit Court of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding.


A jury having found him guilty of giving a clothing store clerk a fraudulent draft, the defendant appeals a forgery conviction, claiming: that he was denied a fair trial because his request for pretrial discovery was disallowed; that he was identified by the prosecution's chief witness in a manner which denied him due process of law; and, that the court erred in admitting an incriminating statement which was made during a period of unlawful detention.

In a pretrial motion, the defendant requested a list of witnesses to any oral confession, a copy of any written confession, a copy of any statements by witnesses, inspection by the court of the State's Attorney's file to determine whether statements had been given, and a copy of the police report concerning this matter.

At the hearing, it was agreed that the list of witnesses to oral confessions had already been furnished the defendant and that there was no written confession. The court ordered that a copy of the statement of any witness be produced at the time and in the event such witness would testify. The requests for inspection of the State's file and for a copy of the police report, were denied.

On appeal it is contended that the police report contained an oral exculpatory statement made by the defendant to one of the police officers, which statement was later reduced to writing. In this regard, the following transpired:

"Mr. McFarland (State's Attorney): And I called you and advised you as to the exculpatory statement made orally which will be introduced in this matter.

Mr. Donohue (Defense Attorney): That's right, you called me and told me the contents of the oral statement, so there is no contest there.

The Court: All right."

During trial, no objection was made when the oral exculpatory statement of the defendant was testified to by the police officer, nor was any motion made to produce the statement in accordance with the court's previous order.

This Court dealt with the issue of pretrial discovery of police reports in People v. Hoagland (1967), 83 Ill. App.2d 231. In that case, the defendant made a pretrial request for witnesses' statements which were in the possession of the State's Attorney or police, for other favorable evidence, and for the records of various police departments. The trial court issued an order directing the State's Attorney and police to comply. In overruling the trial court, we said (at pp. 235-236):

"* * * However, it is obvious that the order of May 31, 1966, not only involves an astonishing extension of the established rule but a radical departure from it. The defendant has not specified the statements or documents that he is entitled to inspect, but only that he `believes' statements have been made. He does not seek them for impeachment purposes since the trial has not commenced and no witnesses offered by the State. The trial court does not intend to exercise its function under the rule but states that it renounces that function and will not itself examine the police files. Instead, the order permits the defendant an unrestricted right to rummage through the files of the police and the State to discover what he may. Such a right clearly does not exist under the present law, nor in our opinion, should it be created for the future."

• 1 We recognize that Ill. Rev. Stat. 1969, ch. 38, par. 114-13 provides that discovery in criminal cases shall be in accordance with Supreme Court Rules. To date, however, that Court has promulgated no such rules; thus, we continue the policy laid down in People v. Hoagland, supra, and hold that there was no error in the trial court's refusal to permit the pretrial discovery of police reports.

We note that the Fourth District of this Court reached the opposite conclusion in the case of People v. Crawford (1969), 114 Ill. App.2d 230, (leave to appeal granted by the Supreme Court and reported as People v. Hollis, # 42801). There the Court upheld a ten dollar contempt fine levied upon a State's Attorney who refused to comply with a pretrial court order directing him to furnish, among other items, a copy of the police report. The court held, at page 237, that the trial court had "the authority to order discovery and that the authority is inherent and is based upon the affirmative duty to afford the defendant a fair trial." The dissent in Hollis is in accordance with our decision. Therein it is stated, at pages 240-241, that the business of the Appellate Court is to review, not to assume the prerogative of the Supreme Court, either to promulgate a far-reaching rule, or to establish a far-reaching policy on pretrial discovery.

In the instant case, at the pretrial hearing on the motion, defense counsel agreed that he had been informed by the State's Attorney of the contents of the oral statement which was to be introduced at the trial, and further stated, "* * * so there is no contest there." Due to defense counsel's statement, the court was not required to rule on this point until it was brought up in the post trial motion, at which time the request for the statements was denied. Under the circumstances of ...

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