APPEAL from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The petitioner, Charles Jones, was found guilty of the murder of George Johnson after a bench trial and sentenced to a term of 20 to 40 years. The judgment was affirmed on direct appeal. (People v. Jones, 121 Ill. App.2d 268, 257 N.E.2d 514.) His post-conviction petition was dismissed without an evidentiary hearing. The sole issue in the appeal of that dismissal is whether he was denied due process by the failure of the State to apprise him of the grand jury testimony of a witness who was not called to testify at the trial.
• 1 At the outset, we must reject the State's assertion that the argument now advanced is waived since it was not raised by direct appeal. The waiver rule does not apply where the allegations in a post-conviction petition can be proved only by facts outside the record. (People v. Dennis, 14 Ill. App.3d 493, 302 N.E.2d 651.) That Dean gave favorable testimony before the grand jury and that the State did not disclose his testimony are not disclosed by the record on appeal.
Before trial, the defendant filed a motion requesting a list of witnesses and copies of any written or oral statements made by the State's witnesses. In response, the State submitted a list of witnesses which included the name and address of Johnny Dean. Dean's name also appeared on the back of the indictment.
At the trial, Cleophas Martin, a cab driver, testified that at 4 a.m. on April 26, 1968, he saw two men apparently arguing over money. They looked as if they were going to fight, and one of them pulled out a gun and shot the other. The man shot was facing Martin, who did not see anything in the man's hands. The man who fired the shot drove off in an automobile.
Robert Johnson testified that he was at a tavern with his brother, George, two other men and a girl. As they left, Tommy Houston, the defendant's cousin, approached Johnny Dean, pointed a gun at him and demanded money that he was owed. George Johnson gave some money to Houston, who fired some shots and fled. Robert Johnson chased Houston, emptying a pistol at him during the chase. He could not catch Houston and returned. As he approached the defendant's automobile, he saw his brother and the defendant arguing. Then he heard a shot and saw his brother fall to the ground.
The defendant testified that as he came out of a tavern, Johnny Dean hit him, shouting to George and Robert Johnson that the defendant was a cousin of Houston's. As the defendant walked to his car, George Johnson struck him and started to pull out a gun, so the defendant shot him.
Thomas Houston testified for the defense that he met Johnny Dean at the tavern and demanded money that Dean owed. Dean told Houston he would get it from George Johnson. Dean pulled a knife, which Houston took from him. Houston had George Johnson drop the money on the street and back off. Houston picked up the money and ran. Dean attempted to get a gun to shoot him. As Houston ran, the three men chased him, and Robert Johnson was firing shots at him.
Robert Johnson also testified that when he came back after chasing Houston, he saw his brother, George, Johnny Dean, the defendant, and two other people at Dean's car. As he approached, he heard what sounded like "`Let's fight' or something." He also testified that "they [the defendant and the deceased] were going to hit each other and there was a shot."
To his post-conviction petition the defendant attached a transcript of the grand jury testimony of Robert Johnson and Dean and the affidavit of his trial attorney. Robert Johnson's grand jury testimony was substantially the same as his trial testimony. Dean, who did not testify at the trial but was present in court, testified before the grand jury that when he left the tavern, Tommy Houston was waiting outside with a pistol and "robbed" them; that when Houston picked up the money from the ground, he fired two or three shots in the air. Dean and Robert Johnson tried to catch Houston. When the defendant drove up, Dean called out that the defendant was Houston's cousin and that he could help them get their money back by taking them where Houston was. George Johnson went to the car where the defendant was. Dean testified: "One word led to another and they got to fighting and I ran across the street. I was talking to one of the boys that was with his cousin. Then this other boy pulled a pistol up and shot George." Later he testified: "I don't know who got the first lick. They started fighting. I got there and grabbed Steve, and Charles Jones shot George."
The affidavit of the defendant's trial attorney is, in part, as follows:
"2. The Assistant State's Attorney complied with an oral and written answer to my Motion for Discovery on July 12, 1968.
3. The answer did not include notice of a favorable statement made at the Cook County Grand Jury on June 7, 1968, by Johnny Dean, who was listed as a State's witness.
4. During the course of the trial, at no time did I receive notice of this statement made by an occurrence witness.
5. The State failed to call Johnny Dean, as a witness, though the trial transcript reflects that he was present in court during the course of the proceedings."
The defendant contends that the State's failure to apprise him of Dean's grand jury testimony denied him due process, relying principally on Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194. But we do not believe that Brady is dispositive of the precisely same issue that is before us. In Brady, the Supreme Court held 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." (373 U.S. ...