Appeal from the Circuit Court of Will County, the Hon. Robert
Buchar, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 8, 1983.
The defendant, John Szabo, was indicted by a Will County grand jury for two counts of intentional murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), and two counts of felony murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)), as well as one count of conspiracy to commit armed robbery (Ill. Rev. Stat. 1979, ch. 38, pars. 8-2(a), 18-2(a)). Following a bench trial on July 16-24, 1979, in the circuit court of Will County, he was found guilty on all counts. The State then requested a hearing to determine whether the death penalty should be imposed (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)). The defendant chose to have a jury impaneled for the sentencing hearing. At the conclusion of the hearing the defendant was sentenced to death for the murders. The court also imposed a three-year sentence of imprisonment for conspiracy. Szabo appeals both the convictions and sentence directly to this court pursuant to article VI, section 4(b), of the 1970 Illinois Constitution and Rule 603 (73 Ill.2d R. 603). The sentences were stayed pending appeal.
In the early morning hours of January 27, 1979, the bodies of John Rajca, age 19, and his brother Christopher (Chris) Rajca, age 17, were discovered on a farm road near Naperville, close to the entrance to the Avery Gravel Pit. The cause of John Rajca's death was determined to be a bullet wound to the chest; Chris Rajca had died of multiple stab wounds. A 1974 Vega station wagon, identified as the Rajca family car, was parked near the entrance to the gravel pit. There was a bullet hole through the left front seat of the Vega, and there were powder burns on the right front seat. Will County investigators searched the scene and recovered a spent projectile from a .38-caliber revolver from the ground near the Vega, and a black and red ski glove from inside the Vega. The Vega's keys were later found on the ground at some distance from the spot where the car had been parked.
The State's principal witness at trial was Robert Leatherman, Szabo's alleged accomplice in the crimes. Leatherman testified pursuant to an agreement with the State. According to the agreement, Leatherman, who was 16 when the offenses were committed, would admit to the two murders as a juvenile and would be committed to the Juvenile Division of the Department of Corrections until he reached 21. Since the only issue Szabo raises with regard to the validity of his conviction concerns his asserted inability to conduct effective cross-examination of Leatherman, due to the trial court's refusal to order discovery of certain pretrial statements made by Leatherman to an assistant State's Attorney, it will be necessary to recount Leatherman's testimony in some detail.
TESTIMONY OF ROBERT LEATHERMAN
Leatherman, who was expelled from high school before completing his sophomore year, lived with his parents in Bolingbrook and worked intermittently as a laborer with a cleanup crew on construction sites. Leatherman admitted being a regular user of various illegal drugs for some time before he became acquainted with John Szabo. He also admitted dealing in drugs. During a three to four month period prior to January 1979, Leatherman sold LSD to John and Christopher Rajca, whom he knew from Bolingbrook high school, on some 12 separate occasions. On cross-examination, Leatherman admitted to being arrested, together with Szabo, for the armed robbery of one Jimmy Davis.
Leatherman testified that he first met Szabo in December 1978. Leatherman was introduced to Szabo by Nick Hartley, who shared an apartment in Lemont with Leatherman's brother. During January 1979, Leatherman spent a good deal of time with Szabo, frequently getting rides in Szabo's white Gremlin. He also got drugs from Szabo.
Approximately one week before the murders, Leatherman testified, he arranged a sale of PCP (phencyclidine) to John Rajca for Szabo. Leatherman accompanied Szabo to the Rajca's house where the sale was consummated. John Rajca at that time expressed an interest in buying marijuana, which Leatherman communicated to Szabo.
Leatherman further testified that some four to five days before the murders, he rode with Szabo to a house in Romeoville, where Szabo obtained a bluish-black revolver with a short barrel from a person named "Earl." Several days later, Leatherman overheard Szabo's end of a telephone conversation between Szabo and "Earl" during which Szabo mentioned ammunition. Later that same day Leatherman saw Szabo with two bullets, which he inserted into the revolver.
According to Leatherman, on January 26, 1979, at approximately 1 p.m., Leatherman, his girlfriend, and Szabo drove to Nick Hartley's apartment. They were followed by another car containing three blacks who were interested in buying marijuana. At Hartley's apartment, Leatherman heard Hartley and Szabo discuss selling drugs to the black men, who were waiting outside. In response to Hartley's expressed concern about dealing with blacks, Szabo pulled a gun from the front of his pants and waved it around, saying that he "could take care of them niggers."
Later in the afternoon of the 26th, Leatherman received a call from his girlfriend about a friend of hers who wanted to buy 10 pounds of marijuana. Leatherman testified that he discussed this potential deal with Szabo and had several telephone conversations with the would-be buyer, Tom Carlson. Szabo, identifying himself as "Lou," also spoke with Carlson from a pay phone at a Romeoville gas station to arrange the deal and give Carlson directions to a meeting place. According to Leatherman, Szabo said that he had not contacted the person from whom he could obtain the marijuana to sell, but told Leatherman that the two of them could hold up Carlson and take his money.
Szabo then took two bullets from the revolver he was carrying, took a pair of pliers from the Gremlin's glove compartment, and squeezed the tips of the bullets with them.
The transaction with Carlson was arranged for 4 p.m. at the Avery Gravel Pit. Leatherman testified that he and Szabo drove there and waited for a half-hour, but Carlson did not appear. Szabo and Leatherman then returned to Szabo's home in Romeoville, where Leatherman phoned Carlson. It appeared that Carlson had misunderstood Szabo's directions and had waited for him at another location. The meeting was rescheduled for 8:30 p.m. According to Leatherman, before leaving for this second meeting, Szabo brought a large kitchen knife from upstairs in his house. He covered the knife handle and the handle of the revolver with black electrical tape and gave the knife to Leatherman, who put it in his belt. As they were driving, Szabo told Leatherman that Leatherman should hold the knife, Szabo would hold the gun and they would get their money.
The parties made connections this time, but neither the deal nor the planned robbery went through. On arriving at Avery Gravel Pit at about 9 p.m., Leatherman realized that the person accompanying Tom Carlson was Pete Dixon, a friend of Leatherman's parents. Leatherman told Szabo that since he knew Dixon they could not go through with the plan. Szabo and Leatherman then told Carlson that the deal was off for that night, but that they might go through with it the following day.
On leaving the gravel pit after the meeting with Carlson and Dixon, Leatherman testified he and Szabo returned to Szabo's house, arriving about 9:30 p.m. Szabo asked Leatherman if he knew anyone else who wanted to buy marijuana. In response to Leatherman's suggestion that he would know these people also, Szabo said that they could do them in and thus avoid the problem. Leatherman then called Christopher Rajca.
After several phone calls, it was agreed that the Rajca brothers would buy three pounds of marijuana for $700. Szabo gave Christopher Rajca directions to the Avery Gravel Pit where they were to meet at 12:15 a.m.
Before setting out for their meeting with the Rajca brothers, Szabo and Leatherman drove to David Brainerd's house in Romeoville, where Szabo conversed with Brainerd for about 15 minutes. Szabo and Leatherman then returned to Szabo's house. Both used cocaine, this being the third or fourth time Leatherman had used drugs that day. Szabo took a coil of rope from the garage and put it under the passenger seat of the Gremlin.
According to Leatherman, he and Szabo left for the rendezvous with the Rajcas at about 11:45 p.m., Szabo carrying the revolver and Leatherman carrying the knife. Leatherman was wearing a brown suede jacket with a fur lining; Szabo was wearing a blue denim jacket with a fur lining. En route to the gravel pit, Szabo told Leatherman, "Just hold the knife. I'll hold the gun and I'll do them in. If anything goes wrong, I only got two bullets and then you stab them."
The two found the Rajcas waiting for them at the gravel pit. Leatherman testified that the four young men met outside their cars but then went to the Rajcas' car. Szabo sat in the back seat behind the driver, Chris; Leatherman sat behind John. After Szabo asked about the money, John Rajca showed them some loose bills and Chris Rajca showed his billfold. On the pretense of getting the marijuana, Leatherman went to the Szabo car, took a blanket from the back seat and carried it to the Vega.
When Leatherman had resumed his seat in the car, Szabo announced a stickup and pulled his gun. Leatherman pulled his knife. Szabo then fired a shot through the drivers seat at Chris Rajca. At this John Rajca begged not to be killed and threw the loose money into the back seat. Szabo then leaned over the seat and fired one shot at John Rajca, who slumped against the half-open door of the car. Leatherman pushed the door all the way open, then got out and dragged John Rajca away from the car.
In the meantime Szabo and Chris Rajca had also gotten out of the car. Szabo told Leatherman to do Chris in with the knife. When Leatherman refused, Szabo grabbed the knife from Leatherman's hand. He lunged at Chris and stabbed him several times. As Chris was backing away from Szabo, Szabo told Leatherman to get the keys out of the Vega. Leatherman complied, also retrieving the blanket and some of the money; he threw the Vega's keys away in the direction of the gravel pit. Meanwhile, Szabo, holding the knife, was pursuing Chris Rajca towards Szabo's car. Leatherman intercepted Rajca, grabbing him by the shoulders and turning him to face Szabo. Szabo stabbed Chris again in the chest and, as Leatherman released him, in the back. Rajca staggered over to the Gremlin and leaned against it. Leatherman pushed him away from the car and towards the middle of the road where he collapsed.
Szabo and Leatherman then drove away in Szabo's car. At Szabo's direction, Leatherman threw the knife and gun out of the car window. The two drove to Szabo's house and parked the car in the yard. Using napkins, Szabo wiped some bloodstains from the car's exterior. Leatherman noticed a black-and-red ski glove inside the blanket; it had not been there originally. Szabo disposed of the glove and the napkins in the garbage can.
On entering the house, Leatherman and Szabo noticed bloodstains on their coats and Levi's. Leatherman tried to remove the blood from his jacket, first by singeing it and then by applying Crisco oil. He removed the cash from his pockets. Leatherman then used some cocaine which Szabo gave him and went to sleep. Awaking at about 8:30 a.m., Leatherman called his parents for a ride home. His father picked him up a little after 9 a.m. Leatherman returned to Szabo's house around noon on January 27, getting a ride with Bob Phillips, to pick up a concert ticket he had left there the previous night.
The State presented testimony of additional witnesses and physical evidence which was consistent with Leatherman's account of events leading up to and following the murders. Leatherman's testimony concerning the marijuana deal with the three blacks and Szabo's brandishing a gun was corroborated by Nick Hartley. Hartley thought that the gun was a .38-caliber, blue metal, snub-nosed revolver. Hartley recalled that the incidents occurred on January 26 because it was the day before he went to a rock concert using a ticket he purchased from Leatherman. Tom Carlson's testimony corroborated Leatherman's account of the attempted marijuana transaction with Leatherman and Szabo. The testimony of Leatherman's parents corroborated his testimony in regard to his having asked permission to spend the night of January 26 at Szabo's house, and in regard to his father's picking him up there on the morning of January 27.
Tests were performed by Robert Hunton, a firearms expert from the Bureau of Scientific Services, on a bullet taken from the body of John Rajca and on the spent projectile found at the gravel pit. In Hunton's opinion, both bullets were .38-caliber projectiles which had been fired from the same gun. One bullet also bore tool marks that had not been caused by the rifling in the gun barrel, but could have been caused by a pair of pliers.
The testimony of Dr. Edward Shalgos, a forensic pathologist who performed autopsies on the bodies of John and Chris Rajca, indicated that their deaths could have been caused in the manner described by Leatherman. The angle of penetration of the bullet, which entered John Rajca's chest at a point just above the left nipple, led Dr. Shalgos to conclude that the gun had been pointing downward from above. Dr. Shalgos' examination of Chris Rajca's body revealed that Chris Rajca had sustained a total of eight stabbing or cutting wounds. Some were so-called "defense" or "warding off" wounds. The wounds which, in Dr. Shalgos' opinion, caused Chris Rajca's death were a deep penetrating wound to the right chest that severed major blood vessels and bronchial channels; and a second penetrating wound to the back of the left chest that sliced through several organs, also causing severe bleeding. Judging by the depth and width of the wounds, Dr. Shalgos estimates that the weapon was a single-edged, sharp-pointed knife about 10 inches long and with a maximum width of 1 1/2 inches. Dr. Shalgos testified that a person sustaining these types of wounds would be able to walk 50 or 100 feet before collapsing and dying.
Serological analyses were performed on blood stains found on Leatherman's brown suede jacket and Szabo's blue denim jacket. The jackets were recovered from a closet in John Szabo's house during the execution of a search warrant on February 4, 1979. Muhammid Tahir, a forensic scientist with the Bureau of Scientific Services, compared the blood stains on the jackets with samples drawn from the bodies of John and Chris Rajca and from Robert Leatherman and John Szabo. Using the ABO-Rh-MN system, Tahir found the blood on both coats to be type A-Rh positive-MN. This blood type was similar to the blood of John and Chris Rajca, but dissimilar to the blood of John Szabo or Robert Leatherman.
Brian Raxall, executive director of the Serological Research Institute in California, also examined the blood stains, using electrophoresis analysis of certain enzymes and proteins found in human blood. The method, according to Raxall, is more discriminating than ABO-Rh-MN antigen analysis, that is, it distinguishes a greater number of differences between the blood types of individuals. The results of Raxall's tests led him to conclude that the blood on both jackets was that of Chris Rajca.
The white Gremlin driven by Szabo was impounded on February 3, 1979. A coil of rope was found under the passenger seat. There was also a V-shaped cut in the passenger seat; this tended to confirm Leatherman's earlier testimony that the knife he had been carrying had made a hole in the car seat. A Will County investigator testified that the Gremlin's exterior was generally dirty, except for a "swipe mark" on the body at the left rear of the car, that looked as if someone had tried to clean it. The investigator also observed spots of a red substance on the rear of the car.
Szabo, who did not testify at the trial, presented an alibi defense through his mother, Violet Szabo. Mrs. Szabo testified that John Szabo left home with Robert Leatherman at approximately 11:30 p.m. on January 26; that Szabo returned alone shortly after midnight; and that he did not leave the house again until the next morning.
ISSUES PERTAINING TO DEFENDANT'S CONVICTIONS
Szabo's sole assignment of error with respect to the trial concerns the denial of disclosure of summaries of oral statements made before trial by Leatherman to an assistant State's Attorney. Rule 412(a) provides that the State shall disclose to defense counsel, upon written motion, the following material within its possession or control:
"(i) the 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. Upon written motion of defense counsel memoranda reporting or summarizing oral statements shall be examined by the court in camera and if found to be substantially verbatim reports of oral statements shall be disclosed to defense counsel." 73 Ill.2d R. 412(a)(i).
Leatherman gave two written statements, which were provided to defense counsel. One was a statement made to Will County Investigator Lynn Jencon on February 3, 1979, the date Leatherman and Szabo were arrested, and recorded by Investigator Jencon. The other was a statement made to a polygraph operator on March 16 and 21, 1979. In addition, however, the record shows that between February and July 1979 an assistant State's Attorney conducted some 20 interviews, totaling approximately 30 hours, with Robert Leatherman. The prosecutor made "rough notes" of his conversations with Leatherman, but destroyed them after preparing an eight-page outline of Leatherman's expected testimony at trial. When defense counsel on the day of trial orally moved for disclosure of any memoranda summarizing Leatherman's oral statements in these interviews, the State's Attorney took the position that the rough notes were work product and that the State was therefore not obligated to produce them. He offered, however, to provide defense counsel with a copy of the eight-page "trial plan," or, if the circuit court so ordered, to attempt to reconstruct the notes. The circuit court, finding that further discovery was not necessary, denied defendant's motion.
We note in passing that although defense counsel's motion for disclosure was made orally and not in writing as required by the Rule, the State does not argue that the issue has therefore been waived. Since the issue was presented to the circuit court in a written motion for a new trial, and in view of this court's responsibility to scrutinize the record in capital cases with especial care, we should examine the alleged error as one affecting substantial rights of the defendant, to determine whether justice has been denied. See People v. Jones (1982), 94 Ill.2d 275, 294-95; People v. Carlson (1980), 79 Ill.2d 564, 576-77; People v. Brownell (1980), 79 Ill.2d 508, 542.
The State argues here, as before the circuit court, that it was not obligated to produce the assistant State's Attorney's notes of his pretrial interviews with Leatherman, because the notes are privileged work product. Indeed, Rule 412 and our cases recognize an exception to disclosure for material privileged by the work-product rule. (73 Ill.2d R. 412(j)(i); People v. Bassett (1974), 56 Ill.2d 285, 292.) The import of the rule, however, is that the determination whether memoranda summarizing a witness' oral statements consist of or contain privileged material is to be made by the court, not the prosecutor.
The committee comments to Rule 412 state:
"Paragraph (a), subparagraph (i), requires the additional production of any substantially verbatim report of an oral statement by a witness. The State is also obliged to produce a list of all memoranda reporting or summarizing oral statements whether or not the memorandum appears to the State to be substantially verbatim reports of such statements. The defense is then entitled, upon filing of a written motion, to have the court examine the memoranda listed by the State. If the court finds that the memoranda do contain substantially verbatim reports of witness statements, the memoranda will be disclosed to defense counsel. This additional requirement serves two purposes. First, it ensures that the final responsibility for determining what is producible rests with the court. Second, it establishes as a matter of record, the contents of the State's file with respect to reports of witness statements and thereby facilitates appellate review of contested questions of discovery under this subsection." (Emphasis added.) Ill. Ann. Stat., ch. 110A, par. 412, Committee Comments, at 679-80 (Smith-Hurd 1976).
In People v. Bassett (1974), 56 Ill.2d 285, 289-92, this court summarized the law with respect to the disclosure required of the State in criminal cases. Bassett approved the approach taken in the previous decisions of People v. Sumner (1969), 43 Ill.2d 228, and People v. Wolff (1960), 19 Ill.2d 318. These decisions make clear that, once the defendant has made a specific demand for a report of a statement, and has made a preliminary showing, by way of foundation, of the statement's pertinence to the witness' trial testimony, the court is to order the statement to be delivered directly to the defendant for his inspection and possible use in impeachment. The court is not to consider whether the prior statements would in fact be useful for impeachment; only the defense should be permitted to make that determination. (Jencks v. United States (1957), 353 U.S. 657, 667-69, 1 L.Ed.2d 1103, 1111-13, 77 S.Ct. 1007, 1012-14.) When the State resists disclosure, asserting that the statement or a portion thereof is irrelevant, or contains privileged material, or is not substantially verbatim, the court must examine the statement in camera and determine whether it is or is not properly producible; if necessary excise irrelevant or privileged matter; and turn over to the defendant whatever portion of the statement can fairly be said to be the witness' own words.
Clearly, therefore, Szabo was entitled to have the assistant State's Attorney's notes of his interviews with Leatherman produced for in camera inspection by the circuit court, and to the disclosure of any unprivileged, substantially verbatim statements they contained for possible use in impeaching Leatherman's testimony. The assistant's action in destroying the notes deprived him of that right. Szabo contends that the circuit court's ruling denying further discovery deprived him of the opportunity to effectively cross-examine Leatherman. He asserts that he was thereby denied the right of confrontation guaranteed by the sixth amendment, and denied a fair trial.
We first address the State's contention that, since it provided defense counsel with a copy of the eight-page trial plan, no further disclosure was required. The State suggests that this case is analogous to People v. Bassett, in which the prosecution's rough notes of interviews with witnesses were destroyed following the preparation of a number of white cards, intended for use by the State at trial. We do not think the situation in this case can be compared with that in Bassett. In Bassett, the court concluded that Rule 412 required disclosure of the white cards; the reason, however, was that they apparently contained the substance of the witnesses' pretrial statements, and were thus an adequate substitute for the original notes. (56 Ill.2d 285, 290, 292.) Here, in contrast, the eight-page, nonverbatim outline of Leatherman's expected trial testimony clearly is not the same as contemporaneous memoranda of some 30 hours of interviews with the State's star witness.
In reviewing Szabo's claim of error, we find ourselves in a rather perplexing position. Since the interview notes, which Szabo asserts should have been disclosed, no longer exist, we cannot tell what they contained. If the notes had been preserved and were found to contain discoverable matter which could have been used to impeach Leatherman, we would then have to decide whether the denial of the opportunity to use the impeaching material in cross-examining Leatherman was prejudicial error. The improper limitation of cross-examination can, in some cases, amount to constitutional error. People v. Wilkerson (1981), 87 Ill.2d 151; Smith v. Illinois (1968), 390 U.S. 129, 19 L.Ed.2d 956, 88 S.Ct. 748.
However, the notes were destroyed; their contents are unknown, and the effect of their nondisclosure would therefore seem impossible to assess. We do know, however, that Leatherman's testimony was central to the State's case against Szabo. Leatherman, an alleged accomplice, was also the only occurrence witness. Although strong circumstantial evidence was introduced that linked Szabo with Leatherman and with the crimes, Leatherman's testimony concerning Szabo's leading role in planning and carrying out the crimes was the only evidence tending to establish that Szabo premeditated the murders of John and Chris Rajca, and was therefore essential in proving that Szabo possessed the mental state necessary for a conviction of intentional murder. Effective cross-examination of Leatherman was thus crucial to Szabo's defense. Depending on the contents of Leatherman's pretrial statements, it is quite conceivable that their use in cross-examination would have produced a different picture of Szabo's culpability.
The State's argument that the defendant's testimony at the sentencing hearing can somehow be used retrospectively in determining whether the defendant possessed the requisite mental state necessary for his conviction at the trial for the murder of John Rajca is misplaced. While it is true that Szabo ultimately confessed to the murder of John Rajca at the sentencing hearing, the defendant made no such incriminating statement during the course of his trial. Szabo did not take the stand during the trial.
At the sentencing hearing Szabo testified that it was Leatherman who stabbed Chris Rajca to death. The testimony of Leatherman paints an entirely different picture in portraying Szabo as the murderer of both Chris and John Rajca.
The appellate court has faced the same difficulty that confronts us here in several pertinent decisions in which a defendant claimed he was denied a fair trial by the State's failure to comply with the disclosure requirements of Rule 412, due to its intentional failure to preserve pretrial statements of witnesses. (People v. Abbott (1977), 55 Ill. App.3d 21; People v. DeStefano (1975), 30 Ill. App.3d 935; People v. Manley (1974), 19 Ill. App.3d 365.) These cases involved the deliberate failure of the State to reduce a witness' statement to writing, as opposed to the intentional destruction of a statement after it has been written down, but we think the same principles apply to both situations. The thrust of the appellate court's holdings is that, while the discovery rules do not require the State to reduce all its witnesses' statements to writing, when the failure to preserve a statement to written form amounts to an intentional tactic to prevent disclosure of relevant material to the defendant, it will not be condoned. (People v. Abbott (1977), 55 Ill. App.3d 21, 25; People v. Manley (1974), 19 Ill. App.3d 365, 370.) We agree with this view.
In People v. DeStefano (1975), 30 Ill. App.3d 935, the key prosecution witness, an alleged accomplice who was granted immunity in return for his testimony, was interviewed at least five times before the trial by representatives of the State. At a post-trial hearing, the State's Attorney admitted that he had ordered that no memoranda or memorialization of any of the witness' statements were to be made. The appellate court reversed defendant's murder conviction, finding that the State's deliberate failure to take written statements was for the purpose of defeating defendant's right of discovery and the use of such discovery to test the witness' credibility at trial, and under the circumstances denied defendant due process of law. 30 Ill. App.3d 935, 943.
People v. Manley involved a contempt proceeding against a State's Attorney for refusal to comply with an order that certain oral, pretrial statements of witnesses in a felony case be reduced to writing and made available for discovery by the defendant. The record made clear that it was a practice of the State's Attorney's office not to reduce substantially verbatim reports of oral statements to memoranda in order to surprise the defense at trial. In approving the circuit court's discovery order insofar as it required the reduction to writing of a specific statement a witness' account of an admission by the defendant, which the State had indicated it intended to use at trial the appellate court said:
"In our view, neither the defense nor the prosecution should be allowed to avoid discovery rules by a studied practice of failing to reduce otherwise discoverable information to writing. When the trial court determines within its discretion that the reason for the failure to reduce such a statement to writing is to avoid discovery, it may properly order that the statement be reduced to writing. However, in absence of the known presence of discoverable statements, neither the State nor the defense should bear the unreasonable burden of reducing all of its investigative information to writing. The application of the discovery rules as a whole and the solutions available, including the preclusion of evidence wrongfully withheld, will sufficiently insure a fair trial." People v. Manley (1974), 19 Ill. App.3d 365, 370.
In the case at bar it is undisputed that potentially discoverable memoranda of pretrial statements by the State's key witness did exist and were deliberately destroyed by the State. We are unable, on the record before us, to determine whether defendant was prejudiced by the nondisclosure of the interview notes. It may be that they contained summaries of pretrial statements by Leatherman that were entirely consistent with his trial testimony and of no value for impeachment. Or it may be that they consisted mainly of the assistant State's Attorney's mental impressions and opinions, which would be privileged from disclosure. Or it may be that they contained prior statements flatly contradicting Leatherman's trial testimony on one or more points, or possibly revealing an unsuspected motive for Leatherman's testifying as he did, or giving such varying accounts as would have greatly discredited his testimony. We simply cannot tell what opportunities for cross-examination, if any, were denied Szabo by the nondisclosure of the notes. Consequently, we cannot say either that the nondisclosure resulted in prejudicial error, or that any error that occurred was harmless beyond a reasonable doubt. As the determination depends upon the contents of the destroyed notes, we believe the appropriate course is to vacate the convictions and remand the cause to the circuit court for entry of an order directing the State to reconstruct the written memoranda of Leatherman's pretrial statements, and to deliver them to the court for an in camera inspection. In the event the court finds the notes to contain discoverable, substantially verbatim statements, it should deliver them to defense counsel and order a new trial. In the event the reconstructed notes are found not to contain substantially verbatim reports of Leatherman's pretrial statements, the circuit court is directed to reinstate defendant's convictions, subject to our discussion below of defendant's superfluous murder convictions.
Szabo was charged by the indictment with four counts of murder one count of intentional murder and one count of felony murder with respect to the killing of each victim. At the conclusion of the trial, the circuit court found him guilty on all four counts and entered judgment on all four. Szabo contends that since there were only two killings, he could be convicted of only two murders, under the rule that convictions for more than one offense cannot be carved from the same physical act. (People v. King (1977), 66 Ill.2d 551, 566; People v. Donaldson (1982), 91 Ill.2d 164, 170.) The State concedes, and we agree, that entry of judgment on all four convictions was erroneous. Therefore, should the circuit court reinstate defendant's convictions after remand, only two convictions for murder should be reinstated.
ISSUES PERTAINING TO THE SENTENCING HEARING
We address the issues defendant raises with regard to the sentencing hearing because of the possibility that the circuit court, after remand, may reinstate defendant's convictions. We find that errors at the sentencing hearing require that the sentence of death be vacated.
Szabo first raises several issues relating to the constitutionality of the death penalty statute that have been presented to this court in previous cases. These include the argument that the discretion vested by the statute in the prosecutor to request a death sentencing hearing results in the arbitrary and capricious imposition of the death penalty (People v. Brownell (1980), 79 Ill.2d 508, cert. dismissed (1980), 449 U.S. 811, 66 L.Ed.2d 14, 101 S.Ct. 59; People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, cert. denied (1980), 445 U.S. 953, 63 L.Ed.2d 788, 100 S.Ct. 1603); the argument that the statute does not provide adequate appellate review procedures (People v. Brownell (1980), 79 Ill.2d 508); and the argument that the statute does not require consideration as to whether the offender can be restored to useful citizenship (People v. Gaines (1981), 88 Ill.2d 342). As these issues have already been fully considered and decided by this court, further discussion of them is unnecessary here.
DISPROPORTIONALITY OF THE DEATH SENTENCE
Szabo next contends that the death penalty cannot be imposed on him because it is an excessive and disproportionate penalty in light of the fact that his accomplice, Leatherman, received a sentence of four years' imprisonment. Szabo relies primarily on People v. Gleckler (1980), 82 Ill.2d 145, in which this court vacated the sentence of death and remanded for imposition of a lesser penalty. In Glecker, a co-defendant, Parsons, whom the court found to be the ringleader in a double murder, had been tried separately and sentenced to life imprisonment. The court expressly rejected the contention that Gleckler was more culpable than Parsons (82 Ill.2d 145, 166), and also found, in view of the evidence in mitigation presented by both men, that Gleckler's prospects for rehabilitation were not demonstrably poorer than Parsons' (82 Ill.2d 145, 171.) The court found it relevant to the issue of the proportionality of Gleckler's death sentence that Parsons, a co-defendant arguably more culpable and with less rehabilitative potential than Gleckler, had not received the death penalty (82 Ill.2d 145, 167). It was also found to be relevant to the question of the appropriateness of the sentence in Gleckler's case that the death sentence of the defendant in a previous case (People v. Walcher (1969), 42 Ill.2d 159), whose circumstances the court found to be similar to the circumstances in Gleckler's, had been vacated by this court as unduly severe and inappropriate. People v. Gleckler (1980), 82 Ill.2d 145, 169-70.
In determining whether the imposition of the death penalty is proper in a particular case, we are required not only by the decisions of the United States Supreme Court but also by the Illinois Constitution to consider the circumstances of the offense and the character of the defendant. (Ill. Const. 1970, art. I, sec. 11 (providing that all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship); People v. Gleckler (1980), 82 Ill.2d 145, 162.) A sentence does not offend the requirement of proportionality if it is commensurate with the seriousness of the crime and gives adequate consideration to the rehabilitative potential of the defendant. (People v. Carlson (1980), 79 Ill.2d 564, 587; People v. Gaines (1981), 88 Ill.2d 342, 380-82.) In addition, however, this court has a duty to ensure that the cases in which death is imposed are rationally distinguished from those in which it is not imposed. (People v. Gleckler (1980), 82 Ill.2d ...