APPEAL from the Circuit Court of Mercer County; the Hon.
WILBUR S. JOHNSON, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
In this appeal by the defendant, David Wilken, from his conviction, following a jury trial, of burglary, the defendant raises only one issue: whether the State's failure to comply with discovery has prejudiced him to such an extent as to require a new trial. The facts relevant to this issue follow.
The defendant's trial counsel filed several pretrial motions, including a discovery motion. On November 13, 1978, the day the case was scheduled for trial, the defendant also filed a motion for a continuance and a motion to compel discovery, alleging that defense counsel had recently learned about the prior convictions of a State witness who had also been charged with the same burglary. Defense counsel obtained this information from the attorney who had represented a third co-defendant and alleged that this information should have been provided in discovery.
A hearing on these motions was held that day. In argument to the court, defense counsel elaborated by explaining that the attorney who represented Mark Smiley informed defense counsel that another witness, Boyd Mosley, who was also involved in the same offense, had two prior adjudications of burglary. Mosley had also undergone psychiatric and emotional testing and had failed a memory test, according to his source.
Defense counsel indicated that from what he could gather from the police reports, Smiley and Mosley were going to "point the finger" at the defendant. In this regard, it was important for the defendant to impeach the credibility of these witnesses. Consequently, defense counsel requested a continuance to check into these matters.
The prosecutor responded that he had failed to make available the contents of Mosley's juvenile file. The prosecutor also indicated that he had no objection to defendant's placing the medical report on Mosley into evidence and stipulated that Mosley had prior convictions. The defendant's motion for a continuance was, therefore, denied.
Proceeding to trial before a jury, the State called Rex Armstrong as the first witness. Armstrong's testimony established that his Texaco gas station was burglarized on July 20, 1978, in the early morning hours. Armstrong indicated that he was called to the station by the police at 3 a.m. and observed that the station had been broken into and that several items, including tools, food, a chain saw and auto supplies, were missing.
Officer Kenneth Quinn testified that, while on patrol on the night in question, he noticed the west overhead garage door to the Texaco gas station was open. Quinn immediately shone his spotlight at the garage and called for assistance. While waiting for a backup, Quinn observed the defendant drive by the station.
At this point in Quinn's testimony, defense counsel objected, and a conference was held outside the jury's presence. Defense counsel indicated that Quinn's testimony of the defendant being at the scene was a complete surprise. The police reports which were tendered to defense counsel in discovery indicated that the only evidence against the defendant was the testimony of the two co-defendants. Defense counsel, asserting that it was incumbent upon the State's Attorney to make sure that the police officer's notes were turned over in discovery, asked for a mistrial.
In response to the defense counsel's complaint, the trial court referred to the prosecutor's opening statement wherein the prosecutor had specifically commented that the police officer had observed the defendant in the vicinity of the crime. Defense counsel, while conceding that he missed the prosecutor's statement, continued to argue that the prosecutor had, nevertheless, failed to provide a report. The prosecutor was of the opinion that Quinn had not written down the information that he had seen the defendant drive by the station, although he was aware that Quinn would testify about this matter. The prosecutor asked that a continuance be granted. Defense counsel reiterated his request for a mistrial, but the trial court denied this request and continued the trial to the following morning. While it was not discussed at the trial, a review of the record also establishes that the police officer testified to this effect at the preliminary hearing, although the defendant was there represented by counsel other than was representing him at the trial. Sometime before the next morning, defense counsel obtained a copy of Quinn's police report, and when the defendant's cause resumed, defense counsel renewed his motion for a mistrial. Defense counsel indicated that the information in the report would have changed his cross-examination of Armstrong and could have prompted further investigation had the report been made available eariler. Defendant's motion for a mistrial was again denied.
Officer Quinn then resumed his testimony. He noted that the defendant drove by the gas station very slowly while Quinn was waiting for a backup. Defendant stopped his car at a stop sign for a minute and stuck his head out the window. Quinn thought there was another person in the car. While it was dark at that time, there was a street light at the intersection.
Quinn further testified that, at daylight that morning, he found a padlock and a red bandana at the corner of the gas station building. Several items, believed to have been taken from the station, were found in vacant lots in the area.
Mark Smiley was the next witness to testify. He indicated that on the night in question he was working on his car with Boyd Mosley one block south of the Texaco gas station. At approximately 10:30 p.m. he saw the defendant talk with Mosley. One-half hour later Smiley saw the defendant walk from the gas station carrying a rack of potato chips. The defendant told Smiley that he got the chips from the gas station because he had the "munchies." Later Smiley saw the defendant carry a chain saw from the station. The defendant put the saw in a green car which was not the defendant's car.
Smiley, realizing that the station was being burglarized, went to the station with Mosley. When they went ...