Appeal from the Circuit Court of Cook County; the Hon. Romie
J. Palmer, Judge, presiding.
JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Edward Barkauskas was convicted of the murder of his wife (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)) and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), solicitation (Ill. Rev. Stat. 1979, ch. 38, par. 8-1(a)), and conspiracy (Ill. Rev. Stat. 1979, ch. 38, par. 8-2(a)), in connection with that murder. The judgments on armed violence, solicitation, and conspiracy were vacated, and the trial court sentenced defendant to natural life in prison for murder. Defendant appeals, contending that: (1) the prosecution failed to comply with rules of discovery; (2) the prosecution failed to prove him guilty beyond a reasonable doubt; (3) prosecutorial misconduct deprived him of a fair trial; (4) the trial court erred in conducting an in camera inspection of a witness' mental-health records outside the presence of counsel; (5) he received inadequate legal representation at trial; (6) the trial court erred in refusing to tender certain instructions to the jury; and (7) his natural-life sentence is excessive. For the following reasons, we affirm.
The record reflects that a few weeks prior to the homicide, defendant approached James Galason at a hot dog stand on 43rd and Rockwell in Chicago and asked him if he was "crazy enough" to kill defendant's wife Joanne. Galason testified that he agreed to do it in exchange for the remainder of insurance money after the victim's funeral expenses were paid. Galason further testified that three days after his initial meeting with defendant, he was walking down the block with his roommates Ken and Joe Beringer when Ken pulled out a picture of defendant's wife and remarked, "We'll see who gets her first." Galason also stated that about two Tuesdays before the homicide, the defendant came to his apartment and implored him to kill his wife soon because she wanted to see a lawyer about a divorce. The defendant asked Galason to shoot her below the neck so there could be an "open coffin wake."
The next time Galason saw the defendant was at 11 p.m. on June 15, 1981, the night before the shooting. Galason, who was seated on the porch at the Chiquet residence at 43rd and Artesian, flagged down the defendant who was driving down the street. The defendant gave Galason a ride home. Galason testified that while in the car, the defendant told him that he had the murder planned for the following day because his wife would be walking on 42nd and Artesian to the bus stop and he would be driving to Skokie on business and would therefore have a good alibi. Galason further testified that the defendant told him to say it was a robbery if he got caught since his wife usually carried a lot of money and wore expensive jewelry.
At approximately 4:30 a.m. on July 16, 1981, Joe and Ken Beringer woke Galason to tell him that they had stolen a getaway car to use for the murder. The three men then had an argument over who was going to do the shooting and Joe finally agreed to do it. Three hours later, the defendant arrived at Galason's home and stated, "Let's go, let's go, we got to do it now, because his wife was going to see her lawyer that day. Ken Beringer decided not to go, but Joe Beringer picked up a .16-gauge sawed-off shotgun and left with Galason.
Galason testified that the defendant drove him and Joe Beringer to 47th and Western where the stolen car was located. After the defendant reminded them to tell Ken Beringer to destroy his wife's picture, he drove to Skokie. Galason drove the stolen car to an alley near 42nd and Artesian to wait for the defendant's wife. Galason stated that Joe Beringer exited the car and hid by a garage until she appeared. As the victim walked past the alley, Beringer jumped out and shot her twice. He returned to the car and Galason drove it to 49th and Rockwell where they hid the gun in some weeds near the railroad tracks. The two started to walk in different directions when a squad car pulled up and an officer questioned Joe Beringer. At that point, Galason ran toward his home. A few minutes later, the police entered Galason's residence and placed him and Ken Beringer under arrest. Galason confessed to the crime the same day and indicated the killing was done at the request of the defendant. Shortly thereafter, the defendant and Joe Beringer were arrested.
Officer Joe Mikulskis of the Chicago police department, who was the first officer on the scene, testified that he took a brief statement from Harvey Webb, an eyewitness to the shooting. Webb did not testify in the defendant's trial which began January 25, 1983, however he testified at the Beringer brothers' joint trial two months later.
The defendant testified that he did not know Ken and Joe Beringer and had no idea how his wife's photograph got in their possession. He further testified that he met James Galason on July 4, 1979, as a result of a dispute over fireworks. He thereafter began to see Galason because Galason was dating the daughter of Carmen Jagazynski, defendant's friend and insurance client. The defendant admitted that he gave Galason a ride home on the night before the shooting, but he stated that their conversation involved whether defendant's wife would be going to Skokie with him the next day and whether Galason would purchase defendant's motorcycle.
Defendant also testified that at approximately 11:30 a.m. on the day of the homicide, he arrived at Holy Cross Hospital where his wife had been taken. At the hospital, he volunteered to Officer Thomas Ptak that he loved his wife, and "turned frantic" when he learned of her death. The defendant subsequently told the police that a possible explanation for his wife's murder was that she carried a great deal of jewelry and that there was a rumor in the neighborhood that he and his wife had "a lot of money." His wife, however, was found with jewelry on her person and over $50 in her purse.
• 1 Defendant initially argues that he is entitled to a new trial because the prosecution failed to disclose favorable information within its possession prior to or during defendant's trial denying him due process of law. (Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194.) We disagree.
The record reflects that defendant made a similar argument on April 4, 1983, in support of his motion for a new trial. On that day, defense counsel presented the trial court with a transcript of Harvey Webb's testimony on March 25, 1983, in the Beringer trial in which he identified James Galason as the shooter of defendant's wife. Defense counsel contended that the prosecution violated Brady v. Maryland by failing to disclose this information prior to or during defendant's trial since it would have impeached the credibility of Galason who testified at defendant's trial that it was Joe Beringer who pulled the trigger. The trial court determined that the prosecution had two contacts with Harvey Webb; the first was a phone call and the second was a meeting on February 21, 1983. Based on Webb's "two positive assertions" at the Beringer trial, the court found that it was at the February 21 meeting that Webb observed photographs of Galason and Beringer and identified Galason as the shooter. The trial court therefore denied defendant's motion reasoning that the prosecution was under no duty to disclose this information because it was not within the prosecution's control until after the conclusion of defendant's trial on February 2, 1983.
Defendant now maintains that the trial court was not presented with particular statements made by the prosecutor during proceedings in the Beringer trial on March 14, 16, and 25, 1983, which would establish that the prosecution did in fact meet with Webb prior to or during defendant's trial. In the March 14 proceeding, defense counsel for Joe Beringer asked the prosecution if it had a current address for Harvey Webb. The prosecutor responded that no one from the State's Attorney's office had spoken to Webb since prior to the Barkauskas trial, perhaps November or December of 1982. On March 16, 1983, in pretrial proceedings in the Beringer case, defense counsel for Joe Beringer stated that Harvey Webb had indicated to several people that in February 1983 he had been interviewed by an assistant State's Attorney at which time he identified Galason as the shooter. The prosecutor then asserted that he had talked to Webb a couple of times, most recently before the Barkauskas trial, and as far as he knew, Webb had only identified Joe Beringer as the killer. The portion of the March 25, 1983, transcript in the Beringer trial not presented to the trial court discloses that the prosecutor "wasn't sure of the exact date" he met with Webb, but thought it was in January 1983.
After reviewing the proceedings in the Beringer case, we find no reason to disturb the trial court's determination that Webb identified Galason as the shooter for the first time on February 21, 1983. There is no indication from the transcripts now before us that the prosecution possessed any information with respect to Webb's identification of Galason prior to or during defendant's trial. The transcripts simply reveal that the prosecution was uncertain as to the date of its meeting with Webb. The trial court, in light of Webb's two positive assertions at the Beringer trial, resolved the issue by determining that the meeting took place on February 21, and therefore properly denied defendant's motion for a new trial.
Even assuming that the prosecution possessed this information prior to or during defendant's trial, the prosecution was under no duty to disclose it. In order to establish a Brady violation, "it must be shown that the evidence was suppressed following a request for it by defendant and that the evidence was favorable to defendant and material either to guilt or to punishment." (People v. Kosik (1982), 110 Ill. App.3d 930, 940, 443 N.E.2d 238.) Materiality in a constitutional sense is not the mere possibility that the undisclosed information might have helped the defense or affected the outcome of the trial. (110 Ill. App.3d 930, 443 N.E.2d 238; People v. Williams (1980), 91 Ill. App.3d 631, 414 N.E.2d 1235.) Rather, omitted evidence is material if, when evaluated in the context of the entire record, it creates a reasonable doubt of the defendant's guilt. United States v. Agurs (1976), 427 U.S. 97, 49 L.Ed.2d 342, 96 S.Ct. 2392; People v. Kosik (1982), 110 Ill. App.3d 930, 443 N.E.2d 238.
We have reviewed the record on appeal and are convinced that the information allegedly withheld by the prosecution, even if presented to impeach the credibility of James Galason, does not raise a reasonable doubt of defendant's guilt. While the information may be relevant to the guilt or punishment of Galason, it in no way rebuts his testimony and the independently corroborated evidence discussed below that the defendant conspired to murder his wife. Thus, the ...