APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
P. CAWLEY, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was convicted of burglary and sentenced to a term of one to three years. On appeal, he contends that (1) the prosecution improperly withheld information relevant to his case; (2) the trial court abused its discretion by unduly restricting the scope of his surrebuttal testimony; and (3) he was not proven guilty beyond a reasonable doubt.
Shortly after midnight in April 1976, when a marked Chicago police squad car was driven past an alley, Officer Alexander Curd, who was seated next to the driver, observed four or five males loading boxes into the trunk of a car parked in the alley approximately 30 feet from the entrance. The squad car was backed up and when Curd saw the men running away he left the squad car and ran towards the parked car while Officer David Dougherty drove the squad car around the block to the other end of the alley. As Curd neared the car, he noticed that it was parked next to Ali's Castle (a grocery store) and that the engine was not running. He also saw that the outside rear door of the store had been forced open and that boxes of food were scattered in the ground between the store and the car. After reaching the car, he drew his service revolver and fired at but did not strike any of the fleeing men.
Defendant, who was then seated in the driver's seat of the parked automobile, was placed under arrest but, since the trunk key was not in his possession, the car was driven to the police station where the trunk lock was removed. Inside the trunk, Curd and Dougherty found four boxes of food bearing the name of Ali's Castle.
Jimmy Alioman, owner of the grocery store, testified that he closed the store earlier that evening and authorized no one to enter nor to remove any property from it. Upon his return later, he found that the rear door and the barred gate, which he had locked before leaving, had been forced open and that the goods which had been stacked were strewn inside and outside the store. Later he saw boxes of foodstuffs from the store in the trunk of defendant's automobile.
Defendant stated that on the evening of the occurrence he was with his girl friend at his mother's home when Cheeko, a man he had known for seven or eight months, rang the bell and asked defendant to drive him home. Cheeko explained that he had a television and other personal items from his sister's home and did not want the police to stop him. He told defendant that the property was not stolen, and defendant agreed (for $20) to drive him home. Cheeko then told him that the television and other items were in the alley behind defendant's home; whereupon, defendant gave Cheeko the trunk key and told him to put the television in the trunk when he pulled into the alley. Defendant's girl friend (Patricia Sledge) corroborated his conversation with Cheeko.
Defendant also stated that he walked to where his mother's car was parked and then drove it into the alley behind his home, where Cheeko and an unidentified man were standing. He stopped the motor and turned off the headlights after which he heard the trunk open, and after four or five seconds it slammed shut. Cheeko and the other person then ran away, and he saw a policeman run past his car, stop at the hood and fire at Cheeko. The officer then walked back and ordered him out of the car. Defendant stated that he had remained in the car while it was in the alley; that he saw no one carrying anything; that he could not see what was being put into the trunk; that from where he sat he could not see the ground between his car and the rear of the store; that he had not known the store had been broken into or that anything had been taken from it; that he was not at the trunk when boxes were being put into it; and that he was not standing in the alley when the officer first arrived.
After the defense rested, the State was permitted to recall Curd as a rebuttal witness, and he testified that when the police car drove past the alley, he saw that the trunk of the car was open and that something was being loaded into it. After the squad car was backed up, he observed defendant at the trunk and then saw him getting into the driver's side of the automobile while the others fled down the alley. On cross-examination, he admitted testifying at the preliminary hearing that defendant entered the car from the passenger's side and that his police report made no reference to his having observed defendant standing near the trunk of the car. Then, on redirect examination, the State asked Curd about the content of a firearms use report which he prepared on the day of the burglary because he had fired his weapon. An objection was made on the ground that this report had not been tendered to the defense, pursuant to a discovery motion. The trial court, however, permitted Curd to testify that the report contained a narrative statement of events surrounding the firing of his gun, which included a comment that he saw defendant standing near the trunk of the car and that he subsequently entered the driver's side of the car. Curd, nevertheless, again testified that defendant entered the driver's side.
Defendant and his mother were surrebuttal witnesses. She testified her car had been in an accident prior to the evening of the burglary and the door of the driver's side could not be opened more than four inches. Defendant also testified to the same condition of the door on the driver's side, but an objection was sustained to a question asked of him by his counsel concerning Curd's facial expression when he saw defendant seated in the car. An offer of proof was made that if defendant had been allowed to testify, he would have said that after Curd ran past the car and fired his weapon, he turned and walked back to the car and his facial expression then indicated he was surprised to see defendant sitting in the car.
Defendant first contends that a new trial is required because the State withheld a report containing a relevant statement of a prosecuting witness. Supreme Court Rule 412(a) states, in pertinent part, that upon written motion of defense counsel the State shall disclose certain material and information within its possession or control. (Ill. Rev. Stat. 1975, ch. 110A, par. 412(a).) Rule 412(c) requires the State to disclose any material or information within its possession or control which tends "to negate the guilt of the accused as to the offense charged * * *."
In the instant case, a request for a list of witnesses and statements was made by defendant's first attorney, the public defender, and in its reply thereto the State included the name of Officer Curd as a trial witness and stated that "all memoranda, reporting or summarizing oral statements by witnesses are contained in police reports tendered to the defense in open court." The tendered police reports contained a reference to the firearms use report made by Officer Curd on the day of the burglary. Subsequently, when the public defender withdrew he gave defendant's new attorney those police reports, which apparently did not include the firearms use report. Defendant's new counsel, however, has admitted being aware of the existence of the report in question but made no specific request for its disclosure.
It is not asserted by defendant that there was anything in the report tending to negate his guilt; it is his position that he was deprived of a fair trial because the State did not tender the report or inform him of its relevance and availability for inspection.
1 Where nonexculpatory material and information requested under Supreme Court Rule 412 is not provided, it is within the discretion of the trial court to admit the unfurnished evidence (People v. Acevedo (1976), 40 Ill. App.3d 105, 351 N.E.2d 359; People v. Musgray (1976), 37 Ill. App.3d 48, 344 N.E.2d 708), and such admission does not constitute error absent a showing by the accused of resulting surprise and prejudice (People v. Raby (1968), 40 Ill.2d 392, 240 N.E.2d 595, cert. denied ...