Appeal from the Circuit Court of Livingston County; the Hon.
William T. Caisley, Judge, presiding.
JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 16, 1986.
On November 1, 1984, an indictment charged defendant Stanley Boclair with four counts of murder. The trial court appointed the public defender to represent the defendant, along with an investigator to assist defense counsel. Subsequently, the public defender withdrew as counsel and the court appointed the law firm of Jenner & Block to represent the defendant. The investigator continued to assist the new defense counsel in preparing for trial.
Both the prosecution and the defense filed motions for discovery. The People's response to the defendant's discovery request ultimately produced the names of more than 200 potential prosecution witnesses. Jenner & Block attorney Joel T. Pelz, the defendant's counsel, commenced interviewing many of these prosecution witnesses with the assistance of the court-appointed investigator. The State had similarly requested the names of defense witnesses along with "their relevant written or recorded statements, including memoranda reporting or summarizing their oral statements." At a hearing on March 14, 1985, the State expanded this discovery request to include "notes and memoranda that are being prepared or taken during [defense] interviews" of witnesses originally named by the State. Defense counsel objected to this expanded request, and a second hearing was held on March 28, 1985.
• 1 On May 9, 1985, the court ruled that pursuant to "Supreme Court Rule 413(d)(ii) and (e) and the inherent authority of the judiciary to control and regulate the administration of criminal justice," the State was entitled to discover the interview notes. The court ordered defense attorney Pelz to submit the reports for in camera inspection. The trial judge inspected the reports and highlighted those portions which he believed were relevant and did not contain impressions or characterizations of the individuals who were interviewed. The trial court then ordered Pelz to turn over to the State's Attorney the highlighted portions of the reports. The court noted that in reviewing the reports, it had no knowledge of what might be impeaching material. Mr. Pelz refused to deliver the notes to the prosecution, asserting they contained protected "work product" and were not discoverable by the prosecution under Supreme Court Rule 413 (87 Ill.2d R. 413). The trial court held attorney Pelz in contempt of court, sentencing him to six days' conditional discharge. Mr. Pelz appeals from the contempt holding.
On appeal, Pelz reasserts his arguments that Supreme Court Rule 413 does not require him to turn over the investigator's reports during pretrial discovery and that the reports contain protected work product. In addition, Pelz claims that forcing him to turn over the reports would violate his client's rights of effective assistance of counsel and due process. He also asserts that Rule 413 was enacted in violation of the separation of powers doctrine. We agree with the appellant that these reports are work product. Likewise, they are not discoverable before trial pursuant to Supreme Court Rule 413 under the facts of this case. However, since the appellant did not raise his constitutional arguments at the trial court, those issues are not properly before this court and are waived. People v. Amerman (1971), 50 Ill.2d 196, 279 N.E.2d 353.
• 2 Initially, we note that the supreme court rules on discovery intend to supplant the trial court's inherent jurisdiction over the criminal justice process during the pretrial stages. (People v. Grier (1980), 90 Ill. App.3d 840, 413 N.E.2d 1316; see also Bruske v. Arnold (1969), 44 Ill.2d 132, 254 N.E.2d 453.) Accordingly, the trial judge has discretion to order pretrial discovery only as permitted by supreme court rule. This inherent power could not authorize the trial court order presently at issue.
We reject the argument that Supreme Court Rule 413 requires the investigator's reports to be turned over upon timely request. In relevant part, Rule 413 reads as follows:
"(d) Defenses. Subject to constitutional limitations and within a reasonable time after the filing of a written motion by the State, defense counsel shall inform the State of any defenses which he intends to make at a hearing or trial and shall furnish the State with the following material and information within his possession or control:
(i) The names and last known addresses of persons he intends to call as witnesses together with their relevant written or recorded statements, including memoranda reporting or summarizing their oral statements, an[y] record of prior criminal convictions known to him; and
(ii) any books, papers, documents, photographs, or tangible objects he intends to use as evidence or for impeachment at a hearing or trial;
(e) Additional Disclosure. Upon a showing of materiality, and if the request is reasonable, the court in its discretion may require disclosure to the State of relevant material and information not covered by this rule." 87 Ill.2d R. 413.
• 3 The trial court properly rejected application of subsection (d)(i) in the present case, because the reports at issue do not ...