APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Defendant, Clara Mae Miles, was charged by information with the crime of murder. Following a jury trial, defendant was convicted of voluntary manslaughter and sentenced to not less than two years nor more than six years. She contends on appeal that: (1) she was denied a fair trial by police testimony and comments by the State in closing argument regarding her prejudicial statement, when it was not provided to the defense before trial in violation of Illinois Supreme Court Rule 412 (Ill. Rev. Stat. 1975, ch. 110A, par. 412) and section 114-10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114-10); (2) she was denied a fair trial by police testimony and remarks by the State during closing argument that violated her privilege against self-incrimination and constituted an impermissible comment on constitutionally protected silence; and (3) she was not proved guilty of voluntary manslaughter beyond a reasonable doubt. We reverse and remand on the first two issues.
At about 10 p.m. on November 9, 1975, Officers Thomas O'Donnell and Roland Thiede, after receiving a radio communication, proceeded to defendant's apartment. Upon arrival, they observed defendant and Bobby Lane, the victim, standing in the doorway of the apartment. Lane had a towel wrapped around his left hand, which covered a cut. At this time, defendant did not have any cuts or bruises on her face or body. Since Lane did not want to file a complaint against defendant, the officers left defendant's apartment without making any arrests.
At approximately 10:30 p.m., the same officer received a second radio communication and again went to defendant's apartment. Defendant was in the hallway of the apartment and said to the officers, "I have just stabbed him. I stabbed him and he is on the floor." Officer O'Donnell testified that he entered the first room of the apartment and observed the body of Bobby Lane, lying face down on the floor. O'Donnell turned Lane's body over and ascertained that he was dead. Defendant, in response to a question by O'Donnell about the weapon used during the stabbing, replied that she had stabbed him with a knife which was on the counter in the kitchen. Officer O'Donnell went to the kitchen and found a blood-stained kitchen knife on the counter covered with roaches. He also noticed blood stains on the living room, bedroom and hallway floors. Further, he examined decedent and observed several punctures through the shirt and skin on his chest and a cut on the back of his left hand. On his first visit to the apartment, he had observed that both defendant and decedent had been drinking but neither of them appeared unsteady nor were there any speech defects. He further stated that defendant had told him that she stabbed the decedent because they were arguing over a bottle of vodka. He admitted, however, that he had never written that in the police report and instead had written that decedent was stabbed during a "domestic altercation." He explained that in using the term "domestic altercation," he meant an "argument or fight." Moreover, he asserted that defendant never told him about being struck by decedent with a belt at the time of the stabbing.
At approximately 11 p.m. on November 9, Officer John Leonard visited the hospital to examine the body of decedent. He then went to defendant's apartment where he saw blood stains in the living room and hall and a large amount of blood in the bedroom. Thereafter, he and Officer James Sesso went to the police station sometime after midnight to interview defendant. Defendant told them that she and the decedent had been drinking during the day; that they argued in the bedroom and she went to the kitchen and got a knife. The decedent then threatened to hit her with a belt and she stabbed him. He fell to the floor immediately after she stabbed him.
Officer Leonard further stated that at the time, he noticed nothing unusual about her face or arms; however, she did have a laceration at the nail of the middle finger of the right hand. He admitted on cross-examination that defendant told him she was hit with a belt by decedent. While at the apartment, Officer Leonard also talked to Way Gailey, defendant's uncle, who was heavily intoxicated.
At trial, defendant presented evidence in her own behalf asserting that on November 9, 1975, she and decedent began drinking at approximately noon. The decedent became violent when he drank and would often beat her. He also bragged about killing a man and beating women in Indiana. At approximately 4 p.m. defendant, decedent, Way Gailey and others were playing cards and drinking in the apartment of Ernestine Vaughan, who lived across the hall. While there, defendant and decedent began arguing and he hit her twice. Afterwards, she and decedent returned to her apartment where he struck her with a belt buckle. At about 10 p.m., she called the police and asked them to remove decedent because he was beating her with a belt buckle. The police arrived, laughed at her and left. After the police had gone, decedent threatened to kill her. She ran to the kitchen and obtained a knife. She went into the dining room and he came after her and tried to choke her with the belt he was using to beat her. As he put the belt around her neck, he lunged into the knife and the belt fell. She then ran to Vaughan's apartment to call the police.
Prior to trial, defendant filed a motion to produce statements and a motion for discovery. (Ill. Rev. Stat. 1975, ch. 38, par. 114-10 and ch. 110A, par. 412(a)(ii).) After the defense rested, the State presented rebuttal witnesses. Following closing arguments, the jury returned a verdict of guilty of voluntary manslaughter and the trial court entered judgment on the verdict. Defendant now appeals.
1 Defendant first contends that the State's failure to comply with the mandatory disclosure requirements of Supreme Court Rule 412(a)(ii) and section 114-10(a)(c) of the Illinois Criminal Code resulted in prejudice to her by denying her a fair trial. We agree.
Supreme Court Rule 412 provides in part:
"(a) * * * [T]he State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
(ii) Any written or recorded statements and the substance of any oral statements made by the accused or by a co-defendant, and a list of witnesses to the making and acknowledgement of such statements." (Ill. Rev. Stat. 1975, ch. 110A, par. 412(a)(ii).)
Under Supreme Court Rule 412(a) (ii), the State is required to disclose not only confessions as required by section 114-10(c) of our Code of Criminal Procedure, but any and all statements known to it, which have been made by the accused. (People v. Watkins (1975), 34 Ill. App.3d 369, 340 N.E.2d 92.) Defendant also relies on the provisions of section 114-10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 114-10), which requires that the State, in the case of an oral confession and on motion of the defendant, furnish a list of the witnesses to the making of the confession.
2 The purpose of Supreme Court Rule 412(a)(ii) and section 114-10 of the Code of Criminal Procedure is to provide a defendant with protection against surprise, unfairness and inadequate preparation, as well as to afford the defense an opportunity to investigate the circumstances surrounding a statement. (People v. Boucher (1978), 62 Ill. App.3d 436, 379 N.E.2d 339; People v. Young (1978), 59 Ill. App.3d 254, 375 N.E.2d 442; People v. Shegog (1976), 37 Ill. App.3d 615, 346 N.E.2d 208.) Compliance with the statute and the discovery rule is mandatory (People v. Musgray (1976), 37 Ill. App.3d 48, 344 N.E.2d 708; People v. Szabo (1977), 55 Ill. App.3d 866, 371 N.E.2d 117), being excused only 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 (Shegog).
In the present case, during the cross-examination of Officer Stephen Boska, the following colloquy occurred:
"MR. ELLIS: When Officer O'Donnell took charge of the investigation you were relieved of your responsibility with reference to that investigation, isn't that correct?
A. Yes, sir. We were still there to assist him, though.
Q. And did Officer O'Donnell he didn't take any statements in the apartment, is that correct?
A. To my knowledge, he did not.
Q. And so the first time there was any talk about any statement was when you had Clara ...