Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Livingston
County, the Hon. William T. Caisley, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The defendant, Milton Burns, filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122-1 et seq.) alleging violation of his constitutional rights to due process and equal protection of the law in his trial, together with a co-defendant, in the circuit court of Livingston County, which resulted in his conviction of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2). The petition also alleged a denial of the right to effective assistance of counsel in his appeal to the appellate court from that conviction. (The only ground of appeal then asserted was that the defendant's sentence, not less than 50 nor more than 150 years, was excessive. In a Rule 23 order (39 Ill. App.3d 1073), the sentence was reduced by the appellate court to 15 years to 45 years.) At the post-conviction hearing, the circuit court held that the claim in the petition that the prosecution had improperly withheld a police report containing material favorable to the defendant's defense of alibi had been waived because the defendant had not raised the point on his appeal to the appellate court. The circuit court held too that this waiver did not constitute ineffective assistance of counsel on appeal, and denied the petition. The appellate court reversed under a Rule 23 order. (52 Ill. App.3d 1101.) That court had granted Henry Payne, Jr., the co-defendant, a new trial in a separate and earlier appeal from his robbery conviction based upon the same discovery issue the defendant sought to raise in his post-conviction petition, i.e. the withholding of the police report. (See People v. Payne (1976), 44 Ill. App.3d 502.) The appellate court said that the defendant was equally affected by the prosecution's failure to provide the police report, and that fundamental fairness required that the defendant also be given a new trial. The court, however, stated that the earlier granting of a new trial to the co-defendant on his appeal may have been erroneous because the court through oversight did not consider the applicability of the holding of the Supreme Court in United States v. Agurs (1976), 427 U.S. 97, 49 L.Ed.2d 342, 96 S.Ct. 2392. We granted the People's petition for leave to appeal. 65 Ill.2d R. 315.
The questions we must consider are whether the defendant was deprived of due process and a fair trial by the prosecution's failure to produce the police report concerned and whether the issue was waived by the defendant's failure to raise it on his direct appeal. In order to be entitled to relief under the Post-Conviction Hearing Act, it is necessary that the petitioner have suffered "a substantial denial of his rights under the Constitution of the United States or of the State of Illinois" (Ill. Rev. Stat. 1977, ch. 38, par. 122-1). Our review will therefore be limited to constitutional considerations and will not consider the actual scope of discovery under Rule 412 (58 Ill.2d R. 412).
Under our Rule 412 (58 Ill.2d R. 412), the defendant and Payne, his co-defendant, had filed identical written motions in advance of trial requesting that the People provide:
"The names and last known addresses of persons who[m] the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements, which the State has in its possession or control * * *.
Any material or information within the possession or control of the State, which tends to negate the guilt of the Defendant as to the offense charged in this cause, or which would tend to reduce the Defendant's punishment therefor * * *."
The withheld police report included the following statement by investigating officer Curtis Van Note:
"I got a call * * * at 7:43 p.m. advising me to go to Simmie's Store, that there had been a robbery there. As I arrived * * * Mrs. Hummel * * * said two colored subjs. had just held them up at gun point. * * * I met Mr. and Mrs. Vincent W. Endres, who were in the store when this took place. Also in the store was Marna Hummel, who works there. These people told me the following * * *. The two Negro subjs. are described as follows,
1. 5'7" to 5'8", around 30 years old, heavy set, wearing dark pants and a sweater.
2. 5'8" to 5'9", around 30 years old, 170 to 175 pounds, wearing a full beard and moustache. Had on a dark colored pea coat and dark blue bell bottom trousers. No one saw the vehicle involved in this nor the direction of travel.
At 9:10 p.m. * * * I got a call * * * to go back to Hummel's, that they knew the car and could describe it. After returning to the store, Marna said the car was Buick Electra 225, maroon in color. * * * [S]he said Joe Ortega had come into the store after we left and wanted to know what happened. She told him and he said I bet it was the same ones that were here Saturday. She then remembered that two colored subjs. had come to the store Saturday and one of them looked inside and then left. She said this was the type of car they were in.
At 11:10 p.m. I got a call to go to the Joe Speedon house as Mrs. Speedon saw the subjects that did this. She said she had been to the store shopping around 7:30 p.m. and as she was leaving two colored subj. were going in. She described them as the people in the store did. The only car she saw was a light green or creamed colored one which was parked just north of the doors. She thought this car had 75 Ill. plates on it. She said there was no one else in the car."
The descriptions of the suspects in the report appear to be composite summaries of oral statements by all four eyewitnesses to the robbery. Of the four, only Marna Hummel was not called to testify at trial. The report's summary of a statement by Marna Hummel seemed to suggest that she believed the robbers were the two persons who had visited the store on the previous Saturday and that the vehicle involved on both occasions was a Buick Electra. When the defendant learned of the existence of the report, which was subsequent to trial but prior to his post-trial motion, a signed statement was obtained from Joe Ortega. In it he said that the defendant and his co-defendant, both of whom Ortega had met in the county jail after their trial, were not the men Ortega and Marna Hummel had observed in the store previous to the robbery and who had departed in a brown Buick Electra. While ...