APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
529 N.E.2d 270, 174 Ill. App. 3d 641, 124 Ill. Dec. 450 1988.IL.1443
Appeal from the Circuit Court of Will County; the Hon. Angelo F. Pistilli, Judge, presiding.
JUSTICE HEIPLE delivered the opinion of the court. STOUDER, P.J., and SCOTT, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE
This case is on appeal after a retrial which ended in the defendant's conviction for the murders of Ralph Dixon and Crystal Knight. The defendant was sentenced to natural life imprisonment. On appeal, he argues that the trial court's failure to either bar a witness from testifying for the State or grant defense counsel's motion for continuance was an abuse of discretion. We affirm.
Clifford Horne and the defendant, Melvin Wilson, were charged by indictment with the murders of Ralph Dixon and Crystal Knight. Horne entered a negotiated plea and received concurrent 25-year sentences of imprisonment for rape and murder in exchange for his testimony against Wilson. The first jury trial ended when a mistrial was declared. Following the second jury trial, Wilson was found guilty of both murders. This court reversed and remanded for a new trial after finding that the trial court excluded relevant, material evidence. (People v. Wilson (1986), 149 Ill. App. 3d 293.) The second retrial commenced on August 19, 1987.
On August 18, 1987, an assistant State's Attorney from Will County interviewed Bobby Tate, an inmate in custody of the Illinois Department of Corrections, and determined it would be necessary to call him as a witness at Wilson's trial. The prosecutor telephoned defense counsel that afternoon to notify him of his intent to call Tate as a witness. On August 19, prior to the beginning of trial, the prosecutor sought leave to file a supplemental list of witnesses which included Tate's name, along with a supplemental notification of statements of the defendant. The discovery document indicated that Tate would testify that while he and the defendant were cellmates, the defendant confessed to the murders of Dixon and Knight, but indicated he planned to place the blame on someone else. The court granted the motion to file supplemental discovery.
Defense counsel then moved to exclude Tate's testimony, suggesting that the prosecutor might previously have known of Tate and his possible testimony, but failed to provide the discoverable information to defense counsel until the day before the trial. Defense counsel also requested sanctions be imposed pursuant to Rule 415 (107 Ill. 2d R. 415(g)). The prosecutor acknowledged that sometime previous, the Cook County State's Attorney's office forwarded a letter Tate sent to that office indicating that he had information about the defendant and a murder. The prosecutor also informed the court that he spoke with Tate for the first time on August 18, and no one from the Will County State's Attorney's office had spoken with Tate prior to that date. Finally, the assistant State's Attorney reiterated that defense counsel was informed about Tate orally on the day he was interviewed and the prosecutor reduced the information to writing and presented it to defense counsel the next morning, August 19.
The trial court noted that a criminal investigation never stops and that in this case, the prosecutor immediately informed defense counsel of the new information as soon as he received it. The court then denied the motion for sanctions.
Defense counsel next moved for a continuance to allow time to investigate the matters set forth in the State's supplemental discovery. The prosecutor indicated the State would not object to defense counsel's investigator interviewing Tate, but would not agree to a continuance. The court denied the motion for a continuance.
On August 21, 1987, Tate was transported to Will County and was interviewed by defense counsel and his investigator. The assistant State's Attorney who was present during the interview informed the court that Tate answered all questions which defense counsel and the investigator asked.
On August 24, 1987, following selection of the jury, defense counsel moved for a mistrial. The defendant's attorney alleged that the State became aware that Tate was a potential witness in May of 1987. He also stated that follow-up investigation was necessary but that because the investigator for the public defender's office had a full case load, an appropriate investigation could not be completed while the trial was proceeding. The court inquired whether defense counsel was satisfied and had enough time to interview Tate, and defense counsel stated he assumed he had enough, but indicated concern in the event new matters came up. The court stated it would have Tate returned to Will County any time at defense counsel's pleasure or convenience. The trial Judge then examined the investigator's list of cases and discovered that the first case on the list scheduled to go to trial, the Davis case, was assigned to him. Noting that the defendant's case arose in 1984, long before other cases on the investigator's list, the Judge then suggested that the investigator take care of the defendant's case first, and stated he would personally grant a continuance in the Davis case if the investigator did not have time to complete his investigation. The court denied the motion for a mistrial, again stating, "I'll take care of the Davis case."
The jury trial then began. The defendant states that the prosecution's evidence was essentially the same as it had been in the prior trial, except that Bobby Tate's testimony was offered. Tate testified that he and the defendant had been cellmates at Menard Correctional Center for several weeks. He stated that while they were incarcerated together, he and the defendant engaged in many conversations about the defendant's case and that the defendant admitted his involvement in the murders of Dixon and Knight. Tate further stated that the defendant planned to prove that he was on a military base when the crimes were committed and intended to place the blame on a man who drove from Miami with the drugs which were taken from Dixon after he was murdered. On cross-examination, Tate testified that in May of 1987, an individual he could not identify contacted him at the correctional facility ...