dissenting:
A majority of my colleagues hold the failure of the State to deliver the shoe and the taking of defendants’ pictures on an evening during the selection of the jury, without notice to their counsel, necessitate a reversal of the convictions and a retrial. With that holding I simply cannot agree.
The court relies heavily upon Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. The Supreme Court there said:
“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Emphasis added.) (373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194.)
Moore v. Illinois (1972), 408 U.S. 786, 794-95, 33 L. Ed. 2d 706, 713, 92 S. Ct. 2562, restated the Brady holding, emphasizing the importance of “(a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence. ” In Brady a suppression was found to have occurred. But there is a profound and crucial difference between Brady and this case — in Brady the existence of the suppressed evidence was unknown to the defense until after trial, conviction, sentence and affirmance. Here, it is undisputed that the defense not only knew of the existence of the shoe, but they had also been given a copy of the report by the crime laboratory of the result of its inspection of the shoe, and, in these circumstances, Brady is simply inapposite. United States v. Ruggiero (2d Cir. 1973), 472 F.2d 599; United States ex rel. Wax v. Twomey (7th Cir. 1972), 465 F.2d 352.
The relevant portions of the record relating to the chronology of requests for and discussion of the shoe are set forth in the well-reasoned dissenting opinion of Mr. Justice Stamos in the appellate court:
“Defendants’ discovery motion was granted with respect to the production of physical evidence. In response, the State filed an answer listing the physical evidence as:
‘Clothing, slides, smear test apparatus, photographs, guns and license plates. ’
The next reference to the physical evidence came during a hearing on a pretrial motion. Mr. Downs, attorney for acquitted defendant Chandler said:
‘Judge, I would make a motion to inspect physical evidence in this particular ■ case. It is somewhat difficult from the list of witnesses and looking at the Grand Jury testimony, that—
THE COURT: What physical evidence does the State have?
MR. DOWNS: I don’t know. I looked at the Grand Jury testimony and I see where supposedly one of the assailants lost his shoe at the premises. According to the lab reports I see a fair amount of testing done with the shoe ***.’
The matter was then dropped and not raised again until the next day when all attorneys inspected the physical evidence in the presence of the court. At that point, Mr. Mehl, attorney for defendants McWilliams and Nichols asked:
‘Where is the shoe?
MR. KAVANAUGH [Assistant State’s Attorney] : We are not going to introduce the shoe.
MR. DOWNS: May we look at the shoe?
MR. KAVANAUGH: We don’t have it.
MR. DOWNS: Where is it? It is mentioned in the Grand Jury testimony. We want to take a look at it. Some police officer has it.
MR. KAVANAUGH: It is not listed in our physical evidence.
MR. DOWNS: It is mentioned in the Grand Jury testimony.
MR. KAVANAUGH: It doesn’t pertain to your man, anyway. ’
There is not another word in the record regarding that shoe until now on appeal.” (27 Ill. App. 3d 372, 393-94.)
Had defendants considered the shoe, itself, material evidence favorable to them, all that was necessary was a simple request to the court to compel its production. Instead, for reasons unknown, but apparently satisfactory to them, they apparently abandoned the subject. A possible explanation for doing so may lie in the content of the laboratory report (which is not in the record) of the examination of the shoe, which may have convinced defense counsel that further pursuit of the matter would not be beneficial.
Apart from the fact that in Brady defense counsel was not even aware the suppressed evidence existed, this case fails to meet the additional requirements that the evidence be shown to be material and of a character favorable to defendants. That, in my judgment, simply has not been established. There is not complete certainty as to the precise location in which the shoe was found, and its ownership and whether it would help or hinder defendants are totally speculative.
In at least three cases this court has expressly refused to overturn convictions where the existence of allegedly suppressed evidence was known to defense counsel. (People v. Smith (1970), 46 Ill.2d 430; People v. Hudson (1968), 38 Ill.2d 616; People v. Nischt (1961), 23 Ill.2d 284.) While the majority opinion cites People v. Flowers (1972), 51 Ill.2d 25, People v. Murdock (1968), 39 Ill.2d 553, People v. Hoffman (1965), 32 Ill.2d 96, and People v. Cole (1964), 30 Ill.2d 375, as authority for its holding here, I do not regard those cases as either compelling or persuasive in the circumstances of this case. In Flowers the court denied the requested discovery, the refused evidence was characterized by the court as “might be strong circumstantial evidence” on defendant’s behalf, and the State there apparently equivocated as to whether the requested evidence was in its possession. In Murdock the existence of the evidence was intentionally not revealed by the State to defense counsel despite its materiality and the fact that it clearly would have supported defendant’s theory of the occurrence. Hoffman involved a persistent effort by the State to prevent defense counsel from inquiring as to the existence of the allegedly suppressed evidence, and in Cole the trial court denied defendant access to statements and reports which allegedly impeached the complainant. These cases seem to me inapposite to the facts here where the defense knew the evidence exists, had a report of the results of a laboratory examination of the evidence, and apparently decided not to ask the court to insist upon its production. Gollaher v. United States (9th Cir. 1969), 419 F.2d 520, cert. denied, 396 U.S. 960, 24 L. Ed. 2d 424, 90 S. Ct. 434.
The fact that the defendants were taken from their cells one evening during the jury selection process and photographed without notice to defense counsel is apparently also a factor in the majority’s decision to reverse these convictions. There is nothing before us, except the fact that defendants were photographed by, or at least with the cooperation of, law enforcement personnel, to suggest that any use was made by the prosecution of the resulting pictures. That they may have been used for the purpose of refreshing the recollection of prosecution witnesses in this case is, at most, pure speculation. And, even assuming this was done, reversal would not necessarily be required if the trial identification of the defendants could fairly be said to have had an independent origin. (People v. Fox (1971), 48 Ill.2d 239, 245.) I note, too, that this point was not thought by defendants’ appellate counsel of sufficient significance to warrant raising it in the appellate court.
It seems to me that the opinion of the majority does here what was warned against in Brady. The Supreme Court there approvingly said:
“The principle of Mooney v. Holohan [(1935), 294 U.S. 103, 79 L. Ed. 791, 55 S. Ct. 340,] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.” (373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194.)
Of course the prosecutor here should have produced the shoe in response to the defendants’ request, and, admittedly, prior notice of the photographing should have been given defense counsel as our rule now provides. But the question before us is not what should have been done, but the effect of what was not done. Without greater reason than has been here shown to believe that defendants have been prejudiced by an unfair trial, I am unwilling to punish society for the prosecutor’s omissions.
I would reverse the appellate court and affirm the convictions.
RYAN and CREES, JJ., join in this dissent.