APPEAL from the Circuit Court of Jefferson County; the Hon.
BRUCE SAXE, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, George Thomas Keith, was charged by indictment in Crawford County with several offenses including the murder of his wife, Nira Jean Keith. Pursuant to a change of venue, defendant was found guilty of involuntary manslaughter following a jury trial in the circuit court of Jefferson County and sentenced to a term of from three to nine years in the penitentiary.
On appeal, defendant raises numerous issues for our consideration; however, we need only address defendant's contention that he was denied due process as a result of the State's improper disclosure of the results of an expert's examination which were favorable to his defense.
It was established at trial that Nira Jean Keith died as a result of injuries she received from the discharge of one barrel of a .12-gauge shotgun. The shooting occurred around 1:15 a.m. October 31, 1976, in the home of the defendant and Jeanie Keith upon her return from a Halloween party at the Moose lodge in Robinson, Illinois. Although the defendant and his wife were in several of the same taverns in the evening hours preceding the incident, it appears that defendant might not have been aware of this fact. Mrs. Keith was driven home from the Moose by her cousin Robert Coulter, in the company of his wife, Judy. All three entered the Keith residence and were quickly confronted by the defendant who was armed with a double-barrelled shotgun. It is undisputed that Jeanie Keith lunged or ran at the defendant in an attempt to grab the gun; however, there was sharp conflict as to whether she touched the gun before it discharged and she was wounded.
This case was submitted to the jury with instructions as to the offenses of murder, voluntary manslaughter and involuntary manslaughter. Aside from testimony offered to show defendant's aggressive behavior towards his wife in the past and statements he had made reflecting an unfavorable attitude towards her existence, the evidence centered around the accounts of the incident given by Robert and Judy Coulter and the defendant. Defendant's defense was accident or misadventure.
The record reflects that defendant was standing in an archway and was holding the gun when it discharged.
Judy and Robert Coulter both testified on direct examination that Jeanie Keith reached for the gun, that she did not touch it and that defendant then stepped back, brought the gun down and shot her.
Judy Coulter, however, admitted on cross-examination that all she could see from her position in the living room was the end of the gun barrel. She could not see the defendant's right hand and consequently could not see if he had his finger on the triggers. She further admitted that she did not actually see the defendant pull the trigger.
Defense counsel attempted to impeach Robert Coulter's testimony on the basis of his recent imbibing of alcoholic beverages. Mr. Coulter testified on cross-examination that he drank four or five beers between 1 and 2 p.m. and that he drank 10 to 12 beers that evening while at the Moose lodge prior to this incident. He agreed that it would be fair to characterize him as being fairly confused as to the events that occurred during October 30 and the early morning hours of October 31, 1976; however, he stated that there was no confusion in his mind as to the points that Mrs. Keith did not touch the gun and that he saw defendant fire the gun from his hip.
The defendant testified that he returned home from the Moose lodge around 10:30 p.m. and that about midnight he fell asleep on the bed while fully clothed. He woke up to a loud man's voice in his living room. He got his shotgun and went down the hall, stopping in the opening to the living room from which he saw his wife and Robert and Judy Coulter. He pointed the gun at Robert Coulter and ordered him out of the house. Jeanie then ran at the defendant saying, "No Tom, don't." He pointed the gun at the ceiling and took a step back from his wife. He was holding the gun with his right hand on the stock and his left hand on the gun's "forearm"; he did not have his hand on the trigger. Defendant believed the gun might have hit his wife's chin. At any rate, she stopped and he turned to look at Robert Coulter, who was going out the door. As he turned his head, he felt the gun jerk away from him and off to the side and go off. He assumed his wife had grabbed it. After being shot she passed out and defendant threw the gun down. Thinking Jeanie was dead, he panicked and got into his car and drove out into the country.
Defendant was pulled over and arrested about one hour later in Olney, Illinois. The police transported him to the jail where at 1:50 a.m. *fn1 IBI crime scene technician, R.L. Austin, gathered samples from the defendant's hands necessary for conducting a test known as neutron activation analysis (hereinafter referred to as N.A.A.). Dr. Edgar Rudzitis, research criminalist at the Joliet IBI crime laboratory, ran the test and prepared a report of its results and his conclusions. It is the results of this report which defendant claims were not properly disclosed to him.
Defendant also offered the testimony of Dr. John Bloxdorf, the pathologist who performed the autopsy on Mrs. Keith, in support of his theory as to how the gun came to be fired. Dr. Bloxdorf testified that there was a bruise on the back of the deceased's hand probably formed within four to five hours before her death.
In Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, the United States Supreme Court 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 guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87, 10 L.Ed.2d 215, 218, 83 S.Ct. 1194, 1196.
The Illinois courts> have adopted the Brady rule (e.g., People v. Hoffman, 32 Ill.2d 96, 203 N.E.2d 873; People v. Dixon, 19 Ill. App.3d 683, 312 N.E.2d 390), and our supreme court has gone a step further in providing for the pretrial disclosure of such material pursuant to Supreme Court Rule 412(c) (Ill. Rev. Stat. 1975, ch. 110A, par. 412(c); see Committee Comments, Ill. Ann. Stat., ch. 110A, par. 412(c), at 681 (Smith-Hurd 1976); People v. Parton, 40 Ill. App.3d 753, 354 N.E.2d 12; People v. Elston, 46 Ill. App.3d 103, 360 N.E.2d 518).
Supreme Court Rule 412(c) (Ill. Rev. Stat. 1975, ch. 110A, par. 412(c)) states in pertinent part that:
"[T]he State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor." (Emphasis added.)
Recognizing the importance of having such information available to the defendant when his defense is being planned and prepared (People v. Dixon, 19 Ill. App.3d 683, 688, 312 N.E.2d 390, 394; People v. Parton, 40 Ill. App.3d 753, 758, 354 N.E.2d 12, 16), our courts> have consistently held that if favorable information has been improperly withheld the reviewing court will not speculate as to what use the defense could or would have put the evidence in question (People v. Dixon; People v. Parton; People v. Elston; People v. Payne, 44 Ill. App.3d 502, 358 N.E.2d 409). Consequently, the usual disposition is to reverse the conviction and remand for a new trial, regardless of the prosecution's good or bad faith. As stated by the court ...