APPEAL from the Circuit Court of Adams County; the Hon. ROBERT
L. WELCH, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
JUSTICE MILLS delivered the supplemental opinion of the court:
Conviction of conspiracy to keep a house of prostitution.
Section 72 petition then filed.
On direct appeal from Hammond's convictions of pandering and conspiracy to keep a house of prostitution, we reversed defendant's conviction for pandering but affirmed the judgment of conspiracy to keep a house of prostitution. (People v. Hammond (1980), 82 Ill. App.3d 839, 403 N.E.2d 305.) After the mandate of this court was issued, defendant's petitions for review by the Illinois and United States Supreme Courts> were denied. Defendant subsequently filed an amended section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72) for relief from the judgment and sentence entered on his conviction of conspiracy, and from the denial of this the defendant prosecutes the present appeal.
On appeal, defendant urges that the dismissal of his petition was an abuse of discretion and in support relies upon: (1) an affidavit of a recently located witness, Edward Prebe, whose testimony is alleged to be material to the guilt or innocence of defendant Hammond, and (2) the admission after trial by the former State's Attorney for Adams County, Robert Bier, that he had been "stonewalling" the defendant during the original trial in the production of the State's chief witness, Dorothy Roscetti.
On July 7, 1976, an indictment was returned by the Adams County grand jury charging Hammond, his wife Elaine, and Lavada Woollums with the crime of pandering. This indictment was dismissed by the State on November 22, 1976, when the State's chief witness, Dorothy Roscetti, a/k/a Tommi Roscetti, became unavailable for reasons which are not entirely clear from the record. Almost two years later, on June 7, 1978, the Adams County grand jury again returned an indictment against the Hammonds and Woollums. The indictment was based on the same circumstances as the original indictment, but now Hammond was charged with two counts of conspiracy to keep a place of prostitution and pandering, as well as conspiring to pander. On June 9, 1978, defendant appeared, entered a plea of not guilty, and an order was entered requiring the State to furnish Hammond with discovery by August 18, 1978. The State's Attorney of Adams County, Robert Bier, failed to comply with this direction on the date ordered but indicated at a subsequent hearing that discovery would be completed by August 29, 1978.
On September 29, 1978, Mr. Bier filed a partial answer to Hammond's discovery motion but numerous defense requests were excluded from the response. At a subsequent motion hearing, a further order was entered requiring the completion of discovery by October 10, 1978. The information sought by Hammond in his discovery motion was the disclosure of the address and current whereabouts of the chief witness, Roscetti. On October 10, 1978, Mr. Bier filed a response to the most recent discovery order and listed as her address the address of her father, though Roscetti was not residing there and had not resided there for a period of four years. Again, a motion to dismiss was filed by Hammond. At the conclusion of the hearing on this motion, the prosecution was ordered to have Roscetti in court on November 20, 1978, and Hammond's motion to dismiss was continued.
Not surprisingly, Roscetti was not produced by the prosecutor for the November 20 hearing. According to Mr. Bier, the reason for her nonappearance was the result of a misunderstanding regarding the payment of an airline ticket to enable her to appear. At the November 20 hearing the prosecutor admitted that he did have a phone number of Roscetti but refused to disclose it to Hammond. The prosecutor also readily admitted he knew where she was but suggested to the court that his reluctance in disclosing the address to Hammond was because of Roscetti's fear Hammond would cause her harassment and embarrassment. Hammond argued that disclosure was necessary to enable a background investigation to be conducted to gather impeachment evidence for the trial. The court continued the hearing on Hammond's motion to dismiss and ordered Mr. Bier to produce the chief witness in open court on November 27, 1978, and to supply Hammond, within 24 hours, with Roscetti's physical location or address.
The 24-hour production order was not complied with, but on November 27 Roscetti did appear in court for the interview. During the examination of her by Hammond's counsel, she indicated that she had no objections to disclosing her telephone number. At the hearing's conclusion, the court ordered the prosecutor to disclose Roscetti's phone number, information collected by the prosecutor regarding her prior statements, and her FBI identification record which was to be furnished by December 6, 1978. On December 13, 1978, Hammond filed a motion to dismiss for failure to disclose Roscetti's phone number and other information. By December 22, the prosecutor had disclosed the prior statements and the FBI report to Hammond but continued to refuse to disclose the phone number, despite Roscetti's willingness and the court's discovery order. On the same date, another order was entered requiring the disclosure of the phone number by January 6, 1979. Again, Hammond's motion to dismiss was denied. The prosecutor filed a motion for relief from the December 22, 1978, order to produce the number of Roscetti and yet a further order was entered on January 17, 1979, requiring the prosecutor to disclose the first three digits of Roscetti's phone number and the city in which she was residing. Again, the order was not complied with.
From the time of the first indictment until the trial of Hammond on February 5, 1979, two defense witnesses had died. On February 7, 1979, the jury returned a verdict of guilty on the charge of conspiracy to keep a house of prostitution and pandering and Hammond received concurrent sentences of 2 years' imprisonment. On appeal to this court, Hammond's conviction of pandering was reversed due to failure of proof beyond a reasonable doubt, but the conspiracy conviction was affirmed. 82 Ill. App.3d 839, 403 N.E.2d 305.
At trial, the prosecutor's main witness was Dorothy Roscetti. She testified that in February 1976 she had met Lavada Woollums in Springfield, who arranged with Hammond for her to work as a prostitute in Quincy. She explained the operations at the Quincy Hotel and said that on two occasions when she escaped, she was beaten by Woollums upon her return. In short, the image created by her testimony was that she was directly accountable to Woollums and Hammond and could not leave without their permission. Roscetti's testimony was contradicted on cross-examination by several inconsistent statements, and Roscetti's stepbrother and her father both testified that she had a poor reputation for truthfulness. Also testifying for the State was Charles Bailey, an agent for the Illinois Bureau of Investigation. He stated that an informant had been paid to have intercourse with prostitutes at the new Virginia Hotel where Roscetti worked and that the informer had advised the officers of his intercourse with one of the women. Bailey and several officers went inside the hotel to find the prostitute. While inside, Hammond assisted the agents in looking for the woman but she could not be found. According to Bailey, Hammond stated that if the agents were going to arrest "his girl," then the undercover agent should be arrested as well. On the basis of this testimony, Hammond was found guilty of pandering and conspiracy to keep a place of prostitution. Following the affirmance by this court of defendant's conspiracy conviction, review in the Illinois and United States Supreme Court was sought and denied.
While waiting for word of the appealability of Hammond's conviction, defense counsel arranged for an informal meeting with the prosecutor, Mr. Bier, and the trial judge, David Slocum. At this hearing, Judge Slocum later testified that Mr. Bier was asked whether he hadn't been stalling the defense in producing the whereabouts of witness Roscetti. According to Judge Slocum, Mr. Bier admitted to Hammond's counsel that he had been "stonewalling" during the discovery process. In the order dismissing Hammond's present petition, the trial court made a finding that the former State's Attorney, Mr. Bier, had intentionally withheld information from the defendant through the discovery process regarding the whereabouts and address of the prosecution witness. The State does not challenge this finding on appeal.
In short, as the basis for defendant's section 72 petition for relief, he urges that the wilful refusal of the prosecutor to comply with the court's discovery orders and the recent discovery of the location of Edward Prebe, a defense witness who was ...