APPEAL from the Circuit Court of Sangamon County; the Hon.
HARVEY BEAM, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
The defendant, John William Stamps, appeals his convictions for six counts of murder in violation of section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1965, ch. 38, par. 9-1), and the three concurrent 100- to 200-year sentences of imprisonment imposed thereon which were to begin at the expiration of a prior 25-year sentence for murder.
On November 23, 1965, the defendant allegedly participated in a prison riot at the Menard Penitentiary in which three prison guards were stabbed to death. Murder charges against the defendant and three other prisoners were filed in Randolph County, but on a motion for change of venue to Sangamon County, the trial was held in Springfield. The defendant was convicted and originally sentenced to death but was granted a new trial after appealing to our supreme court. People v. Bassett (1974), 56 Ill.2d 285, 307 N.E.2d 359.
It is from that retrial that this appeal is prosecuted. Essentially, defendant alleges: (1) that the State was "grossly negligent" in failing to produce narrative-form notes of prisoner statements which were given to the State after the riot; (2) that defendant's sanity was not proved beyond a reasonable doubt; (3) that the court abused its discretion in excluding testimony concerning homosexual activity at the penitentiary; (4) that unchallenged portions of the State's closing argument deprived defendant of a fair trial; (5) that three of defendant's six convictions should be vacated because there were only three victims; and (6) that the sentences imposed herein should not be consecutive to the 25-year sentence which defendant is already serving.
In People v. Payne (1976), 44 Ill. App.3d 502, 358 N.E.2d 409, this court held that the suppression of evidence that was material and favorable to the defense demands the granting of a new trial. In Payne, the prosecutor inadequately responded to a discovery motion by failing to produce a police officer's final report containing a summary of an eyewitness' statements concerning a robbery of which the defendant was accused. The report was in the possession of the State. Accord, People v. Parton (1976), 40 Ill. App.3d 753, 354 N.E.2d 12.
The instant case, however, is unlike Payne and Parton. Here, the defendant sought to dismiss the charges or, alternatively, to disallow the testimony of witnesses whose prior statements were summarized on white cards which the supreme court had already held to be discoverable. (Bassett, 56 Ill.2d 285, 288-92, 307 N.E.2d 359, 360.) The cards, along with the record of defendant's first trial, were stored in 14 filing cabinets in the basement of the Supreme Court Building prior to the time that the Attorney General's present building was constructed. Although the defendant has accused the State of being grossly negligent in failing to preserve the white cards, the record in this appeal reflects that the cards and other materials from the first trial were preserved like other records of the Attorney General. The only fact which possibly indicates negligence on the part of the State is that the files were not locked while being stored by the Attorney General.
Edmund Heyer, a State police investigator, testified that he stored the cards and records in the basement of the Supreme Court Building at the conclusion of the first trial. Heyer later learned that the material was transferred to the Attorney General's new building in 1970, but when he went there to find the material he discovered only one file cabinet containing part of the record. Heyer contacted the special Assistant Attorney General who prosecuted the first trial and then he searched the Attorney General's Chicago office without success in finding the cards.
• 1 The guarantee of due process is to secure a fair trial for those accused of crime, not to punish the State for its failure to preserve voluminous papers for extended periods of time. (People v. Dixon (1974), 19 Ill. App.3d 683, 686, 312 N.E.2d 390, 393.) In United States v. Bryant (D.C. Cir. 1971), 439 F.2d 642, three defendants, Bryant, Turner, and Johnson, had been convicted of offenses involving the sale of heroin. The sale was made to Pope, an undercover agent for the Bureau of Narcotics and Dangerous Drugs. Pope, the principal witness for the prosecution, testified at the trial that he and Johnson made the general arrangements in Pope's motel room for the sale of the heroin to Pope. On the following day, according to Pope, Johnson and Bryant visited Pope at his motel room. After some negotiations, Bryant approved the sale of a particular quantity of heroin at a particular price. Later the same day, Johnson, accompanied by Turner, came to Pope's motel room. According to Pope, the three of them had a general conversation about the narcotics business at that time. The three went to Johnson's home to pick up the heroin and subsequently returned to Pope's motel room, where payment was made. During the various conversations occurring in Pope's room, other government agents were in the next room listening and making a tape recording of the transaction.
The defense sought to discover the tape recording. The prosecution admitted that a tape had been made, but stated that it had been lost at the Bureau of Narcotics and Dangerous Drugs. At the hearing on the defense motion to discover the tape, the agent in charge of the taping admitted that he had made no effort to preserve the tape or to consult a superior regarding his decision not to preserve it. The prosecution attempted to establish at trial that Bryant aided and abetted in Johnson's sale of the heroin.
In remanding for a determination as to the imposition of sanctions upon the government for failing to comply with discovery, the court stated:
"[United States v. Augenblick (1969), 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537,] not only makes clear that the circumstances of the tape's disappearance in these cases should be relevant to the question of proper sanctions. It also suggests that, while sanctions should be imposed in cases of bad faith suppression of evidence, an exception will be made for good faith loss * * *. An exception for good faith loss of important evidence must not be allowed to swallow the discovery rules, and the burden of explanation on the Government must be a heavy one; but criminal convictions otherwise based on sufficient evidence may be permitted to stand so long as the government made `earnest efforts' to preserve crucial materials and to find them once a discovery request is made.
On remand here the District Court should weigh the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial in order to come to a determination that will serve the ends of justice." 439 F.2d 642, 651-53.
On remand, the district court determined that the convictions must stand because the tapes were destroyed, were unintelligible, and because there was strong evidence tending to prove the defendants' guilt. United States v. Bryant (D.D.C. 1971), 331 F. Supp. 927, aff'd (D.C. Cir. 1971), 448 F.2d 1182.
In the instant case, our supreme court has expressly determined that the white cards were discoverable by the defendant. The record does not reflect that the State has deliberately suppressed those cards, rather, it reflects that they were somehow lost during the extended period of time that the Attorney General possessed them. The record clearly reflects that the cards were preserved by the Attorney General with the same degree of care that was accorded to other materials in his control. The extraordinary event of moving the Attorney General into a new building in 1970 may have been the actual cause for the loss, but there appears to be no way of verifying that fact with any degree of certainty. There is not a shred of evidence reflected in the record which indicates that the loss of the cards was the result of guile, ...