Appeal from the Circuit Court of Cook County; the Hon. HERBERT
R. FRIEDLUND, Judge, presiding. Reversed and remanded.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
This case is now before us for reconsideration on a mandate from the United States Supreme Court. Shaw v. Illinois, 394 U.S. 214.
Defendant was convicted of the unlawful sale of narcotic drugs, and sentenced to life imprisonment, that sentence being mandatory under Illinois law because of a prior federal conviction for a similar offense.
The question at issue is whether or not defendant was unduly restricted in cross-examination of an informer who had testified to a purchase of heroin from defendant. *fn1 The trial judge had taken the position that, because of defendant's acquaintance with the informer (a woman), he was sufficiently well informed to identify her with her environment, and therefore the State's objection was sustained to inquiry as to her current places of residence and employment. We affirmed the conviction, noting that defendant himself had testified that he had known the informer and that she had been in his home earlier the same day to pick up her radio which she had left with him as security for a loan. We also took judicial notice, in effect, of the possibility that, within the context of the crime charged, more precise information of the kind sought could result in physical harm or other reprisal to the witness.
Our opinion was filed December 5, 1967. People v. Shaw, 89 Ill. App.2d 285, 233 N.E.2d 73. A petition for leave to appeal was filed in the Illinois Supreme Court on January 30, 1968, and denied on March 27, 1968. Shortly thereafter, defendant filed in that court a petition for reconsideration on the basis of the decision in Smith v. Illinois, 390 U.S. 129, which had been handed down on January 29, 1968, after our opinion had been filed and too late, as a practical matter, for inclusion in defendant's petition for leave to appeal. This petition to reconsider was denied on May 15, 1968.
Defendant then sought certiorari. The United States Supreme Court granted the writ, vacated the judgment of this court, and remanded the case to us "for further consideration in the light of Smith v. Illinois." Shaw v. Illinois, 394 U.S. 214. Since then, the parties have filed suggestions and countersuggestions, and oral argument has been heard, to assist in our reconsideration.
In Smith, which also involved a conviction for sale of narcotics, it was disclosed, on cross-examination of the informer, that he had not testified to his true name. Defense counsel then asked for his correct name and for his residence address, to which questions objections were sustained. The record did show that both the defendant and his attorney knew the informer, and that the attorney had once represented him. It was noted by the court, however, that this was not proof that they knew the informer's correct name or where he was living at the time of the trial.
The Supreme Court reaffirmed the general proposition, stated in Alford v. United States, 282 U.S. 687, 693-694, that "the extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted." And, further, that a court has the obligation to protect a witness from an attempted invasion of his constitutional protection against self-incrimination, and "from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him."
Smith then held, however, that the curtailment of cross-examination in that case had deprived the defendant of a constitutional right guaranteed to him under the Sixth and Fourteenth Amendments. The court recognized that the defendant had not been denied all cross-examination of the informer-witness, but indicated the relative importance it attached to the character of the unanswered questions when it said at page 131:
[W]hen the credibility of a witness is in issue, the very starting point in "exposing falsehood and bringing out the truth" [footnote omitted] through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
We therefore interpret the Smith opinion as holding that the questions should have been answered because they did not involve self-incrimination, nor did they "harass, annoy or humiliate the witness." *fn2 Alford, supra. In our opinion, the Smith court did not intend to require reversal in all cases failing to meet these Alford tests, regardless of other factual circumstances, but only in those cases involving convictions essentially dependent upon the credibility of the witness being cross-examined. We conclude, however, that this is that kind of case, and that the opinion in Smith is controlling of our decision. Accord, United States v. Garafolo, 385 F.2d 200; 390 U.S. 144; 396 F.2d 952. The judgment of the Circuit Court is therefore reversed and the cause is remanded for a new trial.
DRUCKER, P.J. and McNAMARA, ...