Appeal from the Circuit Court of Kane County; the Hon. Michael
F. O'Brien, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
After a bench trial before the circuit court of Kane County, the defendant, Gary Max Vargas, was convicted of armed robbery. (Ill. Rev. Stat. 1981, ch. 38, par. 18-2.) He contends on appeal that the charge should have been dismissed because the State destroyed a tape recording that contained exculpatory information. Alternatively, he urges he should receive a new trial because the State failed to disclose the existence of the exculpatory information that was on the tape. He contends both actions violated the principles of Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L.Ed.2d 215, 218, 83 S.Ct. 1194, 1196-97. Defendant also raises a question concerning the competency of his trial counsel.
Defendant was charged by indictment with the armed robbery of Evelyn Hammond, a sales clerk at the One-Stop Grocery in Aurora. On August 18, 1981, at the arraignment, defense counsel made an oral motion for preservation of any recordings of conversations regarding the subject case made by the Aurora police department. The court granted the motion and directed the State's Attorney to make the phone calls necessary to ensure that the tapes would be preserved. Ten days later, at a subsequent hearing, the State indicated that it had made the proper phone calls and defense counsel stated he would make an effort to get the tapes within the week. More than two months later, defense counsel made arrangements to obtain the tapes and learned that they had been destroyed by the Aurora police department. He then moved for dismissal of the charge, urging that the defendant was irreparably damaged and, in the absence of the tapes he would be unable to adequately defend himself. The trial court denied defendant's motion to dismiss.
The key witness testifying for the State was Evelyn Hammond. She testified that on the afternoon of July 25, 1981, she was working behind the counter in the One-Stop Grocery and noticed an individual that she recognized as one of the Vargas brothers enter the store. At trial she identified that individual as Gary Vargas, defendant. After everyone in the store had left except some young children, Vargas approached the counter brandishing a knife and in a loud voice demanded money. Hammond told Vargas that she knew who he was, that she knew his mother and that he should leave before he got into trouble. Hammond offered to call Vargas' mother to have her come pick him up. Vargas refused. Vargas then came behind the counter and held the knife one to two inches away from Hammond's body, repeatedly demanding the money. Hammond believed Vargas was under the influence of something.
Hammond locked the cash register and moved down towards the telephone at the other end of the counter. She told Vargas that she had $2 in her pocket that she would give him if he would leave the store. However, she refused to give him any money from the register and told him that it was not hers to give away. She reached in her back pocket to get the $2 out and Vargas grabbed the money from her hand before she was able to give it to him. Vargas then moved towards the door, tried on some sunglasses, and left the store.
Hammond dialed "911." The police responded and picked up a suspect approximately a block and a half from the grocery store, one to two minutes after the robbery was reported. Officer Michael Perez testified that he searched defendant and found a wood handle folding knife as well as five $1 bills in defendant's front pocket. Perez then took Vargas to the One-Stop store where Hammond identified him as the man who had just robbed her. She also identified the clothing Vargas was wearing. The knife recovered by Perez was identified by Hammond at trial and was admitted into evidence.
On cross-examination Hammond indicated that when she called "911" to report the robbery she told the police that Roger Vargas had just robbed the store and he was heading north on South Lake, that he had on cutoff blue shorts, a white muscle shirt, and was carrying a knife. After Hammond revealed this conversation defense counsel moved for a mistrial, arguing that he had never been informed that the complaining witness had initially identified her assailant as Roger, rather than Gary, Vargas and that he was therefore totally unprepared to present an adequate defense under the circumstances. Defendant's motion was denied.
Officer Robert Theil, a booking officer at the Kane County jail, also testified. He indicated that Vargas was brought to the station and that he processed Vargas and took an inventory of his property. At the time he was brought to the jail Vargas was wearing shorts and a blue sleeveless T-shirt which was identified as a defendant's exhibit. Written on the T-shirt was "Winning isn't everything but loosing [sic] is the pits."
Defendant was found guilty as charged. He filed a post-trial motion, supported by affidavit, contending that the trial court had erred in denying his motion to dismiss due to destruction of the tapes and in denying his motion for a mistrial because it was not until the cross-examination of Hammond that he first learned of her statement that her assailant was Roger Vargas. The assistant State's Attorney, Brad Swearingen, filed an affidavit in which he averred that he had been informed by Hammond prior to trial that when she called the police to report the crime she initially misnamed the offender as Roger rather than defendant, Gary Vargas. The State filed a counteraffidavit indicating that Hammond also stated that there was no question in her mind that the person she identified in the back of the squad car two minutes after she called the police was the person who had committed the crime.
Defense counsel urged that if he had the information regarding Hammond's identification of Roger Vargas prior to trial he would have prepared defendant's defense differently. The State urged that the evidence established merely a misnomer and that it was not required to furnish the evidence because it was not in a written report. The court noted that it did not believe that the complaining witness' misnomer of the assailant was crucial to defendant's case. It indicated that it did not believe that the destruction of the tapes caused material prejudice to the defendant. It denied the motion. After the sentencing hearing the court imposed a seven-year sentence.
• 1 Defendant's first contention on appeal is that the destruction of the tapes, which contained exculpatory evidence, requires that the charge against him be dismissed. At trial defendant brought a motion to dismiss on the grounds that, despite a court order to preserve the tapes, the Aurora police department had destroyed all tapes of communications regarding the subject offense. Defendant contends that this amounted to a violation of the rules set forth in the case of Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L.Ed.2d 215, 218, 83 S.Ct. 1194, 1196-97, which held that suppression by the prosecution of evidence favorable to and requested by the defense violates due process where the evidence is material either to guilt or to punishment, regardless of the good faith or bad faith of the prosecution.
• 2 As a corollary to this rule it has been held that there is a duty to preserve evidence favorable to a defendant. (United States v. Bryant (D.C. Cir. 1971), 439 F.2d 642; People v. Moore (1978), 61 Ill. App.3d 694, 701, 378 N.E.2d 516, 521.) This duty of the prosecution has been recognized as an outgrowth of the prosecution's links to law enforcement agencies (People v. Ruffalo (1979), 69 Ill. App.3d 532, 536, 388 N.E.2d 114), which gives the prosecution an advantage in obtaining evidence.
• 3, 4 Dismissal of the charges as a sanction is not required in every situation in which evidence is destroyed. (People v. Steptoe (1976), 35 Ill. App.3d 1075, 1079, 343 N.E.2d 1, 4.) Courts> have inherent authority to dismiss criminal charges where due process has been denied. (People v. Lawson (1977), 67 Ill.2d 449, 456, 367 N.E.2d 1244.) However, after careful consideration of the record on appeal, we conclude that defendant's due process rights were not violated by reason of the State's suppression and nondisclosure of the requested evidence.
• 5 To show a violation of Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, defendant must show (1) that the evidence was exculpatory and favorable to him; (2) that the prosecution failed to disclose evidence in response to a specific request; and (3) that the evidence ...