APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
MASSEY, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 17, 1975.
Norma Watkins, defendant, was found guilty by a jury of the crime of murder (Ill. Rev. Stat. 1969, ch. 38, par. 9-1) and was sentenced to not less than 20 nor more than 40 years.
On appeal, defendant contends that the trial court erred in permitting in evidence a statement by defendant to the effect that she would burn down decedent's home and testimony of a fire there the same evening; that the State's nondisclosure of certain evidence prior to trial was prejudicial to defendant and reversible error; and that the sentence was excessive.
As defendant does not challenge the sufficiency of the evidence, only such of the facts as are necessary to resolve the issues presented will be set forth. The undisputed facts follow. Clarence Young was beaten in his backyard in the City of Chicago on the evening of December 12, 1970, at about 8 p.m. Young died three days later as a result of the injuries received that evening. Defendant was Young's sister-in-law, and she was at his home with her mother on the evening of the beating. Upon indictment the public defender was appointed to represent defendant. A motion for discovery was immediately filed by defendant. The discovery motion requested, among other things, a list of witnesses to any oral statement that defendant may have made and the production and copy of any statement, oral or written, made by any witnesses for the State.
The State introduced three witnesses that testified they had seen a woman beating a man in Young's backyard on the evening of December 12, 1970. Two of the witnesses positively identified defendant as the person beating the deceased with a stick or pipe. All three witnesses described the victim as wearing nothing but a white shirt, and two of these witnesses noted the woman doing the beating wore dark pants and a light shirt. Another witness testified she saw defendant in Young's backyard on the night in question, but she did not see the defendant beating the deceased.
Young's neighbor, Albert Heard, testified he was called by someone on the night in question, went out on his back porch and saw Young on the ground unable to get up. The witness went inside, called the police, dressed, and went over to Young's home. By the time the witness arrived at the home, Young was in the kitchen by the back door. Defendant and her mother were also in the kitchen. Heard recalled defendant was wearing dark pants and a light shirt, and on rebuttal he recalled she was carrying a glass with an alcoholic-looking substance and liquor on her breath. An investigating officer testified he found blood in the living room, throughout the basement, and on the stairs leading into and out of the basement of Young's house on the night in question, as well as in the kitchen. This officer also testified he detected an odor of alcohol about defendant.
In addition to testifying to the events of the night in question, Heard also testified regarding a conversation he overheard about a week prior to the evening of the beating. Before the testimony was received, defendant, outside the hearing of the jury, objected to Heard's testimony as a violation of both the hearsay and discovery rules. Thereafter defense counsel was allowed to interrogate the witness out of the presence of the jury with respect to the alleged statements made by the defendant. The trial court then allowed the statement "I will burn the son-of-a-bitch down" allegedly made by the defendant, to be introduced before the jury to show defendant's motive or intent for committing the alleged offense. The court further allowed the witness to testify as to an alleged fire at Young's home on the evening the alleged threat was made. No other evidence of a fire was introduced, whereupon defense moved for a mistrial which the court denied. Defendant's post-trial motion for a new trial sought to prove there was in fact no fire at Young's home as alleged by Heard.
Defendant testified that she was at Young's home on the night of the beating. She denied seeing or speaking with Young earlier that evening, denied she had been drinking, and stated she did not beat Young over the head and that she did not kill him. She stated she and her mother went to the house looking for her sister. She testified she and her mother arrived at the house, found no one home, and proceeded to make dinner. She claimed she did not see Young that evening until she was taking out the garbage after dinner. At this time she testified that she saw Young lying on the ground in the backyard, saw he was beaten and let out a scream. She alleged he was asking her to get his pants, but that she stayed there and helped him into the house. She believed it was her scream which alarmed the neighbors to call the police.
In rebuttal the State introduced evidence that defendant told an investigating officer that she had spoken with Young earlier in the evening on the night of the alleged beating. The State also introduced evidence the defendant had called the neighbors earlier that day asking them to check and see if her sister was at home, and the neighbors allegedly reported no one was at home. The State also introduced testimony of Officer McCluskey who investigated a missing person report on defendant's sister which was filed by defendant on December 11, 1970. The officer testified the defendant talked with him on December 13, 1970, and made no mention about the events of the twelfth, but stated her brother-in-law was in the hospital as a result of injuries sustained in a robbery.
In its closing argument the State once again referred to the alleged threat made by defendant and the resulting fire. The jury returned a guilty verdict. Defendant's motion for a new trial was denied and after a hearing in aggravation and mitigation, including a presentence report, the court sentenced defendant to not less than 20 nor more than 40 years.
At the outset it should be noted that defendant failed to file in this court any excerpts or abstract of the record as required by Supreme Court Rule 342. (Ill. Rev. Stat. 1973, ch. 110A, par. 342.) Though this court could affirm for the failure to file the abstract or excerpts (see Denenberg v. Prudence Mutual Casualty Co. (1st Dist. 1970), 120 Ill. App.2d 68, 70, 256 N.E.2d 71), the fault here is the disregard of the rules of this court by the attorney for the defendant. As we have said in People v. Edgeworth (1st Dist. 1975), 30 Ill. App.3d 289, 303-04, 332 N.E.2d 716, an omission of an attorney in the prosecution of an appeal is conduct which will be directed to the attention of the Attorney Registration and Disciplinary Commission for such action ...