Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Kankakee
County, the Hon. John F. Michela, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Defendant, Charles Tate, was convicted of robbery, aggravated assault, attempted theft, and criminal damage to property following a jury trial in the circuit court of Kankakee County. The appellate court affirmed the first three convictions, but reversed the conviction for criminal damage to property. 87 Ill. App.3d 21.
Defendant raises three issues: (1) whether the State violated defendant's right of due process and Supreme Court Rule 412 (73 Ill.2d R. 412) by its failure to inform defendant that a defense witness, James Brown, had committed a crime similar to that with which defendant was charged, (2) whether defendant was deprived of a fair trial by the trial court's ruling that James Brown's out-of-court admission was inadmissible for substantive purposes, and (3) whether the trial court erred in preventing defendant from impeaching James Brown's credibility with evidence of prior convictions for robbery and theft. The State cross-appeals the reversal of the criminal-damage-to-property conviction, contending that it established that property damaged by defendant was that of another as required by section 21-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 21-1(a)).
On December 12, 1977, at about 10:30 p.m., a man and woman entered a Convenient Food Mart in Kankakee. The man walked to the meat counter and, through the store's curved mirror, was observed putting items in his coat by the store's security guard, Michael Maycen. Maycen told one of the two cashiers present to lock the front door. He then confronted the man, told him he was under arrest, whereupon the man turned and started heading back toward the meat counter. Maycen grabbed the man and began to frisk him. The man then pulled a package of sausages from his coat and dropped it. A struggle ensued, during which the man grabbed Maycen's gun. The man went to the front of the store and, after aiming the gun at the cashiers, shot at the door, attempting to break the lock. When that attempt proved unsuccessful, the man ran to the rear of the store and fled through a back door. The woman with whom the defendant entered was arrested and later released. At trial, these events were testified to by the security guard and the two cashiers who were present at the time of the incident. All three identified the defendant as the man who committed the offense.
The defendant testified that, at 10:30 p.m. on the date of the offense, he was at the apartment of a friend, Earl White, and that he left at about 10:45 to pick up White's girlfriend, Nancy Fifer, from work. He stated that he picked her up at 11:02. They then picked up Nancy Fifer's daughter from a baby sitter and returned to White's apartment.
Earl White testified on behalf of defendant that, at about 8:30 p.m., he and defendant picked up some clothes at a friend's house and they returned to White's apartment at 550 North 9th Street. They remained there until 10:40 or 10:45 p.m., when, according to White, the defendant left alone to pick up Nancy Fifer. White stated that they returned about 11:15 or 11:20 p.m. On crossexamination, White testified that on December 13, 1977, he gave a statement to an Officer Whitehead, wherein he stated that on the previous day he was playing poker with defendant at 1041 East Birch Avenue; that they left to go to a friend's house at about 10:30 or 10:35 p.m., drove by the Convenient Mart and saw the police there. He also stated that he and defendant were going to the Kankakee State Hospital to pick up Nancy Fifer.
Nancy Fifer, called by defendant, testified that on December 12, 1977, defendant was to pick her up from work at 11:15 and that she saw him parked outside at 10:45. She stated that he was alone. On cross-examination, Fifer testified that on February 16, 1978, she signed a statement indicating that while at work on December 12, 1977, she looked out the window at 10:55 p.m. and observed both defendant and White sitting in her car. She also stated on cross-examination that White could have been in the car but she was unsure.
It was defendant's theory that a James Brown committed the offense. To establish this theory, Jimmie Sanders Brown, a close friend of defendant, testified that he had a conversation with James Brown regarding the robbery at the Convenient Food Mart. The State objected, based upon hearsay, at which time defense counsel made an offer of proof outside the presence of the jury. During this offer, Jimmie Sanders Brown testified that he asked James Brown about defendant's being in jail for the incident at the Convenient Food Mart. The witness stated that James Brown responded, "Well, Charles didn't do that. I was in on that." Defense counsel argued that the statement was admissible as substantive evidence in that it was an admission against penal interest. The trial court sustained the State's objection to this as substantive evidence, but subsequently allowed it to be used for impeachment purposes.
James Brown was called as a witness by defendant and denied making the above comment and also denied making any admissions concerning the commission of the offense. At the defense counsel's request, Brown was declared a hostile witness and was cross-examined. The trial court sustained the State's objection to defense counsel's attempt to impeach Brown by introduction of prior convictions of robbery and retail theft. Following James Brown's testimony, Jimmie Sanders Brown was recalled to the stand by defendant and allowed to testify as to James Brown's prior declaration for impeachment purposes.
Annette Jackson testified for the defense. She stated that on the evening of the incident, Lori Ann Fulton told her she was going to the Convenient Foot Mart with James Brown. Lori Ann Fulton testified that she lived with her boyfriend, James Brown, and her mother and that she was in the store when it was robbed. She denied being with James Brown when the offense was committed and denied telling Annette Jackson that she was going to the store with James Brown.
Following the trial, the jury found the defendant guilty of all four counts.
The first issue raised by defendant on appeal concerns the State's receipt of an arrest report for a subsequent offense committed on March 14, 1978, by James Brown. The prosecutor received this arrest report after the State had presented its case, but did not inform defense counsel of its contents until after final argument to the jury. The report revealed that Brown had tried to steal five packages of smoked ham and one package of Polish sausage. A police officer who was called to the scene followed Brown out the door. Brown threw the meat to the ground and ran. The officer tackled Brown, and during the ensuing struggle, Brown tried to grab the officer's gun.
Defendant contends that the State's failure to inform him of James Brown's arrest report and the information contained therein violated his right of due process and Supreme Court Rule 412(c). Rule 412(c), which codified the due process requirements set forth in Brady v. Maryland ...