specially concurring:
While I agree with the result reached by the majority of the court and with most of the reasoning, there are aspects of the opinion which cause me concern. This area of concern relates to the motion for additional discovery made during trial when defense counsel learned for the first time the two occurrence witnesses for the prosecution had been shown mug shots or photographs by police officers before later making an identification of the defendant at a lineup.
The first observation of the majority with which I disagree is the assertion that Officer Hoffman’s knowledge or that of any other police officer and their participation in the photographic exhibition cannot be considered knowledge of the prosecution because there was nothing in the file of the State’s Attorney regarding the event and apparently, according to the majority, the prosecutor’s office is not charged -with knowledge and information possessed by the investigative staff of police officers. This is not the rule contemplated by Supreme Court Rule 412(f) (73 Ill. 2d R. 412(f)), and indeed if the purposes and goals of pretrial discovery could be so easily defeated by merely having investigating officers fail to communicate information or reports to the State’s Attorney’s office, discovery procedures would be of little benefit. (See People v. Shegog (1976), 37 Ill. App. 3d 615, 346 N.E.2d 208.) However, in the case at bar, although it appears the occurrence witnesses made two trips to the police station and the viewing of photographs took place on the first visit, there is no evidence that any report was made of this visit, there was therefore no possibility of furnishing any additional discovery at the time it was requested. However, the exhibition of photographs is a subject which should have been encompassed in a report as is demonstrated by the police report incident to the second visit which declares that no photographs were exhibited because the defendant was already in custody. The testimony of the two occurrence witnesses concerning the viewing of photographs is unequivocal, and the police officer’s failure to make an appropriate memorandum of the viewing ought not be approved.
I think the reports and statements of the witnesses would have been discoverable under Supreme Court Rule 412(a)(i) (73 Ill. 2d R. 412(a)(1)) -without any specific reference to a lineup or a showup contrary to the assertion in the majority opinion, but I am inclined to agree that no reversible error occurred because the record fails to disclose that there were items discoverable under Supreme Court Rule 412(a)(i) which were in fact in existence and not provided to defendant.
Defendant in his brief asserts that he was entitled to the additional discovery not under Supreme Court Rule 412(a)(i) but under Supreme Court Rule 412(c). This rule is somewhat like the rule in Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, declaring that suppression by the prosecution of evidence favorable to the defendant fails to accord the defendant his constitutional due process. People v. Jones (1977), 66 Ill. 2d 152, 361 N.E.2d 1104, the principal case cited by the majority, relying on United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392, considers the failure to disclose exculpatory evidence in terms of constitutional due process requirements and announces the test which is described in the majority opinion. Several caveats are in order before the test can or should be accepted and applied in the broad terms suggested. First, in Agurs the court is not concerned with pretrial discovery procedures established by rule or statute and in fact disclaims any intent that its test be applied to those cases where the prosecution has failed or refused to comply with specific discovery rules. Second, where exculpatory material is specifically described and its production is refused Agurs would require a different rule than one in which in effect no request for discovery is made or it is made in such general terms that it is the equivalent of no request. Third, the test finally envisions a showing of a lesser effect on the fact-finding process than that required for relief based on newly discovered evidence, even though the language of the test may be regarded as somewhat ambiguous in this respect. And fourth, the statement in Jones which the defendant claimed should have been produced was not even exculpatory.
I have made the foregoing observations because I believe the broad generalizations either in this opinion or in those relied upon may be confusing when considered apart from the factual context in which they are made. I would affirm the defendant’s conviction based on the observation that under the facts of this case the record reveals no evidence which could be subject to the defendant’s motion for additional discovery at the time it was made.