Appeal from the Circuit Court of Champaign County; the Hon.
Harold L. Jensen, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Parker, a University of Illinois vice-president, was indicted for 157 separate felony thefts of university funds amounting to over $600,000.
His first trial: mistrial.
His second trial: guilty.
His sentence: a single five-year term and a $10,000 fine.
The facts of this case are not really in dispute. A Champaign County grand jury returned an indictment against Robert N. Parker charging him with 157 counts of theft over $300. Each count alleged that Parker had — by means of deception — exerted unauthorized control over funds of the University of Illinois Foundation (UIF) and the U.D. Corporation (UDC). Parker was granted a change of venue and his first trial was held in Jefferson County. It ended in a mistrial when the jury could not reach a verdict. A change of venue to Winnebago County was granted. Following his jury trial there, Parker was found guilty and sentenced.
Parker admits to writing some $600,000 of unauthorized checks on the account of UDC to various Chicago nightclubs and to a number of individuals. He also admitted submitting false vouchers to obtain funds from UIF to cover the checks. He sought to interpose several defenses at trial, namely necessity, compulsion, and insanity. Before this court on appeal, Parker claims numerous errors in instructing the jury, including refusing to instruct regarding these defenses. He also claims: that he was denied due process when the State failed to sua sponte disclose exculpatory material; that venue was not proved beyond a reasonable doubt; that the prosecutor's closing argument deprived him of a fair trial; and that the sentence imposed was excessive.
We shall discuss the Brady problem first.
At Parker's first trial, two psychiatrists — Dr. Grater and Dr. Ziporyn — testified for the defense and Dr. Traugott testified for the People. At the second trial, these three again testified and the People also presented testimony by Dr. Pugh, another psychiatrist. Needless to say, there was a split of opinion among the four doctors on the issue of Parker's sanity. After Parker's conviction, it was revealed by way of stipulation that Dr. Pugh had called the State's Attorney during the hiatus between the first and second trials and had volunteered to both examine Parker and to testify. Because this evidence was not disclosed prior to trial, Parker contends that under Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, he was denied due process.
While Brady is factually dissimilar to the case presently at bench, the rule of law it spawned goes beyond its particular facts. The Supreme Court in United States v. Agurs (1976), 427 U.S. 97, 49 L.Ed.2d 342, 96 S.Ct. 2392, indicated that the Brady rule applies in at least three situations: (1) where the State knowingly puts on perjured testimony; (2) where the State suppresses exculpatory evidence which is specifically requested by the defense (as was the case in Brady); and (3) where the State fails to disclose, sua sponte, evidence which is both exculpatory and material. Parker contends that the facts of this case fit into the third category.
Under Agurs, the first question for this court in assessing Parker's contention is whether the evidence regarding Dr. Pugh was exculpatory. It was. Evidence that he volunteered to give an opinion as to Parker's sanity before having examined him is indicative of bias. Bias can, of course, be used to impeach a witness' credibility. Impeaching Dr. Pugh's credibility was certainly exculpatory, as he opined that Parker was sane at the time he performed the actus reus portion of the crime with which he was charged. If his testimony is shown to be unworthy of the jury's consideration, then, unless there is other evidence on the sanity issue, the State has not sustained its burden. See Giglio v. United States (1972), 405 U.S. 150, 31 L.Ed.2d 104, 92 S.Ct. 763 (defendant's right to due process was violated where the State failed to disclose that its key witness, a co-defendant, had been promised immunity).
In this case, there was other evidence on the sanity issue. This brings us to the second step in the Agurs analysis — the materiality of the evidence showing Dr. Pugh's bias. Agurs holds that in this context, material evidence is that which creates a reasonable doubt where none existed before. A finding of materiality does not necessarily mean that the evidence would likely have swayed the jury, but its exclusion is certainly not harmless error. See Agurs.
Agurs itself held that evidence of the victim's prior convictions for weapons offenses was not material in a murder prosecution where defendant stabbed her victim following a "brief interlude in an inexpensive motel room." (United States v. Agurs (1976), 427 U.S. 97, 98, 49 L.Ed.2d 342, 347, 96 S.Ct. 2392, 2395.) The rationale stated for the court's decision was that the jury had before it ample evidence to show that before the interlude, the victim had possessed the weapon which brought about his demise.
Two cases — Giglio and Moore v. Illinois (1972), 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562, although they both predate Agurs — nicely set out the parameters of what is material and what is not. Giglio was a forgery prosecution where, as noted above, the government failed to disclose that its key witness was testifying under a grant of immunity. The witness' testimony was the only evidence linking defendant to the crime. The court held that the defendant was entitled to a new trial because of the government's failure to disclose this fact.
Moore was a murder prosecution where the State failed to disclose a statement by a witness that "Slick" (someone other than the defendant) admitted the murder to him. This evidence was not material and there was no error to fail to disclose it because two eyewitnesses identified the defendant as the killer; three persons put defendant in the bar where, and at the time, "Slick" allegedly made his admission; and two witnesses testified to ...