APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, Jr., Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
William Pearson, defendant, appeals his conviction for murder, three counts of armed robbery, attempted armed robbery, unlawful use of weapons, and armed violence. *fn1 Defendant was sentenced to concurrent terms of imprisonment of 40 years for murder, 20 years for each armed robbery, 10 years for attempted armed robbery, and 5 years for unlawful use of weapons. No sentence was imposed on the armed violence conviction.
Defendant, along with a number of other persons, was drinking and gambling at an "after hours" bar located on South Loomis in Chicago. He announced a hold-up, brandished a sawed-off shotgun and pistol, and fired several shots into the ceiling. The other customers all dove for cover, and a second series of shots was heard. Defendant then fled with the money, leaving behind the fatally wounded Sammy Priest.
On appeal, defendant claims the trial court erred in (1) denying his motion for a new trial based on the failure of the State to honor defendant's request for disclosure of the arrest records of several witnesses for the State, and (2) denying his request for a one-day continuance. The State contends on appeal that the trial court erred in not imposing sentence on the armed violence conviction, and seeks a remand for the imposition of such a sentence.
In its discovery motion, the defense requested any record of prior criminal convictions of the witnesses for the State. The State did not respond to this motion, as it filed its answer to discovery three weeks prior to the filing of the defense discovery motion. The State's answer tracked the standard discovery motion used by the Public Defender's office, which requests "criminal records * * * to be used for impeachment." Defendant was represented by private counsel. *fn2
The State did not disclose the arrest records of five occurrence witnesses. George Webb had a 1979 felony conviction for possession of a controlled substance. Barbara Walker had an outstanding bond forfeiture warrant on a 1973 attempted theft charge. William Wilbourn and James Remmer both had misdemeanor convictions for possession of marijuana and numerous gambling and drug arrests. Ewing Johnson had a number of gambling arrests.
Supreme Court Rule 412 (73 Ill.2d R. 412) governs disclosure to an accused in a criminal case. Rule 412(a)(vi) states that the accused is entitled to the records of any criminal convictions suitable for use in impeachment of any person the State intends to call as a witness. In People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, the supreme court set forth the policy with respect to the use of prior convictions for impeachment. Rule 412(c) entitles the accused to any exculpatory material. This rule is a codification of the constitutional requirement of Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194. Ill. Ann. Stat., ch. 110A, par. 412, Committee Comments, at 681 (Smith-Hurd 1976).
The felony conviction of George Webb for possession of a controlled substance in 1979 was the type of conviction which might have been admitted for impeachment. We do not decide that question. The conviction occurred after the State filed its answer to discovery, but before the beginning of trial. The State contends that it should not be responsible for knowing that Webb was convicted of a crime after its answer to discovery was filed. The State argues that its answer listed over 70 witnesses and that "[i]t would be an unreasonable burden to require the People to continually monitor the activities of such a large number of witnesses."
• 1 Supreme Court Rules 415(b) *fn3 and 412(f), *fn4 read together, create a duty on the State to be aware of any recent convictions of its witnesses. Contrary to the State's contention, such a duty should not be excessively burdensome. While the State may have listed over 70 witnesses in its answer to discovery, it only called 13 at trial, three of whom were police officers. The State could have easily requested current Bureau of Identification sheets on the remaining witnesses. We therefore hold that it was error for the State to fail to disclose George Webb's felony conviction to the defense.
• 2 The State contends that the failure to disclose Webb's felony conviction was harmless error. It is clear that this error was harmless beyond a reasonable doubt. The defendant's reply brief virtually concedes this point. Webb was only one of seven occurrence witnesses, and all testified to similar versions of the incident. His testimony was clearly cumulative. Defendant cites a number of cases for the proposition that once a discovery violation is found, a defendant need not establish prejudice in order to be entitled to a new trial. These cases deal with substantive evidence of an exculpatory nature and not with a prior conviction to be used solely for impeachment.
The State's failure to disclose the arrest record of the other four occurrence witnesses raised a different issue, since none had any provable felony convictions. Barbara Walker's arrest record listed an outstanding bond forfeiture warrant on a 1973 attempted theft charge, while the other three had prior gambling and narcotics arrests and misdemeanor convictions. The defendant does not argue that this material would have been admissible at trial for impeachment, but that "the investigative prospects afforded by it may well have enabled the defense to develop relationships existing between the various witnesses." The defense argues that it might have found "a real or perceived interest, motive, or bias to testify falsely."
The defense relies on People v. Galloway (1974), 59 Ill.2d 158, 319 N.E.2d 498, where a conviction was reversed for failure of the State, upon specific request of the defendant, to disclose the arrest record of a key witness for the State. In Galloway, the witness was a drug addict and former prostitute who made an undercover drug buy from the defendant. Galloway is clearly distinguishable from the instant case. The crux of Galloway was the false representation by the prosecutor, coupled with the immediacy of the pending charge and its dismissal.
In the instant case, Barbara Walker's outstanding warrant was over six years old, and no allegation of favorable treatment of her has been made by defendant. No substantial basis existed for claiming the materiality of this information, especially since Walker's credibility was already damaged by her admission that she was the owner of the illegal "after hours" bar that housed a gambling operation.
• 3 Similarly, no substantial basis existed for claiming the materiality of the arrest record of the other three witnesses. Nothing contained in these records would have been admissible for impeachment. The prosecution's ...