APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:*FN1 *FN1 THIS OPINION WAS PREPARED BY JUSTICE BUCKLEY WHILE ASSIGNED TO THE ILLINOIS APPELLATE COURT, FIRST DISTRICT.
Defendant, Rocco Ruffalo, appeals from a judgment of conviction entered against him in Cook County Circuit Court on January 20, 1977, for the offenses of attempted burglary and possession of a burglary tool. The sole issue presented on appeal is whether the defendant was denied due process of law because of the failure of the prosecution to provide him with certain evidence. For the reasons stated below, we affirm.
The facts upon which resolution of this appeal depend are the following:
At trial, Daniel Lukensmeyer, a Chicago police officer, testified that while he was off duty on February 12, 1976, he was in a tavern at 3641 South Morgan in Chicago, upstairs with Thomas Guadagno, son of the tavern owner. Sometime after 11 a.m., Guadagno looked out a window and informed Lukensmeyer that someone was trying to break in. Lukensmeyer said he ran downstairs, alerting several other Chicago police officers who were customers of the tavern, and once outside observed the defendant. When Lukensmeyer shouted, "Police, stop," the defendant ran. After a chase, Lukensmeyer was able to apprehend him and found on his person a screwdriver. Lukensmeyer said the rear door of the tavern on the second floor bore pry marks.
Guadagno testified that, while he was upstairs with Lukensmeyer, he heard a scratching sound at the back door. He approached a rear window, opened it, looked outside and noticed a man with curly hair and who was wearing a brown jacket and dark pants, prying at the back door lock with a screwdriver. He then told Lukensmeyer what he had seen and went downstairs and outside with him. Once outside he saw the defendant standing by the stairs leading up to the second floor apartment. He testified that the defendant fled when approached and that he identified the accused after the arrest.
Guadagno also said that the back door and lock were intact prior to the incident, but afterward pry marks were visible in the wood around the lock.
Lukensmeyer testified that several days later Guadagno's mother gave him part of a door lock she said she had found after the incident. He said he mentioned this to an assistant State's Attorney, who told him there was no need to inventory the lock part, and afterwards he disposed of it. Upon hearing this testimony the defense entered a motion for a mistrial on the grounds that this physical evidence had been improperly suppressed.
Several photographs taken on the day of the incident were introduced into evidence which were described as showing the back door with pry marks around the rim of the lock.
The defendant testified that he was approaching the tavern, intending to enter it for a drink, when he saw someone jump a fence. He then saw a group of men come out of the taven, and because he was frightened he ran away. He denied trying to enter the upstairs of the tavern and said he was unaware that he had been carrying a screwdriver.
In rebuttal the prosecution introduced a certified copy of the defendant's earlier conviction for burglary.
It is useful to review first the basic facts regarding the prosecution's failure to produce the evidence in question and secondly the principles of law applicable to such a failure to produce.
The evidence in question was a lock cylinder which was given a few days after the charged offense to a police officer, who had been a witness and who had arrested the defendant, by the owner of the subject premises. That police officer told an assistant State's Attorney that the cylinder was from the door at which entry had been attempted. The assistant State's Attorney noted that photos of the door in question had been taken and indicated to the officer that the lock need not be inventoried. The officer subsequently disposed of the cylinder.
The existence of photographs of the door was revealed to the defendant prior to the trial, but no specific request for the lock cylinder was made before trial and no mention of it was made to the defendant. At trial, when testimony revealed that a police officer had for a time been in possession of the lock cylinder, the defense moved for a mistrial.
1 The right of the defense to be informed of exculpatory evidence found by the prosecution is secured both under the Federal Constitution and by Illinois Supreme Court Rule 412(c) (Ill. Rev. Stat. 1975, ch. 110A, par. 412 (c)). The decisional law interpreting this right generally focuses on the concept of "suppression" by the prosecution of evidence favorable to the accused. However, the mere fact that the existence of ...