dissenting:
Defendant claims on appeal that his conviction for rape should be reversed because the prosecution did not disclose the victim’s prior criminal record. In pretrial proceedings, counsel orally agreed to disclosure in accordance with the rules of discovery. The victim’s convictions in a different county for forgery were not known to the Tazewell County State’s Attorney and, hence, not disclosed by him. It is the failure to uncover and disclose this information which underlies the majority’s decision to reverse the defendant’s conviction.
The majority relies in principal part on the holding in People v. Stokes (1984), 121 Ill. App. 3d 72. The Stokes court interprets the duty to disclose criminal records of witnesses as follows:
“Supreme Court Rule 412 (87 Ill. 2d R. 412) creates an affirmative continuing duty on the State to disclose the criminal records of its witnesses to the accused. [Citations.] Noncompliance with that obligation is excused only where the prosecution did not know, and could not, through the exercise of due diligence have become aware of the matter in question. [Citation.]” 121 Ill. App. 3d 72, 75.
This is an overstatement of the State’s duty to disclose. Rule 412(a) provides, in relevant part:
“*** the State shall *** disclose to defense counsel the following material and information within its possession or control:
* * *
(vi) any record of prior criminal convictions *** of persons whom the State intends to call as witnesses at the hearing or trial.” 87 Ill. 2d R. 412(a).
Clearly, without more, Rule 412(a)(vi) was not violated by the prosecutor here. All that this rule provides is for a turnover of material within the prosecutor's file.
The due diligence aspect of Stokes must have its foundation in Rule 412(g), which provides:
“(g) Upon defense counsel’s request and designation of material or information which would be discoverable if in the possession or control of the State, and which is in the possession or control of other governmental personnel, the State shall use diligent good faith efforts to cause such material to be made available to defense counsel; and if the State’s efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court, then court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel.” (87 Ill. 2d R. 412(g).)
The import of this rule is clear. If there is some material or information which neither the defense nor the prosecution has within its possession or control and which the defense desires, counsel may specifically request such information or material and cause the prosecution to use diligent good-faith efforts to produce same.
The committee comments to Rule 412(g) support such a construction. To wit:
“*** Since the State’s obligations are not limited to revealing only what happens to come within its possession or control, it is expected that the State will attempt to obtain material not within its possession but of which it has knowledge. Accordingly, this paragraph is primarily concerned with material of which the State does not have knowledge but on which defense counsel is aware; and therefore the burden is upon defense counsel to make the request and to designate the material or information which he wishes to inspect. This paragraph avoids placing the burden on the prosecutor, in the first instance, of canvassing all government agencies which might conceivably possess information relevant to the defendant ***.” 87 Ill. 2d R. 412, Committee Comments, at 433.
While the instant situation is not on all fours with the situation envisioned in the comments, as defense counsel was not aware of the victim’s criminal record, it is nonetheless apparent that the prosecutor’s duty to seek out information beyond his possession and control was not triggered. Here, the essence of the agreement between counsel was to turn over everything in the prosecutor’s file which would be discoverable under the rules. The searching of Tazewell County criminal records was in accordance with the agreement, as those records are necessarily within the Tazewell County State’s Attorney’s possession and control. However, under Rule 412(g), it was defense counsel’s duty to make a specific request for discoverable information not already within the prosecutor’s possession or control. It is clear that no such request was made.
Furthermore, as a matter of practicality, no duty to obtain material from foreign sources should arise as a matter of course. The rules of discovery were not intended to cast the prosecutor in the role of investigator for the defendant. If the prosecutor knows or should know that a witness has a criminal background, he is obligated to disclose it. If he does not know of such a record, his only obligation is to respond to specific requests from defense counsel to use his position to obtain such information. The request made here, if it can be called that, hardly rises to the level of a request as contemplated by the first sentence of Rule 412(g).
Accordingly, I dissent.