APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
After a jury trial in the circuit court of St. Clair County, defendant, George Watson, Jr., was convicted of attempt murder and armed robbery. He was sentenced to a term of 25 to 75 years imprisonment for the conviction of attempt murder but no sentence was imposed for armed robbery.
On appeal, defendant raises the following issues: (1) whether defendant was denied a fair trial by the State's use, during cross-examination of defendant, of a previously undisclosed inculpatory letter allegedly written by him to the victim; (2) whether defendant was denied a fair trial by the prosecutor's eliciting from him during cross-examination the content of his private conference with his attorney; (3) whether the jury instructions erroneously permitted a verdict of guilty on the charge of attempt murder without a finding that defendant possessed the requisite intent to kill; and (4) whether defendant's sentence for attempt murder constituted an abuse of discretion by the trial court. In its reply brief, the State also requests that we remand this cause to the circuit court for imposition of sentence on defendant's conviction for armed robbery.
The evidence adduced at defendant's trial established that on March 10, 1977, at approximately 2:30 a.m., Louis Gant arrived at his home in East St. Louis, St. Clair County, after completing his work shift in a nearby factory. As Gant was securing his driveway gate, behind which was parked his other automobile, a 1976 Lincoln Continental Town Car, he was approached by a man brandishing a revolver who demanded Gant's car keys. The armed individual told Gant that he "had to have a car" and then again asked for Gant's car keys as well as his wallet. When Gant complied with the demand, he was told by his accoster that they were "going to have to take a walk" and that "I have to do this to you because you might identify me." After the two men walked approximately two blocks from Gant's home, the individual crossed a ditch and stepped into a dark field where he told Gant to follow him. Gant refused, turned around, and began walking toward his home and told the person that "he seemed like too nice a young man to be doing this." The individual responded to Gant and after walking a few steps, shot Gant in the back, causing him to fall to the ground. While Gant was lying on the ground, the individual walked up to him and fired another shot which struck Gant in the side. The individual then ran back toward Gant's home. After a short while, Gant managed to walk to a neighbor's house, and medical help was summoned. Gant was given emergency surgery and was hospitalized for 21 days as a result of his wounds. After the shooting incident, Gant's 1976 Lincoln was missing.
Two of the defendant's sisters, Sandra Sain and Betty Lavender, testified at defendant's trial on behalf of the State. Sain indicated that the defendant was home on leave from the military during January of 1977 and spent some time at her home. She also testified that defendant returned home for several days in early March so that he could take care of some matters concerning the administration of his parents' estates. Betty Lavender, who lived next door to Louis Gant, stated that defendant was home during the Christmas holidays and also in early March 1977. She related that during defendant's visit, he commented upon Gant's automobile, just as many other persons in the neighborhood had done before him.
Airman 1st Class Richard Parham, called by the State, testified that he was stationed at Westover Air Force Base in Massachusetts with defendant where they worked the same shift. Parham related that in December 1976, defendant, upon returning to the base from a visit home, told him he was looking for a big car. Defendant subsequently told him he had obtained a car which he went home to pick up in early March 1977. Defendant returned to the base on March 11, 1977, on which date Parham observed a white Lincoln automobile at the front gate of the air base.
Officers Curtis Troy, Allen Goodroe and Robert Latta of the Springfield Massachusetts Police Department testified regarding the circumstances surrounding the arrest of defendant in that city. Troy and Goodroe arrested defendant on March 27, 1977, after observing defendant driving a white Lincoln Continental which bore Illinois license plates and which had been reported stolen. Defendant gave several explanations to the officers concerning his possession of the automobile, including a statement that he had purchased the car from Louis Gant. When confronted with an envelope found in the automobile's trunk, defendant allegedly admitted that the envelope belonged to Gant, a man whom defendant said had been shot and who had asked defendant to hold it for him.
Louis Gant, recalled by the State, identified the envelope found by the police and stated that it had been left in his car by him. Gant also related that when his automobile was returned to him by the Springfield police, it bore a Westover Air Force Base sticker and the keys had been altered.
Defendant denied shooting Gant or taking his car. He explained that his purpose in returning to his home during January and March was to clear up some problems with his parents' estates. He testified that he purchased the automobile on March 9, 1977, for $350 from a man outside a liquor store in East St. Louis. He stated that he knew the car was stolen and that it looked vaguely familiar. Defendant denied telling Parham that he was going home to get a white Lincoln Continental. He testified that he told Parham he intended to get a full-sized automobile because of his size. He also denied telling the police that the envelope found in the car belonged to Gant, and related that he first learned of the theft during a conversation he had with his sister on March 14, 1977.
Defendant recalled that he had seen Gant in January 1977, when Gant's automobile was stuck in the snow outside his home. On cross-examination, he admitted that he had written a letter to Gant in which he mentioned that he had helped Gant remove his car from the snow on that occasion. He testified that no one in the county jail was aware of the incident. When defendant acknowledged that he had mentioned the incident in the letter to Gant, his counsel moved for a mistrial on the grounds that he had not been furnished a copy of the letter prior to trial. In a hearing outside the presence of the jury, the prosecutor explained to the court that he first received the letter the previous afternoon; and he further stated that until defendant testified about helping Gant with his automobile, he did not know the letter was authentic and had not planned to use it. After hearing arguments by both parties, the court denied defendant's motion and permitted use of the letter for purposes of impeachment and rebuttal.
Defense counsel requested and was granted a 10-minute recess to consult with defendant about the letter before the trial resumed. Following the recess, defendant denied the letter's authenticity on cross-examination although he admitted to writing a similar letter to Gant but without the incriminating passages. Defendant stated that he had mailed his letter to Gant on March 16, 1977; however, he said the letter was returned to him because Gant had moved. He further testified that he did know where the letter was. The prosecutor then asked defendant several questions regarding his earlier 10-minute meeting with his attorney. When asked what was said about the letter during their conference, defendant related that his attorney had remarked, "We're dead." He then repeated his attorney's remark twice and spelled the word "dead" to the court. Throughout this entire exchange, defense counsel made no objection; however, he did allege it to be error in his post-trial motion.
At the close of all the evidence, the jury found defendant guilty of attempt murder and armed robbery. Defendant was subsequently sentenced to a penitentiary term of 25 to 75 years on the attempt murder conviction, but no sentence was imposed by the trial court on defendant's conviction for armed robbery.
Defendant initially contends that the State's failure to comply with the mandatory disclosure requirements of Supreme Court Rule 412(a)(ii) (Ill. Rev. Stat. 1975, ch. 110A, par. 412(a)(ii)) resulted in prejudice to him by denying his right to a fair trial. Specifically, defendant argues that State's use of the letter, allegedly written by him, was error because of the State's failure to disclose its existence to him prior to trial. The State responds that the use of the letter was proper where the prosecutor did not learn of the letter until the defendant testified on direct examination and where defendant and his counsel, after being given the opportunity to examine the letter prior to its use for impeachment, failed to request a continuance for any further investigation.
1-3 We initially note that the goal of pretrial discovery is to promote the fact-finding process and to eliminate the tactical advantage of surprise by either side (People v. Szabo (1977), 55 Ill. App.3d 866, 371 N.E.2d 117). In this regard, Supreme Court Rule 412(a)(ii) requires the State to disclose to defendant, upon written motion "any written or recorded statements and the substance of any oral statements made by the accused * * *." (Ill. Rev. Stat. 1975, ch. 110A, par. 412(a)(ii).) This duty of disclosure by the State is a continuing one, requiring prompt notification of defendant of the discovery of any additional material or information, up to and during trial (Ill. Rev. Stat. 1975, ch. 110A, par. 415(b); People v. Shegog (1976), 37 Ill. App.3d 615, 346 N.E.2d 208). Compliance with Rule 412(a)(ii) is mandatory (People v. Musgray (1976), 37 Ill. App.3d 48, 344 N.E.2d 708) and is only excused if the prosecutor was unaware of the existence of the statement prior to trial and could not have become aware of it in the exercise of due diligence (People v. Shegog). The appropriate sanction ...