APPEAL from the Circuit Court of Henry County; the Hon. ROBERT
J. HORBERG, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal from a burglary conviction of Jerry L. Williams, in a jury trial in the Circuit Court of Henry County. It is also an appeal from a subsequent order revoking defendant's probation as a result of a prior theft conviction of defendant. A sentence of 20 months to 5 years in the penitentiary was imposed as a result of the burglary conviction and a sentence of from 2 to 6 years was imposed as a result of the prior felony-theft conviction, following the revocation of probation. The court directed that the probation revocation sentence was to run consecutively to the burglary sentence.
Defendant asks for reversal on the basis of two contentions: (1) that the failure of defendant's court-appointed counsel to move for discovery constituted ineffective assistance of counsel, and (2) that the trial court erred in refusing to grant defendant a new trial in light of newly discovered evidence impeaching the credibility of the State's principal witness. A review of pertinent evidence in the case is essential to an understanding of the issues before us.
From the record, it appears that defendant Williams and a companion, Michael Rodak, were at the Martin Engineering Company, where defendant Williams was employed. Rodak testified that Williams gained access to the building by use of a wire and took some tools. Williams denied that he took the tools but stated that Rodak took the tools without his knowledge. The tools were later found in the premises of Dr. Terry, which were burglarized. Following the visit to the Martin Engineering Company, Rodak and Williams proceeded to Kewanee, and in the early morning hours of October 10, 1973, the Rodak vehicle, in which they were riding, was parked across from the office of Dr. Terry. Rodak testified that he and Williams then proceeded to the building containing the office of Dr. Terry and climbed up on the roof of the building, forced open the skylight, and that Rodak entered the Terry premises through the skylight from the roof of the building. He stated that Williams waited on the roof. Williams said that he remained in the car. A burglar alarm which had been installed in the building was activated by Rodak's entrance, and when Rodak called for help in getting out of the building, Williams helped him out through the skylight to the roof from which they both fled thereafter. Williams stated that he climbed up on the roof and helped Rodak out when he heard the call for help.
The testimony of Rodak was impeached by defendant by admission of a prior burglary conviction into evidence. Rodak also admitted that he was a drug user. The chief of police of Kewanee stated that defendant Williams had voluntarily surrendered himself to police and admitted his "involvement" in the burglary. Defendant also stated that he accompanied Rodak to the scene of the burglary because Rodak claimed there was a party in the area. Defendant, however, admitted that Rodak had talked to him about burglarizing Dr. Terry's office earlier in the day. Defendant also admitted that he went up on the roof of the building, but asserted that he did so to assist Rodak in getting out of the building after the burglar alarm went off and Rodak called for help.
After defendant's trial for burglary he was removed to the Henry County Jail. While he was in the Henry County Jail he received (by way of a jail trusty) two written notes from Michael Rodak, his accomplice in the burglary, who was also the State's principal witness against defendant at the trial. One note from Rodak read:
"Listen, I wouldn't sign a statement on you when they brought me in. I signed a statement, however, that said I did it by myself. O'Connor said he was going to subpoena me so I would have to tell the truth. This is the subpoena.
He didn't make any kind of deals with me. I just went over and pleaded guilty to get the fuckin' matter cleared up. You see they had me for burglary out in Colo. and I would have to go out there for maybe 10 yrs. When I came home that night and your'e [sic] things were all gone & you split without telling me a fuckin' thing, I flipped out! I thought the cops had you and I knew I had to split fast or they would be on my neck. So I busted into the safe to get $ to split.
I've got to serve a 2 to 5 in the pen, now. Only cause I made restitution for the stolen $. It's a bitch we got it for burglary because nothing was taken. I was telling O'Connor you was a good cat, but Watson [unintelligible] and told him you would never change.
The other note from Rodak contained a question from defendant Williams and a reply from Rodak in the following language:
"Are you sure you were to [sic] messed up to remember anything? I thought you only had a joint?
Jerry, I wuz drinkin' firewater & smokin! Anyway I can't remember what really fuckin' happened as to the matter ...