Appeal from the Circuit Court of Kane County; the Hon. John L.
Nickels, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Defendant, Ronald L. Hamm, was charged by indictment in Kane County with armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2), was convicted by a jury of the lesser included offense of robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-1), and sentenced to eight years in the Department of Corrections.
He contends here he is entitled to a new trial because he was denied due process of law when the State refused to produce, and the trial court to compel, the attendance of a key defense witness, and when the court refused to grant use immunity to that witness under the circumstances of the case.
The indictment against the defendant stemmed from the early morning robbery of Alfredo Patino on December 26, 1983. Patino went to the Elgin police department and, with the assistance of an interpreter, reported to Officers Turner and Sexton that he had been robbed at gunpoint. Turner then radioed for the assistance of Officer James Kelly, who was on patrol at the time. The officers followed Patino to 376 North Street where the alleged robbery occurred. Officer Kelly was familiar with the house; he knew that it belonged to Sharon Ross, and that Sharon had been working as a prostitute for the past two years. Kelly also knew that the defendant, Ronald Hamm, was living at the house.
Patino and the officers parked their cars around the corner from the house, and Kelly radioed Officer Piske, the watch commander, to come to the scene. When Officer Piske arrived at the scene, he notified the police station that he would possibly need a search warrant and also requested the police detectives to be advised of the situation. Before the officers received any response, they observed Sharon's car and decided to stop it to see whether she was driving it. They followed the car to Sharon's driveway, and Officer Kelly parked directly behind it. Two women, Sharon Ross and Vicki Patton, exited the car and, when Kelly ordered them to stop, ran into the house. Piske and Kelly followed them into the house. They observed two children sleeping near the door, and another young girl was observed sleeping in one of the bedrooms.
Kelly stayed in the living room with the women, and Piske went into the basement where he observed the defendant, a black male, on a bed. The man was moving slightly, and the officer could see the man's left hand go down to the side of the bed. Piske had been informed that the victim reported he was at the house to have sex with a prostitute when a black male pointed a gun to his head and took $600 from his wallet. Piske approached the black male, patted him down, and seized $210 (one $100 bill, one $50, and three $20's) from underneath the mattress.
Prior to trial, defendant's motion to suppress the evidence and quash the arrest was denied. Defendant also filed a motion requiring the State to procure the attendance of Sharon Ross prior to and during the trial, and subsequently for Sharon Ross to be granted immunity. These motions were denied without an evidentiary hearing.
At trial, Patino testified he had spent Christmas evening with two friends, Miguel Quintana and a man named Contreras. At approximately 2 a.m., the men drove to the house on North Street because Patino knew it was a house of prostitution. He went into the house and left his friends outside in the car. He was carrying his wallet which contained $600 in cash (one $100 bill, four $50's, the rest $20's) and two paychecks. He testified he works in Cary and receives a paycheck for approximately $370 every two weeks. Patino gave the woman $20 and followed her into a bedroom. Almost immediately, a man entered the room, put a gun to Patino's head, and the woman took his wallet. The man then took Patino into the hallway and the woman returned the wallet, minus the cash. Patino identified the defendant as the man who helped the woman rob him. When making the report at the police station, he identified a photo of Sharon Ross as the woman who took his wallet. Miguel Quintana testified that he waited in the car while Patino was in the house. Patino was gone for approximately 15 minutes, during which time no other people came out of the house. Officer Kelly testified that he followed Sharon Ross and Vicki Patton into the house. Officer Piske brought the defendant upstairs a few minutes later, and all three were placed under arrest. Sharon Ross was not charged with the offense.
Patino was subsequently brought to the police station, where he was interviewed by Officer Mark Brictson. Brictson then prepared a search warrant for the house. The warrant was executed, and Brictson testified that he seized two plastic toy cap guns from under the cushion of a living room chair. The guns were not capable of firing anything other than caps. He also testified a letter from the Department of Public Aid and a registration card from the Illinois Department of Public Health, both bearing the defendant's name, were seized from a bedroom dresser drawer.
Ronald Hamm testified on his own behalf. He stated that Sharon Ross had been his fiancee in 1977 or 1978. He testified he pled guilty to a charge of armed robbery in 1981, and served 2 1/2 to three years in the Department of Corrections. He testified that upon his release on December 2, 1983, he lived with his aunt in Elgin.
The afternoon before the early morning incident, he had been at Sharon's house for Christmas dinner. After dinner, he left briefly to meet some friends for drinks, but returned to Sharon's because she was supposed to drive him to a new job the following morning. Sharon, Vicki Patton, and two friends named Steve and Colleen were at Sharon's house when he returned. In subsequent conversation, he learned that Sharon and Vicki were prostitutes. As Vicki, Steve and Colleen were leaving, a Mexican male arrived at the house. The defendant was tired, so he asked Sharon to wake him up about 6 o'clock the next morning, and he went downstairs to sleep. About two hours later, he was shaken awake by a police officer, taken upstairs, arrested and taken to the police station.
The jury found the defendant not guilty of armed robbery, but guilty of robbery on June 6, 1984. Defendant's post-trial motion was denied after argument on the motion was waived. Filed at the hearing on July 6, as a supplement to the defendant's post-trial motion, was defense counsel's affidavit setting forth the substance of the conversation he had with Sharon Ross prior to being retained to represent Ronald Hamm, in which she admitted taking $80 from the complainant's wallet which she stole from his car. Without objection, the State was given leave to file after sentencing an affidavit stating that at the time of defendant's trial, the State did not know where Sharon Ross was. The prosecutor then informed the trial court that "[I]t has now come to my attention now she is she is available now." On July 9, the prosecutor filed his affidavit noted above, averring in substance that on June 6, 1984, he spoke with Elgin police captain J.W. Smith, who informed him that he had no results trying to find Sharon Ross in Elgin, and that he had obtained other information that she was somewhere in the Milwaukee area.
• 1 Defendant contends he was denied his fifth amendment right of due process when the State failed to reveal the whereabouts of Sharon Ross or to produce her at trial. He equates the State's actions in this regard as suppression of evidence favorable to a defendant and, thus, in violation of his right of due process as set forth in Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194. As construed in Moore v. Illinois (1972), 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562, due process has been denied under the Brady rule when (1) the defendant requests evidence and the prosecution suppresses it; (2) the evidence is favorable to the defendant; and (3) the evidence is material. Defendant argues that because all three circumstances were present in the case at bar, the violation of his due process right is thereby established requiring reversal and remandment for a new trial.
The State contends the defendant has misconstrued the facts in his attempt to prove it acted improperly. Further, the State asserts the defendant's reliance on Brady is misplaced, since that case deals with the prosecutions suppression of physical or documentary evidence. It points out there was no allegation that Sharon Ross had given the police a statement which was then suppressed nor, in fact, was there any indication that she could provide exculpatory evidence of any kind until June 4, the day of trial when the defendant made an offer of proof.
The first time the record shows discussion of defendant's April 6 motion for an order requiring the State to produce Sharon Ross, was on May 25, 1984. The defendant contended there that the State knew the whereabouts of Ross since she was a paid police informant for either the Elgin police department or "some other law enforcement agency" in a drug case, People v. Kevin Spates and Toppie L. Spates, Kane County Circuit Court Nos. 84 CF 235, 226 and 236, and that the prosecutor in that case had represented to the court that Sharon Ross "would be produced" for that trial. Defendant's counsel here also represented the defendants in those cases. Defense counsel argued that when Sharon was paid some money by the Elgin police department, the police knew she would use it to leave the jurisdiction. The State pointed out to the court that Sharon Ross had been arrested as a participant in the robbery, that she did not fall within the status of a confidential informer, and that he did not know of her whereabouts. Defense counsel explained to the court:
"[T]he gist of my motion is * * * if the State is hiding Sharon [Ross] or paid her to leave the jurisdiction, whether it's in this case or another case, and she is a material witness in this because she was present, according to the victim she was present when it happened and actually assisted it, and if they have got her hidden away somewhere because of another case I think it's incumbent on them to produce her.
The Supreme Court rules are if they have any evidence under their control that would negate the guilt of the Defendant, produce it."
The matter was continued to give the State an opportunity to review the status of Sharon Ross, and to report back, so that it could then be determined by the court whether to set the matter for hearing or to enter an order.
On June 1, the State reiterated its argument that Sharon Ross was not a confidential informant with regard to the case at bar, and that it had no control over her. The prosecutor stated he personally "talked to J.W. Smith [an Elgin police officer] who told me that she was in fact paid some money for some information she gave on other cases completely unrelated to this case, and that he had no idea where she was. He told her she was not to leave the jurisdiction, she would be needed in court, then he never saw then, he never saw her again. He has no idea what her address is at this point." The prosecutor further stated, "I have no address for her. I don't know where she is at this point in time."
Defense counsel argued that the State had promised to produce Sharon Ross in the Spates' drug cases and that "the Elgin police department knows where she is otherwise why would Mr. Wechter [assistant State's Attorney, Spates' cases] be ...