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People v. Osborne

OPINION FILED MAY 4, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KELVIN OSBORNE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Adams County; the Hon. Edward B. Dittmeyer, Judge, presiding.

PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendant was convicted by a jury in the circuit court of Adams County of two counts of forgery and one count of misdemeanor theft in violation of sections 17-3(a)(1) and 16-1(a)(1) of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, pars. 17-3(a)(1), 16-1(a)(1).) He was sentenced to concurrent terms of imprisonment for four years on each forgery count and 364 days on the theft count.

On appeal the principal issue is the trial court's handling of defendant's alibi defense. As a derivative of that issue, some discussion is in order concerning obligations of the parties under the Supreme Court Rules governing discovery in criminal cases. 87 Ill.2d Rules 411 through 415.

The factual situation may be briefly summarized. The State's evidence showed that defendant and three confederates obtained checks belonging to Dennis Goodwin. Between April 24, 1982, and April 26, 1982, defendant signed Goodwin's name to two of the checks and one of the confederates, Bowen, cashed them; the proceeds were then divided among defendant, Bowen, and a third confederate, Hickman. Bowen was the principal witness against defendant and testified that she had pleaded guilty to attempt (theft) and had received probation for her part in the offenses. Forgery counts against her were dismissed.

Informations were filed against defendant on April 28, 1982; he made a first appearance on April 29 and filed his motion for discovery; a preliminary hearing was held on May 20, probable cause was found and the case was set for later arraignment. On June 2, 1982, defendant was arraigned and entered a plea of not guilty; the cause was then set for jury trial. On June 4, 1982, the State filed its motion for discovery.

On July 16, 1982, defendant filed his answer to the State's motion for discovery and in it raised an alibi defense. The pertinent parts of his discovery answer are:

"2. Defendant did not commit the offenses as charged, and at the time of the alleged offenses, he was at Pierson Construction Company, Quincy, Illinois.

6. Defendant attaches a copy of his time sheet for employment at Pierson Construction and a copy of his W-4 form is not in possession of defense counsel at this time, but will be provided when that document is received.

7. Defendant intends to use an alibi defense, namely that he was, at the time of the alleged offense, at the location of Pierson Construction Company near Quincy, Illinois."

On August 16, 1982, defendant filed a supplement to his answer in which he stated that he intended to call as a witness Diane Dade Buckner.

The trial began on August 19, 1982, and at the conclusion of the State's evidence and after a motion for directed verdict had been denied, the prosecutor in chambers moved to exclude Buckner as a witness. He stated that she had been interviewed at 1:30 p.m. that date and would state that she had transported defendant to the Quincy Soybean location to make a job application on April 26, the date of the alleged offense. The time of the motion in chambers was fixed at 2:43 p.m.

Defense counsel answered that it was common knowledge in the area that Pierson Construction Company was engaged in a construction project for Quincy Soybean, near Quincy, Illinois. The argument then progressed over the question as to whether a "location" had been disclosed by defendant. The prosecutor made only a mild objection over the timing of the disclosure of the name of Buckner. His chief, if not only, emphasis was on the matter of location, claiming that the information given was not specific as required by Supreme Court Rule 413(d)(iii) (87 Ill.2d R. 413(d)(iii)).

The issue is carved in sharp relief by the trial court's ruling in which it said:

"Gentlemen, if the Pierson Construction Company had a permanent location in Quincy, then I would think the disclosure would be adequate; but as I understand the situation, it's a Missouri company, and they're based in Missouri somewhere, Columbia, perhaps. They have no permanent basis in Quincy that has been disclosed to me; and accordingly, I don't believe that the response to the State's motion for discovery ...


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