APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant, Lance Norris, was indicted on two counts of attempted murder and three counts of armed robbery. He was convicted after a jury trial on the three counts of armed robbery and sentenced to a term of 10 to 17 years. The court directed a verdict in favor of the defendant on the two counts of attempted murder at the close of the State's case.
The two related issues raised by defendant on appeal are (1) whether the court erred in failing to require that the State directly furnish him with certain police reports of investigating officers which allegedly contained substantially verbatim descriptions of the assailant as given by the three State's eyewitnesses, or (2) in the alternative, whether the reports should have been tendered to the trial judge for an in camera examination to determine whether they contained substantially verbatim statements of the three eyewitnesses.
In addition to addressing itself to the merits of defendant's contentions, the State argues that defendant is foreclosed from raising these related issues on appeal because they were not raised in his written motion for a new trial.
The relevant facts follow:
On January 13, 1970, at about 8:15 A.M., Mrs. Laura Sampson parked her car in the parking lot across from her place of work at 815 North Franklin Street in Chicago. Moments later Mrs. Mary Turner, a co-worker, arrived and parked her car in front of Mrs. Sampson's car. Mrs. Turner joined Mrs. Sampson in the latter's car. Then Susan Simmons, another co-worker, arrived and parked her car in front of Mrs. Turner's car. As Mrs. Simmons got out of her car a man came up to her, put his arm around her neck and placed a gun to her head. He directed her to Mrs. Sampson's car (which was a two door model) and shot a hole through the side rear window on the driver's side. The door was opened, Mrs. Simmons was pushed into the back seat and the assailant got into the front seat and proceeded to search the three women for valuables. He took various items from them (watches and wallets) and then walked back to Mrs. Simmons' car and picked up her purse which she had dropped when first grabbed. All three women made positive out of court photographic identifications and in court identifications of the defendant as the assailant.
Mrs. Sampson testified that she did not get a good look at defendant as he approached her car but that she was "face to face" with him while he searched her; the defendant was in the car for two or three minutes. She also had a good opportunity to observe him when he left the car. She described the defendant as wearing "a plaid hat, I call it a Robin Hood, up in the back, down in the front, little feathers on the side and sort of grayish colored plaid." On cross-examination she testified that she told an investigating police officer that the assailant was about five feet nine inches, had a fair complexion, weighed 149 pounds and wore the hat described above. Defense counsel asked that the investigating police officer's report be given directly to him for impeachment purposes or agreed that it be given to the trial judge for an in camera examination. He argued that he was presently entitled to the report and that the State could not withhold favorable evidence, citing Brady v. Maryland, 373 U.S. 83. The Assistant State's Attorney stated that the requested report contained a "composite" of what the three eyewitnesses told the officer. The court denied defense counsel's request for production and did not hold an in camera hearing.
Mrs. Sampson saw the defendant one week later on the morning of January 20 at the same location as the robbery. She lost sight of defendant but saw him five minutes later standing about two feet from her car; he stood there for two or three minutes. She saw him shortly thereafter for a third time (still on the same day) when Mrs. Mary Turner drove up in her car; the defendant ran after Mrs. Turner's car; Mrs. Turner drove away and Mrs. Sampson followed her and again saw the defendant's face.
Mrs. Mary Turner testified that the defendant was in Mrs. Sampson's car on January 13, 1970, for about five to ten minutes; she stated the time was two or three minutes in her Grand Jury testimony. She had a good opportunity to observe the defendant's face at various moments during the robbery. She saw the defendant again on January 20 near the location of the robbery as she was driving to work. He was standing on the curb to the east of her as she drove past him heading north. She had given a description of the assailant to an investigating officer to the effect that at the time of the robbery he wore a corduroy jacket, was five feet seven inches, skinny and had light brownish skin color. She was not questioned as to which officer she gave this description.
Mrs. Susan Simmons first saw the defendant's profile (for a second) when he shot a hole in Mrs. Sampson's car. She also saw his profile as he searched the two women in the front seat and saw his full face when he searched her. At trial Mrs. Simmons testified that defendant was in the car for at least one minute, "as long as it takes to search three people." Before the Grand Jury she testified that defendant was in the car for "maybe 20 seconds * * * you can imagine how much time it would take to search * * *." She further testified that she gave an investigating officer (on January 13) a description of the assailant; "It was a tall man, taller than I am, if I remember. * * * I imagine he was five, ten, * * *, or five, nine, * * *, he had a gray Robin Hood style hat."
Police Officer Alexander Nere testified for the State. He and his partner, Leonard Muscolino, investigated this robbery. On January 20 he showed about six photographs to Mrs. Turner and Mrs. Simmons; both women identified the defendant as the assailant.
During cross-examination defense counsel requested that he be furnished with a report Officer Muscolino had made, but the court ruled that cross-examination should continue without the production of the report. Nere then testified that he saw the "original case report" on January 14, the day after the robbery; that this report described the assailant as a "Male Negro, approximately 19 to 20 years old, five, ten and 145 pounds, black hair, brown eyes, light complexion, medium build; that the assailant wore a Robin Hood type cap * * * [and] a tan-colored corduroy, three-quarter length jacket, with dark pants."
A hearing was held outside the presence of the jury wherein defense counsel again asked that he be furnished with Muscolino's report and the "original case report" (which was made by a beat officer whose name was unknown to Officer Nere). The State objected on the basis that Officer Nere did not write either of the reports; that the reports were hearsay and should be excluded from the record. Defense counsel ...