*1 ILLINOIS, THE Plaintiff-Appellee, PEOPLE OF THE STATEOF HANKS, JEFFERY Defendant-Appellant.
Fifth District No. 5—88—0090 13, 1991.
Opinion filed March *2 GOLDENHERSH, J., concurring part dissenting part. and Wells, Larry Daniel Kirwan De- Appellate M. and R. both of State Office, Vernon, appellant. of Mt. for fender's E. Roth, (Kenneth Boyle, Stephen Attorney, Rob of Albion R. Norris, Franklin, Prose- Attorneys Appellate Matthew all of State’s and E. Office, counsel), People. cutor’s for the opinion
PRESIDING JUSTICE RARICK delivered court; Ed-
Defendant, Hanks, circuit court of charged was Jeffery that a witness Believing wards with theft over County $300. trial, pre- made a testify State unavailable to at defendant living Georgia, who was request depose Gary Thompson, found After a trial Hanks was jury, this was denied. but three years’ imprisonment. and sentenced to and Sa- trial, operated that she owned At Nadine Wolfe testified March she morning On Construction Company. bre numer- burglarized had been company that the office discovered $1,000 savings stolen, United States including items had been ous bonds. brother-in-law, a sen- serving was Hanks’ who
Gary Thompson, trial, the time of testified Atlanta penitentiary tence his Banks at Hanks and John first of he saw April, around the bonds savings Thompson group in Florida. showed They house ar- who had been them from someone told him had obtained they sell, agree- to Thompson burglary. They gave rested for bonds Thompson called Banks When ing split proceeds. bonds, them told he inquire Thompson sometime later about he them. had been sell them so had burned unable that he Menninger, Paul inter- agent, Secret Service testified Banks, bonds, viewed Hanks and admitted they and that had bonds they Thompson. bag by
John he bonds in a the front Banks testified that found the He look to what in the gate bag, his trailer. did not see was but Later, Florida, simply Thompson tossed it into his car. while in discov- he suggested selling replied ered the bonds and them. Banks them, Thompson allegedly wanted to do with nothing replied, “You’re I need right. to burn them.” After Illinois and returning learning of the Banks called the bonds burglary, Thompson get back, Thompson but told him that he had them. burned Banks’ testimony
Hanks’ corroborated testimony. trial, During break told defense counsel that Thompson he had to sell the attempted bonds to Federal they his audiotaped conversation with them. Defense requested counsel that these be made tapes might available as contain they information with which he could impeach Thompson, responded but was prosecution for responsible providing tapes these because prosecution had not existence, been told of their defend- *3 ant failed to how the show would to tapes be beneficial him.
The began deliberations at jury 11 a.m. and contin- approximately throughout ued At day. p.m. gave a Prim in- jury struction. Prim (People 289 N.E.2d The foreman responded jury issue, was deadlocked on one would like to go home, start the next The over court day. replied:
“Why you go room, don’t back in the jury your sand- have wiches, refresh bit, a yourselves try a little deliberate further, and if you you’re feel unable to reach decision yet then tonight, door, let me know with a note or within a reasonable time I’ll getting you be back with and ask where at that you’re standing point.” At 10 p.m., the court if a inquired possible, verdict was and the fore- man they stated that were going back over facts and there was a “slight possibility” of a that night. verdict The court then stated:
“Well, I should advise If we perhaps you something. break evening, there a rule in criminal such as this case, that the I jury kept, say, during has be as sequestered, which night, means that we probably would have to house hotel. you still room at Hopefully, they would have Wind- Oaks, sor in Grayville. We would have to transport you there deliberations, if tomorrow to bring you your back resume So, reaching wanted to break a verdict. with that you before like to understanding, you yet tonight, would continue work or do think that worked as much as can work you you’ve you go morning?” and want to to a hotel and come back in the deliberate, The foreman would continue to responded jury if court told the foreman that he felt the could still reach jury it continue A night, verdict could to deliberate. verdict was returned 45 minutes later. that he was denied a fair trial as a appeal,
On the tape result of the trial court’s refusal to order the disclosure of The trial Thompson’s conversations with the Secret Service court ruled that Court prosecutor complied Supreme 412(a)(i) (g) using diligence attempting Rules due obtain these statements the release of inves- by requesting also ruled that the materials in the hands tigating officers. been to the re- provided pursuant Secret Service should have made and that the defendant had failed to quests prosecutor advantageous show the statements be to the defense. why would the State has a 412(f), duty Under Court Supreme information “ensure that a is maintained between the various flow of its office sufficient within its investigative personnel place pos or control information relevant session all material and to the accused 412(f).) and the offense Ill. 2d R. The rule does not charged.” (134 it persons what covers or what specify “investigative personnel” material and information must im possession whose and control of to the State. puted Thompkins law enforcement officials supreme court held that Alabama of the State and control of informa whose sup
tion to the office. The court found imputed prosecutor’s could be the trial 412(g), provides for this conclusion in Rule which port court shall mandate that discoverable material be made available diligent or court order where the State’s by subpoena defense efforts to such information had been unsuccessful good-faith subject governmental personnel and “such material or other law enforcement offi of the court.” Because Alabama *4 courts, Illinois the court cials were not to the of subject the reasoned, had no under Rule to obligation the State material in question. Thompkins, not with law enforcement offi- dealing
Unlike we are subject jurisdic- are to the clearly cials in a sister who jurisdiction, courts, of tion Illinois but Federal nation- agency operates with a wide. Defendant cites several cases which he contends hold State for of 412. In agencies Federal are an arm of the purposes App. Sumner wit- Investigation prosecution Federal Bureau of interviewed two defendant, State’s Despite Attorney nesses. a by copies reports refused disclose whether he had and no effort was made to them from the Bureau. The was remanded obtain cause to the trial court directions to conduct an into the exist- ence, availability, proper producibility, relevancy statements in question. The court did not address the of Rule 412 applicability agencies. App. Federal v. Rose N.E.2d the trial court State to require refused disclose the defendant statements to the FBI two wit- accomplice nesses. On court appeal, remanded cause instructed to conduct a hearing to determine whether the statements in in existence and subject production. Again, court did not specifically determine whether Rule 412 applied to Further, FBI. in contrast to these the State’s in present case made an pos- effort obtain the material in the of session the Secret local Mt. agent Service. He contacted the in Vernon and requested “copies any and all re- reports you have matter,” this garding as well a list of as all witnesses and agent When the respond, failed Attorney contacted agent’s superior he Springfield. While did not ask for specifically there is no he “tapes,” indication that knew of the tape’s existence. He also subpoena issued a for duces tecum “all and original bonds.” This could less hardly diligence. be considered than due Federal both Florida and Geor gia subject subpoena power Illinois courts virtue of the Act Uniform to Secure the Attendance Witnesses from Within or a State in Proceedings (the Act) (Ill. Without Criminal Rev. Stat. ch. 156—1 et par. seq.). provides Section 3 of the Act that if a State person adopted another which has the Act is a material State, witness in a a prosecution court in this pending judge such court may stating issue certificate the seal days number of the witness will specifying required. presented This certificate is then to a court of judge record county where the witness is found. Act has been adopted by every State in the State argument, the union. Under Hanks’ to Rule for pursuant 412(f) a flow of responsible maintaining informa prosecutor’s tion between the office and all Federal investigative *5 822 legis- nationwide. find it difficult to believe such was the
agencies We Act, authority lature’s intent the and Hanks cites no oth- adopting law erwise. Under such the Alabama enforcement offi- interpretation, Thompkins agents cials in have been of the State. We hold that would Act does to the State’s under operate obligations the extend 412. Rule rationale in we are supreme Thompkins,
Given court’s that had no the State 412 to the persuaded duty Thompson’s of conversations the Secret tape Service (the the possession Georgia was in either Florida or tape the this), beyond record is not clear on Illinois in the of Fed applies courts. Whether Rule 412 to material agencies eral within Illinois is not us and therefore we need before not address that issue. that the verdict the result of jury’s also was brought long on the of deliberation and the trial
fatigue hours indication to the that it would be jury sequestered court’s length jury if a verdict could not be reached. The of time is night (Peo is left to trial court. deliberate the discretion permitted 116, 170.) 41 Ill. 2d 242 N.E.2d delibera ple Daily (1968), Lengthy v. tions, coerced, from was indicate that indicating far the jury Mun all the evidence. v. (People careful consideration was 3d (1975), 880, 574.) Regarding 33 Ill. 338 N.E.2d guia App. merely reference it in sequestration, court’s has been held it is not se coercive. forming jury might sequestered per 913, 924, ap v. 115 Ill. 3d 450 N.E.2d (People Baggett (1983), App. 542.) 2d brief after (1983), Extremely denied 96 Ill. deliberations peal however, an lead to inference sequestration, a reference rendering coerced the into a verdict. sequestration jury reference to 245, 868.) In 123 Ill. 3d 462 N.E.2d (People (1984), App. v. Branch coercive, the to sequestration whether a reference to determining whether must be considered determine of the circumstances tality or jury’s interfered with deliberations language actually used v. Thomas (People the defendant. prejudice coerced a verdict to 1050, a careful 100.) 3d 542 Based upon N.E.2d (1989), App. foreman, the ac and the dialog between review to con find that instruction language employed, the court we tual neutral reference was sequestration simple, tinue deliberations and 163 Ill. 3d Campbell (1987), App. (People and not coercive. 1364; 195 Ill. 3d People (1990), App. N.E.2d Ferro cf. Likewise, jury time the deliberated after length N.E.2d reference did demonstrates sequestration the reference Thomas, guilty returned a ver- jury not influence the verdict. In The court dict reference to sequestration. 35 minutes after court’s to reevaluate jury held that 35 minutes was a sufficient time for comments. The being its views without influenced court’s v. Friedman defendant relies on 144 Ill. App. v. Branch 494 N.E.2d App. Branch, In distinguishable. of which are readily both the one out, ju- of his fellow singled presence jurors, Prim in- incomplete ror who not vote and then an guilty gave would Fried- later. In struction. A verdict was returned 10 minutes man, indicated verdict was returned minutes after the court five that the the reference to se- jury sequestered. both *6 questration jurors influenced verdict. We believe present case had sufficient time to reevaluate their views and were influenced court’s reference to sequestration. foregoing reasons,
For the of the circuit court of judgment Edwards is County affirmed.
Affirmed.
HARRISON, J., concurs. GOLDENHERSH,
JUSTICE in concurring part dissenting in part:
I agree
colleagues
with
the trial court
my
in this instance
properly
handled the
of the jury deliberation and its resul-
tant
I
agree
verdict.
also
the majority’s
with
determination
on the
questions
it,
or lack of
and the trial court’s conclusion
discovery,
that the prosecutor
with
Court Rule 412
us-
complied
Supreme
due
ing
diligence
attempting
in
to obtain these statements.
The
actions of the State’s
in
to obtain this
Attorney
attempting
discovery,
in
my opinion,
fully
spirit
with the letter and the
compliance
412,
of Rule
commendable and should be used as an example
to other
placed
agree
I also
with the ma-
similarly
Attorneys.
Thompkins (1988),
in its
jority
construction of
121 Ill. 2d
401,
This leaves us with a which is basic to our sys- tem of Given the State’s justice. attempt comply applica- with rules and the refusal discovery government’s cooperate ble Federal duties, with our State’s authorities their has discharging discovery right, right defendant been of a fundamental to a deprived basic us, fair trial? On basis of the record before this court not able to say.
An
analogous
situation occurred
v. Sumner
noted the cru-
App. 2d
“Every
judge
re-
impeaching purposes
value for
of statements
witness
memory.
time dulls treacherous
Flat
cording
events before
contradiction between the witness’
and the version
testimony
the events
in his
is not the
test
inconsis-
reports
only
from
facts related at the
The omission
tency.
facts,
trial, or
contrast in
the same
even a dif-
emphasis upon
treatment, are also
to the cross-exam-
ferent order of
relevant
of witness’ trial testi-
ining
testing
credibility
process
rules is The trial court exemplary. in all other handled respects tempted compliance discovery stop this case in a commendable manner. We should not *7 short, however, the vital whether a Fed- and must consider for discoverable materials eral indifference a valid agency’s right, being denied a basic fundamental has resulted this defendant right constitutional should his to a fair trial. Such a basic right agency over which governmental held to the indifference of hostage fundamental a cavalier attitude toward this State has no control. Such and we should not agency, rights unbecoming any governmental to deal with its refusing indifference by the effects compound consequences. trial court with spe- remand this cause to the
I would therefore effect, if any, an as to cific directions to conduct requests in the reasonable cooperate this Federal agency refusal of material on forward this discoverable to a fair trial. right defendant’s