Appeal from the Circuit Court of Lake County; the Hon. Robert
McQueen, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, William Hanna, was indicted in Lake County for two counts of murder as the result of the September 11, 1981, shooting of Richard Wells. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (2).) He was found guilty by a jury and sentenced to 40 years in the Department of Corrections. He appealed.
The evidence showed the victim, Richard Wells, was shot while sitting in his car which was parked in front of 2214 Kristan Street in North Chicago. Several witnesses testified they observed the defendant approach the car on the driver's side. Just before the defendant approached the car, there was testimony he was seen handling two pistols, a .25-caliber automatic and a .38-caliber derringer. After the defendant approached the car a shot was heard, and the defendant was observed moving from the car toward the yard of 2214 Kristan. One witness said he saw a "shiny" object in the defendant's hand when he turned away from the car.
Transcripts of tape-recorded statements made by the defendant to investigating officers Zorzy and Millimaki on the date of the shooting were played to the jury while it viewed copies of the transcripts. In the statements, the defendant's version of the event was that he asked "Rick-eye," the victim, Richard Wells, for a ride home. "Rick-eye" agreed to do so for a dollar to cover the cost of gas. The defendant did not realize it was a four-door car, so he reached in, in back of the driver's seat, to push it forward. At that time, there was a shot, and the defendant stated he believed the bullet passed through his hair. He dropped to the ground, and got up and began to run behind the house at 2214 Kristan. There was conflicting testimony as to who said: "No! That's the way they went," whereupon the defendant turned and ran back to the Tee Pee Liquor Store which was across the street and beyond a vacant lot from 2214 Kristin. When the police arrived at the scene, they took two of the witnesses to the occurrence, Waymon Callahan, who resided at 2214 Kristan, and the defendant to the station for questioning.
Callahan testified at trial that he saw the defendant later that afternoon at which time he went with the defendant to the back of Callahan's house where the defendant dug two pistols out of the gravel. The defendant told him to take them into the house, where he hid them under a chair for about an hour and a half. The guns were picked up by the defendant and Ralph Peterson, his nephew. Callahan's credibility was impeached during cross-examination when he testified he was a heavy drinker and admitted that he had previously told the police a lie concerning the shooting. He had told the police that the defendant did fall to the ground, that he thought the defendant had been shot, and that he had "seen three guys running across the house in the back of the alley on Kristan." Callahan denied that any of his numerous traffic citations had been dismissed in return for his testimony in the instant case.
Another witness, Barbara Lynch, observed the defendant in back of 2214 near some rocks just after the shooting. When she first saw him, he was getting up. After he got up, he ran south, past the garage behind 2214 Kristan into the alleyway toward a fence. As he ran, he said "Someone call the police. Someone shooted [sic] at me." She did not see anything in his hands, nor did she see him burying or discarding anything. She admitted on cross-examination she had stated in a prior conversation with the assistant State's Attorney that at the time she saw the defendant, he was touching his head, as if looking for a wound.
One of the witnesses who had seen the defendant with the two pistols about a half hour before the shooting, testified he was talking with two other men in the vicinity of the driver's side of the car in which the victim was seated, when he heard a shot fired from the direction of the car. He admitted he could not see between the buildings behind him, but he did not see anyone else near the car except the defendant. After the shot, he looked up at the car and saw the defendant's hands in his pockets. He saw the defendant walking toward the bushes, looking around. He did not see a gun in the defendant's hands and he did not see the defendant on the ground.
The issues raised by the defendant are:
I. Whether the court erred in denying defendant's motion for a mistrial or a continuance due to the State's alleged discovery violation in failing to provide the defendant with the names of rebuttal witnesses.
II. Whether the court erred in barring the testimony of R.A. Steindler as an expert witness.
III. Whether the court erred in limiting the cross-examination of certain State witnesses.
IV. Whether the defendant was proved guilty beyond a reasonable doubt.
The defendant argues the court erred when it denied his motion for a mistrial or continuance. The motion was made due to the State's failure to disclose the existence of witnesses who would rebut the qualifications of his expert firearms witness, R.A. Steindler. The defendant argues that the nondisclosure of the existence of the rebuttal witnesses was a violation of Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, which held that evidence material to the guilt or innocence of a defendant is subject to disclosure prior to trial. The defendant claims the court's error in denying a mistrial or continuance denied him due process as guaranteed by the fifth and fourteenth amendments. U.S. Const., amends. V, XIV.
The State responds that no discovery violation occurred because it has no obligation to disclose witnesses until it "forms the intention to call them." The State argues that until Steindler testified, it could not have known whether it needed to present rebuttal witnesses and, if so, which ones. Additionally, the State points out the error, if any, in failing to disclose the existence of witnesses was harmless. Rebuttal witnesses were never called to testify, and substantially the same evidence to which Steindler would have testified was testified to by another defense expert witness, Dr. DiMaio. Thus, the State posits the defendant has failed to show that he was prejudiced by virtue of its alleged discovery violation. Further, the State argues, correctly so, that no Brady violation occurred because the proposed testimony of the rebuttal witnesses would not have been favorable to the accused, and is not the type required to be disclosed to the defendant under Brady. Finally, the State points out the Illinois Supreme Court in People v. Cornille (1983), 95 Ill.2d 497, 514, stated: "[E]very party * * * has an obligation to verify the credentials of its expert witnesses." Accordingly, the State asserts the defendant cannot now complain that he was prejudiced because he failed to do that which the State did do.
The defendant replies that it is evident the State formed its intent to call the rebuttal witnesses well in advance of trial since it had subpoenaed numerous rebuttal witnesses from different parts of the country. The defendant disagrees that Dr. DiMaio's testimony cured any prejudice to the defendant caused by the disqualification of Steindler, since DiMaio's "sole purpose" was to detail the medical effects of a distant gunshot vis-a-vis a contact shot upon the human body. Steindler's expected testimony, on the other hand — according to the defendant's offer of proof at trial — was that the bullet passed through an intermediate target and that "the target left an impression on the — nose of the bullet — the fragment that was recovered."
Lastly, the defendant asserts that notwithstanding his duty to verify the credentials of his expert witness, the State's failure to properly respond to the appropriate discovery orders, in effect, ...