Appeal from the Circuit Court of Cook County; the Hon. Steven
Schiller, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Defendant, James Palmer, was charged by indictment with two counts of armed robbery and two counts of armed violence. Pursuant to the State's motion, the trial court nolle prossed the armed violence counts. Following a jury trial, defendant was convicted of both armed robbery counts and sentenced to concurrent terms of six years.
The principal issues raised on appeal include whether: the State improperly withheld exculpatory evidence; defendant was denied a fair trial by the circuit court's response to various jury requests; and, the State carved two offenses from the same act in violation of People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838.
On February 17, 1980, at approximately 3 a.m., Laura Martin and Brenda Wilson were working together at a 7-Eleven store in Chicago. Martin testified that defendant brought some Mountain Dew and a bag of Ruffles potato chips to the front counter and asked for beer nuts. Defendant did not have enough money and said that he would go back to the car for additional cash. Wilson put the items in a paper bag. Defendant returned to the counter. He pulled out what appeared to be a revolver and said, "* * * give me the money you have in the register." Martin was standing behind Wilson at the register. Martin opened the register and defendant took approximately 20 single dollar bills and about $5 worth of change. Defendant left the store and went around the side of the building. A number of police officers jumped out of their cars and ran toward the alley. Several seconds or minutes elapsed from the time defendant left the store until the police arrived. *fn1 A couple of hours after the incident, in a hospital emergency room, Martin identified defendant.
Police Officer Roger Gregory stated that he and his partner arrived at the grocery store shortly after 3:15 a.m. on the day of the incident. He observed a man run from the store to a car. They chased the car on foot, because the cement guardrail in the alley prevented access with their squad car. They ran about a half block, getting within five feet of the vehicle at one point. It was a yellow Buick with a black top, license No. KR 789, stipulated to have been registered to Irene Tanksley. When recalled as a defense witness, Gregory testified that the car was a 1974 Buick. Other evidence reveals that on the day in question defendant was living with Tanksley.
Police Officer Charles Gardner testified that he observed numerous police vehicles chase a black and yellow Buick, license No. KR 789. He moved his car to cut off the Buick. Another police car collided with the Buick. A male Negro fled the Buick. As he ran around the corner, Gardner lost sight of him briefly and heard two apparent gunshots and saw flashes coming from the direction of the men. When Gardner turned the corner, he saw defendant stooping down. The officers told defendant he was under arrest. When defendant struggled, they wrestled him to the ground and handcuffed him. Defendant was injured during the struggle and was taken to the hospital.
Gardner testified that his partner found approximately 21 one-dollar bills and a quantity of change in defendant's pants pockets. Inside the Buick, Gardner observed a bottle of Mountain Dew and a bag of potato chips. 7-Eleven tags were on both items. No weapon or shell casings were found in the area. The potato chips and Mountain Dew were destroyed approximately four months after the incident, apparently because the wrong box had been checked on the inventory sheet. The money found on defendant was deposited in a bank and commingled with the other currency of the city.
Defendant, 28 years old, testified on his own behalf. He did not commit the crime. On the morning in question he was driving home in a 1969 Buick, which had a black top and white bottom. He saw a police car with flashing lights. he heard a shot behind him and panicked. He drove east where he met another police car which was shooting at him. His car crashed into a fire hydrant. he got out and put up his hands. The police pulled their guns, handcuffed him, and found that he had two $5 bills. The police walked him between a gangway. They wanted him to confess to the robbery. He denied it. They beat him until he lost consciousness. He was taken first to a police station and then to a hospital for treatment to his injured face and ribs.
Defendant maintains that his right to a fair trial was denied by the failure to the State to disclose that a crucial eyewitness, Brenda Wilson, was unable to identify him as the offender at a showup. Defendant filed a motion for discovery and inspection requesting, inter alia, the "names of any individuals who confronted the accused and made no identification * * *." In responding to defendant's request, the State did not disclose Wilson's name. Shortly before trial, an investigator testified that he had personally served Wilson with a subpoena commanding her to appear in court. Immediately following this testimony and pursuant to the State's motion, the circuit court issued an arrest warrant for Wilson for contempt of court.
Although she did not testify at trial, during a hearing on defendant's post-trial motions, Wilson stated that two hours after the incident the police took her to a hospital. She was shown a man lying in bed. She told them that she did not know if that was him because his face was "messed up" and disfigured. She did not tell the police or the State's Attorney that the person they had was the person who committed the offense. The person who robbed the the store was not present in the courtroom.
At this same hearing, the assistant State's Attorney testified that he met with Wilson and Martin on a day when the case was set for trial. Wilson specifically told him that she would not have any trouble identifying defendant. She told him that "when she identified the defendant at the hospital" Martin was not present. On a later date he telephoned Wilson and informed her of a new court date. She told him she could appear.
• 1 The issue raised is whether the State's failure to disclose that Wilson did not identify defendant at a showup denied him his due process and statutory rights. The suppression by the prosecution of material evidence favorable to an accused violates due process. (Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194; People v. Hoffman (1965), 32 Ill.2d 96, 99-100, 203 N.E.2d 873.) When the State receives a specific and relevant request from defendant, the failure to make any response is seldom, if ever, excusable. (United States v. Agurs (1976), 427 U.S. 97, 106, 49 L.Ed.2d 342, 351, 96 S.Ct. 2392, 2399.) Supreme Court Rule 412(c) requires:
"* * * [T]he State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his ...