APPEAL from the Circuit Court of Lake County; the Hon. WILLIAM
D. BLOCK, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, Robert Lee Davis, was tried and convicted of rape, home invasion, and burglary in Lake County. He was sentenced to 30 years for the rape, 30 years on the charge of home invasion, and 15 years on the burglary charge, these sentences to run concurrently. Defendant appeals from the convictions and the sentences.
The defendant urges reversal on four grounds. He contends that the trial court erred first in allowing the prosecutor to take his fingerprints on the first day of trial and then in admitting a pretrial statement made by the defendant. He also contends that the home invasion statute is unconstitutionally vague and that the State failed to prove him guilty beyond a reasonable doubt.
We begin by discussing the propriety of allowing the State to take defendant's fingerprints.
On the first day of defendant's trial, the State's Attorney informed the trial court that the State was encountering some problem securing a chain witness for the purpose of presenting a fingerprint allegedly taken from the defendant. The State's Attorney moved under Supreme Court Rule 413(b) (73 Ill.2d R. 413(b)) for production of defendant's fingerprints. The trial court granted the motion. On appeal, defendant contends that he was not afforded the reasonable notice required by Rule 413 and was thus prejudiced. We disagree.
Rule 413 provides in relevant part:
"(b). Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the State to the accused and his counsel, who shall have the right to be present. Provision may be made for appearances for such purposes in an order admitting the accused to bail or providing for his release."
On its face, the notice requirement of Rule 413 seems to be aimed at insuring that defendants will not be deprived of effective assistance of counsel during procedures such as fingerprinting. The committee comments appended to the rule also suggest that such is the rationale. It is noted therein that Rule 413 is intended to be consistent with the ruling set down in Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951. In that case, the court discussed the right of a defendant to have counsel present at "critical stages" in order that the defendant would not be deprived of the benefit of effective cross-examination. It is this prejudice, the inability to properly and effectively cross-examine, that the rule was designed to avoid. The cases applying Rule 413 and cited by the defendant for the proposition that reversal is required have, without exception, emphasized the presence of counsel. See People v. Nichols (1976), 63 Ill.2d 443, 349 N.E.2d 40.
No deprivation in this regard is suggested by this record. Defendant's counsel was given the opportunity to examine the print and to be present at the time it was taken. The court agreed at the time that it granted the State's motion that defendant would be granted a continuance if he felt such a delay was necessary to adequately address issues raised by the late taking of the fingerprint. A short recess was in fact requested and granted.
The defendant is correct in his assertion that according to Illinois law the discovery rules have as their purpose, inter alia, the elimination of surprise. (People v. Szabo (1977), 55 Ill. App.3d 866, 371 N.E.2d 117.) The cases applying this rule, however, have focused on the requirement that no tactical advantage may be gained by surprise. Here, we can conceive of no tactical advantage obtained by the prosecution by virtue of the late taking of the fingerprint.
• 1 Defendant also argues that in failing to disclose, pursuant to his motion for particulars dated May 14, 1980, that a chain of evidence problem existed, the State violated Supreme Court Rule 412 (73 Ill.2d R. 412), which requires discovery. The chain problem in this case apparently involved the proof of continuous possession of the "known print" allegedly taken from the defendant and marked with his name. Rule 412 mandates the disclosure of names and statements of witnesses to be called by the State, statements made by the accused, transcripts of relevant portions of grand jury proceedings, the reports of experts, tangible objects intended for use at trial, and prior criminal records of prosecution witnesses. The rule does not require the disclosure of evidentiary weaknesses.
The defendant's next contention is that the court erred in allowing the State's Attorney to use a pretrial statement made by him. Defendant relied at trial on an alibi defense. He testified and his testimony was corroborated by other defense witnesses, that on the evening before the crime, he and several friends had gone to a disco and then to the home of LaVerne Gray. Defendant testified that he passed out there in the early morning hours of March 17 and did not awaken until 10 a.m. He also testified that later that day, "in the evening," he and two companions left for Milwaukee. The State's Attorney attempted to impeach, using the defendant's statement (testified to earlier by a police officer) that he had spent the day of the crime in Milwaukee.
• 2 The defendant raises two issues in respect to the admissibility of this statement. First, defendant contends that this statement should not have been admitted since it was not disclosed in discovery. This contention is utterly without merit. The transcript of a pretrial hearing indicates that the defendant had knowledge of the statement in advance of the trial. His counsel referred specifically to the March 19 statement in a suppression hearing. Further, the fact that the record contains no written response to defendant's motion for discovery inquiring about chain witnesses to be presented by the State does not, as defendant contends, establish that the State refused to reveal this information. It is settled that a silent record will be construed against the appellant and not the appellee. People v. Spellman (1978), 58 Ill. App.3d 648, 374 N.E.2d 1034.
• 3 Defendant also contends that the statement was inadmissible as impeachment since it did not "totally contradict" his testimony. Defendant's objection to the impeachment at trial centered on what he considered to be an attempt by the State to impeach with pretrial silence. He did not object on the grounds that the statement was insufficiently contradictory nor did he raise that objection in his post-trial motion. ...