{ "id": 5552688, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER KRADENYCH, Defendant-Appellant", "name_abbreviation": "People v. Kradenych", "decision_date": "1980-04-22", "docket_number": "No. 78-1927", "first_page": "547", "last_page": "556", "citations": [ { "type": "official", "cite": "83 Ill. App. 3d 547" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "318 N.E.2d 737", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill. App. 3d 155", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2508169 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0155-01" ] }, { "cite": "301 N.E.2d 85", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 684", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5345662 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0684-01" ] }, { "cite": "177 N.E.2d 160", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill. 2d 558", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2789731 ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0558-01" ] }, { "cite": "361 N.E.2d 1126", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 1010", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2976804 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/1010-01" ] }, { "cite": "375 N.E.2d 442", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 254", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3358623 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0254-01" ] }, { "cite": "346 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 615", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2716700 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0615-01" ] }, { "cite": "379 N.E.2d 339", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 436", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5622716 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0436-01" ] }, { "cite": "377 N.E.2d 1308", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 239", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3347893 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0239-01" ] }, { "cite": "377 N.E.2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 673", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3351860 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0673-01" ] }, { "cite": "379 N.E.2d 641", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 1028", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5620630 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/1028-01" ] }, { "cite": "401 N.E.2d 1017", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3229431 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0764-01" ] }, { "cite": "351 N.E.2d 332", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 66", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2966091 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0066-01" ] }, { "cite": "270 N.E.2d 568", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "132 Ill. App. 2d 712", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2532319 ], "weight": 2, "pin_cites": [ { "page": "714-15" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/0712-01" ] }, { "cite": "171 N.E.2d 782", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "21 Ill. 2d 114", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2732039 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-2d/21/0114-01" ] } ], "analysis": { "cardinality": 995, "char_count": 25718, "ocr_confidence": 0.868, "pagerank": { "raw": 1.4765193825034513e-07, "percentile": 0.6602771049586289 }, "sha256": "907b2b4823a58042433417989b571330d3d58ff7f51480f72436ba463406ef5a", "simhash": "1:30637d6b7b7e8855", "word_count": 4319 }, "last_updated": "2023-07-14T21:00:47.613815+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER KRADENYCH, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE PERLIN\ndelivered the opinion of the court:\nOn April 4, 1977, Mary Cantrell (hereinafter referred to as victim) was fatally wounded when a .20-gauge shotgun held by Walter Kradenych (hereinafter referred to as defendant) discharged. Defendant was charged by indictment with her murder (Ill. Rev. Stat. 1975, ch. 38, par. 9 \u2014 1(a)(2)). After a bench trial, defendant was convicted and sentenced to serve 14 years to 14 years and one day in the State penitentiary. Defendant appeals his conviction, presenting the following issues for review: (1) whether defendant was proved guilty of murder beyond a reasonable doubt and (2) whether the trial court erred in allowing the prosecution, after trial commenced, to amend its witness list to include two persons who testified to oral, inculpatory statements allegedly made by defendant.\nFor the reasons hereinafter set forth, we affirm defendant\u2019s conviction.\nThe following evidence was adduced at trial: Ronald Rothmund, a Chicago police officer, testified that on April 4, 1977, he and his partner responded to a radio call that a woman had been shot at Ill. North Winchester. When he arrived at the building, he proceeded to the second floor apartment where he found a woman lying face down on the kitchen floor in a pool of blood. At this time he noticed a $20 bill in victim\u2019s hand, which he took into custody and inventoried. The officer conversed with a Mr. Mikka, who was also present in the apartment, and subsequently went outside to search for a person matching the description given to him by Mikka. As Rothmund returned to the doorway of the building, he noticed a .20-gauge shotgun shell on the ground.\nJohn Ozga testified that on April 4, 1977, between 3 and 4 p.m. he was visited by defendant at 4025 West Palmer where Ozga lived with his mother. Defendant and Ozga conversed in the hallway and defendant asked Ozga if he had'any .20-gauge shotgun shells, to which Ozga replied, \u201cNo.\u201d After Ozga told defendant that he did not know who was \u201cmessing around\u201d with Mary (the victim), defendant stated that \u201che was going to catch him or her, kill him or her.\u201d There was no one else present during this conversation. Ozga\u2019s mother had previously left the apartment, and his girlfriend, although present in the apartment, was not in the vicinity of the conversation.\nAt an undetermined date subsequent to April 4, 1977, Ozga saw defendant at a basketball court and inquired about defendant\u2019s court case. Defendant replied that \u201che got off, or he thinks he is going to get off because it was an accidental death.\u201d Approximately two weeks to a month after this encounter, the two men again had occasion to meet at the same basketball court. Ozga inquired \u201chow it happened and if he meant it,\u201d to which defendant replied, \u201cYeah, I think I meant it because she two-timed on me.\u201d Ozga never mentioned these conversations to the police because he did not think he would be a witness and did not want to get involved. The first time Ozga told anyone about his various conversations with defendant was when he spoke to the assistant state\u2019s attorney approximately two days prior to the day he testified.\nBruce Mikka testified that on April 4, 1977, at approximately 5-5:30 p.m. he was at his home at Ill. Winchester with his fiancee, Sophie Kurkowski, preparing dinner. Defendant arrived accompanied by his girlfriend, Mary Cantrell (victim); she went into the kitchen with Kurkowski, and defendant requested that Mikka accompany him to the living room. At defendant\u2019s request, Mikka loaned defendant $20 so that defendant and victim could go to a motel. While still in the living room, defendant was holding a brown, double-barrelled, sawed-off shotgun which he had brought with him to Mikka\u2019s apartment. During this conversation, defendant engaged in a \u201cflipping action\u201d with the gun which he produced by releasing a lever which allowed the gun to open and close by the movement of defendant\u2019s hand. While in Mikka\u2019s apartment, there were no harsh words exchanged between defendant and the victim, and she in no way indicated that she felt threatened.\nThe two men left the living room. Mikka returned to the kitchen and defendant, still carrying the weapon, went to the bathroom, where he remained for a few minutes. When defendant emerged, Mikka was at the stove. He glanced over his right shoulder and saw the gun lifted in the air. Mikka stated at trial that defendant pointed the gun \u201cat\u201d victim, and it discharged. However, the witness testified at the preliminary hearing that when he looked over his shoulder he \u201cnoticed the shotgun being lifted in the air and it blasted.\u201d Mikka also testified that he did not actually see defendant pull the trigger, but the victim was shot as a result of the \u201cblast.\u201d\nImmediately after the shot, both Kurkowski and Mikka screamed and Kurkowski ran from the apartment. Mikka told defendant to leave, whereupon defendant stated, \u201cDon\u2019t tell anybody.\u201d Mikka left the apartment after defendant and saw defendant in the gangway dismantle the shotgun and leave the building. Mikka then found his fiancee and told her to notify the police.\nSophie Kurkowski\u2019s testimony substantially corroborated that of her fiance, Bruce Mikka. She stated that while she was at his apartment on April 4, 1977, at approximately 5 p.m., defendant and victim arrived together. No loud words were exchanged between the couple, and victim made no attempt to leave the apartment. Kurkowski did not see anything in defendant\u2019s hand when he went to the living room with Mikka, but when the two men returned to the kitchen, defendant was carrying a sawed-off shotgun. Defendant then went into the bathroom, but she was not certain whether he took the gun with him. The next time that she noticed the gun, defendant had it in his hand and he was standing near the kitchen table. She was sitting at the table with her back to the victim, but she could see defendant from that position. Defendant fired the gun, she turned around, saw the victim lying on the floor and then ran from the apartment down the stairs. She heard defendant ask Mikka to \u201cnot tell anyone.\u201d Defendant left the apartment after she did and ran past her down to the gangway where she observed him take the gun apart.\nAlthough at the grand jury investigation Kurkowski testified that defendant \u201cpointed the gun at\u201d the victim, she was actually unable to see the victim from her seat at the table, immediately preceding the gunshot, and therefore could not ascertain where defendant was pointing the gun.\nHasey Fetich testified that she was well-acquainted with the Cantrell family and had known the victim since she was two years old. On April 4, 1977, between 4 and 5 p.m., Fetich was at a tavern and saw defendant walk past her to the back of the bar. Defendant had a shotgun shell in each hand, and he raised his left arm stating, \u201cThis bullet is for Mary,\u201d then raised his right arm stating, \u201cThis is for Puerto Rican Ray.\u201d Petich left soon after defendant and went to a drugstore to pick up some medicine. While there, she attempted to contact the victim\u2019s residence by telephone but the line was busy. Petich stated that she did not call the police during this time, but when she returned home she again unsuccessfully attempted to contact the victim\u2019s residence. She was not contacted by the police, nor did she contact them about defendant\u2019s threat. She told the victim\u2019s family about the incident in the bar, but the first time she told any official was a few days prior to trial when she talked to the assistant state\u2019s attorney.\nSophie Ozga testified that on April 4, 1977, her son John was living with her. She left her house at approximately 2:30 p.m. to go to work. She did not see defendant that day, nor did she know whether her son had any shotguns in the apartment at that time. Police officers came to her house and confiscated a .12-gauge shotgun which they found behind the couch.\nRobert Podgorny, a Chicago police officer, testified that on April 4, 1977, he began an investigation into the death of Mary Cantrell. In connection with the investigation, his partner received an anonymous telephone call concerning the location of the murder weapon, and they proceeded to the home of John Ozga. When Mrs. Ozga answered the door, they informed her that they were looking for her son and the weapon used to kill Mary Cantrell. Mrs. Ozga gave them permission to look in the apartment and, contrary to Mrs. Ozga\u2019s testimony at trial, Officer Podgorny stated that she told him that on the day of the shooting she saw defendant in her apartment. She further told the officer that she had seen a gun in the china cabinet prior to defendant\u2019s arrival, but that it was not there after his departure. Podgorny stated that the officers recovered a .12-gauge shotgun from the apartment, although it was not the murder weapon. They found no .20-gauge shotgun but discovered some .20-gauge shotgun shells in the china cabinet. Officer Podgorny requested that Mrs. Ozga ask her son to contact the officers. Officer Podgorny reduced his conversation with Mrs. Ozga to writing in the form of a supplementary report to Homicide.\nDefendant testified that prior to April 1977 he and Mary Cantrell (victim) were \u201cin love\u201d and planned to marry. Defendant spent the 30 days prior to April 4, 1977, in the House of Corrections for criminal damage to property. Immediately after his release, defendant went to the victim\u2019s home where he remained for a few hours. Two men, known to both defendant and victim, arrived, and the four of them left in an automobile driven by one of the other men. Defendant did not have a gun with him at this time. They made various stops and eventually arrived at John Ozga\u2019s house. Defendant went into the house alone and talked with Ozga in the presence of Ozga\u2019s girlfriend. He never told John Ozga that he was going \u201cto get\u201d anyone and never had a conversation with him concerning Mary and the male she may have been dating. When defendant left Ozga\u2019s apartment, he had a .20-gauge shotgun but no shells for it.\nDefendant and the victim then went to Bruce Mikka\u2019s apartment. When he entered the apartment, defendant put the shotgun on the kitchen table where Sophie Kurkowski was sitting. He and Mikka went to the living room where defendant asked to borrow $20 to go to a motel and offered to leave the shotgun as collateral. After Mikka loaned him the money, defendant asked the victim to hold the $20 bill for him. Defendant stated that he never went to the bathroom and that the gun had remained on the kitchen table while he was talking to Mikka. Defendant picked the gun up from the table and began to \u201ctoy with it,\u201d and the gun discharged while he was \u201cflipping it.\u201d He did not see where the victim was at the time. After the shot, Kurkowski and Mikka were screaming. Defendant stated that when he saw victim lying on the floor, he said, \u201cOh, my God, I am sorry, it was an accident.\u201d When Mikka told him to leave the apartment, he went downstairs and in the gangway he dismantled the gun.\nPrior to the testimony of Hasey Petich, defendant stated that he had never heard of her. He denied that he was at the Winchester Inn on April 4, 1977. He denied making a statement about having bullets for \u201cMary\u201d and \u201cPuerto Rican Ray.\u201d Based on the foregoing, defendant was convicted of murder and appeals.\nI.\nDefendant initially contends that he was not proved guilty of murder beyond a reasonable doubt because the only evidence that would justify such a finding was the testimony of two witnesses whose credibility was severely weakened through impeachment. The State maintains that the testimony of these witnesses was credible; further, absent the testimony of these two witnesses, there was sufficient evidence to convict the defendant.\nDefendant insists that the credibility of John Ozga and Hasey Petich was \u201cabsolutely destroyed\u201d through impeachment and contradictions. Defendant argues that Ozga\u2019s testimony was twice impeached by the testimony of Officer Podgorny; that he lacked credibility because he did not know the specifics regarding the time, day or date of defendant\u2019s alleged statements at the basketball court, and he failed to relate the information concerning these conversations to any officials until just prior to trial. Defendant argues that Fetich\u2019s testimony was not credible because of its improbability and her failure to notify authorities at the time of defendant\u2019s threats even though she knew the victim.\nThe credibility of witnesses is a matter to be determined by the trier of fact. (People v. Byrd (1961), 21 Ill. 2d 114, 171 N.E.2d 782; People v. Richardson (1971), 132 Ill. App. 2d 712, 270 N.E.2d 568.) In a bench trial this determination is reserved for the trial judge. (People v. Tillis (1976), 40 Ill. App. 3d 66, 351 N.E.2d 332.) Additionally, conflict in testimony should be resolved by the trier of fact (People v. Smith (1980), 81 Ill. App. 3d 764, 401 N.E.2d 1017), and it is not \u201cconclusive that the defendant offered testimony inconsistent with guilt, for such testimony presented only a question of credibility 9 9 9.\u201d (People v. Richardson, at 714.) In the case at bar the court was well aware of the alleged lack of credibility of witnesses Ozga and Fetich. In rendering its decision the trial court stated that it had an opportunity to observe the demeanor of the witnesses, assess their credibility and discern any motivational factors bearing on truthfulness. Not having the same opportunity to observe the trial, a reviewing court should not substitute its judgment absent proof that is \u201cso unsatisfactory, improbable, or implausible as to justify a reasonable doubt as to defendant\u2019s guilt.\u201d People v. Tillis, at 68-69.\nDefendant maintains that the dispositive issue in his reasonable doubt argument is the credibility of Ozga and Fetich since the two occurrence witnesses, Kurkowski and Mikka, allegedly corroborate defendant\u2019s claim that the shooting was accidental. Although the credibility of Ozga and Fetich has been determined by the trial court, and we do not question that determination, we note that even absent the testimony of Ozga and Fetich, the trial court may still have found defendant guilty of murder beyond a reasonable doubt.\nMikka and Kurkowski corroborated the circumstances of the shooting, but their testimony does not compel a finding that it was accidental, since defendant\u2019s intent at the time of the shooting was in issue. Intent may be inferred based on the overall circumstances of the case (People v. Thorns (1978), 62 Ill. App. 3d 1028, 379 N.E.2d 641), and the trier of fact has a right to believe or disbelieve defendant\u2019s assertion cf his state of mind at the time of the offense (People v. Thomas (1978), 60 Ill. App. 3d 673, 377 N.E.2d 195).\nIn the case at bar neither Mikka nor Kurkowski actually saw defendant pull the trigger, and both indicated that the victim did not appear threatened, nor was she arguing with defendant immediately preceding the shooting. However, both witnesses testified that after the shot, defendant requested that Mikka not \u201ctell anyone,\u201d and both stated that defendant left the scene of the crime, albeit at the request of Mikka. \u201cEvidence of flight has long been admissible in Illinois as a circumstance which may be considered with all other evidence as tending to prove guilt.\u201d People v. Richardson (1971), 132 Ill. App. 2d 712, 714-15, 270 N.E.2d 568.\nIn addition to the above evidence, the trial court could have chosen to disbelieve defendant\u2019s assertion that he offered the shotgun as collateral for the $20 loan from Mikka. Without this explanation of defendant\u2019s possession of the firearm, the court could have unfavorably inferred defendant\u2019s purpose for having the weapon with him that day. Mikka testified that defendant borrowed the money but did not indicate that the gun was ever offered to him as collateral. The court could have resolved this seeming conflict in testimony in the State\u2019s favor. (People v. Smith (1980), 81 Ill. App. 3d 764, 401 N.E.2d 1017.) It does not appear that the evidence adduced at trial was insufficient to convict defendant of murder beyond a reasonable doubt; therefore, we will not disturb the trial court\u2019s determination.\nDefendant next contends that he was unduly prejudiced by the State\u2019s failure to disclose, as required by Supreme Court Rule 412 (Ill. Rev. Stat. 1977, ch. 110A, par. 412(a)(ii)), oral statements allegedly made by defendant to Fetich and Ozga. The State maintains that the identity of these witnesses was promptly brought to the attention of the defense, and further that defendant had sufficient opportunity to extensively interview them prior to their testimony.\nThe facts pertinent to this controversy are as follows: On Wednesday, February 15,1978, one day prior to trial, the State informed defense counsel that Fetich might be called as a witness and that she would testify regarding an alleged oral statement made by defendant. They also informed counsel that they might call John Ozga, who was at that time in the Marines stationed in San Diego, but they did not inform counsel that defendant had also allegedly made oral, inculpatory statements to Ozga. On Thursday, February 16,1978, defendant waived his right to a jury trial and the first witness was sworn; the State then moved to amend its witness list to include four additional witnesses, two of whom were Ozga and Fetich.\nSometime during the first day of trial, the State was informed by authorities that Ozga would be flown to Chicago to testify. On Friday, February 17, 1978, the assistant state\u2019s attorney interviewed Ozga. Defense counsel was also given an opportunity to talk with Ozga on the morning of February 17, 1978, before trial commenced for that day. Defense counsel then argued a motion in limine contending that since the State failed to disclose these witnesses as requested in defendant\u2019s motion for discovery, their testimony pertaining to oral statements allegedly made by defendant should be excluded. In denying the defense, motion, the court stated that \u201cthere is nothing * * * to show that the State in any way consciously, inadvertently or in any manner whatsoever suppressed certain things \u201d * * or an attempt [sic] to deceive the defendant so far as witnesses.\u201d The court then heard the testimony of Ozga and the two occurrence witnesses, Mikka and Kurkowski.\nWhen the trial resumed on Tuesday, February 21, 1978, defendant moved for a mistrial contending that the State had failed to disclose, prior to trial, inculpatory statements allegedly made by defendant to Ozga. In support of his motion, defendant argued that Ozga\u2019s testimony at trial on February 17,1978, revealed, for the first time, that two days earlier, prior to the commencement of trial, the assistant state\u2019s attorney had a telephone conversation with Ozga in which Ozga informed the assistant state\u2019s attorney of the alleged inculpatory statements made by defendant. Defendant further argued that these alleged inculpatory statements, which were known to the State prior to trial, were not disclosed to him until February 17, 1978, one day after trial had commenced and he had already waived his right to a jury trial. This motion for a mistrial was denied. We note that defendant did not move for a mistrial or request a jury trial on the morning of February 17,1978, when he interviewed Ozga and discovered the import of his testimony.\nIn a criminal prosecution the State has a duty to disclose, upon defendant\u2019s request, any oral statements made by defendant and known to the State. (People v. DeBord (1978), 61 Ill. App. 3d 239, 377 N.E.2d 1308.) These disclosure requirements, as contained in Supreme Court Rule 412, are mandatory. (People v. Boucher (1978), 62 Ill. App. 3d 436, 379 N.E.2d 339.) They were promulgated to protect an accused against unfairness, surprise and inadequate preparation as well as to allow the defense an opportunity to investigate the circumstances surrounding the statement. (Boucher.) The only excuse for failure to disclose occurs when the prosecutor is unaware of the existence of the statement prior to the trial and he could not have become aware of its existence in the exercise of due diligence. People v. Shegog (1976), 37 Ill. App. 3d 615, 346 N.E.2d 208; People v. Young (1978), 59 Ill. App. 3d 254, 375 N.E.2d 442.\nIn the case at bar, defendant argues that the State\u2019s failure to begin its investigation and preparation of this case until three weeks prior to trial evidenced a lack of \u201cdue diligence,\u201d since the State would have been aware of defendant\u2019s statements early enough for defense counsel to discover them prior to trial. In support of this contention defendant relies upon Shegog and Young, where the prosecutor\u2019s failure to become aware of statements made by defendant and in the possession of some law enforcement agency was determined to be a lack of due diligence, resulting in a new trial for the accused. However, unlike Shegog and Young, in the instant case the information was not known to the state\u2019s attorney\u2019s office nor any agency in which the State maintains a \u201cproper flow of information.\u201d (Shegog, at 617.) These cases do not appear to impose a duty upon the State to fully investigate every possible aspect of a case by a particular point in time prior to trial in an effort to apprise defendant of potential witnesses and evidence not yet in the possession of the State. The record clearly indicates that the State was not previously aware of the existence of Fetich nor of the substance of Ozga\u2019s testimony until the eve of trial. Although it does appear from the record that there may have been a day or two interval before this information was given to the defense, it is not apparent from the record that this was due to lack of diligence on the part of the State.\nEven assuming, arguendo, that the State\u2019s efforts in this matter were not sufficiently diligent, defendant had every opportunity to request additional time to investigate the circumstances and interrogate the witnesses prior to their in-court testimony. Where the trial court is aware of defendant\u2019s surprise or any potential prejudice and gives counsel every opportunity to adequately investigate the case, defendant\u2019s failure to avail himself of these opportunities negates his contention of surprise or prejudice. (People v. Dees (1977), 46 Ill. App. 3d 1010, 361 N.E.2d 1126; People v. Welch (1961), 22 Ill. 2d 558, 177 N.E.2d 160.) The decision to allow unlisted witnesses to testify when no surprise or prejudice is shown by the defense is within the sound discretion of the trial court. (People v. Jones (1973), 13 Ill. App. 3d 684, 301 N.E.2d 85; People v. Hunsaker (1974), 23 Ill. App. 3d 155, 318 N.E.2d 737; People v. Welch.) In the instant case the trial court took every opportunity to assure that defendant was not unduly prejudiced. This is especially evident in view of the trial court\u2019s statement to defense counsel:\n\u201c[P]rior to the State calling those witnesses, if you so desire, I will give you whatever ample time you may deem necessary to talk to those witnesses, if they are here and wish to talk to you or not wish to talk to you, [sic] or whatever, you may need insofar as time prior to the State calling them.\u201d\nDefense counsel nevertheless failed to request even one continuance for purposes of investigation. It appears then that even if there was a failure on the part of the State to timely disclose defendant\u2019s alleged oral statements, defendant was afforded an opportunity by the trial court to cure any prejudice occasioned by the State\u2019s omission.\nDefendant implies in his brief that he might not have waived a jury trial had he been advised by the State, prior to his waiver, of the unculpatory statements allegedly made by defendant to Ozga. This argument, in our opinion, appears specious, however, since it was not raised until defendant\u2019s motion for a mistrial on Tuesday, February 21, 1978, after Ozga and two other witnesses had testified. Since no mention was made by defendant of this issue in his motion in limine on Friday, February 17, 1978, we must conclude that defendant\u2019s failure earlier to complain negates any substantial influence such statement would have had on his decision to waive a jury trial.\nIn accordance with the foregoing, we affirm the judgment of the circuit court of Cook County.\nAffirmed.\nDOWNING and HARTMAN, JJ\u201e concur.\nWhen asked why she did not tell anyone about the occurrence, the witness stated that she \u201cfelt that they had enough witnesses.\u201d Defense counsel objected to this testimony, and the objection was sustained.\nContrary to defendant\u2019s characterization of Officer Podgomy\u2019s testimony, it should be noted that the alleged impeachment related to the testimony of Mrs. Ozga, not her son John. Mrs. Ozga testified consistently with her son concerning the events of April 4, 1977. The impeachment of Mrs. Ozga based on the police officer\u2019s written report was hearsay and in no way directly impeached the testimony of John Ozga.\nRule 412(a) (ii) provides for disclosure of \u201cany written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgment of such statements.\u201d", "type": "majority", "author": "Mr. PRESIDING JUSTICE PERLIN" } ], "attorneys": [ "Michael J. Goldstein and Price & Banks, both of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Myra J. Brown, and J\u00e9remiah W. Lynch, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER KRADENYCH, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 78-1927\nOpinion filed April 22, 1980.\nMichael J. Goldstein and Price & Banks, both of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Myra J. Brown, and J\u00e9remiah W. Lynch, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0547-01", "first_page_order": 569, "last_page_order": 578 }