APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MISS PRESIDING JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Aaron Williams, the defendant, was indicted for the offenses of rape, deviate sexual assault, armed robbery and attempt murder. Following a bench trial he was found not guilty of rape, guilty of the remaining offenses and was sentenced to serve concurrent 20-year terms for each of the offenses. On appeal, the defendant contends that he was denied due process and a fair trial because the State failed to disclose information pertaining to a pretrial photographic identification display in which the defendant was identified by the complainant. The defendant argues that the State's failure to fully comply with his timely request for this information entitles him to a reversal of his conviction and a new trial.
Since the issue raised in the defendant's appeal is limited to the matter of the pretrial photographic identification, we will state only the facts required for the discussion of this issue.
The defendant filed a pretrial motion for discovery, pursuant to Supreme Court Rule 412 (Ill. Rev. Stat. 1977, ch. 110A, par. 412) on April 13, 1978. Included in this request for disclosure and production was the following:
"13. That names and addresses of the witnesses the State intends to call at the time of trial for identification of the defendant as the perpetrator of the crime including:
(a) time, date and place of identification confrontations
(b) if photographic identification was used, production of any photo used, whether of defendant or of other persons;
(c) all persons present at such viewing;
(d) any pictures taken of lineup, etc.,
(e) names of any individual who confronted the accused and made no identification or identified him for other crimes."
In addition, the defendant requested any exculpatory evidence favorable to him. The State's response to the discovery motion referred the defendant to the State's list of witnesses as well as to police reports for circumstances of the identification of the defendant. A full set of police reports was turned over to the defense counsel. It is undisputed that none of the documents contained information pertaining to the complainant's photographic identification of the defendant.
The defendant contends that until trial during cross-examination of the complainant and police officer Ray Luth, he did not become aware of the fact that six days before the lineup identification the complainant had identified him from a photographic display at her home. The record supports this contention. As stated above, neither the State's "Answer to Discovery" nor the police reports supplied to the defendant contained any reference to the photographic identification. The State had not presented evidence of that identification during its case-in-chief, and the prosecutor admitted during post-trial arguments that he was not aware of that identification until the complainant was cross-examined.
At trial the complainant described the attack on the night of April 15, 1977, and identified the defendant as her assailant. She also testified that she identified the defendant at a lineup nine months after the attack. During the complainant's cross-examination, she testified that a police officer brought a picture of the defendant to her house prior to her lineup identification. She said she identified the person in the picture as her assailant. The cross-examination regarding the photographic display was very brief. There was no redirect examination by the prosecution.
The only other testimony regarding the complainant's photographic identification of the defendant occurred during cross-examination of Chicago Police Officer Ray Luth by the defense. Officer Luth testified that another officer showed the complainant a picture of the defendant on January 20, 1978, nine months after the attack and six days prior to the lineup. After this cross-examination, the prosecution rested and the defendant made a motion for directed finding arguing that the State had not met its burden as ...