APPEAL from the Circuit Court of St. Clair County; the Hon.
WILLIAM P. FLEMING, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction in a jury trial of the crime of murder.
The facts show that on March 8, 1969, a group of people were assembled in the residence of Patricia Howze, who was defendant's sister and also the girlfriend of the deceased, Carl Thomas. The group consumed a large quantity of liquor between the evening of March 7 and the afternoon of March 8. Those present at the party during the afternoon of March 8 included Dianne Weston, Norville Thomas (who is the brother of the deceased), Velma Beckley, Harry Fair, Laverne Taylor, Frank Cotton, and the deceased, Carl Thomas. Also present at the apartment dwelling during that afternoon were Julius Howze, who is the defendant's younger brother, and Patricia's two small children, Von Darvin and Tywanna. Tywanna, who was seated in the lap of Velma Beckley, took a piece of candy for herself. Laverne Taylor testified that this angered Velma, that Velma therefore spanked the child and that Julius Howze objected to Velma's punishing his little niece, since Velma was not the child's mother. Julius' objection prompted Carl Thomas to tell him to leave the premises. When he refused, Thomas began hitting him. Thomas was restrained by Harry Fair, whereupon Julius left the apartment dwelling. He ran down 19th Street, where he came upon his older brother, the defendant, at the intersection of 19th Street and Central. Upon learning what had just happened, defendant decided to go to Patricia's house. Julius accompanied him.
Defendant arrived and entered the front door of his sister's apartment. He proceeded through the living room to the threshold of the kitchen where he met the deceased, who was standing in the kitchen on the other side of a stepdown entranceway. Laverne Taylor testified that defendant struck the first blow which caused the deceased to fall backward to the floor. Harry Fair, who was seated at the kitchen table during this incident, testified that after the deceased fell backwards to the floor, he observed a revolver in defendant's hands and that he heard a shot ring out. Laverne Taylor testified that she was standing between the refrigerator and the back door in the kitchen during this incident, and that when the deceased tried to get up, she observed fire from a small gun in defendant's hand and heard a shot. After the shot was fired, defendant ran out the back door. The deceased died from the gunshot wound two weeks later.
The defendant testified that he had a fight with Thomas in the kitchen of his sister's home on the day in question, but that he did not shoot the deceased as he had no gun with him at the time.
Defendant's first contention is that he was denied due process of law guaranteed by the Fourteenth Amendment to the United States Constitution when the prosecution failed to disclose to the defense the existence of a witness, Betty Burries, and the contents of her oral statement to the prosecution which allegedly contained evidence favorable to the defendant. The factual setting for this contention must be stated. The State presented its case in chief on July 16 and July 17 and rested. On July 17 defendant presented witnesses in his behalf and also testified in person, denying that he shot the deceased. On July 18 after court convened defendant rested and the State thereupon called as a rebuttal witness, Mary Burries, the girlfriend of the defendant. The defense objected to the witness on the ground that her name was not contained in the list of witnesses furnished the defendant by the State. Over the objection the witness was allowed to testify. She stated that defendant had been at her house about noon on the date of the shooting and that he returned later during that day and said that he was in trouble, that he had shot a man, something about "Ninety-nine," (Julius, defendant's brother). After the State concluded its questioning of Mary Burries defendant's attorney requested and was given leave to question the witness in private. Upon the cross-examination which followed the witness then stated that the defendant returned to her home at a later time on the day in question and told her that some man had been shot, she didn't know for sure if he told her that he had shot the man. She further stated that she was not sure that defendant shot the man, not sure it was about "Ninety-nine," was not sure about anything and did not remember what defendant told her. Approximately three weeks after the trial was concluded defendants' attorney took an unsworn question and answer statement from Betty Burries, the mother of Mary Burries. In the statement she related that Mr. Stacker, (an investigator for the St. Clair County State's Attorney's Office) came to her house the evening before Mary testified with a subpoena for Mary's appearance and that he returned the next morning and took Mary to the courthouse. A short time later the same morning Mr. Stacker returned and asked her (Betty) to accompany him to the courthouse. She was taken to a room where a gentleman (an Assistant State's Attorney) was talking to Mary. The statement then shows the following colloquy between Betty and the Assistant State's Attorney as related by Betty:
"A. And he asked me did James come back to my house. I told him, `No, sir, not as I knows; I ain't seed him.' I went over to the Alabama and got me a beer and come back and I was drinking my beer and I hadn't saw him no more.
Q. Did you tell him you didn't see him the rest of that day?
A. Yes, sir, I told him I didn't see him at all. He didn't come back to my house.
Q. Did he tell you anything about Mary Elizabeth telling him that James had come back?
A. No, sir, and so he told me that, `Mrs. Burries, that will be all, you won't have to go up [to testify].'"
In this same statement Betty Burries said that Mary told her that she had testified at the trial that James had returned to the house a second time on the day of the shooting but that was not true, it was a story, that she was scared and nervous and was trying to help James.
It is defendant's position that as a result of the incident which occurred in the room of the courthouse prior to the rebuttal testimony of Mary Burries, the State was possessed of information or knowledge that Betty Burries would contradict the testimony given by Mary by saying that, other than the time she went to the Alabama for a beer, she was home all day and that defendant never returned the remainder of that day, and accordingly could not have made the statement to Mary that he was in trouble because he had shot a man over "Ninety-nine." This information was alleged to be favorable to defendant and he argues that he was denied due process of law when the prosecution failed to disclose it to him. We parenthetically note here that the defense made no request for favorable evidence or for statements of witnesses.
• 1 The subject of the extent of the obligation of the prosecution to disclose to the defense information or material which might be favorable to an accused in the preparation of his defense has received considerable attention and consideration in recent years. Now well established is the rule which requires the prosecution, upon request, to furnish statements in their possession or control to the defense during the trial for impeachment purposes. (People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197, and People v. Cole, 30 Ill.2d 375, 196 N.E.2d 691.) But there are other dimensions of the problem that are involved in the case under consideration, namely, whether the obligation to disclose pertains to favorable information or material other than statements useful for ...