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People v. Dunklin

OPINION FILED MARCH 5, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

NARVA DUNKLIN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH L. GILLIS, Judge, presiding. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Following a bench trial, defendant was convicted of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1) and sentenced to 14 to 17 years' imprisonment. He presents these issues for review on appeal: (1) the prosecutorial withholding of exculpatory evidence renders the jury waiver void; (2) the trial court erroneously excluded expert testimony; (3) the evidence was insufficient to sustain a conviction for murder; (4) the trial court erroneously excluded evidence of the reputation of the deceased; and (5) the trial court erroneously excluded testimony offered to enhance the credibility of a defense witness. We affirm. The relevant facts follow.

After defendant's indictment for murder, defense counsel filed a discovery motion requesting the State to provide him with the criminal records of the State's witnesses. The record discloses that the assistant State's Attorney did not check directly with the Chicago Police Department or with Investigator Ridges who was assigned to the case, before responding to the motion. The State's response to the defense's motion stated "None known at this time."

The assistant State's Attorneys met with the investigators on the case prior to trial; however, it does not appear that prior convictions of State's witnesses were discussed during that time. Approximately three or four days before the trial commenced, the prosecutors met with all the prosecution witnesses, and it was determined that it was possible that Larry Haynes had a prior conviction. An investigator was assigned to check whether Haynes had a prior conviction so such information could be available to the defense; however, the defense was not advised that a check was being made. At that time People ex rel. Fisher v. Carey (1978), 64 Ill. App.3d 239, 380 N.E.2d 1150, *fn1 was controlling and prohibited defense counsel from obtaining material by subpoena, as provided for by the rules of discovery.

After commencement of the trial and a waiver of the jury, defense counsel was advised that some witnesses might have convictions and advised by the State to subpoena the records. Police department records indicated that Haynes had prior convictions for burglary and theft.

At post-trial motions with new counsel, defendant asserted that the jury waiver was not knowingly made because a different decision would have been made if it had been known that Haynes, a prosecution witness, had prior convictions. He stated that he believed the jury would consider prior convictions differently from judges.

Defendant's attorney at the commencement of trial, Fred Dry, testified that if he had known of Haynes' record prior to the waiver, he would have advised defendant to go with the jury because such evidence would have diminished Haynes' credibility. Defendant's other counsel had no opinion on the effect of a prior conviction on a judge or jury.

Defendant's motion to present expert testimony on the different effect that a prior conviction would have on a judge or jury was denied. The trial judge stated that such a difference was based upon speculation and that he would consider the impeaching of a witness in a bench trial.

Evidence concerning the sufficiency of the conviction indicated that a fight had occurred earlier during the day of the incident and defendant had interposed himself to stop the activities of violence. However, that evening defendant and his companion encountered the deceased and his friends. Defendant gave a gun to his companion to hold "at bay" deceased and some of his friends while he engaged in a fist fight with one of them. During this time, defendant's companion and deceased exchanged words which led to the killing of deceased. Defendant and his witnesses presented an alibi defense.

OPINION

Defendant initially contends that his jury waiver was not made knowingly and intentionally because the State did not reveal prior to trial that one of its witnesses had a prior criminal conviction. He posits that he would not have waived the jury had this "exculpatory" evidence been known.

• 1 Supreme Court Rule 412(a)(vi) (73 Ill.2d R. 412(a)(vi)) provides that upon written motion of defense counsel, the State is required to disclose "any record of prior criminal convictions, which may be used for impeachment, of persons whom the State intends to call as witnesses at the hearing or trial." However, noncompliance with discovery requirements does not require reversal absent a showing of prejudice. (People v. Greer (1980), 79 Ill.2d 103, 120, 402 N.E.2d 203.) Further, defendant's attempt to raise a claim of prejudice must be founded on more than "mere conjecture." People v. Lewis (1975), 60 Ill.2d 152, 330 N.E.2d 857; People v. Buckhana (1981), 99 Ill. App.3d 889, 425 N.E.2d 1297.

The State's failure to discover and provide information on Haynes prior to trial reflects a lack of due diligence and constitutes a violation of Rule 412(a)(vi). However, we are not convinced that defendant was prejudiced by this nondisclosure which would make his jury waiver void. This is not a situation where the State failed to disclose potentially exculpatory evidence, despite defendant's assertion. (See, e.g., People v. Nichols (1976), 63 Ill.2d 443, 349 N.E.2d 40.) And we do not believe that this situation is analogous to the withholding of inculpatory evidence. See People v. Norris (1978), 62 Ill. App.3d 228, 379 N.E.2d 80, where we found that the defendant was prejudiced when the prosecution was allowed to add two eyewitnesses to its witness list, after defendant had waived a jury in the belief that there were no eyewitnesses to the incident.

• 2 In this instance, Haynes was only one of several State witnesses who were at the scene of the incident and who testified at trial. Haynes' record was admitted into evidence and was considered by the court in assessing his credibility as a witness. Even after the requested evidence was produced during trial, defense counsel made no objection or motion and the trial went on to its conclusion. Further, at the hearing on defendant's motion for a new trial, it appears that defendant waived the jury, despite counsel's advice, because he did not feel favorable towards the first panel of jurors, not because he felt the State's witnesses were unimpeachable. The evidence at trial overwhelmingly sustains defendant's conviction. Defendant asks us to speculate that Haynes' prior criminal record would have affected his decision to waive the jury, and we believe this contention is too nebulous to constitute reversible error.

Defendant next posits that the trial court erroneously excluded relevant expert testimony that the effect of an impeachable conviction in discrediting a witness at trial is greater before a jury than before a judge. In denying the motion for a new trial, the court held that it was speculation that jurors ...


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