People v. Sumner

• Decision Date: 30 June 1966
• Docket Number: Gen. No. 10655
• Citation: 72 Ill.App.2d 258,218 N.E.2d 236
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jessie SUMNER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 236

218 N.E.2d 236

72 Ill.App.2d 258

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jessie SUMNER, Defendant-Appellant.

Gen. No. 10655.

Appellate Court of Illinois, Fourth District.

June 30, 1966.

Rehearing Denied July 26, 1966.

F. Daniel Welsch, Danville, for appellant.

John P. O'Rourke, State's Atty., John R. Dean, Special Asst. State's Atty., Danville, for appellee.

SMITH, Justice.

Defendant was found guilty by a jury of the murder of Herschel Williams on an indictment in one count charging death by striking with an unknown blunt instrument and in another count with death by cutting the throat with a razor. Post-trial motions were denied and a sentence of 35--75 years was imposed. This appeal followed.

At first blush the circumstances in this record would seem to be fictional rather than factual. Williams' death is placed on March 31, 1963. Some fourteen months later, on June 1, 1964, his dismembered body was found in a 55-gallon oil barrel partially embedded in cement. The barrel was reclaimed on that day from the city dump of a neighboring city. There were no eyewitnesses to the tragedy. The defendant did not testify. The conviction is woven from circumstantial evidence and in the weaving, the defendant charges the trial court with reversible error. The defendant contends that the indictment is fatally defective; that the evidence does not establish guilt beyond a reasonable doubt; and that intervening errors require a new trial.

Since this appeal was taken, the Supreme Court has effectively nullified defendant's contention that the indictment failed to adequately state time and place. People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97. Without reciting the evidence in detail at this point, it is our opinion that the evidence adduced is sufficient to establish guilt beyond a reasonable doubt. We turn to the errors alleged which it is said requires a new trial.

The principle controversy centers around the refusal of the trial court to require the State to make available to the defendant for impeachment purposes statements of State witnesses made to agents of the Federal Bureau of Investigation and the refusal of the trial court to require the State's Attorney to indicate whether he had copies of such reports in his file. In so stating the issues we do not imply that this was arbitrarily or capriciously done. The record is quite to the contrary--an observation, however, that does not preclude error, if error was actually committed. For reasons not disclosed by the record, the F.B.I. was conducting an investigation of this or some other matter and in so doing interviewed numerous witnesses including the defendant and a couple of his former cell mates in the penitentiary. The conversations to which we now refer were reduced to writing, were substantially verbatim reports of such conversations and were contained in the agents' reports which, at the time of the trial, were in the Springfield office of the F.B.I. The F.B.I. agents were called and testified for the State. With perhaps a single unimportant exception, the names of all witnesses were made available to the defendant and defendant's counsel interviewed the two cell mates in the penitentiary.

It is apparent that the defense had copies of some statements. It is equally apparent that some were not made available to him. The availability for impeachment purposes of a statement made by a witness for the People or a statement made by a law enforcement officer containing a substantially verbatim account of a conversation between him and a witness for the State is no longer debatable. It has been the subject of much recent litigation and the guide lines are pretty well established. People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1; People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197; People v. Cole, 30 Ill.2d 375, 196 N.E.2d 691; People v. Wright, 30 Ill.2d 519, 198 N.E.2d 316; People v. Edmunds, 30 Ill.2d 538, 198 N.E.2d 313; People v. Jolliff, 31 Ill.2d 462, 202 N.E.2d 506. These cases establish that where such documents are shown by the evidence to exist, are in the possession of or subject to the control of the prosecutor, and there is no claim of irrelevancy, incompetence, privilege or detriment to the public interest, they must be made available to the defendant for impeachment purposes on demand. Wolff holds that if a claim is made that they contain unrelated matters, they shall first be inspected by the trial judge and the unrelated matters deleted before delivery to the defendant. Edmunds further establishes that a defendant may not be unduly restricted in cross-examination in his search for the existence of and the foundation proof required to trigger production of the documents for impeachment purposes. Failure to comply with these rules may, but does not always, result in a redoing of an otherwise properly done trial.

Undisputed evidence shows that the decedent, Williams, and the defendant were acquainted; that the decedent left his home on the afternoon of March 25, 1963, and was not seen alive again by his wife; that on March 28, defendant went to the city police and asked for protection against Williams who 'had been bothering him'; that the body in the barrel was identified as that of Williams through tattoo marks, wallet, watch and fingerprints in the cement in which the hand was embedded; that identity of Williams was admitted by the defendant in closing argument; that defendant purchased two bags of cement or sacrete on March 21 and it was ticketed to Don's Barber Shop, the trade name of his shop; that in March 1963, City Service Company sold him two purple and white 55 gallon anti-freeze barrels similar to the one found in the city dump; that defendant told the F.B.I. he had purchased two such barrels, one still being at the shop and one had been stolen; that between April 11 and May 9, 1963, defendant hired one Maddox to haul some trash to the dump; one was a brown or black barrel and one was a purple barrel; the purple barrel weighed about 200 pounds, required both Maddox and the defendant to lift it and when asked what was in it, defendant told Maddox 'cement'; that the truck mired down in the yard and a couple came with a jeep to pull them out; that the trash was unloaded at a dump near Stamford and the purple barrel rolled down into a gully which was about 10 feet deep; for reasons not shown by the record, the city police, sheriff, and the F.B.I. bulldozed this area and unearthed the barrel with Williams' body inside; that it could not be determined because of decomposition whether the throat was cut; that x-rays disclosed fractures which could have been fatal were the subject alive at the time they occurred; the examining doctor did not preclude other possible causes of death and did not categorically say the fractures did cause death. Photographs of the scene, the barrel and portions of the body were identified, admitted and viewed by the jury.

Witness Myers, a former cell mate, testified that Sumner told him in February of 1964 that he had killed Williams in his barber shop; that Williams had come to get the defendant to go on another job; that an argument ensued; that Williams threatened defendant's wife and children;...