People v. Jones

• Decision Date: 03 November 1975
• Docket Number: No. 60256,60256
• Citation: 33 Ill.App.3d 1025,339 N.E.2d 519
• Parties: PEOPLE of the State of Illinois, Respondent-Appellee, v. Charles JONES, Petitioner-Appellant.
• Court: United States Appellate Court of Illinois

Page 519

339 N.E.2d 519

33 Ill.App.3d 1025

PEOPLE of the State of Illinois, Respondent-Appellee, v. Charles JONES, Petitioner-Appellant.

No. 60256.

Appellate Court of Illinois, First District, First Division.

Nov. 3, 1975.

Paul Bradley, First Deputy State Appellate Defender, Chicago (Martin Carlson, Asst. State Appellate Defender, of counsel), for petitioner-appellant.

Bernard Carey, State's Atty., of Cook County, Chicago (Patrick T. Driscoll, Jr., and Frank J. Parkerson, Asst. State's Attys., of counsel), for respondent-appellee.

EGAN, Justice.

The petitioner, Charles Jones, was found guilty of the murder of George Johnson after a bench trial and sentenced to a term 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.

At the outset, we must reject the State's assertion that the argument now advanced is waived since it was not raised by direct appeal. The 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.

Before trial, the defendant filed a motion requesting a list of witnesses and copies of any written or oral statements made by the State's witnesses. In response, the State submitted a list of witnesses which included the name and address of Johnny Dean. Dean's name also appeared on the back of the indictment.

At 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 the other. The man shot was facing Martin, who did not see anything in the man's hands. The man who fired the shot drove off in an automobile.

Robert 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's 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's automobile, he saw his brother and the defendant arguing. Then he heard a shot and saw his brother fall to the ground.

The 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's. As the defendant walked to his car, George Johnson struck him and started to pull out a gun, so the defendant shot him.

Thomas 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. Dean attempted to get a gun to shoot him. As Houston ran, the three men chased him, and Robert Johnson was firing shots at him.

Robert 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's car. As he approached, he heard what sounded like "Let's fight' or something.' He also testified that 'they (the defendant and the deceased) were going to hit each other and there was a shot.'

To 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 Johnson's 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 'robbed' 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's 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: 'One 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.' Later he testified: 'I don't know who got the first lick. They started fighting. I got there and grabbed Steve, and Charles Jones shot George.'

The affidavit of the defendant's trial attorney is, in part, as follows:

'2. The Assistant State's Attorney complied with an oral and written answer to my Motion for Discovery on July 12, 1968.

'3. The answer did not include notice of a favorable statement made at the Cook County Grand Jury on June 7, 1968, by Johnny Dean, who was listed as a State's witness.

'4. During the course of the trial, at no time did I receive notice of this statement made by an occurrence witness.

'5. 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.'

The defendant contends that the State's failure to apprise him of Dean's grand jury testimony denied him due process, relying principally on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. 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 'the 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.' (373 U.S. at 87, 83 S.Ct. at 1196.) In Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706, the United States Supreme Court construed Brady thus (408 U.S. at 794, 92 S.Ct. at 2568):

'The heart of the holding in Brady is the prosecution's 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's favorable character for the defense and (c) the materiality of the evidence. These are the standards by which the prosecution's conduct in Moore's case is to be measured.' (Emphasis added.)

The State concedes that Dean's testimony that there was a fight, although he did not know who struck the first blow, would have corroborated the defendant's testimony that there was a fight. The State's witnesses had testified that the defendant and the deceased looked like they were going to fight.

At 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 'statements' 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 'statements' included grand jury testimony. We note that the present discovery rules make an express distinction between 'statements' 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.

But our conclusion of Brady's factual inapplicability is not dispositive of the question. What this case boils down to is the question of whether the State has 'suppressed' 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, 79 S.Ct. 1173, 3 L.Ed.2d 1217, 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, 92 S.Ct. 763, 31 L.Ed.2d 104, 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 the 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...