DECEMBER 16, 1971.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
VERNON FRAZIER, DEFENDANT-APPELLANT.
APPEAL from the Circuit Court of Will County; the Hon. ROBERT
E. HIGGINS, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Vernon Frazier was convicted by a jury of the crime of robbery and was thereafter sentenced to a term of imprisonment of not less than five (5) nor more than eight (8) years in the penitentiary. Only two issues are raised on appeal, (1) whether the trial court erred in denying defendant's motion for discovery hereinafter referred to and (2) whether the sentence was excessive.
Defendant was indicted on May 25, 1967, along with two other defendants Arthur Binns and Buford Wright. At the pretrial stage defendant's case and the two companion cases were treated as consolidated. On June 16, 1967, the attorney for Binns moved for discovery of a list of prosecution witnesses, for a copy of any confessions of Binns, for a list of witnesses to any such confession, for a list of witnesses who testified before the Grand Jury, and for a view of all the physical evidence. This motion was granted by the court. Defendant's attorney presented a "list of demands" which included demands for names of witnesses to be called by the State, any confessions of Frazier (and "all other statements"), a list of witnesses to any such confession, all physical evidence, and all "notes, memos, and reports." The court ordered the production of each of the items requested except the statements of Frazier other than confessions and "notes, memos and reports" not otherwise specified. The State also supplied defendant with a list of all articles seized.
The case was then set for trial. On July 26, 1967, the day of trial, Binns attorney moved by written motion for the following relief:
"1. For a list of witnesses and their last known addresses of any and all persons to whom any law enforcement officer of this County spoke concerning the charges filed against the defendant, Arthur Binns, who had knowledge of facts or revealed facts which were favorable to the defendant, Arthur Binns, in any one or more of the following ways:
A. Knowledge of the defendant's whereabouts on the date of the alleged criminal act;
B. Identified the defendant, Arthur Binns, on the date of the alleged criminal act;
C. Identified any articles of tangible evidence which may be introduced at the trial hereof or which tend to prove the defendant's innocence. * * *"
Counsel for defendant orally moved to join in this motion and also to sever defendant's case. The court granted the severance but denied the motion.
Although we had been supplied with no abstract of record, it appears from briefs of counsel that the court apparently denied what the prosecution describes as defendant's "catch-all" discovery motion for the reason that the court had granted the specific motions and the State had complied with all such orders, and, also, because the case had been set for trial on the day the motion was made and appellant had not notified the State of his intention to present such a motion and that the jury was ready and waiting. We note that appellant was convicted four years ago. Notwithstanding this fact, he still does not state in this Court that there was or, in fact, could be any particular item of evidence which he believes would or should have been produced pursuant to his motion, nor does he suggest any such particular item which could have affected the result of the trial. Defendant has not suggested either the existence of any such evidence or its materiality, even assuming that it did exist. The precedents upon which defendant relies, emphasizes the two basic prerequisites for the relief requested notably, that such evidence which was requested, probably did exist, and that such evidence would be material.
• 1, 2 Particular emphasis is placed upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. In that case, Brady and a companion had been sentenced to death for commission of the crime of murder. Although Brady had requested the prosecution to allow him to examine his companion's extra-judicial statements, the State did not divulge a statement in which Brady's companion admitted commission of the actual murder. This statement became known to Brady only after the trial. The Supreme Court affirmed a remandment of such case for retrial of the issue of punishment only (due to the court's determination that the evidence would have been inadmissible with respect to the question of guilt, even if it had been known to Brady or his counsel prior to or during trial). In that case the court stated, "We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution" (10 L.Ed.2d 215, 218 emphasis added). The court's conclusion, therefore, emphasizes the actual existence of evidence which was withheld and, also, the requirement that such evidence be material. In a recent case determined in this Court, People v. Williams & Dorris (3rd Dist., 1971), Ill. App.2d -271 N.E.2d 73.), we observed specifically (271 N.E.2d 73, 75): "We agree with Justice Fortas in Giles v. Maryland, 386 U.S. 66, 101-102, 87 S.Ct. 793, that it should be the duty of the State to voluntarily disclose material in its exclusive possession which would exonerate the defense, which the State would not affirmatively use to prove guilt and which it should not conceal." We observed in the case referred to, that no such issue was involved. This is true in the instant case. There is no suggestion of any evidence which would be material or, in fact, that any such evidence exists. It appears that compliance was made by the State with respect to material specific items requested prior to the supplementary motion at trial time on behalf of defendant. On the basis of the precedents and in view of the record in this cause, and the discovery actually had, we do not believe there was any showing of prejudice by failure of the court to enter an order in response to the so-called "catch-all" motion People v. Brown (1971), (Ill. App.2d), 267 N.E.2d 142.
• 3 On the question raised as to the sentence imposed upon defendant by the trial court, we note that the sentence is within the range authorized by statute (Ill. Rev. Stat. 1969, ch. 38, par. 18-1). We note from the briefs that defendant had been convicted of theft and placed on probation scarcely three months before his indictment for the offense of robbery. In the crime for which defendant was convicted in the instant case, great force was involved in the robbery. The victim was "brutally assaulted" and there was evidence that a "very brutal crime" was committed, and that, according to the victim's wife, the victim's face looked like a "beef steak." Under the facts and circumstances, therefore, we do not believe that we would be justified in modifying the sentence.
Accordingly, the conviction and sentence in this cause is affirmed.
SCOTT and DIXON, JJ., concur.
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