dissenting:
Respectfully, I must dissent.
It is apparent to me the State breached its obligation under Supreme Court Rule 412(a) by failing to disclose, until the second day of trial, the fact that it would present evidence showing that the bloodstained gloves were in fact obtained from the defendant.
The court in People v. Young (1978), 59 Ill. App. 3d 254, 375 N.E.2d 442, reversed a conviction due to the State’s failure to comply with Supreme Court Rule 412 and disclose an incriminating statement made by the defendant. There, the court held:
“It is no excuse to say the police did not advise the State of the statement. The police department must fully participate in providing its evidence to the state’s attorney in order that discovery can be accomplished. A timely compliance is not when the trial commences or during the trial.” 59 Ill. App. 3d at 257.
Similarly, in the instant case, the knowledge of the State’s investigators is imputed to the State, such that the prosecutor’s argument that he didn’t learn about the report until shortly before trial commenced is irrelevant. Benign neglect on the part of the State will not excuse a discovery violation such as this. The information obtained by the State investigators is imputable to the prosecutors and they should not be allowed to introduce such material evidence either just prior to or during the second day of trial. Under these circumstances, the defense should have been afforded the opportunity to investigate the report and attempt to find an avenue of impeachment (if one exists) in order to present the strongest possible defense.
Furthermore, I find the defendant was sufficiently prejudiced by the evidence to warrant a new trial. A new trial should only be granted in cases like this if the discovery violation prejudiced the defendant and the trial court failed to eliminate the prejudice. (People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.) Among the factors to be considered in determining whether the defendant is entitled to a new trial are the closeness of the evidence, the strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, and the willfulness of the State in failing to disclose. Harris, 123 Ill. 2d at 152.
In the instant case, the introduction of the report and Lawler’s subsequent testimony had a dramatic impact on the outcome of the trial. The basis of the defendant’s case was the State could not prove the gloves were either the defendant’s or were ever in his possession. By introducing the statement of Lawler at trial linking the defendant to the bloodstained gloves, the State extinguished the defendant’s opportunity to investigate the background of the report, to interview the other security guards on duty on the date of the killing, and to investigate any possible flaw in the chain-of-custody employed by the State in regards to the bloodstained gloves.
The failure of the State to provide a defendant with proper discovery material until just before or during trial can easily affect and jeopardize a defendant’s trial strategy. (People v. Elston (1977), 46 Ill. App. 3d 103, 360 N.E.2d 518.) Without sufficient time for preparation, disadvantages and errors are induced which erode the guarantee of a fair trial. (People v. Millan (1977), 47 Ill. App. 3d 296, 361 N.E.2d 823.) In the instant case, the belated disclosure by the State of such material evidence — in a capital case pending for nearly a year — subjected the defendant to surprise, unfairness, and inadequate preparation. Accordingly, I would grant a new trial under these circumstances.
For these reasons, I must dissent.