APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Royal Anthony Bailey, was convicted by a jury of the shotgun murder of 13-year-old Diana Coleman and sentenced to 40 to 80 years in the penitentiary. He appeals from that conviction and sentence (No. 79-1819). Subsequently, he filed a post-conviction petition which, on motion of the State, was dismissed. He also appeals from that dismissal (No. 80-1715). His two appeals were consolidated in this court and were submitted on one set of briefs.
Defendant contends (1) the failure of the trial judge to order production of the assistant State's attorney's notes violated the rules of discovery and prejudiced defendant and denied him his rights under the sixth amendment to the Constitution of the United States; (2) he was not proved guilty beyond a reasonable doubt; and (3) the sentence was unduly harsh and denied his rights under the eighth amendment to the Constitution of the United States and under article I, section 11 of the 1970 Illinois Constitution.
No argument is made by defendant in support of his contention in his post-conviction petition that, in violation of the fifth amendment to the Constitution of the United States and of article I, section 10, of the 1970 Illinois Constitution, he was denied his right to remain silent. That contention, therefore, is waived. Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)(7).
On May 16, 1977, Diana Coleman, 13 years old and pregnant, left her home in Chicago at 8 p.m. with her 17-year-old boyfriend, defendant Royal Anthony Bailey. At 9:15 p.m., there was a loud explosion in the vicinity of the Beverly Bowling Alley, located in the 9300 block of South Ashland Avenue. Lee Toper and Tony Brown, who were on the porch of Toper's home with their sisters, heard the noise. Toper's home was on 93rd Place. He immediately walked to the fence at the rear of his backyard at the alley. Looking across the alley, which was lit by street lights, into the parking lot of the bowling alley, he saw a figure walking toward him from the vicinity of an isolated white shack at the far end of the lot. The person entered the alley about 15 yards from Toper, at which time he recognized defendant, whom he had known for several years. Defendant turned and walked down the alley to Toper's left. Toper could see defendant, who was carrying in his left hand a weapon which appeared to be a sawed-off shotgun.
Tony Brown, who had stayed behind to restrain the two sisters from following, joined Toper at the fence when defendant was some distance down the alley. He could not identify the person walking down the alley. Toper told Brown that it was defendant, whom Brown had known for three years. Brown saw that the person was holding a long, dark object in his left hand.
Brown and Toper crossed the alley, walked through the parking lot to the shack and found Diana Coleman, whom they knew, lying several feet from the shack. Diana called to them for help, saying several times, "Anthony Bailey shot me." Her inner organs were protruding from the side of her body. Brown ran back to the house to call the police, while Toper stayed with Diana. When the police arrived, Officer Harry Wilson, Jr., asked her what had happened; she said, "My boyfriend Anthony Bailey shot me." Diana was taken to Little Company of Mary Hospital, where she died June 8, 1977.
After Diana had been taken to the hospital, defendant was arrested at his nearby home and taken to police headquarters. A search of the parking lot and the area between it and defendant's home turned up no weapon.
The Chief Medical Examiner performed an autopsy on Diana. He testified that death was caused by a "shotgun wound of the abdomen in association with peritonitis and septic shock."
Defendant was interviewed at police headquarters by Michael Sheridan, a felony review assistant State's attorney, who testified that he advised defendant of his Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602), and that defendant understood them and waived them. Defendant admitted that he was Diana's boyfriend, that he had been with her that evening and that if she was pregnant, it was by him. He further stated that he had walked with her to the parking lot behind the bowling alley and that after a conversation he left her alone and went to rejoin friends. He denied shooting Diana.
Sheridan testified that he made notes of defendant's statements in a felony review work product folder.
Defendant contends that the failure of the trial court to order production of the State's attorney's notes violated the rules of discovery, prejudiced defendant by preventing adequate cross-examination and denied his constitutional rights under the sixth amendment to the Constitution of the United States to confront and cross-examine witnesses against him. We disagree.
On July 5, 1977, defendant was charged by information with the murder of Diana Coleman. At his arraignment on July 7, 1977, defendant pleaded not guilty. On July 11, 1977, he filed a motion for discovery requesting, among other things, "any written or recorded statement or statements and the substance of any oral statements made by the accused." On October 12, 1977, the State filed its answer to discovery, stating in part, "[T]he defendant herein made oral statements to ASA Michael Sheridan on May 16, 1977 at approximately 11:20 p.m. at the 22nd District, Chicago Police Department, contents and circumstances under which they were made will be disclosed upon request." On November 27, 1978, defendant moved to suppress any and all oral statements made by him to assistant State's attorney Michael Sheridan. A hearing was held on this motion on January 8, 1979, immediately preceding the start of the trial.
Michael Sheridan testified that on May 16, 1977, the date of the shooting, he was assigned to the felony review unit and had a conversation with defendant on that date. After advising him of his rights, defendant said he understood those rights and indicated he would talk with him. Sheridan made notations of defendant's statements on a felony review folder. After defendant had made this statement, Sheridan asked him if he wished to give a written statement. Defendant said that he did not. Since that time, Sheridan has had occasion to review those notes. The felony review folder was no longer in his possession, but was in the possession of the assistant State's attorney who was trying the case. Defense counsel requested production of that folder. The State objected on the ground that there was no showing or reason for producing the work product of the assistant State's attorney; there was no showing whether or not it was of an impeaching nature. The objection was sustained. Sheridan also stated that, after reviewing that document, ...