Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. L. Sheldon Brown, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
After a bench trial in the circuit court of Cook County, Charles Jones was found guilty of the murder of George Johnson and sentenced to 20 to 40 years' imprisonment. The judgment was affirmed on direct appeal. (People v. Jones, 121 Ill. App.2d 268.) Jones then filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1971, ch. 38, par. 122-1 et seq.). He alleged that he was denied due process of law by the failure of the State to disclose to him the contents of grand jury testimony given by a witness, Johnny Dean, who was not called to testify at trial. The petition was dismissed without an evidentiary hearing, and the dismissal was affirmed on appeal, with one justice dissenting (33 Ill. App.3d 1025). We granted leave to appeal. The sole issue before us is whether the post-conviction petition presented a substantial showing of a denial of due process so as to entitle petitioner to an evidentiary hearing under the Post-Conviction Hearing Act.
Before trial, defendant had filed a motion requesting a list of witnesses and copies of any written or oral statements made by the State's witnesses. The State responded with a list of witnesses which included the name and address of Johnny Dean. As noted above, Dean did not testify at the trial. He did, however, testify before the grand jury. A transcript of the testimony was not given to defendant.
At the trial, deceased's brother, Robert Johnson, testified for the State that Thomas Houston approached Johnny Dean and George Johnson as they emerged from a tavern. Houston held a gun on the two of them and demanded money that he was owed. George Johnson gave some money to Houston, who then fled with Robert Johnson in pursuit. Robert could not catch him, and upon returning to the vicinity of the tavern he observed George, Johnny Dean, and defendant, Charles Jones, standing near a car in front of the tavern. George Johnson and Jones were engaged in a loud conversation. Robert heard someone say something that sounded like "let's fight," and it looked like George and Jones were going to hit each other. A shot rang out, and George Johnson fell to the ground.
Cleophas Martin, a cab driver, testified for the State. On the night of the occurrence, he was driving his cab. He saw a group of people arguing, and he pulled his cab to the curb and stopped on the opposite side of the street. He heard two men arguing about some money. They were talking loud "so the guys squared off like they was going to fight and when I knew anything I seen the gun, it went off." He saw the gun in the defendant's hand. The deceased was facing Martin, and he did not see anything in the deceased's hand. Martin immediately left and summoned the police.
Charles Jones testified on his own behalf that he was drinking at the same tavern. As he left the tavern he was struck by Johnny Dean, who shouted to the Johnson brothers that Jones was Houston's cousin. He attempted to go to his car, but George Johnson hit him and pulled out a gun. It was at this point that he shot George Johnson.
Although Dean did not testify, he was present in the courtroom during the trial. He had testified before the grand jury that when he left the tavern Tommy Houston robbed him and George Johnson at gunpoint and then fled. Houston's cousin, Charles Jones, then drove up. Dean yelled to George Johnson that Houston was Jones' cousin and that perhaps Jones could lead them to Houston. George Johnson walked over to Jones' car, "and one word led to another and they got to fighting." Dean also testified: "I don't know who got the first lick. They started fighting * * * and Charles Jones shot George."
The petition alleges that petitioner was denied due process by the State's failure to disclose Dean's grand jury statements, in response to a defense motion for a list of witnesses and any statements made by the State's witnesses. It alleges further that this testimony would have been favorable and material to the petitioner in that it would have corroborated his testimony that he shot George Johnson only after Johnson had struck him, and would have rebutted the testimony of Robert Johnson that no fight had begun prior to the shooting.
An evidentiary hearing under the Post-Conviction Hearing Act should be granted only if the petition makes a substantial showing of a constitutional violation, and conclusional allegations are not sufficient to require an evidentiary hearing. (People v. Arbuckle, 42 Ill.2d 177; People v. Evans, 37 Ill.2d 27.) A court may also properly dismiss a post-conviction petition if the record of proceedings at trial shows the petition to be non-meritorious. People v. Owens, 54 Ill.2d 286; People v. Spicer, 47 Ill.2d 114; People v. Arbuckle, 42 Ill.2d 177.
Since the defendant's trial was held in August 1968, we are not here concerned with his right to secure the grand jury testimony of Dean through discovery under our Rule 412(a)(iii) (58 Ill.2d R. 412(a)(iii)), which became effective October 1, 1971. That question was considered by this court in People v. Lentz, 55 Ill.2d 517. Also we are not here concerned with the effect of section 112-7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 112-7), which requires that all grand jury testimony be transcribed. That section of the statute became effective October 1, 1975. We are concerned only with whether the production of Dean's grand jury testimony was constitutionally required. Since the defendant's post-conviction petition was dismissed without a hearing, we must decide whether the petition and supporting affidavit, when read in light of the record of proceedings, make a substantial showing that the defendant was denied due process of law by the failure of the State to furnish him a transcript of Dean's grand jury testimony.
The petitioner relies on Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, which 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 the guilt or punishment, irrespective of the good faith or bad faith of the prosecution. The history of the development of this principle prior to Brady, and the refinement and application of the Brady rule subsequent to that decision, have been extensively discussed in a comment in 40 U. Chi. L. Rev. 112 (1972). The author there acknowledges the uncertainty of the application of the various aspects of the Brady rule as demonstrated by the decisions of various lower courts> which have attempted to apply it.
However, on June 24, 1976 (subsequent to the filing of the appellate court opinion in this case), the Supreme Court of the United States filed its opinion in United States v. Agurs, 427 U.S. 97, 49 L.Ed.2d 342, 96 S.Ct. 2392, which resolves the uncertainty of elements of the Brady rule important to the decision of this case.
The defendant did not specifically request that Dean's grand jury testimony be furnished, although Dean was named as a possible State witness and his name was endorsed on the indictment returned by the grand jury as a witness. The defendant did move and the court ordered that defendant be furnished with a list of witnesses and copies of any written or oral statements. Our case presents a two-pronged threshold question. Was a specific demand for Dean's testimony necessary to invoke the Brady rule and, if so, did the ...