dissenting:
Because I cannot agree that the discovery obligation of Supreme Court Rule 412(c) (Ill. Rev. Stat. 1975, ch. 110A, par. 412(c)) has been violated in the instant cause, I must respectfully dissent.
Rule 412(c) requires the State to disclose to defendant “any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged” ” I cannot agree that Dr. Rudzitis’ findings were necessarily favorable to the defendant nor material to his guilt. As the majority correctly points out, an inconclusive finding would apply to specimens from one who never fired a weapon as well as to one who had fired a gun but had somehow removed the increased amounts of barium and antimony from his hands. Nevertheless, I do not believe that an inconclusive test result can be so equated with innocence as to term it exculpatory. A more substantial showing that the State withheld evidence favorable to the defendant is required, in my opinion, to justify reversal on this ground.
Furthermore, defendant admitted he had the gun in his hand. Defendant was not convicted of murder, but involuntary manslaughter. The mental state in involuntary manslaughter is a reckless act, not an intentional or knowing act.
More importantly, the test results were made available to the defendant at the time of his request when his defense was being planned and prepared. Although the copy of Dr. Rudzitis’ report which was supplied by the State was illegible, it was never withheld and a more legible copy was not sought by the defendant until after trial had commenced. I am not persuaded that the State should suffer from defendant’s failure to complain of any error at an earlier stage. It would appear that counsel did not attempt to read the report until trial had commenced as he was then able to determine its significance. This is not a question of the good faith or bad faith of the State; rather, the focus should be on the State’s compliance with the request and the untimeliness of the defendant’s demand for a more legible copy.
I would affirm the judgment of conviction of the trial court.