dissenting:
The case against the defendant consisted of the following : (1) The identification of the defendant by the waitress, Patricia Hill, as the ejected customer who returned to the tavern and shot Bernie Zitek. (2) The identification of the defendant, by Henley Powell, as the man who came into the tavern and shot Bernie Zitek. Powell had not been in the tavern when the customer was ejected. (3) The identification of the defendant by Virgle Sanders as the man, nicknamed “Slick”, who bragged of having shot a bartender in Lansing. Two other witnesses testified that the defendant was present in the Ponderosa Tavern at the time of the alleged bragging to Sanders, although they did not hear it.
The trial judge sustained prosecution objections to questions put to Patricia Hill as to when she had next seen the defendant after the date of the murder. The questions were clearly designed to elicit the circumstances under which she had identified the defendant. The objections were sustained on the ground that the questions went “beyond the examination in chief.” Similarly, objections to the efforts of the defense to ascertain the circumstances of the initial identification of the defendant by Henley Powell were sustained. These rulings were erroneous, for the circumstances of an identification clearly relate to its weight. With regard to Patricia Hill, the prosecution attempted to cure the error by eliciting from her on rebuttal the fact that she had viewed lineups on October 31, 1962, and on November 1, 1962. So far as Henley Powell was concerned, the prosecution made no attempt to correct the error.
Donald O’Brien testified that the defendant was not the man ejected from Zitelc’s tavern. O'Brien was playing cards with Henley Powell and others when the shot was fired. His back was to the bar and the door and he did not see the killer, although he ran out the door after him. O’Brien also testified that Patricia Hill was the only one of 7 persons who had been in Zitelc’s tavern that night who identified the defendant in the November 1, 1962, line-up. None of those other persons, including the other participants in the card game, was called as a witness.
The defense presented the uncontroverted and unimpeached alibi testimony, unmentioned in the majority opinion, of the head bartender and the general manager of the Westmoreland Country Club in Wilmette. Both testified, and the employment records of the Club showed, that the defendant was employed as a cocktail waiter until after midnight on the night of April 25, 1962, the date of Zitek’s murder. He was paid overtime for that work.
On this record, in view of the strong alibi evidence, the testimony of O’Brien, the successful effort of the prosecution to conceal the circumstances under which its witnesses first identified the defendant and the failure of the prosecution to account for those who did not identify the defendant, I am unable to conclude that the defendant’s guilt was established beyond a reasonable doubt.
I am also unable, for several reasons, to agree with the majority that the 16-gauge shotgun seized at the time of the defendant’s arrest was properly admitted into evidence. In the cases cited by the majority no ballistic evidence was available, and therefore the suitability of the weapon for the commission of the crime charged could be established only by a physical description. In this case, however, the prosecution had ballistic test results in its possession throughout the trial which showed that Zitek was shot with a 12-gauge shotgun. The shotgun received in evidence was thus as unsuitable for the commission of this murder as was the excluded .38 caliber revolver. Furthermore, the ballistic evidence was admitted by stipulation only at the close of the defendant’s case, after the prosecution had persistently resisted defense attempts to bring it out and after the shotgun had been received in evidence. Finally, there was no proof that the shotgun was in the possession or control of the defendant. It was discovered 6 months after the commission of this crime in a car that belonged to someone other than the defendant. No use of, or access to, that car by the defendant was shown. Under identical circumstances this court reversed another death sentence, saying, “We have found no case upholding the admission into evidence of weapons not proved to be in the possession or under the control of the defendant.” (People v. Smith, 413 Ill. 218, 221.) That ruling should be applied in this case.
At the post-conviction hearing the defendant introduced a statement that Virgle Sanders had given to the Lansing police on April 30, 1962, in which Sanders stated that he had met “Slick” “about six months ago.” The defense did not learn of that statement until after the trial. When confronted at the post-conviction hearing with the fact that the defendant had been incarcerated in a Federal penitentiary until March 4, 1962, Sanders admitted that it was impossible that the defendant was the man who had bragged that he had shot the bartender. The F.B.I report which showed the date of the defendant’s release from Leavenworth was received by the Lansing police officers shortly after the defendant’s arrest and was in their possession throughout the trial. Sanders’ identification was further impugned by the fact that he did not see the defendant again after his alleged encounter with “Slick” until the day of the trial some 25 months later. At that time, when he first saw the defendant, he stated that “the guy that I knew as Slick looked to me to be about thirty or forty pounds heavier * * * and he didn’t wear glasses.” He testified that one of the officers replied, “Well, you know how jailhouse beans are.”
Sanders testified at the post-conviction hearing that he remembered “Slick” as the man he knew from Wanda & Dell’s Tavern who nearly became involved in a fight with a Willie Thompson. William Thompson also testified at the post-conviction hearing. He was acquainted with a “Slick” from Wanda & Dell’s Tavern and was involved in the altercation mentioned by Sanders. In early November of 1962 the Lansing police showed him a number of photographs, including one of the defendant, but he was unable to identify any of them as the “Slick” that- he knew. He was never called to view a line-up of to testify at the defendant’s trial. Subsequent to the trial, Thompson was shown a series of photographs of James E. (“Slick”) Watts which he identified as photographs of the “Slick” he knew.
At the post-conviction hearing it was also brought out that on April 30 or May 1, 1962, the Lansing police had staged a raid of Wanda & Dell’s Tavern in search of “Slick.” Delbert Jones, the owner, testified that he then told the police that he could identify the “Slick” who frequented his tavern, but he was never contacted for that purpose. Jones testified that he had been shown a picture of the defendant and that the defendant was not “Slick”. At the post-conviction hearing he identified a photograph of “Slick” Watts as the “Slick” who had frequented his tavern.
During the entire investigation of the Zitek murder the Lansing police suspected “Slick” Watts as the assailant and assigned a lieutenant to search for him. Thus there is convincing evidence that the defendant is not the man who had bragged to Sanders, and despite the majority’s assertion to the contrary, there is substantial evidence that “Slick” Watts, and not the defendant, was that man. None of this exculpatory evidence was disclosed to defense counsel.
The defendant’s conviction rests entirely upon identification testimony. The facts developed at the post-conviction hearing seriously impeached, if indeed they did not destroy, Sanders’s trial testimony. Had those facts, and the identifications of “Slick” Watts by Thompson and Jones, been available at the trial, the jury may well have been unwilling to act upon the identifications of Patricia Hill and Henley Powell. Far more is involved in this case, in my opinion, than “the following up of useless leads and discussions with immaterial witnesses.” Certainly if Sanders’s identification was material, the F.B.I. report and the testimony of the other witnesses which destroyed that identification were also material. Consequently, I believe that the State’s nondisclosure denied the defendant the fundamental fairness guaranteed by the constitution. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194; see United States v. Wilkins (2d cir. 1964), 326 F.2d 135.
The majority, however, disposes of this issue upon the ground that the defendant failed to request the evidence which was suppressed. This ground is neither factually nor legally sound. Prior to the trial the defendant had demanded copies of the grand jury minutes and of all statements made to the Lansing police. The motion was allowed only to the extent of providing the defendant with the statement of each witness who testified at the close of his direct examination. No statement of Virgle Sanders was supplied. Although, as the majority points out, the prosecuting attorney offered his file to the defense at the trial, that attorney was unable to recall whether the items here involved were in that file. The defendant’s attorney testified that none of these items was disclosed to him.
Moreover, despite the language in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, I do not believe that the Supreme Court intended to establish a request as an indispensable prerequisite to disclosure by the prosecution. Prior to Brady many courts had recognized the duty of the prosecution to disclose favorable, material evidence to the defense. And in many of those cases the defense did not know of the evidence and so had failed to request it. (Mooney v. Holohan, 294 U.S. 103, 79 L. Ed. 791, 55 S. Ct. 340; Pyle v. Kansas, 317 U.S. 213, 87 L. Ed. 214, 63 S. Ct. 177; United States v. Dye (3d cir. 1955), 221 F.2d 763; United States v. Baldi (3d cir. 1952), 195 F.2d 815.) In Brady the Supreme Court acknowledged the long-standing duty that rested upon the prosecution. In doing so, it used language appropriate to the decision of the case before it. Without an explicit holding to the contrary, I cannot believe that the Supreme Court intended to narrow the duty of the prosecution as it had existed prior to Brady by making that duty contingent upon a request when the defense is ignorant of the existence of the suppressed information. Essential fairness, rather than the ability of counsel to ferret out concealed information, underlies the duty to disclose. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 215, 83 S. Ct. 1194; Barbee v. Warden, Maryland Penitentiary (4th cir. 1964), 331 F.2d 842; United States v. Wilkins (2d cir. 1964), 326 F.2d 135.
Whether or not the prosecuting attorneys were aware of the existence of the withheld evidence in the files of the Lansing police department is immaterial, for the prejudice to the defendant is identical whether the evidence is withheld by the prosecutor or by the police. What was said by the United States Court of Appeals for the Fourth Circuit in Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, is applicable here: “Nor is the effect of the nondisclosure neutralized because the prosecuting attorney was not shown to have had knowledge of the exculpatory evidence. Failure of the police to reveal such material evidence in their possession is equally harmful to a defendant whether the information is purposely, or negligently, withheld. And it makes no difference if the withholding is by officials other than the prosecutor. The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State’s Attorney, were guilty of the nondisclosure. If the police allow the State’s Attorney to produce evidence pointing to guilt without informing him of other evidence in their possession which contradicts this inference, state officers are practicing deception not only on the State’s Attorney but on the court and the defendant. ‘The crudest lies are often told in silence.’ If the police silence as to the existence of the reports resulted from negligence rather than guile, the deception is no less damaging. The duty to disclose is that of the state, which ordinarily acts through the prosecuting attorney; but if he too is the victim of police suppression of the material information, the state’s failure is not on that account excused. We cannot condone the attempt to connect the defendant with the crime by questionable inferences which might be refuted by undisclosed and unproduced documents then in the hands of the police.”