APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, JR., Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Darrell Peatry was convicted of murder, attempt murder and armed robbery and sentenced to 40 to 120 years' imprisonment for each offense, the sentences to be served concurrently. He appeals, contending that (1) he was deprived of a fair trial because the court refused to order the disclosure of the identity of an informer to aid him in his defense; (2) the instructions erroneously permitted the jury to find him guilty of attempt murder without the requisite specific intent; and (3) the court erred in imposing two additional concurrent sentences after the notice of appeal had been filed.
The defendant and five other persons who are not parties to this appeal *fn1 were jointly indicted for the murder and armed robbery of William Richter and the attempted murder of James Davis. The crimes were committed shortly before 3 a.m. on September 2, 1972, while the victims' vehicles were parked on the shoulders of the Edens Expressway in Lake County.
William Jackson, who had not been indicted at the time of the trial, testified for the State. He was present when several persons, including the six eventually indicted, discussed getting money by robbing truck drivers parked on the shoulders of expressways in the Chicago area. As a result of these discussions he assisted some of the men in obtaining arms and automobiles. After the discussions and preparations, Jackson and six others drove north on Edens Highway to a point where a Mustang, a semitrailer truck, and a pickup were parked on the shoulder of the expressway. The murder victim, Richter, was in the pickup truck and Davis was in the "semi." Jackson was in a car with three others, one of whom was armed with a .38-caliber weapon. The defendant allegedly was in another car with two others. Jackson testified that the car the defendant was in was behind the car that he was in. According to the witness both cars were parked behind the Mustang and in front of the "semi." The pickup was behind the "semi."
Jackson testified that he approached the Mustang while the others went back toward the trucks. After determining that the Mustang was locked, Jackson returned to the car in which he had been riding and sat down. While returning to the car, he noticed three men near the semitrailer truck but recognized only one of them, not the defendant. He looked back at the trucks twice but apparently could not see what was happening. He heard several shots on two occasions, saw the "semi" pull out and pass the car he was in, saw two of the men he had been traveling with come back to the car he was in, saw the third man he had been traveling with looking around in the grass near the "semi" for a magazine, and then drove the car out of the area.
Jackson was a member of the De Mau Maus. He testified that he had told the police of his involvement with a murder committed by members of the De Mau Maus in which the victim had been a man from Carbondale who was murdered on Interstate 57. Jackson said that he had named the others involved in that crime including Garland Jackson and had testified for the State during the trial in Franklin County. He also testified that he had named the De Mau Maus who were involved in the murder of a family in Barrington Hills. The witness stated that Garland Jackson had not been involved in the Barrington Hills murder or the offenses committed on September 2 although Garland had been present on September 1 when the idea of robbing truck drivers was discussed.
James Davis who was in the semitrailer truck testified that he had been awakened by a man asking for assistance with a flat tire. While conversing with this man, he looked into the rear view mirror and noticed another man with a gun. He started the engine and drove away but shots were fired at his truck. He could not positively identify any of the assailants. Richter, the murder victim, lived for about two weeks following the shooting but also was unable to identify his assailants. There was evidence that the bullets removed from Richter's body and from the trucks came from two different .38-caliber weapons.
Defendant did not testify.
The defense attempted to establish that the crimes committed on September 2, 1972, were De Mau Mau operations, that the leaders of the organization were the two Jacksons, that Peatry was not a member and was not present at the time of the crimes, but that Garland Jackson was present, and presumably was being shielded by his close friend, William Jackson.
William Jackson, however, testified that Peatry was a member of the De Mau Maus. The witness denied being a leader of the group and denied that the purpose of the group was to commit crimes against and kill whites in the suburbs rather than blacks in the inner city.
There was evidence that: (1) Garland Jackson and William Jackson had been very close friends for about ten years. (2) William Jackson would do almost anything for Garland Jackson. (3) Law enforcement officers working on the Carbondale killing told William Jackson that they knew Garland Jackson was involved before he confirmed Garland's involvement. (4) At the trial in Franklin County William Jackson minimized Garland Jackson's involvement and indicated that he knew nothing about plans to steal the Carbondale victim's car and to kill him before these events in fact occurred. (5) Garland Jackson was a member of the De Mau Maus. (6) The Cook County Sheriff's Department had developed a confidential informant (called Number 72-51) who had infiltrated the De Mau Maus. (7) The informant had told officers of the Cook County Sheriff's Department that the purpose of the group was to commit crimes against whites in suburbs instead of crimes against blacks in the city and that William Jackson and Garland Jackson appeared to be informal leaders of the De Mau Maus. (8) The informant had never said that Peatry was a member of the De Mau Maus. (9) The informant had not supplied law enforcement officers with a complete list of all members of the De Mau Maus, and (10) The informant had never mentioned Peatry.
Defendant made several attempts both prior to and during trial to require disclosure by the State of the informant. He contends that the court committed prejudicial error in refusing to order disclosure. He argues that William Jackson was the only witness who placed him at the scene of the crimes and that the informant could aid in impeaching Jackson's testimony, particularly the testimony that defendant was a member of the De Mau Maus and that the witness was not a leader of the group. He also sought to establish that the crimes committed on September 2 were part of the continuing plan and pattern of crimes committed by the De Mau Mau organization.
The court denied disclosure of the informant on the basis that there was no clear indication that the informant was familiar with the entire membership of the De Mau Maus or would testify that Peatry was definitely not a member. Defendant reasons that the desirability of calling the witness was a matter for the accused rather than the State to decide and that the defendant was deprived of due process by the court's action. He also contends that evidence potentially favorable to the accused was erroneously suppressed.
The State responds that even if the informant could contradict Jackson's testimony about his leadership role in the De Mau Maus and the purpose of the group and further even if he had been able to state that Peatry was not a De Mau Mau, the testimony would not tend to prove that Jackson was lying about Peatry's presence or that Peatry was in fact not present. Further, the State reasons that the evidence demonstrated that the informer never discovered whether Peatry was a member of the De Mau Maus and never purported to know the names of the entire membership. Therefore it concludes that the informant's testimony would not have been relevant to prove that the defendant was not a member of the De Mau Maus. The State argues that the impeachment of Jackson's statement about his leadership role and the purpose of the group would have been inconsequential considering the cross-examination of Jackson which demonstrated that he was a moving force in the De Mau Maus and that the group had participated in the killings of several white persons outside the inner city area.
1 The right of a defendant to require disclosure of an informant is defined in Roviaro v. United States, 353 U.S. 53, 62, 1 L.Ed.2d 639, 646, 77 ...