APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
MAHON, Judge, presiding.
JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendants Larry Patterson, Eli Wilson, and Eddie Garlington were charged with the murder of Renell Hentley. After a trial without a jury, they all were found guilty of that crime. All three defendants were sentenced to 30-year terms. On appeal defendants contend that they were not proved guilty beyond a reasonable doubt; that the trial court erred in admitting a statement made by Garlington which was not included in the State's answer to defendants' discovery motion; that the court erroneously admitted two hearsay statements; and that the court erred in allowing a prosecutor with a prior professional relationship with Garlington to prosecute them.
Yvonne Amos, Garlington's girlfriend at the time of the events in question, was the principal State witness and testified that on January 18, 1979, the evening prior to Hentley's death, she was informed that Garlington's brother Reginald had been shot in a pool hall. (Reginald died and Garlington was a State witness in the successful prosecution of his two killers.) Amos spent that night at the Garlington home with several others, including Hentley and the defendants. At approximately 8 a.m. the following day Garlington instructed her to awaken Hentley and to instruct him to go to Garlington's bedroom. Hentley was followed into the room by defendants and Jimmie Key. Amos heard scuffling noises coming from the bedroom, and she heard Hentley say that they had the wrong man. Garlington and Key came out of the bedroom two or three times. On one such occasion Garlington said, "It's going to be all right," to which Key replied, "We're going to take care of him." When the five men came out of the bedroom, Amos described Hentley as having his hair sticking up, a red face, wrinkled clothes, and looking "satisfied." She then saw Wilson, Patterson, Key and Hentley go out the back door. She did not see Garlington go out. About 20 minutes later the men returned without Hentley. One of them took off a black jacket and stuffed it in a box or behind some clothes. Amos testified that she had given several prior statements which conflicted with her trial testimony. She gave these statements out of fear and stated that she was telling the truth at trial.
Kenneth Green, a 12-year-old neighbor, testified for the State that at approximately 10 a.m. he saw five men emerge from Garlington's yard. He could identify only Hentley. One of the men punched Hentley while the others surrounded him. Green then saw the man wearing a black coat drag Hentley to the garage and strike him over the head with a bottle. At this point Green ran to a neighbor's home at which time he heard 5 or 6 shots. After a few minutes Green returned to the alley, where he observed a trail of blood.
Officer Anthony Barry of the Chicago Police Department testified that at 10:10 a.m. he found Hentley dead in the alley. He observed a trail of blood from the body to the alley behind the Garlington residence where he also found a broken bottle. Hentley had $105 in his pockets.
Donna Garlington, Garlington's sister, testified for the defense that Amos left the Garlington home at about 2 a.m. the morning of Hentley's murder and did not return until that afternoon or evening. She further testified that Hentley himself left the residence about 4:45 a.m. and did not return.
Lillian Ward, a funeral director, visited the Garlington residence to make funeral arrangements. She was there, on January 20, at 9:10 or 9:15 a.m. for about 30 minutes. The atmosphere was quiet, and she heard no fighting or scuffling. She also testified that her notes supported her time sequence.
We initially consider defendants' contention that the trial court committed reversible error in allowing Officer Edward Beale of the Chicago Police Department to testify over objection as to an out-of-court statement allegedly made by Garlington. Beale testified that Garlington, while at the hospital the night his brother was shot and killed, said to a friend, "Well, let's go, we'll take care of this, we don't need no police." The basis for the objection was that the statement was omitted from the State's answer to defendants' discovery motion in violation of Supreme Court Rule 412 (Ill. Rev. Stat. 1977, ch. 110A, par. 412(a)(ii)).
• 1 In a criminal prosecution the rule requires the State to disclose, upon defendant's request, any oral statement made by the defendant of which the State is aware. The purpose of the rule is to protect a defendant against surprise, unfairness, and inadequate preparation. (People v. Boucher (1978), 62 Ill. App.3d 436, 379 N.E.2d 339.) Compliance with the rule is mandatory (People v. Musgray (1976), 37 Ill. App.3d 48, 344 N.E.2d 708), excusable only when the State was unaware of the statement prior to trial and could not have learned of it by the exercise of due diligence. (People v. Shegog (1976), 37 Ill. App.3d 615, 346 N.E.2d 208.) The State asserts that it was unaware of the statement until after commencement of the trial, learning of it on Thursday evening after the trial had been recessed until Monday. The State denies any lack of diligence, pointing out that Beale's only connection with the Hentley murder was the fact that he investigated the murder of Garlington's brother on the previous evening.
• 2, 3 Even if the State fails to exercise due diligence, noncompliance with Rule 412 does not require reversal absent a showing of prejudice. (People v. Greer (1980), 79 Ill.2d 103, 402 N.E.2d 203.) Where the court becomes aware of a defendant's surprise and potential prejudice and gives counsel an opportunity to investigate the matter adequately, defendant's failure to avail himself of that opportunity negates his contention of surprise. (People v. Kradenych (1980), 83 Ill. App.3d 547, 404 N.E.2d 488.) In the present case defendants declined the trial court's offer of time to investigate the matter despite the State's assertion that it would be agreeable to any amount of time necessary. In this regard, defendants' reliance on People v. Millan (1977), 47 Ill. App.3d 296, 361 N.E.2d 823, and People v. Mourning (1975), 27 Ill. App.3d 414, 327 N.E.2d 279, is misplaced. In each of those cases prejudice was found where the defendant's request for a continuance was denied and only a short recess was offered. Here, the trial court did not err in permitting Officer Beale to testify as to the statement made by Garlington.
Defendants also contend that two hearsay statements made by Jimmie Key, who did not testify, were erroneously admitted into evidence.
Amos testified that on the evening after Hentley was killed she overheard a conversation between Garlington and Key in which Garlington stated that Hentley had betrayed his brother. Key replied, "I told you we would take care of him." The State argues that defendants waived this issue for purposes of appeal by failing to object at trial.
• 4, 5 An objection to hearsay testimony must be made at the time of its introduction. The objection should designate the particular testimony considered objectionable and the specific reason for the objection. Failure to make a timely and proper objection or to move to strike the testimony after its admission constitutes a waiver and cures the error, if any. (People v. Trefonas (1956), 9 Ill.2d 92, 136 N.E.2d 817.) In the present case defendants failed to object until after the State had elicited the conversation at issue and had completed another question and answer. At that time counsel merely expressed a continuing objection to all statements made by anyone other than defendants. Even if we assume this was a hearsay objection, it came too late. (In re Duncan v. Harmon (1979), 77 Ill. App.3d 927, 397 N.E.2d 497.) Any error was waived.
• 6 The second statement complained of was the remark Key made to Garlington that morning, "We're going to take care of him." This comment was made before the ...