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March 10, 1995



Rehearing Denied April 6, 1995. Released for Publication April 13, 1995.

Presiding Justice Cousins delivered the opinion of the court: McNULTY and T. O'brien, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Defendant Bruce Tripp was convicted in a jury trial of first degree murder in the beating death of two-year-old Deandre Boyce. On appeal, defendant contends that three errors necessitate that he be granted a new trial: (1) the trial court erred in failing to order a mistrial or other relief when the State violated discovery rules by failing to disclose before trial the substance of defendant's arguments with the victim's mother, Cheryl Boyce; (2) the trial court erred in allowing Andre McKennie's testimony as to defendant's statements when the State had failed to previously disclose the substance of those statements; and (3) defendant was denied a fair trial by the chief medical examiner's testimony "the child was beaten to death, period."

We reverse and remand.

On Monday, February 8, 1983, as both sides were presenting their pretrial motions, the following colloquy ensued:

"MS. LUBELFELD (Defense counsel): Judge, the next motion would be -- we have a motion titled, motion for supplemental discovery. It's a brief motion that we're asking -- we are telling the Court that Mr. Tripp relies on all of the discovery that has been tendered by the prosecution. And before the trial begins, he needs to know if there's any mistakes or any material omissions in any discovery that has been tendered to us before trial.

MS. MEBANE (the State): Your Honor, that to me presumes something.

THE COURT: It's just basically based upon the continuing obligations of discovery set forth in the rules. Any continuing discovery obligation that has just recently come to your attention?

MS. MEBANE: Your Honor, nothing recently."

The trial began the next day, Tuesday February 9, 1993. In opening statements, the State argued:

"MS. MEBANE: All of the acts that Bruce Tripp performed when he beat this child he did intentionally. You will see evidence of that. You will hear evidence of that. This child was severely beaten because Bruce didn't like his father; because Bruce wanted his father out of the picture."

The State called Cheryl Boyce as its first witness. Ms. Boyce testified that on September 27 (although apparently September 28), 1989, the defendant came in his car to her home and picked up her and their infant son, Xavier. They went to his house at 4 a.m., at 4323 W. Madison in Chicago, where the defendant wanted to have sex, but Ms. Boyce refused. They also talked for an hour about Ms. Boyce's former boyfriend, Andre McKennie, and the defendant told Ms. Boyce that he was tired of Mr. McKennie going to her house. The defense objected to these statements on the basis of hearsay but was overruled.

That evening, Ms. Boyce's sisters brought over to the house Ms. Boyce's other son, Deandre, whose father was Andre McKennie. At 11 p.m., Ms. Boyce left the house to visit a friend and get a change of clothes at her mother's house. She returned to the defendant's house at about 1:45 a.m. and stayed in his front room listening to the radio until around 3 a.m. When she went to the bedroom, she heard some vomiting and looked to see that Deandre had just vomited while tucked under a cover. As she went to pick Deandre up, the defendant grabbed him and took him to the washroom, telling Ms. Boyce to change the sheets. A short time later, the defendant came back and told her that Deandre was not breathing. Ms. Boyce asked the defendant what happened, and the defendant replied, "I threw him up and he fell." Ms. Boyce and the defendant's cousin took Deandre to the hospital, while the defendant stated he would meet them at the hospital after taking Xavier from the house to his sister's house. Deandre died at the hospital, and Ms. Boyce never met the defendant there.

Ms. Boyce then testified as to several previous conversations with the defendant. In these disputes, the defendant indicated he was very jealous of Ms. Boyce ever being with Mr. McKennie, once to the point of beating Ms. Boyce. These disputes included a more detailed version of the McKennie conversation of September 27 (28), 1989. The defense objected that it had not been tendered any of the defendant'sstatements in discovery, and the defense twice requested a sidebar. The trial court overruled the objections. The State's questioning included the following colloquy about a conversation alleged to have occurred in August of 1989 when the defendant saw Mr. McKennie with Ms. Boyce in front of her home:

"MS. MEBANE: What if anything did Bruce say to you when he caught you with Andre?

MS. BOYCE: He say he don't want to catch me with that punk motherfucker no more.

MS. MEBANE: Then what happened? What did you say?

MS. BOYCE: I told him he could come over and see his son.

MS. MEBANE: What did he say to you?

MS. BOYCE: He was like, he ain't have to come over anymore. I buy his stuff.

MS. MEBANE: What did you say to him?

MS. BOYCE: I told him it was Andre baby. ...

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