APPEAL from the Circuit Court of Livingston County; the Hon.
WILLIAM T. CAISLEY, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
The defendant, Henry Payne, Jr., was found by a Livingston County jury to be guilty of robbery in violation of section 18-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 18-1).
On appeal, defendant raises five issues for our review, however, we need only address defendant's allegation that his right to due process was violated when the State, upon request, neglected to furnish him a police report containing information favorable to his defense.
After pleading not guilty, the defendant, on March 12, 1975, filed a motion for discovery pursuant to Supreme Court Rule 412 (58 Ill.2d R. 412) requesting, in pertinent part, that the State furnish:
"1. 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 statements, and a list of memoranda reporting or summarizing their oral statements, which the State has in its possession or control; this request is made pursuant to Supreme Court Rule 412(a). * * *
8. Any material or information within the possession or control of the State, which tends to negate the guilt of the defendant as to the offense charged in this cause, or which would tend to reduce the defendant's punishment therefore; this request is made pursuant to Supreme Court Rule 412(c)."
The court ordered that the State comply with defendant's request by March 19, 1975. Accordingly, the State submitted to the defense a written answer to the motion for discovery with several police reports and copies of exhibits attached. The State intended to introduce the exhibits at the trial. The State, however, did not furnish Officer Curtis Van Note's four-page report which stated, in pertinent part:
"I got a call from the County at 7:43 p.m. advising me to go to Simmie's Store, that there had been a robbery there. As I arrived at the store Mrs. Hummel came running out to the car and said two colored subjs. had just held them up at gun point. I gave this information to the County and went inside the store where I met Mr. and Mrs. Vincent W. Endres, who were in the store when this took place. Also in the store was Marna Hummel, who works there. These people told me the following as what had happened. * * * The two Negro subjs. are described as follows,
1. 5'7" to 5'8", around 30 years old, heavy set, wearing dark pants and a sweater.
2. 5'8" to 5'9", around 30 years old, 170 to 175 pounds, wearing a full beard and moustache. Had on dark colored pea coat and dark blue bell bottom trousers.
No one saw the vehicle involved in this nor the direction of travel. At 9:10 p.m. while at McDonald's having coffee I got a call from Sgt. Gayon to go back to Hummel's, that they knew the car and could describe it. After returning to the store, Marna said the car was Buick Electra 225, maroon in color. I asked her how she knew this and she said Joe Ortega had come into the store after we left and wanted to know what had happened. She told him and he said I bet it was the same ones that were here Saturday. She then remembered that two colored subjs. had come to the store Saturday and one of them looked inside and then left. She said this was the type of car they were in. At 11:10 p.m. I got a call to go to the Joe Speedon house as Mrs. Speedon saw the subjects that did this. She said she had been to the store shopping around 7:30 p.m. and as she was leaving two colored subj. were going in. She described them as the people in the store did. The only car she saw was a light green or creamed colored one which was parked just north of the doors. She thought this car had 75 Ill. plates on it. She said there was no one else in the car. Mrs. Speedon also stated that when she left the store there was no one else in the store but Mrs. Hummel and her daughter. * * *"
Marna Hummel was the only one of four eyewitnesses who was not called by the State to testify at the trial. The police report was not furnished to the defense until after the completion of the trial.
The origin of the prosecutor's duty to disclose evidence favorable to the defense can be traced to Mooney v. Holohan (1935), 294 U.S. 103, 79 L.Ed. 791, 55 S.Ct. 340, in which a labor leader convicted of first degree murder petitioned for a writ of habeas corpus, claiming that he had been convicted through the use of manufactured physical evidence and testimony that the prosecutor knew to be perjured. The Supreme Court, in affirming the denial of the writ on procedural grounds, found in dicta that the alleged prosecutorial misconduct was inconsistent with the concept of a fair trial and constituted a denial of due process. Seven years later, in Pyle v. Kansas (1942), 317 U.S. 213, 87 L.Ed. 214, 63 S.Ct. 177, the court reaffirmed and broadened the principle it had expressed in Mooney, proscribing the knowing use of perjured testimony and the deliberate suppression of evidence favorable to the accused. In Pyle, as in Mooney, the court reasoned that the prosecutor's misconduct had deprived the defendant of his constitutional right to a fair trial and thus rendered his conviction void. In two subsequent cases, the court extended its holding in Pyle, ruling that defendants had been denied due process where the perjury of a witness had been known to the prosecutor but not suborned by him, and where the evidence was relevant only to sentencing (Alcorta v. Texas (1957), 355 U.S. 28, 2 L.Ed.2d 9, 78 S.Ct. 103, or to the credibility of a prosecution witness (Napue v. Illinois (1959), 360 U.S. 264, 3 L.Ed.2d 1217, 79 S.Ct. 1173) rather than directly to the defendant's guilt.
In all of these cases, the court focused on the conduct of the prosecutor and the central inquiry was whether the defendant had been denied a fair trial because of the improper role played by the prosecutor in obtaining his conviction. The Third Circuit's decision in United States ex rel. Thompson v. Dye (3d Cir. 1955), 221 F.2d 763, marked a departure from the Pyle line of cases both in rationale and application. Finding a denial of due process in the suppression of testimony that could have corroborated the defendant's exonerating claim of intoxication, the court ignored any issue of the prosecutor's blameworthiness and, instead, dealt only with the effect of the suppression on the defendant's ability to present his defense. The court held that whether the prosecutor's conduct had been wilful or merely negligent, his failure to communicate favorable evidence had deprived the defendant of a fair trial. In a subsequent case, the Second Circuit applied the Thompson rationale to the negligent suppression of evidence in the hands of government officials other than the prosecutor. (United States v. Consolidated Laundries Corp. ...