APPEAL from the Circuit Court of Cook county; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
• 1 The reciprocal rules of discovery in criminal cases require the disclosure to the accused of those persons whom the prosecutor intends to call as witnesses. The critical element is the prosecutor's intent, and until the prosecutor forms the intent to call a person as a witness there need be no disclosure, no matter how critical that person's testimony is. Defendant's conviction, obtained partly on the strength of testimony from a rebuttal witness whose identity was not disclosed before trial, must be affirmed.
In the early evening of December 26, 1977, Robert Hines was stopped by police for carrying a cardboard box in an alley behind a building belonging to the Johnson Publishing Company. The box contained magazines and books published by Johnson; the box itself carried the name of one of Johnson's book clubs. Hines told police that he took the box from the company's loading dock, which was situated just a few feet from where he was arrested.
Hines was held at the scene while two of the officers went to the front of the Johnson building. A two-story complex actually consisting of four interconnected buildings, it was being used as a warehouse for magazines and novels published by Johnson. At the time of the burglary, plans called for the building to be razed, and by the time of trial it had been destroyed. The officers found that, although the windows had been boarded up, one ground level board was loose. An officer crawled through the hole into the building. Inside, he found books similar to those in defendant's box.
Hines was taken to a police station. He told one of the officers that the security guard was involved in the incident. After being advised of his rights and questioned, Hines said that "he had gone in through the window, gotten the books and his intention was to sell them on the street for anything he could get for them." When asked about the security guard, the defendant brushed away the question by saying, "Man, forget it."
At trial the arresting officers testified and related the defendant's statements. One officer recounted how he beat on the outside door next to the loosened window board for 5 or 6 minutes before the security guard let him in. The State presented the testimony of Johnson's director of security. He testified that Johnson was a duly licensed Illinois corporation. He said that the building involved was owned by Johnson, that he did not give permission to the defendant to enter it and that it was company policy that security guards not give permission to anyone to enter company buildings except for company officials. The building was not open to the public.
After a motion for a directed verdict at the end of the State's case in chief was denied, the defendant testified that he picked the books up from the trash area next to the loading dock. Hines admitted that he was a thief, noting his convictions for robbery in 1965, for burglary in 1970, for attempt theft in 1976 and for theft in 1977, but said that a third party had called him on the day he took the books and told him that the security guard would set them out for Hines.
The defendant testified that when first arrested he told police that he took the books from the trash area behind the loading dock. He denied indicating to police that he had entered the building, but said that an officer threatened to charge him with burglary unless he named the security guard who set out the books for him. It was at that point that Hines told police to "forget it." The defendant refused to name the guard who telephoned him or the guard who set out books for him because it would be unethical.
After Hines' testimony the State asked leave to call Albert Downing, security guard at the Johnson building at the time of the defendant's arrest. The trial court allowed Downing to testify, ruling that he was a rebuttal witness and that there was no reason for the prosecutor to anticipate his being a witness until he heard the defendant's testimony. Downing testified that no one entered the building as far as he knew. He had never seen Hines before the trial, did not give him permission to enter the Johnson building, did not have a third party contact Hines, heard nothing at the time of Hines' arrest and learned about a break-in only when informed by police.
The defendant returned to the stand to testify that several months before the incident for which he was on trial, Downing had chased him away from the loading dock when Hines tried to pick up books set out for him by another security guard. The defendant said that he did not personally know who was behind the taking of books. He had no direct dealings with the security guards, but instead picked up the books after they were placed on the dock.
• 2 The jury found Hines guilty of burglary. He was sentenced to a fixed term of 5 years imprisonment. The defendant argues on appeal that the State should have disclosed Albert Downing's name and address to him before trial. The defense discovery request asked for the name of all occurrence witnesses and for a list of any other witnesses whom the State might or might not call at trial. The request sought more information than the supreme court rules required the State to furnish. Under Rule 412, the State must disclose the identity only of those persons whom it intends to call as witnesses. (Ill. Rev. Stat. 1977, ch. 110A, par. 412(a)(i).) Where rebuttal witnesses are concerned, the State need not inform the defendant until the intent to call the rebuttal witness is formed. (People v. Stinson (1976), 37 Ill. App.3d 229, 234, 345 N.E.2d 751, 755; People v. Manley (1974), 19 Ill. App.3d 365, 371, 311 N.E.2d 593, 598.) The reason is simple. Although the prosecutor may know the import of a rebuttal witness' testimony before the trial, he cannot know if the witness will be used until he receives some indication from the defendant as to the defense that will be advanced at trial. Only when the State learns what the defense testimony will be can it decide whether to put on rebuttal witnesses and who they should be. Stinson, at 234.
Here, since there was no notice of alibi defense, the State had to wait for the defendant's testimony to determine if Downing would be used. Rule 412(a)(i) thus did not require Downing's disclosure. The trial judge had the discretion to require Downing's disclosure under the catchall provisions of Rule 412(h) (Ill. Rev. Stat. 1977, ch. 110A, par. 412(h)), but we find no abuse of discretion in his decision not to require that disclosure before the trial commenced.
Defendant also argues that the total evidence does not prove him guilty beyond a reasonable doubt. The material elements of this burglary were entry to a building without authority and with intent to commit a theft (People v. Jefferson (1978), 64 Ill. App.3d 200, 205, 380 N.E.2d 1070, 1074).
Proof of the entry rested, as the State admitted in argument before the trial court, on the defendant's statement. Hines argues that his testimony denying entry raised a reasonable doubt of guilt, but it was up to the jury to choose between the State's and the defendant's versions and determine the truth. Where the State's evidence was adequate to support the verdict the jury's determination will not be disturbed on appeal. People v. Price (1979), 79 ...