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People v. Pugh





APPEAL from the Circuit Court of Lee County; the Hon. THOMAS E. HORNSBY, Judge, presiding. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Following a jury trial, the defendant, Leslie Ellis Pugh, was convicted of the offense of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)) and was sentenced to a 10-year term of imprisonment. On appeal, the defendant raises two contentions of error: (1) that he was denied a fair trial due to an alleged discovery violation on the part of the State which was revealed during the presentation of the State's rebuttal evidence; and (2) that he was denied the effective assistance of counsel because his privately retained attorney failed to move for a mistrial following the State's purported discovery violation, tendered an improper jury instruction, and failed to file a post-trial motion.

We summarize only the facts relevant to an understanding of the case and the issues raised on appeal. The basis of the State's case against the defendant consisted of the eyewitness testimony of two teen-age employees, Sherry Dunseth, age 15, and Tim Klenz, age 14, who were working in a grocery store located in Dixon, Illinois, on the evening of March 23, 1980, at the time of the armed robbery. They testified that at approximately 9 p.m. two black men came into the store, walked toward the back where the dairy products were located, and came back to the counter with two bottles of apple juice. Dunseth was at the cash register dusting the counter and Klenz was nearby at that time. No one else was in the store. One of the two men handed her a paper sack and said he wanted the money. The other man, later identified by both witnesses as the defendant, opened his coat up and displayed a gun in his waistband. Neither of the two men were masked, and both were clearly visible to both witnesses. After the money was given to them, approximately $125 to $140, both men left after being in the store about three or four minutes. The police were then called. No one was apprehended that evening.

The two witnesses looked at mug shots later that night but could not identify anyone. Approximately three days later, Dixon police officer Robert Short showed them additional mug shots obtained from the Freeport Police Department and both witnesses identified defendant as the man with the gun. They then went to Freeport for a lineup at which time they also selected the defendant as the armed robber. The defendant was also identified at trial by both witnesses. Neither witness had ever seen the defendant before. They testified that the defendant now had facial hair and straighter hair, whereas on March 23, 1980, defendant had no facial hair and an afro-type hair cut.

Officer Robert Short testified as to his investigation of this armed robbery and the subsequent photo and lineup identification.

The defendant presented an alibi defense at trial in the form of the testimony of five witnesses who placed the defendant at confirmation services in St. Anne's Catholic Church in Dixon during the time frame that the robbery occurred. In particular, Mrs. Helena Spotts testified that her daughters, Maria (Tina) and Francine (Nina), departed the church at 9:15 p.m. in the company of the defendant, who was Tina's boyfriend, and Kaswick Lucas who was Nina's boyfriend. Tina and Nina Spotts testified that, following the confirmation services, they drove directly home in the company of the defendant and Lucas and that all four of them remained in the Spotts' home until the girls' parents arrived there about 10 minutes later. Tina and Nina further said that the defendant had facial hair on March 23, 1980, and Tina also stated that she and defendant had been in the grocery store before when Sherry Dunseth was working. The testimony of the defendant and Lucas basically reiterated that of Tina and Nina Spotts as to their activities that evening during the time in question. In addition, both Lucas and the defendant denied visiting the scene of the burglary on that evening.

In rebuttal, the State called Officer Robert Short as a witness on the second day of trial. When the prosecutor asked the officer whether he had been in court at 11 or 11:30 that morning, defense counsel interposed an objection and asked for a hearing in chambers. During the ensuing conference in chambers, the State's Attorney informed the court that the two eyewitnesses had observed Kaswick Lucas in the hallway of the courtroom earlier that morning and had told Officer Short that Lucas was the other individual who had participated in the robbery of the store. Counsel for the defendant objected at this point and requested that the prosecutor not be allowed to question the officer regarding this matter because the State's Attorney had not laid a foundation for the impeachment of Lucas concerning his alibi testimony. In ruling on this objection, the court stated that while the jury could not be informed of the midtrial arrest of Lucas, the rebuttal witnesses would be allowed to testify to their identification of Lucas as one of the perpetrators. Counsel then objected generally to any testimony by the rebuttal witnesses.

After the resumption of the trial, the prosecutor removed Officer Short from the witness stand and then called Dunseth and Klenz as rebuttal witnesses. Thereafter, both witnesses related that while they were sitting outside the courtroom that morning, they observed Lucas in the hallway on the defendant's side. Further, they identified Lucas as the other person who had participated in the robbery on the evening in question. According to Dunseth and Klenz, approximately a year earlier Officer Short had shown them an array of photographs, including one of Lucas. On that occasion they informed Short that Lucas looked like one of the robbers and they were almost positive that he was one of the offenders; however, they were not sure and hence were unable to make a positive identification of Lucas based on the "mug shot" alone. In addition, they testified that Short had told them not to select Lucas' photograph unless they were positive of the identification and that if they were not able to make a positive identification, the police could not do anything. Also, Klenz stated that if Officer Short's police report indicated that he had informed the officer that Lucas was not the other perpetrator, the report was incorrect, because he had actually informed Short that although Lucas looked like the defendant's accomplice, he was not sure of the identification. Neither Dunseth nor Klenz had had occasion to view Lucas during the one-year period from the photographic session to the observance and identification of Lucas in the hallway on the second day of trial.

When recalled to the witness stand and upon refreshing his memory by examining his police report, Officer Short related that he had indicated in his report that Dunseth and Klenz had stated that Lucas was not the other suspect. He did not relate in his report that the witnesses were not sure of their identification of Lucas but rather that they informed him that Lucas was not the other offender. The officer further testified that, after viewing Lucas' photograph, the two eyewitnesses had told him that Lucas looked like the other robber but they were not sure and could not make a positive identification. On the basis of the eyewitnesses' statements to him, he eliminated Lucas as a suspect in his report. This report is not in the record and was never marked as an exhibit although it is referred to at trial by both the prosecutor and defense counsel.

The defendant's first assertion on appeal is that the State committed a discovery violation which resulted in the denial of a fair trial when it provided in discovery a police report to the defense which contained a statement of the State's two eyewitnesses which differed materially from the statements which the witnesses had actually given the police officer who prepared the report. More specifically, the defendant contends that the police report contained "an affirmative misrepresentation on a crucial matter." In this regard the defendant points out that while the report stated that the occurrence witnesses (Dunseth and Klenz), after viewing an array of photographs including that of the defendant and Kaswick Lucas, told police officer Robert Short that Lucas was not the defendant's accomplice, the two witnesses had, in fact, informed the officer that although Lucas looked like the other perpetrator, they were not sure or positive of the identification. Continuing, the defendant notes that Lucas testified as an alibi witness for the defense; he then posits that, due to the misrepresentation in the police report, he was denied a fair trial when Dunseth and Klenz positively identified Lucas at trial as the defendant's accomplice, for the reasons that he was prevented from adequately investigating, confronting, and disputing the eyewitnesses' identification of Lucas and was hindered in the preparation of his defense due to surprise.

• 1-3 While the defendant's counsel interposed a general objection to all rebuttal testimony regarding the identification of Kaswick Lucas as the accomplice, there was no request for a mistrial or continuance, the specific discovery violation asserted here on appeal was not referred to in the trial below, and defendant failed to file a post-trial motion. The failure to file a written post-trial motion which would specify the claims of error operates as a waiver of those issues for appellate review. (People v. Thiel (1981), 102 Ill. App.3d 28, 429 N.E.2d 565; People v. Smith (1981), 93 Ill. App.3d 26, 416 N.E.2d 814; see People v. Tannenbaum (1980), 82 Ill.2d 177, 415 N.E.2d 1027.) When a claim of error has not been so preserved, it will only be considered by a reviewing court under the plain error doctrine set forth in Supreme Court Rule 615(a) (73 Ill.2d R. 615(a)). The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. (People v. Lucas (1981), 88 Ill.2d 245, 251, 430 N.E.2d 1091.) Additionally, it is the rule with respect to a purported discovery violation that the defendant must take affirmative action to remedy a supposed discovery violation by seeking a continuance or by requesting appropriate sanctions against the prosecution; otherwise a waiver will result. (People v. Nelson (1980), 92 Ill. App.3d 35, 45, 415 N.E.2d 688; People v. Williams (1980), 91 Ill. App.3d 631, 633, 414 N.E.2d 1235.) In our view, this case does not qualify as an exception to these rules.

Supreme Court Rule 412(a)(i) provides, in relevant part, that the State shall disclose the following information to the defense upon written motion:

"[T]he names and last known addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements." (73 Ill.2d R. 412(a)(i).)

In the case at bar, both the State and the defense filed motions for discovery, with the defendant's motion containing a paragraph identical in language to that portion of Supreme Court Rule 412(a)(i) quoted above. The record reflects that the State certified it had answered the defendant's discovery motion. It is also apparent from the record that Officer Short's report was furnished to the defendant; however, the police report itself is not in the record.

• 4, 5 Generally, it is well established in criminal proceedings that the goals of the pretrial discovery provisions of Supreme Court Rule 412 (73 Ill.2d R. 412) are to prevent surprise, unfairness, and inadequate trial preparation (People v. Bailey (1982), 103 Ill. App.3d 503, 505, 431 N.E.2d 723; People v. Patterson (1981), 102 Ill. App.3d 844, 847, 430 N.E.2d 574), thereby promoting the fact-finding process and eliminating the tactical advantage of surprise by either side. (People v. Childs (1981), 95 Ill. App.3d 606, 613-14, 420 N.E.2d 513.) Thus, pretrial discovery affords the defense an opportunity to investigate the circumstances surrounding the making of any statements. (People v. Weaver (1980), 90 Ill. App.3d 299, 305, 412 N.E.2d 1353, appeal allowed (1981), 83 Ill.2d 574; People v. Young (1978), 59 Ill. ...

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