People v. Russell

                                      2023 IL App (1st) 200322-U
                                              No. 1-20-0322
                                      Order filed February 1, 2023
                                                                                         Third Division


 NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
 limited circumstances allowed under Rule 23(e)(1).
 ______________________________________________________________________________
                                                 IN THE
                                  APPELLATE COURT OF ILLINOIS
                                            FIRST DISTRICT
 ______________________________________________________________________________
 THE PEOPLE OF THE STATE OF ILLINOIS,                             )   Appeal from the
                                                                  )   Circuit Court of
           Plaintiff-Appellee,                                    )   Cook County
                                                                  )
     v.                                                           )   No. 18 CR 17663
                                                                  )
 DARYL RUSSELL,                                                   )   Honorable
                                                                  )   Pamela M. Leeming,
           Defendant-Appellant.                                   )   Judge presiding.



           JUSTICE BURKE delivered the judgment of the court.
           Presiding Justice McBride and Justice Reyes concurred in the judgment.

                                               ORDER

¶1        Held: We affirm defendant’s conviction for aggravated robbery where the State did not
                commit a discovery violation when it failed to disclose to the defense that, during
                trial preparation, the victim told an assistant State’s Attorney that she spontaneously
                identified defendant to the responding police officers. We also find that defense
                counsel did not provide ineffective assistance by failing to object at trial to the
                victim’s testimony that she spontaneously identified defendant.

¶2        Following a bench trial, the trial court found defendant Daryl Russell guilty of aggravated

robbery and sentenced him to six years’ imprisonment. On appeal, defendant contends that he is
No. 1-20-0322

entitled to a new trial where the State failed to disclose that, during trial preparation, the victim

told an assistant State’s Attorney that she spontaneously identified defendant to the responding

police officers. Defendant argues that the State’s failure to disclose this detail constituted a

discovery violation that prejudiced the defense. For the reasons that follow, we affirm defendant’s

conviction.

¶3                                      I. BACKGROUND

¶4     In December 2018, a grand jury indicted defendant with two counts of armed robbery

(Counts 1 and 2) and one count of aggravated robbery (Count 3). Count 3 is the only count relevant

to this appeal, and that count alleged that defendant committed an aggravated robbery by

knowingly taking money from the person or presence of Carolyn Steele by the use of force or by

threatening the imminent use of force while indicating that he was armed with a firearm. Later that

month, defendant, through his public defender, filed a motion for discovery. Among the

information and materials defendant sought to discover were:

       “[a] list of witnesses, or persons whom the prosecution may or may not call as

       witnesses, and their addresses and phone numbers, including production of the

       following:

                (a) Any written or recorded statements by these witnesses, including those

                written or recorded statements of police officers in any State however

                recorded.

                (b) Any memoranda reporting or summarizing oral statements by such

                witnesses.

                                                   ***



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                (o) Field notes, or other contemporaneous recordings of any State’s witness,

                taken by any and all law enforcement officials and the prosecutor’s office

                of any state, whether or not superseded by subsequent summaries,

                compilations, or narratives.”

Defendant also requested “the names and addresses of the witnesses [the State] intends to call at

the time of trial for identification of the defendant as the perpetrator of the crime including ***

[the] [t]ime, date and place of identification.” Finally, defendant made a catch-all request of “[a]ny

and all evidence whether or not specifically requested or described which may be, or could

foreseeably become exculpatory, mitigating, or otherwise material to guilt or innocence, or

favorable to the defense.”

¶5     In the State’s initial answer to discovery, the State asserted that it “may call as witnesses

any person named in the police reports, transcripts, medical reports, and other documents attached

to and incorporated as part of this answer.” Additionally, the State noted that “[s]tatements of

persons [the] State may call as witnesses *** and identification procedure are in above said

documents.” However, those documents were not included in the record on appeal. Throughout

the next several months, the State continued to tender various discovery to defendant, including a

supplemental disclosure summarizing a conversation between an assistant State’s Attorney and the

two Forest Park police officers who had responded to the 911 call about the robbery in the instant

case. That summary stated that, upon arrival at the scene, the two officers observed defendant

engaged in a verbal altercation with an unknown individual. After separating the individuals, one

of the officers noticed that defendant matched the description of the offender involved in the

robbery. The officers placed defendant under arrest, and after two positive identifications of him

by witnesses, other officers transported him to the police station.


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No. 1-20-0322

¶6     Ultimately, in January 2020, defendant’s case proceeded to trial. On the date of his trial,

the State nol-prossed both armed robbery counts (Counts 1 and 2), resulting in the State proceeding

only on the aggravated robbery charge (Count 3), a Class 1 felony. Additionally, before trial, the

State noted that it had offered defendant a plea deal of four years’ imprisonment on a reduced

charge of theft from person, a Class 3 felony, which would be served at 50%. However, according

to the State, defendant declined the plea offer. On the State’s request, the trial court admonished

defendant pursuant to People v. Curry, 178 Ill. 2d 509 (1997), regarding the plea offer that it had

extended to him. Defendant confirmed that it was his intention to reject the plea offer and proceed

to a trial. Thereafter, defendant waived his right to a jury trial and elected to have a bench trial.

¶7     In the State’s opening statement, it asserted that its two witnesses would testify to defendant

going person-to-person on a Chicago Transit Authority Blue Line train demanding money while

indicating that he was armed with a firearm. Further, the State posited that one of its witnesses,

Steele, would testify that she succumbed to defendant’s threats and gave him money. The State

asserted that its evidence would prove defendant committed the offense of aggravated robbery. In

the defense’s opening statement, defense counsel contended this was a case of misidentification

and the witnesses’ identification of defendant were made under stressful circumstances, including

only a brief period of time to observe the offender. Additionally, defense counsel remarked that

the police “performed a suggestive show-up identification” that led to defendant’s arrest. All told,

defense counsel stated that, because the State’s identification evidence was weak, the trial court

should find defendant not guilty.

¶8     The evidence at trial showed that, in the evening of November 23, 2018, Steele was riding

the Chicago Transit Authority’s Blue Line from O’Hare International Airport. While sitting on the

train car, she heard a commotion behind her and turned around to see what was happening. Steele


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No. 1-20-0322

observed a man demanding money from another man. The train car was lit brightly, and she had

an unobstructed view of the altercation. At trial, she identified the man demanding money as

defendant. The other man told defendant he did not have any money, which resulted in defendant

approaching Steele, yelling in her face and demanding money. Defendant was so close to Steele

that his spit landed on her face. While demanding money from Steele, defendant had his hand

inside his jacket pocket and told her “[w]hat if I have a gun?” After his demand, Steele gave

defendant all the cash she had in her wallet at the time, which she believed was around $5 or $10.

¶9     Garrett Jones was also on that train car and observed Steele as well as a man being loud,

aggressive and “accosting” passengers for money. When Jones first observed the man, he was

about 10 to 15 feet away. According to Jones, the train car was well lit, and he had an unobstructed

view of the man. At trial, he identified the man demanding money as defendant. Jones observed

defendant demand money from someone on the train while saying “[w]hat do you have? Don’t

make me pull it out.” At trial, Jones admitted that he did not know exactly what defendant was

referring to when he made this remark. Jones further observed defendant accost another passenger.

Defendant eventually passed Jones on the train, but merely looked at Jones and did not demand

any money.

¶ 10   Both Steele and Jones observed defendant continue to demand money from other

passengers before exiting the train car by boarding a connected train car. As defendant was leaving

her train car, Steele called the police. At the subsequent Harlem Blue Line stop, Jones exited the

train, left the train station and began waiting for a bus. While waiting, an Oak Park police officer

arrived and asked Jones if he witnessed what happened on the train. After answering affirmatively,

Jones went with the police officer.




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No. 1-20-0322

¶ 11   Meanwhile, Steele stayed on the train past the Harlem stop and then exited the train at the

Forest Park train station. While Steele waited in the concourse area for the police, she again

observed defendant, who began to “badger[ ]” a Chicago Transit Authority employee. Soon after,

two Forest Park police officers arrived at the train station. Steele “pointed at” defendant, and the

officers arrested him. Later, while still at the train station, Steele spoke to an Oak Park police

officer and identified defendant as the individual who took her money. Around this time, Jones

arrived at the Forest Park Blue Line station with the police officer. Jones also identified defendant

as the man demanding money on the train. At trial, Jones testified that he had “[n]o doubt” the

police had arrested the same man he had seen on the train accosting passengers.

¶ 12   After the State rested its case, the defense decided not to present any of its own evidence.

Following the parties’ closing arguments, the trial court found that both Steele and Jones testified

credibly and both had a sufficient opportunity to observe defendant on the day in question. The

court highlighted that, when the Forest Park police officers arrived at the train station, Steele

spontaneously pointed them to defendant, which “was independent of any prompting by the

police.” As a result, the court found defendant guilty of aggravated robbery.

¶ 13   Thereafter, defendant filed a motion for a new trial based, in relevant part, on the State’s

failure to disclose that Steele spontaneously identified defendant as the robbery offender to the

responding Forest Park police officers in violation of Illinois Supreme Court Rule 412 (eff. Mar.

1, 2001). Defendant highlighted the State’s supplemental answer to discovery, wherein the State

summarized a conversation between an assistant State’s Attorney and the two Forest Park police

officers who had responded to the 911 call about the robbery. Defendant, however, posited that

the summary did not include any statement that Steele spontaneously identified defendant as the

offender to the responding officers. Defendant asserted that he was prejudiced by the State’s failure


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No. 1-20-0322

to disclose because he was not fully apprised of material aspects of the State’s evidence against

him prior to rejecting the plea offer, deciding to go to trial and waiving his right to a jury trial.

Additionally, defendant posited that had the defense known of this statement, his defense counsel

would not have stated during opening statements that the show-up identification was suggestive.

¶ 14   In response, during oral argument on the motion, an assistant State’s Attorney

acknowledged that Steele made “that statement to me in prep.” Despite this acknowledgment, the

State argued that it did not violate Rule 412 because the statement by Steele was never

memorialized. Regardless, the State posited that, because it had produced Steele’s name and

contact information to the defense, it could have interviewed her and obtained her account of

spontaneously identifying defendant to the responding officers. Moreover, the State observed that

defense counsel had the opportunity to cross-examine Steele about her spontaneous identification.

Given this, assuming arguendo that the State had committed a discovery violation, it argued that

defendant was not prejudiced.

¶ 15   In ruling on defendant’s motion, the trial court concluded that the State was not required

to disclose to the defense Steele’s statement in trial preparation that she spontaneously identified

defendant because that oral statement had not been memorialized. However, because the court

acknowledged relying, in part, on Steele’s spontaneous identification of defendant in finding him

guilty, the court asserted that there was still sufficient evidence to convict him beyond Steele’s

spontaneous identification. Consequently, the court denied defendant’s motion for a new trial.

After denying his motion, the court sentenced defendant to six years’ imprisonment.

¶ 16   This appeal followed.

¶ 17                                      II. ANALYSIS




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No. 1-20-0322

¶ 18   Defendant contends that he is entitled to a new trial where the State’s failure to disclose

Steele’s spontaneous identification of him, of which the State was aware in advance of trial,

constituted a discovery violation that prejudiced him. Defendant posits that the disclosure was

mandated by Illinois Supreme Court Rule 412 (eff. Mar. 1, 2001) as well as by the defense’s

pretrial discovery request.

¶ 19   As an initial matter, the State posits that defendant forfeited review of his claim of error by

failing to object during trial to Steele’s testimony that she spontaneously identified defendant to

the responding police officers. “To preserve a purported error for appellate review, a defendant

must object to the error at trial and raise the error in a posttrial motion.” People v. Williams, 2022

IL 126918, ¶ 48. In his reply brief, defendant concedes that he did not object to Steele’s testimony

at trial but argues that we may review the alleged error under the plain-error doctrine. Illinois

Supreme Court Rule 615(a) provides that “[p]lain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a)

(eff. Jan. 1, 1967). Although defendant first raised plain-error review in his reply brief, that is

sufficient to allow us to review the issue under the plain-error doctrine. People v. Ramsey, 239 Ill.

2d 342, 412 (2010).

¶ 20   The plain-error doctrine applies when a clear or obvious error has occurred, and either (1)

the evidence was so closely balanced that the error alone threatened to tip the scales of justice

against the defendant or (2) the error was so serious that it affected the fairness of the defendant’s

trial and challenged the integrity of the judicial process. People v. Clark, 2016 IL 118845, ¶ 42.

Under both prongs of the plain-error doctrine, the defendant has the burden of persuasion. People

v. Hillier, 237 Ill. 2d 539, 545 (2010). Because the plain-error doctrine initially requires a clear

and obvious error to have occurred, our first step is to determine whether there was actually an


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No. 1-20-0322

error. Williams, 2022 IL 126918, ¶ 49. Therefore, we must determine whether the State committed

a discovery violation, which we review de novo given the facts are not in dispute. People v.

Lovejoy, 235 Ill. 2d 97, 118 (2009).

¶ 21   In criminal cases, the “[d]iscovery rules are intended to protect the accused against surprise,

unfairness, and inadequate preparation.” Id.; see also People v. Boclair, 119 Ill. 2d 368, 373 (1987)

(“The goals of pretrial discovery in a criminal trial are to promote the search for truth and to

eliminate surprise as a trial tactic.”). Illinois Supreme Court Rule 412(a) (eff. Mar. 1, 2001)

provides the required disclosures of material and information within the State’s possession or

control to the defendant when so requested. In arguing that the State failed to comply with the

discovery rules, defendant initially posits that the State failed to follow Rule 412(a)(i).

¶ 22   Under Rule 412(a)(i), the State must disclose “the names and last known addresses of

persons whom the State intends to call as witnesses, together with their relevant written or recorded

statements, memoranda containing substantially verbatim reports of their oral statements, and a

list of memoranda reporting or summarizing their oral statements.” Ill. S. Ct. R. 412(a)(i) (eff.

Mar. 1, 2001). Rule 412(a)(i) expands upon the disclosures required by section 114-9(a) of the

Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-9(a) (West 2018)), which merely

requires “the State to furnish the defense with a list of prosecution witnesses and their last known

addresses” on the defense’s motion. See Ill. S. Ct. R. 412(a), Committee Comments (adopted Oct.

1, 1971). Additionally, under Rule 415(b), the State has a continuing duty to disclose “additional

material or information which is subject to disclosure” when it becomes aware of such information.

Ill. S. Ct. R. 415(b) (eff. Oct. 23, 2020); see also People v. Hendricks, 325 Ill. App. 3d 1097, 1103

(2001) (“The duty of the State to disclose under Rule 412 is a continuing one, requiring prompt




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notification to the defendant of the discovery of any additional material or information, up to and

during trial.”).

¶ 23    Illustrative of Rule 412(a)(i)’s requirements is People v. Mahaffey, 128 Ill. 2d 388, 393

(1989), where codefendants were charged with, inter alia, murder and attempted murder. The

State’s various evidence at trial included an 11-year-old surviving victim’s in-court identification

of both codefendants. Id. at 397. Ultimately, a jury found both codefendants guilty of murder and

attempted murder, among other offenses. Id. at 404. On appeal, one of the codefendants contended

that the trial court erred in admitting the 11-year-old’s in-court identification of him where the

defense did not receive any discovery from the State indicating that someone would be able to

identify him as one of the perpetrators of the crimes. Id. at 417. In support, the codefendant asserted

that, a month before trial, the 11-year-old had a conversation with an assistant State’s Attorney

where he told the assistant State’s Attorney that “he was ‘99 per cent [sic] sure’ he could identify

[the codefendants] as the perpetrators.” Id. at 417-18. The codefendant argued that the State was

required to disclose this oral statement. Id. at 418.

¶ 24    In analyzing the codefendant’s claim of error, our supreme court reviewed the language of

Illinois Supreme Court Rule 412(a)(i) (eff. Mar. 1, 2001). Mahaffey, 128 Ill. 2d at 418. Based on

the rule’s language, the court concluded it was “clear that the State is required to disclose a witness’

oral statements only if they are in ‘memoranda containing substantially verbatim reports of their

oral statements.’ ” Id. (quoting 107 Ill. 2d R. 412(a)(i)). The court highlighted that both the State

and the codefendant agreed that the 11-year-old’s statement had never been memorialized, and

therefore, it appeared the State had not committed a discovery violation. Id. The court added that

caveat because the codefendant argued there was an exception to this rule when the State acted in

bad faith, or in other words, where the State intentionally did not memorialize a statement to


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No. 1-20-0322

prevent disclosure of that information to the defense. Id. The court agreed a bad-faith exception

existed, but found there was no evidence the State acted in bad faith in the case before it. Id. at

418-19. As such, our supreme court found that the State did not violate Rule 412(a)(i). Id. at 419.

¶ 25   Consistent with Mahaffey, this court has asserted that, under Rule 412(a)(i), “[i]f a

statement is never memorialized, it need never be disclosed to defense counsel, absent bad faith

on the State’s part.” People v. Williams, 262 Ill. App. 3d 808, 823-24 (1994); see also People v.

Fomond, 273 Ill. App. 3d 1053, 1060 (1995) (“Under Rule 412[(a)](i), the State need disclose a

witness’ oral statement only if that statement has been reduced to writing.”). As to what constitutes

bad faith on the part of the State, our supreme court and this court have found as such in various

instances. For example, in People v. Szabo, 94 Ill. 2d 327, 343, 349 (1983), there was evidence

that the State deliberately destroyed notes from 20 interviews with its key witness. And as a result,

the supreme court vacated a defendant’s convictions and remanded for further proceedings. Id. at

350. Similarly, in People v. DeStefano, 30 Ill. App. 3d 935, 943 (1975), this court reversed a

defendant’s conviction for murder and granted him a new trial where the chief criminal assistant

State’s Attorney in Cook County “admitted he ordered the agents of the [Illinois Bureau of

Investigation] and [other] assistant State’s Attorneys to refrain from making any memoranda or

memorialization of the statements made by” the defendant’s alleged accomplice, who had been

given immunity from prosecution.

¶ 26   In the instant case, an assistant State’s Attorney admitted that, during trial preparation,

Steele stated that she spontaneously identified defendant to the responding police officers. The

assistant State’s Attorney further admitted that Steele’s oral statement of this detail was never

memorialized. In turn, the State concedes that, despite knowledge of Steele’s statement, it never

disclosed the statement to the defense. However, because Steele’s oral statement to the assistant


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State’s Attorney was never memorialized, the State was not required to disclose the statement

under Rule 412(a)(i). See Mahaffey, 128 Ill. 2d at 418; Fomond, 273 Ill. App. 3d at 1060; Williams,

262 Ill. App. 3d at 823-24. As noted, despite not being obligated to disclose Steele’s oral statement,

the State will nevertheless commit a discovery violation if its failure to do was due to bad faith.

See Mahaffey, 128 Ill. 2d at 418-19. However, in this case, defendant has failed to point to any

evidence that the State acted in bad faith when it failed to memorialize Steele’s oral statement that

she spontaneously identified defendant to the responding police officers. During oral argument on

defendant’s posttrial motion, the assistant State’s Attorney merely acknowledged failing to

memorialize Steele’s oral statement, but did not explain why she failed to do so. As our supreme

court asserted in Mahaffey, “[w]e will not presume lightly bad faith on the part of the State.” Id. at

419. And given the lack of evidence of bad faith in the record, we cannot assume as much.

Consequently, the State did not commit a discovery violation under Rule 412(a)(i).

¶ 27   Defendant next argues that, under Illinois Supreme Court Rule 412(g) (eff. Mar. 1, 2001),

the State should have disclosed Steele’s oral statement. Rule 412(g) provides that:

       “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, the court shall

       issue suitable subpoenas or orders to cause such material to be made available to

       defense counsel.” Id.




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According to defendant, this provision applies to statements made to other governmental personnel

that have not been memorialized, but which are known to the State.

¶ 28   Rule 412(g) is a provision intended to ensure the proper flow of discoverable material to

the State from investigative personnel (Ill. S. Ct. R. 412(g), Committee Comments (adopted Oct.

1, 1971)), such as police officers and personnel of criminal testing laboratories. People v. Sutton,

327 Ill. App. 3d 273, 281 (2002). The provision acts as a complement to Rule 412(f), which

provides that “[t]he State should ensure that a flow of information is maintained between the

various investigative personnel and its office sufficient to place within its possession or control all

material and information relevant to the accused and the offense charged.” Ill. S. Ct. R. 412(f) (eff.

Mar. 1, 2001). Rule 412(g) “is primarily concerned with material of which the State does not have

knowledge but of 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.” Ill. S. Ct. R. 412(g), Committee Comments (adopted Oct. 1, 1971). Rule 412(g) “avoids

placing the burden on the prosecutor, in the first instance, of canvassing all governmental agencies

which might conceivably possess information relevant to the defendant.” Id. The purpose of Rule

412(g) is not to broaden the scope of discovery but instead to solve implementation issues. Id. As

such, the provision is “limited to material or information ‘which would be discoverable if in the

possession or control of the State.’ ” Id.

¶ 29   Although defendant claims that the State was required to disclose Steele’s spontaneous

identification of him under Rule 412(g), as the committee comments note, the provision “is

primarily concerned with material of which the State does not have knowledge but of which

defense counsel is aware.” Id. In the instant case, it is undisputed that the State knew of Steele’s

spontaneous identification of him because, during trial preparation, Steele informed an assistant


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No. 1-20-0322

State’s Attorney that she spontaneously identified defendant to responding police officers.

Therefore, the circumstances present are not what Rule 412(g) intended to facilitate, and the State

did not commit a discovery violation under Rule 412(g).

¶ 30   Despite the State not committing a discovery violation under Rule 412, defendant posits

that the State had an obligation above and beyond the requirements of Rule 412 to disclose Steele’s

oral statement based on the defense’s catch-all discovery request to disclose “[a]ny and all

evidence whether or not specifically requested or described which may be, or could foreseeably

become exculpatory, mitigating, or otherwise material to guilt or innocence, or favorable to the

defense.” It would certainly seem that the State would have to disclose Steele’s oral statement in

order to be responsive to this discovery request by the defense. However, defendant has cited no

case law that the State has a discovery disclosure obligation above and beyond the requirements

of Rule 412. Indeed, our supreme court and this court has repeatedly stated that Rule 412 governs

discovery in criminal cases. See Lovejoy, 235 Ill. 2d at 118 (“Disclosure requirements in criminal

cases are governed by Supreme Court Rule 412.”); People v. Robinson, 157 Ill. 2d 68, 79 (1993)

(“Supreme Court Rule 412 provides for the disclosure of materials and information within the

State’s possession.”); People v. Lowry, 354 Ill. App. 3d 760, 769 (2004) (“Disclosure to the

accused is governed by Supreme Court Rule 412.”); People v. Weber, 264 Ill. App. 3d 310, 316

(1994) (“Criminal discovery is governed by Supreme Court Rule 412.”); People v. Davis, 130 Ill.

App. 3d 41, 49 (1984) (observing that “Illinois Supreme Court Rule 412 *** governs the

mechanics of criminal discovery”).

¶ 31   Likewise, defendant has cited no case law that the State has a discovery disclosure

obligation above and beyond the requirements of the relevant portions of the Code. See, e.g., 725

ILCS 5/114-9 (West 2018) (titled “Motion for a List of Witnesses”); 725 ILCS 5/114-10 (West


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No. 1-20-0322

2018) (titled “Motion to Produce Confession”); 725 ILCS 5/114-13 (West 2018) (titled “Discovery

in criminal cases”). In fact, as the committee comments to Rule 412 note, Rule 412(a)(i) broadens

the requirements of section 114-9 of the Code. See Ill. S. Ct. R. 412(a), Committee Comments

(adopted Oct. 1, 1971). Moreover, according to the committee comments, Rule 412(a)(ii) “is

substantially” section 114-10(a) of the Code. See id. And finally, section 114-13(a) specifically

states that “[d]iscovery procedures in criminal cases shall be in accordance with Supreme Court

Rules.” 725 ILCS 5/114-13 (West 2018). What this means is that, according to our case law and

the Code, discovery in criminal cases is governed by Rule 412. Because defendant has provided

no legal support for his proposition that the State has a discovery disclosure obligation above and

beyond the requirements of Rule 412, he has forfeited this argument. See Ill. S. Ct. R. 341(h)(7)

(eff. Oct. 1, 2020) (“Argument, which shall contain the contentions of the appellant and the reasons

therefor, with citation of the authorities and the pages of the record relied on.”); see also People v.

Ward, 215 Ill. 2d 317, 331-32 (2005) (fining the defendant forfeited an argument where he “cite[d]

no authority in support of th[e] proposition”). As a result, we need not address defendant’s

argument that the State had an obligation above and beyond the requirements of Rule 412 based

on his motion for discovery’s catch-all request.

¶ 32   Nevertheless, defendant relies on People v. Shegog, 37 Ill. App. 3d 615 (1976), to support

his contention that a discovery violation occurred in the instant case. In Shegog, during a burglary

trial, a police officer testified that the defendant admitted to breaking into an apartment building.

Id. at 616. Upon hearing this testimony, his defense counsel objected because the State failed to

disclose during discovery that the defendant made an oral confession, as required by Rule




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412(a)(ii). 1 Id. An assistant State’s Attorney responded that he was unaware of the confession at

the time discovery was ordered, and the trial court allowed the confession into evidence. Id.

Ultimately, the court found the defendant guilty of burglary. Id. at 617. On appeal, the defendant

contended that the court’s admission of his oral confession was prejudicial error because the

substance of the confession and a list of the witness to its making were not disclosed to the defense

before trial. Id. at 615. In making this contention, the defendant primarily relied on section 114-10

of the Code (Ill. Rev. Stat. 1973, ch. 38, § 114-10.)), which, similar to Rule 412(a)(ii), required

that the State furnish a list of witnesses to the making of an oral confession. Shegog, 37 Ill. App.

3d at 617 (citing Ill. Rev. Stat. 1973, ch. 38, § 114-10).

¶ 33    In reviewing the defendant’s contention, this court underscored that the provisions of

section 114-10 of the Code were mandatory. Id. We added that “[t]he requirement of compliance

with the statute is particularly important where a defendant claims he does not remember making

any statement and his attorney thus could not know of any such statement through his client.” Id.

This court observed that compliance with the statute was excusable only where the trial court

believed the State was unaware of the existence of the confession before trial and the exercise of

due diligence would not have allowed the State to discover the confession. Id. Although we agreed

with the trial court’s belief that the State was unaware of the existence of the confession before

trial, we concluded that due diligence would have led to the State learning about the confession.

Id. at 617-18. As a result, this court found the trial court’s admission of the defendant’s oral

confession into evidence was error, and he was entitled to a new trial. Id. at 618-19.



        1
          At the time, Illinois Supreme Court Rule 412(a)(ii) (Ill. Rev. Stat., 1973, ch. 110A, § 412(a)(ii))
required the State to disclose if there was an oral confession and to furnish a list of the witnesses to the
making of that confession. Rule 412(a)(ii) still mandates this disclosure. See Ill. S. Ct. R. 412(a)(ii) (eff.
Mar. 1, 2001).

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No. 1-20-0322

¶ 34    In contrast to Shegog, the instant case does not involve section 114-10 of the Code (725

ILCS 5/114-10 (West 2018)) or the similar requirement in Illinois Supreme Court Rule 412(a)(ii)

(eff. Mar. 1, 2001). Rather, this case involves Rule 412(a)(i), which expands upon the disclosures

required by section 114-9(a) of the Code (725 ILCS 5/114-9(a) (West 2018)). And notably, Rule

412(a)(i) has been discussed by our supreme court in Mahaffey, where the court made clear that,

under Rule 412(a)(i), “the State is required to disclose a witness’ oral statements only if they are

in ‘memoranda containing substantially verbatim reports of their oral statements.’ ” Mahaffey, 128

Ill. 2d at 418 (quoting 107 Ill. 2d R. 412(a)(i)). We are therefore unpersuaded by defendant’s

reliance on Shegog.

¶ 35    Defendant further relies on our supreme court’s decision in Lovejoy, 235 Ill. 2d 97 for

support. In that case, a forensic scientist authored a report stating that an initial swab of tile where

a victim was found dead “ ‘was negative to a presumptive test for the presence of blood.’ ” Id. at

119. At trial, though, where the scientist testified as an expert in DNA, she asserted that the result

was a false negative and additionally that further analysis of DNA extracted from the tile indicated

the presence of blood. Id. at 108. However, neither of these assertions were included in the report

the expert authored. Id. at 119. Based on these omissions, the defendant contended that the State

committed a discovery violation. Id. at 111. In finding that the State did commit a discovery

violation, our supreme court initially agreed with the State that it “properly disclosed the report it

had in its possession” and the report was not “manipulated in any way to exclude relevant

information.” Id. at 119. However, the court observed that “[t]he fact remains that relevant

information was left out of the report, and the information provided was misleading.” Id. In

responding to the State’s argument that, under Rule 412, it was not required to memorialize every




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conversation it had with a witness and that, under Rule 412(a)(iv), it was only required to disclose

written reports by experts, and not their opinions, our supreme court observed:

       “While both of these points are supportable, the fact remains that Rule 412, like all

       discovery rules, is designed to protect the accused against unfair surprise. [citations]

       That protection was not afforded to defendant in this case, as information integral

       to the defense was not divulged prior to trial. This omission unfairly burdened

       defense counsel with the ‘difficult task of rebutting evidence of which he [wa]s

       unaware’ [citation] and amounted to a violation of the disclosure rule.” Id. at 120.

However, Lovejoy involved a different provision of Rule 412—one relating to expert witnesses—

that is not at issue in the instant case. As such, Lovejoy is inapposite.

¶ 36   In sum, where the instant case involves Rule 412(a)(i), which does not mandate the

disclosure of an oral statement by a witness that is not memorialized (Mahaffey, 128 Ill. 2d at 418;

Fomond, 273 Ill. App. 3d at 1060; Williams, 262 Ill. App. 3d at 823-24), and there is no evidence

that the State’s lack of disclosure was due to bad faith on its part, the State did not commit a

discovery violation by failing to disclose to the defense Steele’s oral statement to an assistant

State’s Attorney that she spontaneously identified defendant. See id.

¶ 37   Lastly, defendant contends that his trial counsel provided ineffective assistance by failing

to object on the basis of a discovery violation to Steele’s testimony that she spontaneously

identified defendant to the responding police officers.

¶ 38   Under the United States and Illinois Constitutions, a defendant has the right to the effective

assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. In evaluating

claims of ineffective assistance of counsel, the defendant must satisfy the two-prong test

established in Strickland v. Washington, 466 U.S. 668 (1984). People v. Gayden, 2020 IL 123505,

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¶ 27. Under the Strickland test, the defendant must demonstrate that his counsel’s performance

was deficient and that he was prejudiced by that deficiency. Strickland, 466 U.S. at 687. More

specifically, the defendant must show that his counsel’s performance fell below an objective

standard of reasonableness and that a reasonable probability exists that, but for counsel’s

unreasonable performance, the result of the proceeding would have changed. Gayden, 2020 IL

123505, ¶ 27. Both prongs of the Strickland test must be met for a finding of ineffective assistance

of counsel. Id.

¶ 39   Having found that the State did not commit a discovery violation, had defense counsel

objected during trial to Steele’s testimony on the basis of a discovery violation, that objection

would not have succeeded. And defense counsel cannot be deemed ineffective for failing to raise

a futile objection. See People v. Edwards, 195 Ill. 2d 142, 165 (2001) (“Counsel cannot be

considered ineffective for failing to make or pursue what would have been a meritless objection.”).

Consequently, defendant’s ineffective assistance of counsel claim fails.

¶ 40                                   III. CONCLUSION

¶ 41   For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 42   Affirmed.




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