Appeal from the Circuit Court of Cook County, the Hon. Frank
B. Machala, Judge, presiding.
CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 1, 1982.
By information filed in the circuit court of Cook County, Farris Walker was charged with the murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1) and attempted armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 8-4) of Raphael Morrow. At the conclusion of the trial, the jury returned a verdict of guilty on both counts. The prosecutor requested a hearing to determine whether the death penalty should be imposed. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d).) A new jury was chosen to hear evidence concerning aggravation and mitigation. The jury found that the victim was murdered "in the course of an armed robbery," which is an aggravating factor which supports the death penalty under the statute. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(6)(c).) The jury also found no mitigating factors existed to preclude the imposition of the death penalty. (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(c), (g).) The trial judge entered judgment sentencing the defendant to death. The defendant was also sentenced on the attempted-armed-robbery conviction. The sentence was stayed (73 Ill.2d R. 609(a)), pending direct appeal to this court, pursuant to Rule 603 (73 Ill.2d R. 603). For the reasons expressed in this opinion, we affirm the convictions and the attempted-armed-robbery sentence, but vacate the sentence of death and remand for a new penalty hearing on the murder conviction.
On the evening of January 2, 1978, Raphael Morrow, an 86-year-old man, was on the Granville elevated station platform in Chicago. The ticket agent for the Chicago Transit Authority testified that she heard a train stop and saw an elderly man walking quickly down the stairs from the platform. After he left the station she heard someone scream and she called the dispatcher requesting that the police be summoned. A short time later she heard the door to the stairway open and she heard a voice say "give me your wallet."
Two uniformed police officers, Thaddeus Dudek and William Morley, entered the station and proceeded up the stairs to the platform. The officers saw the elderly victim sitting on the floor of the platform with his back to the wall and his legs straight out. Standing straddled over the victim and facing him was the defendant, who had a knife in his right hand. Officer Dudek said "Jimmy, he's got a knife." Defendant looked up at the officers, who told him to stay where he was. The defendant turned and fled through the doors that led to the platform. Officer Dudek followed him, and Officer Morley went through the other set of doors. After a short chase, the officers subdued the defendant, handcuffed him, advised him of his rights, and escorted him back into the station.
Officer Dudek asked the victim how he felt, and the man responded that he "felt OK." The victim looked at Officer Morley and at the defendant and said, "That's him, I'm glad you got the guy that did this to me."
Officer Christine Erengis testified that when she arrived the victim was "bleeding very heavily." He pointed to the defendant, saying "that's, you know, the man who tried to rob me." The victim also told Officer Erengis that he did not carry a wallet.
Raphael Morrow died the next day. Doctor Lee Beamer, the pathologist who performed the autopsy, found nine stab wounds and three slash wounds. The cause of death was multiple stab wounds.
The defendant challenges the constitutionality of our death penalty statute on several grounds. We need not address those challenges in this opinion as they have been passed on by this court in People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531. The only error the defendant raises in relation to his convictions is that the State failed to produce certain evidence favorable to him prior to trial in response to his discovery motion, in violation of Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, and our Rule 412 (73 Ill.2d R. 412). During the guilt or innocence phase of the trial, the assistant State's Attorney tendered certain Chicago Police Crime Laboratory reports and a police report which stated that the defendant had a "crushed green plant" on his person at the time of his arrest. The defendant claims that these reports were favorable to him and, therefore, should have been produced pursuant to his discovery requests prior to trial.
The State argues that the defendant cannot now claim prejudice regarding discovery materials he received at trial and used, particularly since the defendant made no claim of prejudice at trial and failed to request a continuance or a recess. Also, the State points out that the defendant failed to use any of the reports a month later at the sentencing hearing. The defendant was given all laboratory reports the day before Mr. Spreyne, the State's expert microanalyst, testified. The day Mr. Spreyne testified, defense counsel acknowledged receipt of the reports for the record and stated only that he had not previously received some of the reports. The reports that the defendant apparently had not received were subgrouping tests of the blood samples, which, for the most part, proved inconclusive. The State then called Mr. Spreyne to testify with no objection from defense counsel, no request for a continuance for more time to prepare, and no suggestion that the defendant would be prejudiced in any manner. In fact, defense counsel cross-examined the State's microanalyst using the reports he now claims "surprised" him. He used the reports on cross-examination to establish that the victim's blood was subgroup "MN," while the subgrouping of the blood taken from the elevated station floor, though inconclusive because it was an extremely weak sample, contained only the "M" antigen. These two samples represented the only subgrouping tests performed.
If the reports were "so earthshaking as to require complete reorganization of the defendant's case, counsel should have asked for a continuance or recess for that purpose before [Spreyne] testified. His failure to do so is persuasive evidence that the prejudice here alleged was in fact trivial." (People v. Foster (1979), 76 Ill.2d 365, 384.) The defendant should not be permitted to adopt one strategy and, when it fails, seek the drastic remedy of reversal of a conviction when more moderate corrective measures available during the trial were not utilized, and indeed were not requested. Any claimed prejudice at this late date is purely afterthought and certainly conjectural.
The defendant next contends that the police report which indicates the defendant possessed a "crushed green plant" was exculpatory evidence because he had claimed a "possible drugged or intoxicated condition" as an affirmative defense. Also, the defendant argues that this report could have been used as a mitigating factor during the penalty phase of the trial, in combination with the defendant's own testimony that he had smoked marijuana the night that Raphael Morrow was murdered.
As with the laboratory reports discussed above, the defendant here also did not claim surprise or ask for a continuance or a recess to further investigate the contents of the police report or prepare his defense in relation thereto. The defendant's position was not that he was in a drugged condition but that he did not kill Raphael Morrow. He did not testify at the guilt phase of the trial. However, at the penalty hearing he testified he had seen the deceased slumped over on the station platform with blood coming from his mouth and side. As he approached him, Morrow started swinging at him with a knife. The defendant took the knife away from him and set Morrow down against the wall. The defendant had the knife in his hand when the police arrived. He cannot now claim he was prejudiced in that the earlier knowledge of the "crushed green plant" would have aided him in fabricating a completely different story. The defense of a drugged or intoxicated condition would involve an acknowledgment that the defendant killed Morrow, or at least not a denial that he did so, which is completely contrary to the position the defendant has taken. We will not find that the defendant has been prejudiced in the guilt phase of his trial because he was not aided in subverting the process. The defendant testified at the sentencing hearing a month later that he had smoked marijuana the night Raphael Morrow was killed, but defense counsel did not use or attempt to use the police report indicating that the defendant had in his possession a "crushed green plant."
To prove a violation of Brady v. Maryland, the defendant must show that certain material evidence not produced was favorable to the defendant. "A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial." (United States v. Agurs (1976), 427 U.S. 97, 104, 49 L.Ed.2d 342, 350, 96 S.Ct. 2392, 2398.) The above discussion clearly shows that this test has not been met in this case.
Not only defendant's failure to request more time for preparation and his use of the reports, but also his failure to use the reports to support his position at the penalty hearing one month later, demonstrate that any delay in learning of the information could not have prejudiced this defendant or affected the outcome of the trial. (United States v. Agurs (1976), 427 U.S. 97, 104, 49 L.Ed.2d 342, 350, 96 S.Ct. 2392, 2398.) If the contents of the reports were favorable, the defendant surely would have used them at the penalty hearing.
The defendant also argues that our statute does not include attempt in the list of enumerated aggravating factors which trigger eligibility for ...