Appeal from the Circuit Court of Sangamon County; the Hon.
Creel Douglass, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendants in this case were tried and convicted of murder, arising from a prison riot which occurred at Menard Penitentiary on November 23, 1965. The charges were filed in Randolph County, but on motion for change of venue the trial was held in the circuit court of Sangamon County. The defendants were tried for the killing of the three prison guards, although they were indicted for many other crimes which took place during the course of the riot. This case is before us pursuant to Supreme Court Rule 603 (50 Ill.2d R. 603) because of the imposition of the death penalty against defendants Bassett, Jones and Stamps. Defendant Brown, a/k/a Griffin, was sentenced to 50 to 75 years on each count.
Many errors have been alleged by the defendants, as may be expected on appeal from a multiple-murder trial that lasted for four months and produced a record of over 12,000 pages. Defendants Bassett and Jones have filed a joint brief, and their allegations of error apply to themselves and to the other defendants. Defendants Stamps and Griffin have incorporated the allegations of error asserted by Bassett and Jones, and have made further allegations specifically as to themselves.
It should be noted at the outset that this case must be remanded for the imposition of new sentences as to defendants Bassett, Jones and Stamps in accordance with Furman v. Georgia (1972), 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726; and Moore v. Illinois (1972), 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562, and our procedure for implementation of these holdings established in People v. Speck (1972), 52 Ill.2d 284; People v. Newbury (1972), 53 Ill.2d 228; and People v. Clark (1972), 52 Ill.2d 374.
The outbreak occurred shortly after 4:00 P.M. on November 23, 1965, during the supper feeding. The defendants entered the dining room along with the other inmates who were in the vocational school gang. When defendant Bassett arrived at the steam table at which he was to have received his food, he started a fight with another inmate and stabbed him with a handmade knife. Defendant Jones threw a Molotov cocktail, which he had brought with him, at the guard tower in the front of the dining room. The bottle exploded and burst into flames.
Considering all of the testimony, it appears the following happened: Lieutenant Paul went over to break up Bassett's fight, and Jones went after Paul, grabbed him from behind by the neck and stabbed him. There is some testimony that all four defendants participated in the stabbing of Lieutenant Paul. While Paul was being stabbed, or immediately thereafter, defendant Griffin went over to the burning guard tower, climbed up on a plate rack and reached in, presumably to grab the guard's rifle. Officer Wilson attempted to come to Paul's aid, but did not make it because he was stabbed by defendant Stamps.
Eventually all of the defendants made their way to the kitchen. Stamps apparently attempted to get into the kitchen first, but Officer Gross was at the door and resisted. After a struggle, Stamps pulled Gross from the doorway and stabbed him. Officer Kisro went to Gross's aid, and Stamps stabbed Kisro in the stomach. The defendants all wound up in the kitchen, having taken with them as hostages two uninjured guards and Officer Gross. Twenty-three inmates who worked in the kitchen were also there. The defendants refused to come out, or hand over their knives.
During the approximately four-hour period in which they held out in the kitchen, each defendant made inculpatory statements, and they conducted themselves in such a manner as to effectively segregate themselves as a group separate from those inmates who were supposed to be in the kitchen.
Officers Kisro and Wilson and Lieutenant Paul died as a result of their injuries. Seven or eight other guards were injured. One, the officer from the guard tower, suffered from burns, and the others from stab wounds.
It is urged that the prosecution had in its possession various statements, made by witnesses for the People, which should have been turned over to the defense in accordance with People v. Wolff (1960), 19 Ill.2d 318. This question is now controlled by Supreme Court Rule 412, which was not effective at the time of this trial.
However, Rule 412, like People v. Wolff, was, in general, based on the rationale of Jencks v. United States (1957), 353 U.S. 657, 1 L.Ed.2d 1103, 77 S.Ct. 1007, Palermo v. United States (1959), 360 U.S. 343, 3 L.Ed.2d 1287, 79 S.Ct. 1217, and People v. Moses (1957), 11 Ill.2d 84. Section (a)(i) of Supreme Court Rule 412 provides that upon written motion of defense counsel the State shall disclose to defense counsel the following material and information within its possession and control:
"(i) the names and last known addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements. Upon written motion of defense counsel memoranda reporting or summarizing oral statements shall be examined by the court in camera and if found to be substantially verbatim reports of oral statements shall be disclosed to defense counsel." 50 Ill.2d R. 412.
Wolff concerned testimony given by a People's witness who testified on cross-examination that he had made a statement to the police, but couldn't recall if it had been written down. Defense counsel then asked if the statement had ever been shown to the witness, the State objected on the ground that defense counsel was assuming the existence of the statement, and the objection was sustained. In Wolff, at page 327, this court stated:
"* * * 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 instant case concerns interviews by State personnel with at least 800 to 900 inmates of Menard Penitentiary. The procedure followed according to the prosecuting attorneys, was that notes would be taken on yellow paper during the interview but these would not be verbatim notes. After all the interviews were completed, these notes were transcribed onto white cards, allegedly containing a narrative of what the prosecutor expected to prove by each witness. The prosecution claims that no attempt was made to obtain the signatures of those being interviewed and no such "formal statement" was produced.
It must be conceded that the representatives of the People who conducted these interviews sought to take notes that would be of some use in the preparation and trial of the case; and that when assistant Attorney General Crain or others transcribed these original "rough notes" into "narrative" form on white cards, it was done in such a manner as to make these cards useful at trial. It would seem that these cards would be useless unless they accurately summarized the point the People wished to be proved by any given witness.
There is also testimony that these cards were used in discussing a prospective witness's testimony before trial, and that at the discussion the witness thought he was being told what he had said in his initial interview. He did not say that what was read to him from the card was word for word what he had previously stated, but that it accurately reflected the substance of what he had told the interviewer.
In this case the defense could not prove the existence of the original notes, for they had been destroyed by the prosecution. The defense was then faced with showing that the white cards being used by Crain were verbatim or substantially verbatim copies of the witnesses' earlier remarks. Crain stated repeatedly and strenuously that no verbatim or substantially verbatim statements existed. The truth or falsity of this statement depends upon one's conception of the rationale behind the Wolff case and later decisions.
"Curtis's statement should also have been given to the defendant. This court in People v. Wolff, 19 Ill.2d 318, expressly adopted the Federal rule first announced in Jencks v. United States, 353 U.S. 657, 1 L.Ed.2d 1103, 77 S.Ct. 1007, and later made part of a Federal statute, (18 U.S.C. sec. 3500) that where the relevancy and competency of a statement or report has been established, and no privilege exists, the trial court, on appropriate demand, shall order the statement or report delivered directly to the accused for his inspection and possible use for impeachment purposes. (19 Ill.2d at 327; see also People v. Cagle, 41 Ill.2d 528, 532.) It was expressly recognized in Wolff that once a statement is shown to contain pertinent material, only the defense should be permitted to determine whether it may be useful for impeachment."
This decision precludes the trial court from examining the statement to determine if it is in fact impeaching.
Sumner outlines the proper approach to the problem, and the application of that rationale to the instant case requires that the white cards used by the People's attorneys at trial should have been made available to the defense for impeachment purposes. It must be noted that there may be some problem here in determining what is or is not the substance of the statement by the witness.
The prosecution admittedly had recorded information on white cards of such a nature as to be useful in its examination of the witnesses. The prosecutor had not personally interviewed all of the witnesses, and he could not possibly keep over 800 interviews straight in his mind, even if he had. These cards, by their very nature, had to be a reproduction in one form or another of what the witness said when interviewed earlier. As such, that portion of the material which can fairly be said to be the witness's statement must be turned over to the defense so that they may determine its worth as impeachment material. In the event the prosecutor claims that validly ...