{ "id": 2869240, "name": "The People of the State of Illinois, Respondent-Appellee, v. Charles Jones, Petitioner-Appellant", "name_abbreviation": "People v. Jones", "decision_date": "1975-11-03", "docket_number": "No. 60256", "first_page": "1025", "last_page": "1039", "citations": [ { "type": "official", "cite": "33 Ill. App. 3d 1025" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "319 N.E.2d 498", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "59 Ill.2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2959768 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/59/0158-01" ] }, { "cite": "223 N.E.2d 117", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill.2d 320", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377150 ], "pin_cites": [ { "page": "324-325" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0320-01" ] }, { "cite": "292 N.E.2d 750", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill.App.3d 650", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2847974 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0650-01" ] }, { "cite": "304 N.E.2d 278", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill.2d 517", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2940552 ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0517-01" ] }, { "cite": "405 U.S. 150", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11721534 ], "weight": 5, "pin_cites": [ { "page": "154" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/us/405/0150-01" ] }, { "cite": "360 U.S. 264", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9052 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/360/0264-01" ] }, { "cite": "244 N.E.2d 381", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill.App.2d 418", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599839 ], "pin_cites": [ { "page": "423-424" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0418-01" ] }, { "cite": "203 N.E.2d 399", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "31 Ill.2d 602", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2832614 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/31/0602-01" ] }, { "cite": "408 U.S. 786", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782921 ], "weight": 7, "pin_cites": [ { "page": "794" } ], "opinion_index": 0, "case_paths": [ "/us/408/0786-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 4, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "302 N.E.2d 651", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.App.3d 493", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2681763 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0493-01" ] }, { "cite": "257 N.E.2d 514", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill.App.2d 268", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1582649 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/121/0268-01" ] }, { "cite": "208 F.Supp. 883", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1472648 ], "pin_cites": [ { "page": "888" } ], "opinion_index": 1, "case_paths": [ "/f-supp/208/0883-01" ] }, { "cite": "412 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173453 ], "year": 1962, "pin_cites": [ { "page": "475, n. 9" } ], "opinion_index": 1, "case_paths": [ "/us/412/0470-01" ] }, { "cite": "288 N.E.2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 1 }, { "cite": "7 Ill.App.3d 526", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2672351 ], "year": 1968, "pin_cites": [ { "page": "535" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/7/0526-01" ] }, { "cite": "363 F.2d 287", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3658233, 815727 ], "year": 1964, "opinion_index": 1, "case_paths": [ "/f2d/363/0287-01" ] }, { "cite": "391 F.2d 138", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2103196 ], "year": 1966, "pin_cites": [ { "page": "147-48" } ], "opinion_index": 1, "case_paths": [ "/f2d/391/0138-01" ] }, { "cite": "455 F.2d 62", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 743053 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "66-67" } ], "opinion_index": 1, "case_paths": [ "/f2d/455/0062-01" ] }, { "cite": "489 F.2d 470", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 208354 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "475" } ], "opinion_index": 1, "case_paths": [ "/f2d/489/0470-01" ] }, { "cite": "331 F.2d 842", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 132688 ], "weight": 2, "pin_cites": [ { "page": "846" } ], "opinion_index": 1, "case_paths": [ "/f2d/331/0842-01" ] }, { "cite": "463 F.2d 455", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1344112 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "459" }, { "page": "459" } ], "opinion_index": 1, "case_paths": [ "/f2d/463/0455-01" ] }, { "cite": "327 N.E.2d 186", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "27 Ill.App.3d 372", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2866829 ], "pin_cites": [ { "page": "385-386" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/27/0372-01" ] }, { "cite": "405 U.S. 150", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11721534 ], "weight": 2, "pin_cites": [ { "page": "154" } ], "opinion_index": 1, "case_paths": [ "/us/405/0150-01" ] }, { "cite": "360 U.S. 264", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9052 ], "opinion_index": 1, "case_paths": [ "/us/360/0264-01" ] }, { "cite": "244 N.E.2d 381", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "103 Ill.App.2d 418", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599839 ], "opinion_index": 1, "case_paths": [ "/ill-app-2d/103/0418-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 3, "pin_cites": [ { "page": "87" }, { "page": "87" } ], "opinion_index": 1, "case_paths": [ "/us/373/0083-01" ] } ], "analysis": { "cardinality": 1271, "char_count": 36532, "ocr_confidence": 0.732, "pagerank": { "raw": 9.341780223265324e-08, "percentile": 0.5137316886042391 }, "sha256": "8806eb491d69ecad19aec79887b4ed462ed10c5ed2c85048dd9a1c01b1de3d06", "simhash": "1:a2a1a3d4fdbed693", "word_count": 6105 }, "last_updated": "2023-07-14T15:25:47.184380+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Respondent-Appellee, v. Charles Jones, Petitioner-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE EGAN\ndelivered the opinion of the court:\nThe petitioner, Charles Jones, was found guilty of the murder of George Johnson after a bench trial and sentenced to a tem\u00ed of 20 to 40 years. The judgment was affirmed on direct appeal. (People v. Jones, 121 Ill.App.2d 268, 257 N.E.2d 514.) His post-conviction petition was dismissed without an evidentiary hearing. The sole issue in the appeal of that dismissal is whether he was denied due process by the failure of the State to apprise him of the grand jury testimony of a witness who was not called to testify at the trial.\nAt the outset, we must reject the State\u2019s assertion that the argument now advanced is waived since it was not raised by direct appeal. Tire waiver rule does not apply where the allegations in a post-conviction petition can be proved only by facts outside the record. (People v. Dennis, 14 Ill.App.3d 493, 302 N.E.2d 651.) That Dean gave favorable testimony before the grand jury and that the State did not disclose his testimony are not disclosed by the record on appeal.\nBefore trial, the defendant filed a motion requesting a list of witnesses and copies of any written or oral statements made by the State\u2019s witnesses. In response, the State submitted a list of witnesses which included the name and address of Johnny Dean. Dean\u2019s name also appeared on the back of the indictment.\nAt the trial, Cleophas Martin, a cab driver, testified that at 4 a.m. on April 26, 1968, he saw two men apparently arguing over money. They looked as if they were going to fight, and one of them pulled out a gun and shot tire other. The man shot was facing Martin, who did not see anything in the man\u2019s hands. The man who fired the shot drove off in an automobile.\nRobert Johnson testified that he was at a tavern with his brother, George, two other men and a girl. As they left, Tommy Houston, the defendant\u2019s cousin, approached Johnny Dean, pointed a gun at him and demanded money that he was owed. George Johnson gave some money to Houston, who fired some shots and fled. Robert Johnson chased Houston, emptying a pistol at him during the chase. He could not catch Houston and returned. As he approached the defendant\u2019s automobile, he saw his brother and the defendant arguing. Then he heard a shot and saw his brother fall to the ground.\nThe defendant testified that as he came out of a tavern, Johnny Dean hit him, shouting to George and Robert Johnson that the defendant was a cousin of Houston\u2019s. As the defendant walked to his car, George Johnson struck him and started to pull out a gun, so the defendant shot him.\nThomas Houston testified for the defense that he met Johnny Dean at the tavern and demanded money that Dean owed. Dean told Houston he would get it from George Johnson. Dean pulled a knife, which Houston took from him. Houston had George Johnson drop the money on the street and back off. Houston picked up the money and ran. Deari attempted to get a gun to shoot him. As Houston ran, the three men chased him, and Robert Johnson was firing shots at him.\nRobert Johnson also testified that when he came back after chasing Houston, he saw his brother, George, Johnny Dean, the defendant, and two other people at Dean\u2019s car. As he approached, he heard what sounded like \u201c \u2018Let\u2019s fight\u2019 or something.\u201d He also testified that \u201cthey [the defendant and the deceased] were going to hit each other and there was a shot.\u201d\nTo his post-conviction petition the defendant attached a transcript of the grand jury testimony of Robert Johnson and Dean and the affidavit of his trial attorney. Robert Johnsons grand jury testimony was substantially the same as his trial testimony. Dean, who did not testify at the trial but was present in court, testified before the grand jury that when he left the tavern, Tommy Houston was waiting outside with a pistol and \u201crobbed\u201d them; that when Houston picked up the money from the ground, he fired two or three shots in the air. Dean and Robert Johnson tried to catch Houston. When the defendant drove up, Dean called out that the defendant was Houston\u2019s cousin and that he could help them get their money back by taking them where Houston was. George Johnson went to the car where the defendant was. Dean testified: \u201cOne word led to another and they got to fighting and I ran .across the street. I was talking to one of the boys that was with his cousin. Then this other boy pulled a pistol up and shot George.\u201d Later he testified: \u201cI don\u2019t know who got the first lick. They start\u00e9d fighting. I got there and grabbed Steve, and Charles Jones shot George.\u201d\nThe affidavit of the defendant\u2019s trial attorney is, in part, as follows:\n\u201c2. The Assistant State\u2019s Attorney complied with an oral and written answer to my Motion for Discovery on July 12, 1968.\n3. The answer did not include notice of a favorable statement made at the Cook County Grand Jury on Jime 7, 1968, by Johnny Dean, who was fisted as a State\u2019s witness.\n4. During the course of the trial, at no time did I receive notice of this statement made by an occurrence witness.\n5. The State failed to call Johnny Dean, as a witness, though the trial transcript reflects that he was present in court during the course of the proceedings.\u201d\nThe defendant contends that the State\u2019s failure to apprise, him of Dean\u2019s grand jury testimony denied him due process, relying principally on Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194. But we do not believe that Brady is dispositive of the precisely same issue that is before us. In Brady, the Supreme Court held that \u201cthe suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.\u201d (373 U.S. at 87.) In Moore v. Illinois, 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562, the United States Supreme Court construed Brady thus (408 U.S. at 794):\n\u201cThe heart of the holding in Brady is the prosecution\u2019s. suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence\u2019s favorable character for the defense, and (c) the materiality of the \u2022 evidence. These are the standards by which tire prosecution\u2019s conduct in Moore\u2019s case is to be measured.\u201d (Emphasis added.)\nThe State concedes that Dean\u2019s testimony-that there was a,fight, although he did not know who struck the first blow, would have corroborated the defendant\u2019s testimony-that there was a fight.--The State\u2019s witnesses had testified that the defendant: and the deceased looked like they were going to fight.\nAt the time this case was tried, the State was not required to provide grand jury testimony unless and until the witness testified at trial. (People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399.) The trial attorney understandably did not expressly request production and examination before trial. His affidavit shows that the State answered his motion orally and in writing without providing any grand jury transcripts. The defendant now contends that his request for \u201cstatements\u201d embraced grand jury testimony. The defendant obviously did not think so at the time the State answered his discovery motion; nor do we think so now. It has been held that grand jury testimony should be available for inspection by the defendant for the same reason that statements of witnesses are available. (People v. Davis, 103 Ill.App.2d 418, 423-424, 244 N.E.2d 381.) But no judge could reasonably be expected to be on notice that a request for \u201cstatements\u201d included grand jury testimony. We note that the present discovery rules make an express distinction between \u201cstatements\u201d of witnesses (50 Ill.2d R. 412(a) (i), (ii)) and grand jury testimony (50 Ill.2d R. 412(a) (iii)). Since there was no request for grand jury testimony, Brady is factually inapposite.\nBut our conclusion of Brady\u2019s factual inapplicability is not dispositive of the question. What this case boils down to is the question of whether the State has \u201csuppressed\u201d evidence favorable to the defendant. Suppression necessarily involves knowledge, actual or imputed, on the part of the prosecution of the existence of the favorable evidence. In Napue v. Illinois, 360 U.S. 264, 3 L.Ed.2d 1217, 79 S.Ct. 1173, an accomplice witness testified on cross-examination that he had received no promises. The prosecutor trying the case knew this to be false but took no steps to correct it. The Supreme Court held that, although the prosecutor did not elicit the false testimony, his failure to correct it was tantamount to knowing, use of perjury. The principle of Napue was extended in Giglio v. United States, 405 U.S. 150, 31 L.Ed.2d 104, 92 S.Ct. 763, in which, again, an accomplice, who had not been indicted, testified that no one had told him that he would not be prosecuted. DiPaola, the assistant district attorney who presented the case to the grand jury, submitted an affidavit in which he stated that it was agreed with the witness that the witness would not be prosecuted if he testified for tire government. The affidavit of Golden, the assistant district attorney who tried the case, showed that before trial he had conferred with DiPaola, who told him the witness had not been granted immunity but that he had not indicted the witness because of his youth and because he \u201chad been overreached by [the defendant].\u201d The United States\u2019 attorney\u2019s affidavit established that he told the.witness and his attorney that he would be prosecuted if he did not testify and that if he did testify he would be obliged to rely on the \u201cgood judgment and conscience of the government\u201d as to whether he would be prosecuted. In ordering a new trial, the Supreme Court said (405 U.S. at 154):\n\u201cIn the circumstances shown hy this record, neither DiPaola\u2019s authority nor his failure to inform his superiors or his associates is controlling. Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor\u2019s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. [Citations.] To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.\u201d (Emphasis added.)\nThe court, in substance, held that DiPaola was under a duty to disclose his promise to the witness.\nA defendant has no constitutional right to the recordation of the testimony of the grand jury witnesses (People v. Lentz, 55 Ill.2d 517, 304 N.E.2d 278; People v. Lobb, 9 Ill.App.3d 650, 292 N.E.2d 750); nor, if the testimony is recorded, to have it transcribed (People v. Aughinbaugh, 36 Ill.2d 320, 324-325, 223 N.E.2d 117). It has long been the practice in Cook County, however, to record grand jury testimony; but the transcription of such testimony had been the exception rather than the rule before People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399. After Johnson, the general practice was to require the State, after motion by the defense, to have a witness\u2019 grand jury testimony transcribed, if recorded, and available for inspection by the defense when the witness testified. In this regard, the only change made by the discovery rules was to permit pretrial inspection of grand jury testimony of witnesses the State intended to call. Although this case was tiled after Johnson, no motion was made to require the availability of the grand jury testimony.\nImplicit in the argument of the defendant was the duty of the trial prosecutor to take steps to determine what the witness testified to before the grand jury or the duty of the prosecutor who was present at the grand jury proceedings to inform the trial prosecutor of what the witnesses had testified to. In order to fulfill his obligation, the trial prosecutor was required to have all of the grand jury testimony of the witnesses transcribed, in spite of the holding in Aughinbaugh, and in spite of the absence of any motion by the defendant; or, to confer with the prosecutor who conducted the grand jury proceedings and to ask him to recite the testimony of the witnesses on the chance he would hear something favorable to the defendant. The duty imposed upon the prosecutor before the grand jury was to have all the testimony transcribed and to determine what evidence might be favorable to a defendant; or, if the testimony was not transcribed, to remember all the testimony, to determine what might be favorable to the defendant; and, in either case, whether the testimony was transcribed or not, confer with the trial prosecutor and inform him of the testimony which might be considered favorable to the defendant.\nIn 1968, there were 4462 indictments returned. The assistant State\u2019s Attorney who conducted the grand jury proceedings in this case was Edwin Spiro, whose sole assignment was, and had been for several years, the processing of cases through the grand jury. It is safe to say that of the 4462 indictments returned in 1968, he processed well over half of them. This record shows that the testimony before the grand jury was presented, like most cases before that body, in a brief, perfunctory manner, satisfying the requirements of probable cause. It was not an investigatory procedure. Under the circumstances, to have expected Spiro to note the favorable aspect of Dean\u2019s testimony (which in some other aspects could be considered damaging to the defendant), four months later to remember it out of the thousands of other witnesses he had heard, and to confer with the assistant State\u2019s Attorneys who were about to try the case, is to require too much of a mere mortal. It is one thing to say that there is no justification for failing to notify the defendant of Dean\u2019s testimony while recognizing that there are difficult administrative problems in devising a procedure ensuring the flow of information from the assistant prosecutor in the grand jury to tire trial assistant. It is quite another to provide a solution for those difficult administrative problems.\nIt should be noted that, unlike Napue and Giglio, this case does not involve the knowing use of perjured testimony. And unlike those two cases, this case does not involve an overt act on the part of a prosecutor \u2014 the promise of immunity or leniency. An accomplice who testifies without hope of immunity or leniency is a rare one indeed; but even less rare is a trial prosecutor who would not know that the accomplice would be cross-examined about promises; and no trial prosecutor worth his legal salt would not endeavor to learn whether and by whom any promises had been made to the witness. In Giglio, the trial prosecutor did confer with DiPaoIa, and discussed whether any agreements had been made. Moreover, that Giglio was an exceptional case is evidenced by the fact that the United States\u2019 attorney was personally involved in the negotiations with the witness. In this case, there were no unusual circumstances that should have alerted the trial prosecutors to the need to examine Deans grand jury testimony: As noted, the defense had made no motion for grand jury testimony. The State had complied with the discovery motion. The nature of the case requires the conclusion that the police interviewed Dean. It is unreasonable to believe that they did not reduce that interview to some form of writing, either his written statement or a memorandum containing what he had told the police. We think it significant that the affidavit of tire trial attorney did not specifically negate the reception of a police statement of Dean\u2019s. The prosecutor had submitted the name and address of Dean in answer to the discovery motion. We judge, therefore, that there was no duty on the part of the trial prosecutor to ascertain what Dean\u2019s grand jury testimony was and that the defense has failed to establish any suppression of favorable evidence on the part of the State.\nBy our holding, we are not judging that the State may never be considered to have suppressed evidence because that evidence may have been heard before a grand jury. Each case must rest on its own facts. Giglio, we add, addressed itself specifically only to a promise \u25a0 of immunity. When the Supreme Court said (405 U.S. at 154): \u201cTo the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden * * *\u201d (emphasis added), it was referring to its holding in the preceding sentence that the promise made by one particular government attorney must be attributed to the government. We do not believe that the language of Giglio may be considered a sweeping principle of law that attributes knowledge to all assistant prosecutors of every statement made to any of them.\nIn Moore v. Illinois, 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562, it was held that the failure to produce a police statement was not a denial of due process under the circumstances. The distinction sought to be drawn that Moore involved information given to the police, while in this case information was given to the grand jury in the presence of tire prosecutor, is a specious one. The law makes no such distinction. For example, in People v. Galloway, 59 Ill.2d 158, 319 N.E.2d 498, the court held that information in the possession of the police, not the prosecutor, and withheld from the defendant was a denial of due process. The prosecutor may not deliberately insulate himself from sources of information and he should be held to account where the information could have been acquired by reasonable diligence (People v. Galloway, 59 Ill.2d 158, 319 N.E.2d 498), but he should not be expected to be omniscient.\nIn a post-conviction hearing the \"burden is on the petitioner to show that he was deprived of a substantial constitutional right. The defendant, therefore, has the burden of proving that he was unaware of what Dean\u2019s version of the occurrence was. First, there is no showing when or how the defendant acquired the grand jury transcript. For all we can determine, he personally could have had it at the time of trial. The affidavit of the trial attorney does not maintain that the defense did not inter-view Dean. The affidavit alleges that the State provided written and oral answers to his request for written and oral statements. Significantly, as we have previously noted, the affidavit does not maintain that no statement of Dean\u2019s was included. The affidavit pointedly asserts that at no time did the attorney \u201creceive notice of this statement\u201d (emphasis added), meaning the testimony of Dean before the grand jury.\nFor these reasons, we judge that the defendant has failed to prove the denial of a substantial constitutional right. Tire judgment of the circuit court is affirmed.\nJudgment affirmed.\nBURKE, P. J., concurs.", "type": "majority", "author": "Mr. JUSTICE EGAN" }, { "text": "Mr. JUSTICE SIMON,\ndissenting:\nThis appeal required the court to decide what circumstances trigger the State\u2019s duty to disclose to a criminal defendant information in its exclusive possession which is exculpatory or helpful to the defense. In Brady v. Maryland (1963), 373 U.S. 83, the Supreme Court held that \u201ctire suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.\u201d 373 U.S. at 87.\nCharles Jones admitted shooting the deceased, George Johnson. The only factual issue at trial was what happened immediately prior to the shooting. Two directly conflicting accounts were presented to the trial judge: defendant testified that he shot the deceased only after the deceased punched him in tire jaw and pulled a gun out of his belt; the version of the State\u2019s two witnesses was that there was an argument, and the defendant and the deceased looked like they were about to fight, but no blows were struck, and no gun was drawn by the deceased. Dean was not called as a witness at trial but his testimony before tire grand jury corroborated defendant\u2019s with respect to a fist fight occurring immediately prior to the shooting. Had Dean\u2019s evidence been considered at trial, the trial judge might have been swayed on the issue of self-defense, or might have concluded that the deceased struck the defendant, and found defendant guilty of voluntary manslaughter instead of murder. Thus, the materiality and favorable character of Deans testimony is clear (see People v. Nichols (1975), 27 Ill.App.3d 372, 385-386, 327 N.E.2d 186), and the majority does not dispute that these requirements of Brady were met.\nI dissent because I disagree with the majority\u2019s conclusion that the defendant\u2019s request for production did not include Dean\u2019s grand jury testimony. Even absent a request, the testimony was so material and favorable to the accused that the State had a duty to disclose it. I also disagree wih the majority\u2019s view that the testimony was not suppressed.\nThe majority reasons that the defendant\u2019s request for \u201cstatements\u201d of the State\u2019s witnesses should not be construed to include grand jury testimony and, therefore, did not satisfy the Brady condition that the State\u2019s obligation is to produce favorable evidence \u201cupon request.\u201d This reasoning does not give full play to the expectations of Brady expressed in classic language that a fair trial must be accorded those charged with crime:\n\u201cSociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: \u2018The United States wins its point whenever justice is done its citizens in the courts.\u2019\u201d (Brady v. Maryland (1963), 373 U.S. 83, 87.)\nAs I view Brady and the cases developing it, the concept they champion is that due process requires the State to supply a defendant with any favorable evidence in its possession. To accomplish this purpose a request for production must be liberally construed and doubts resolved in favor of production; the State should not narrow the request by quibbling over the meaning of the language used or avoid production by technical interpretations of what the defendants seeks.\nTo conclude that the defendant\u2019s motion requesting \u201cstatements\u201d did not implicitly constitute a request for all evidence inconsistent with the State\u2019s theory of guilt, including grand jury testimony, reduces the truth-seeking adversary process to a contest the outcome of which depends on the relative skill of the players \u2014 the defense counsel and the prosecutor. The extent of constitutionally required disclosure is not dependent upon the proficiency with which counsel drafts his request. (United States v. Hibler (9th Cir. 1972), 463 F.2d 455, 459; Barbee v. Warden (4th Cir. 1964), 331 F.2d 842, 846.) In Hibler, the court said at page 459:\n\u201cThe test is whether the undisclosed evidence was so important that its absence prevented the accused from receiving his constitutionally-guaranteed fair trial. That defense counsel did not specifically request the information, that a \u2018diligent\u2019 defense attorney might have discovered tire information on his own with sufficient research, or that the prosecution did not suppress the evidence in bad faith, are not conclusive; due process can be denied by failure to disclose alone.\u201d\nThe observation of the court in Barbee at page 846 was:\n\u201cIn gauging the nondisclosure in terms of due process, the focus must be on the essential fairness of the procedure and not on the astuteness of either counsel.\u201d\nRequiring defense counsel to have used words other than \u201cstatements\u201d in his production request in order to reach Dean\u2019s grand jury testimony elevates form over substance. The defendant\u2019s right to be informed of Dean\u2019s testimony should not turn upon his attorney\u2019s ability to foresee that a man who was one of three witnesses chosen by the prosecution to testify before the grand jury, who was listed by the State as a prospective witness for the prosecution, who was a friend of and had been drinking with the deceased moments before his death, and who physically assaulted the defendant immediately prior to the shooting would give testimony that contradicted the prosecution\u2019s theory of the crime and corroborated the testimony of the defendant.\nThe majority observes that at the time defendant\u2019s request for production was made grand jury testimony was available in Illinois only after the witness testified at trial. From this, the majority argues that the defendant\u2019s request was not intended to include Dean\u2019s grand jury testimony and the prosecutor and judge in interpreting the request could not be expected to anticipate that it did. By the same token, the fact that grand jury testimony was not generally available to defendants at that time excuses defense counsel from specifically requesting it since he could anticipate that such a request would be useless. However, the policy of the State with respect to the availability of grand jury testimony for discovery purposes when the defendant was tried does not excuse the State from its obligation under Brady to disclose information, regardless of the manner in which the State obtained it. The paramount concern is that justice be done; this necessarily implies that the defendant be given the opportunity to review all evidence in the State\u2019s possession favorable to him regardless of whether his request specifically described it.\nThe cases developing Brady have noted that the failure to make a request is not under all circumstances a waiver of the right to receive favorable material. These cases have held that due process is denied when hindsight demonstrates the existence of highly material undisclosed evidence that could have been put to considerable use by the defense; then, even the lack of a request does not excuse the prosecution from coming forward with it. (Evans v. Janing (8th Cir. 1973), 489 F.2d 470, 475; United States v. Hibler (9th Cir. 1972), 463 F.2d 455, 459; United States ex rel. Raymond v. Illinois (7th Cir. 1971), 455 F.2d 62, 66-67; United States v. Keogh (2d Cir. 1968), 391 F.2d 138, 147-48; Levin v. Katzenbach (D.C. Cir. 1966), 363 F.2d 287; Barbee v. Warden (4th Cir. 1964), 331 F.2d 842.) Since Dean\u2019s grand jury testimony can be regarded as a \u201cstatement,\u201d I construe the defendant\u2019s request to cover it, but I would also hold that where evidence in the prosecution\u2019s possession is so favorable and material as Dean\u2019s grand jury testimony was in this case, a defendant\u2019s constitutional right to a fair trial requires its disclosure even absent a request.\nThe distinction drawn in Supreme Court Rule 412(a) and relied upon by the majority between \u201cstatements\u201d of witnesses and grand jury testimony has nothing to do with a defendant\u2019s right to a fair trial. This rule, which was not in existence when the defendant made his request, is directed to pretrial discovery in general and does not purport to deal with the prosecutor\u2019s affirmative duty to disclose or the specificity with which a request must be made.\nRelying on Napue v. Illinois (1959), 360 U.S. 264, and Giglio v. United States (1972), 405 U.S. 150, the majority holds that the State did not suppress any evidence. The majority concludes that these cases teach only that a conviction should be set aside when the State wittingly or unwittingly allows false evidence to go uncorrected when it appears during trial. I do not construe Giglio so narrowly. I interpret that case to place upon a prosecutors office the obligation to ensure that information favorable to a defendant, once known by one prosecutor in a law enforcement office, will find its way into the hands of the defendant. The law becomes a feeble enforcer of the rights it recognizes when it acquiesces in the principle that a large prosecutors office is to be regarded as a fragmented activity in which each assistant is deaf, dumb and blind to evidence his coworkers have acquired in dealing with those who are accused, being investigated or indicted. Giglio, as I view it, holds that due process requires a general attribution of exculpatory knowledge possessed by any single member of the prosecution\u2019s staff to the other members of the prosecutor\u2019s office. (405 U.S. at 154.) To hold otherwise would reintroduce the good-faith-bad-faith distinction rejected in Bradij.\nExpediency, the burden or expense of disclosure, and the inconvenience of administering the prosecutor\u2019s office in a way which facilitates disclosure do not lessen the State\u2019s obligation to act with candor and fairness to those it prosecutes. \u201cSuppression\u201d as used in Brady and cases following it means not only hiding or secreting, but includes failure to disclose or nondisclosure. (Evans v. Janing (8th Cir. 1973), 489 F.2d 470; United States v. Hibler (9th Cir. 1972), 463 F.2d 455; United States ex rel. Raymond v. Illinois (7th Cir. 1971), 455 F.2d 62.) Testimony in a legally sanctioned proceeding such as before a grand jury cannot be regarded as for the ears of only the prosecutor in the grand jury room. The obligation to disclose the testimony in this case is not excused by the administrative difficulties which may confront a large prosecutor\u2019s office in filtering information from the assistant who presented evidence to the grand jury through different assistants trying a case to the defendant\u2019s counsel.\nThe majority reasons that the assistant State\u2019s attorney who obtained the indictment of the defendant was so overwhelmed by his duties of presenting a large number of cases to the grand jury that he could not be expected to know, understand or remember what he heard in the grand jury room. But, the assistant State\u2019s attorney presents only one case at a time to the grand jury, and questions only one witness at a time. The assistant who presented the case to the grand jury was seeking an indictment for murder and knew the elements of that offense. In response to a question he asked Dean, he elicited information inconsistent with the guilt of the accused and the State\u2019s theory of the crime. The importance of this evidence must have been manifest to a prosecutor whose sole assignment for several years was to process cases through the grand jury. To require under these circumstances that the grand jury prosecutor note the evidence and communicate his knowledge to the trial prosecutor, if only by a memorandum placed in the file, is not so burdensome a procedure as to outweigh the right of an accused to receive a fair trial. Other administrative solutions might include hiring additional State\u2019s attorneys to relieve the grand jury prosecutor, if he is overworked, or instituting a procedure where the same assistant follows the case from the grand jury through to trial. The point, however, is that neither the heavy workload of the State\u2019s Attorney\u2019s office nor a system which fails to disclose favorable evidence produced before the grand jury excuses the obligation of the State under Brady, overrides a defendant\u2019s constitutional rights or justifies a person being in prison who otherwise might not be.\nThe majority also concludes that the trial prosecutor had no duty to take affirmative steps to ascertain tire nature of Dean\u2019s grand jury testimony. This is irrelevant because under Giglio the failure of the State\u2019s Attorney to provide the defendant with the favorable evidence of which tlie assistant who conducted the grand jury proceedings was aware was sufficient to deny the defendant due process.\nWhether recording and transcribing the grand jury testimony was a constitutional requirement and whether the practice in Cook County at the time was to record and transcribe such testimony are also irrelevant. The fact is that the grand jury testimony in this case was recorded and also transcribed, although it does not appear from the record when the transcription occurred. Even untranscribed stenographic notes in the possession of the comt reporter employed by the State to record grand jury testimony must be regarded as written material in the possession of the State\u2019s Attorney. (People v. Gray (1972), 7 Ill.App.3d 526, 535, 288 N.E.2d 26; People v. Davis (1968), 103 Ill. App.2d 418, 244 N.E.2d 381.) Leaving grand jury testimony favorable to a defendant buried in a court reporter\u2019s notes should not excuse failure to inform the defendant of such testimony since this provides too easy an escape from the disclosure requirement of Brady.\nI disagree also with the majority\u2019s overly narrow reading of the defendant\u2019s post-conviction petition. Attached to the petition is the affidavit of defense counsel alleging that the State did not provide notice of Dean\u2019s favorable statement made before the grand jury. This satisfies me that the substance of Jones\u2019 assertion is that he was unaware of Dean\u2019s version of the occurrence, and this court should accept the substance of the petition rather than try to discover details which it may not have covered. Assuming the truth of the allegation, as we must on a motion to dismiss the petition, it is sufficient to estabhsli the deprivation of a substantial constitutional right. If the position of the State is that defense counsel had knowledge of Deans testimony prior to trial, it may raise that as a factual issue to be resolved at the post-conviction hearing. It should not be necessary, however, for the post-conviction petition to anticipate every possible deta\u00fc the State might raise at the evidentiary hearing on the petition.\nTo conclude, as does the majority, that the defendant was afforded a faff trial even though he did not have the opportunity to present evidence which could conceivably have altered the outcome is inconsistent with the cases inspired by the idea expressed by Judge Simon E. Sobeloff when as Sohcitor General of the United States addressing the Judicial Conference of the Fourth Circuit on June 29, 1954 he said: \u201cMy client\u2019s chief business is not to achieve victory but to establish justice.\u201d\nThe usual criminal defendant is not on an equal footing with the State in his capacity to assemble evidence. In many instances at the time this defendant was tried an accused had no way of knowing the details of the evidence reposing in the State\u2019s files or in the memory of its attorneys or investigators. This provides an additional reason for interpreting requests for statements liberally. See Wardius v. Oregon (1973), 412 U.S. 470, 475, n. 9, and Application of Kapatos (S.D.N.Y. 1962), 208 F.Supp. 883, 888. In Kapatos, Edmund L. Palmieri, a United States District judge, with long, varied and distinguished experience said:\n\u201cThe purpose of a trial is as much the acquittal of an innocent person as it is the conviction of a guilty one. The average accused usually does not have the manpower or resources available to the state in its investigation of the crime. Nor does he have access to all of the evidence, much of which has usually been removed or obliterated by the time he learns that he is to be tried for the crime.\u201d\nBarbee held that the State\u2019s failure to produce the opinion of a ballistics expert that a gun produced in the courtroom was not the weapon used in the shooting involved in that case was error. The court said that defense counsel may have been misled into 'thinking that ballistics tests, if made, supported tire State\u2019s theory and were adverse to his client, because otherwise the prosecution would not have produced the gun in court. Similarly, in this case defense counsel may have been misled into thinking that Dean, if called as a witness, would support the State\u2019s version of \"the incident, and that otherwise the prosecution would not have had him in the courtroom available to testify as a witness.", "type": "dissent", "author": "Mr. JUSTICE SIMON," } ], "attorneys": [ "Paul Bradley and Martin Carlson, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Frank J. Parkerson, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Respondent-Appellee, v. Charles Jones, Petitioner-Appellant.\n(No. 60256;\nFirst District (1st Division)\nNovember 3, 1975.\nSIMON, J., dissenting.\nPaul Bradley and Martin Carlson, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Frank J. Parkerson, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1025-01", "first_page_order": 1053, "last_page_order": 1067 }