Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Christian
County; the Hon. Bill J. Slater, Judge, presiding.
MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The defendant, John D. Knippenberg, was convicted of murder after a jury trial in the circuit court of Christian County and sentenced to serve from 30 to 60 years in prison. The conviction was affirmed by the appellate court (33 Ill. App.3d 971), and we allowed the defendant's petition for leave to appeal under our Rule 315 (58 Ill.2d R. 315). The defendant's only contention is that he was denied a fair trial by the prosecution's improper use of a statement he had given to a defense investigator. He argues that this communication was protected from disclosure to the prosecution by the attorney-client privilege.
On April 22, 1972, at about 9:30 a.m. there was an attempted robbery in Taylorville, and the owner of a jewelry store was shot and killed. The circumstances of the occurrence have been described in People v. Vaughn, 25 Ill. App.3d 1016, and People v. Knippenberg, 33 Ill. App.3d 971, and will be stated here only to the extent our discussion requires.
The defendant was found by the trial court to be indigent, and the public defender was appointed to represent him. The public defender, however, withdrew as counsel and a private attorney was appointed. That attorney secured the services of Elmer Ward, an investigator for the Illinois Defender Project, to assist him in the defense. Ward, with the approval of the attorney and the consent of the defendant, interviewed the defendant at the jail and later prepared a summary of what the defendant had told him. Although it is not completely clear from the record, it appears that the prosecutor somehow obtained at least this summary without the knowledge of the defendant or his attorney. The prosecution never informed the defendant it had obtained this statement. A pretrial discovery motion of the defendant asked under our Rule 412 that the People disclose "any written or recorded statements and the substance of any oral statements made by the accused or by a co-defendant, and a list of witnesses to the making and acknowledgment of such statements." (58 Ill.2d R. 412(a)(ii).) This motion was allowed by the trial court.
At trial the defendant testified that he had met his co-defendants, James Vaughn and John Burton, and another man in Peoria the day before the murder and had agreed to meet Vaughn and Burton at 7:45 the next morning at a restaurant in Taylorville. The purpose of the meeting was to plan the robbery of the owner of a jewelry store. The defendant said he arrived at the restaurant in Taylorville at the arranged time but neither Vaughn nor Burton was there. He then drove to an apartment in Peoria where Vaughn and Burton had spent the night and found a note from them directing him to meet them at a tavern in Springfield. When he arrived at the tavern, he said, he met an acquaintance who told him the owner of the jewelry store had been murdered, and that police were looking for the defendant in connection with the crime. The defendant testified he met Vaughn and Burton later that day in Springfield and drove with them to Iowa. He later drove with Vaughn to California, where several of the defendant's relatives lived.
On cross-examination the defendant was asked when he had first met Vaughn and Burton on the day of the murder. Consistent with his testimony on direct examination, he said it had been in Springfield, several hours after the murder. The following colloquy then took place:
"Q. [PROSECUTOR] Did Elmer D. Ward interview you?
Q. And what did you tell him about with reference to where you had seen Jim Vaughn and John Burton on Saturday?
Q. Let me hand you this statement which comes from Elmer Ward's files, let me read this and see if that is what you told him.
Q. Well, what part is not what you told him?
A. This admitting to the setting up of a robbery.
Q. Well, do you now admit or deny the setting up a robbery?
A. I deny setting up a robbery. I don't deny the fact that I was in ...