APPEAL from the Circuit Court of La Salle County; the Hon.
THOMAS R. FLOOD, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 31, 1975.
After a jury trial the defendant, Dick Monroe, was convicted of delivery of a controlled substance (Ill. Rev. Stat., ch. 56 1/2, par. 1401(c)).
On this appeal the defendant argues as follows: (1) the trial court unduly restricted defendant's cross-examination of the State's principal witness; (2) the unavailability of an informer, whose presence at trial was necessary to resolve a conflict in the testimony, deprived the defendant of the opportunity to conclusively establish his innocence; (3) the trial court erred in refusing certain instructions tendered by the defendant; (4) the People failed to prove the defendant guilty beyond a reasonable doubt; (5) arguments made by the prosecuting attorney were prejudicial to the defendant's case and inflamed the jury, and (6) Supreme Court Rule 413(d) is unconstitutional as a violation of the privilege against self-incrimination.
In May, 1973, William R. Barrett, a special agent with the Illinois Bureau of Investigation (IBI), and David Krug, a Federal agent, were involved in a drug investigation. Their purpose was to purchase various types of drugs from persons residing in the La Salle-Peru area. Also involved in the investigation was a paid informant, Junior Lucas.
On November 9, 1973, the defendant was arrested. An indictment charged that on May 21, 1973, the defendant knowingly delivered less than 30 grams of a substance containing lysergic acid diethylamide (LSD) to William R. Barrett.
The defendant first contends that the trial court improperly restricted his cross-examination of the State's principal witness, William R. Barrett, special agent with the IBI.
In direct examination, Agent Barrett stated that he stayed in various motels while serving in the La Salle-Peru area. On cross-examination, defense counsel asked the witness what motel he stayed in on May 21, 1973, during the time following the alleged delivery. The trial court sustained an objection to this question as a collateral matter. The record shows that the trial court excluded this question because it related to the witness' sexual activity which, the court knew, had arisen in previous trials.
Thereafter, defendant attempted, through the testimony of three witnesses, to show that Barrett had previously used drugs. The trial court, upon objection by the People, refused to permit this line of questioning.
Defendant contends that the questioning of Barrett was done solely to elicit possible leads for impeaching his testimony and the undue limitation of cross-examination deprived him of the right to confront his accusers. He also complains that the trial court's refusal to permit the three witnesses to testify unduly restricted his right "to impeach the credibility of Agent Barrett."
• 1 Generally, a reviewing court will not interfere with a trial court's ruling concerning the latitude allowable on cross-examination of a witness unless that ruling was clearly abusive and resulted in a manifest prejudice to the defendant. People v. Hanks, 17 Ill. App.3d 633, 307 N.E.2d 638.
• 2 We believe that the trial court did not abuse its discretion in limiting the cross-examination of Agent Barrett. The witness' previous sexual activity could not be used for the purpose of showing him to be unworthy of belief, but only to unnecessarily embarrass and disgrace him. Gard, Illinois Evidence Manual, Rule 475, at 602-03 (5th ed. 1963).
We also believe the trial court did not err when it refused to permit the three witnesses to testify that Barrett had previously used drugs. In light of Barrett's undercover status in the investigation, his credibility could not be affected by the offer of proof made by defendant.
The defendant next urges that the unavailability of an informer, whose presence at trial was necessary to resolve a conflict in the testimony, deprived him of the opportunity to conclusively establish his innocence. In order to resolve this contention, it is necessary to set forth the evidence presented at trial.
Agent Barrett testified that on May 21, 1973, he observed one Greg Ghighi, who had previously sold him drugs, on a street corner. Barrett stated that he asked Ghighi if he had any LSD available for sale. Ghighi responded that he had 100 units which he would sell at $1 per unit. Barrett further testified that he asked Ghighi if he knew anyone who could sell a quantity of LSD at a better price. Ghighi responded affirmatively, stating that he would take Barrett to the supplier, a man named Dale Quimby.
Ghighi entered Barrett's vehicle and directed him to Ki John's tavern in La Salle, Illinois. Agent Krug and Junior Lucas, the informant, were also present in the vehicle at this time.
Barrett and the others drove to Ki John's tavern. Ghighi went into the tavern and, on returning to the vehicle, stated that Quimby was not present, but that the bartender was selling LSD for him. Barrett and Ghighi went into the tavern and sat at the bar. As the defendant, who was the bartender, approached them, Ghighi said that Barrett wanted to purchase LSD. Barrett testified that he asked the defendant if he would take less than $75 for 100 and the defendant responded that he would not because Quimby had instructed him to sell for that price. The agent then stated that he purchased 300 units of LSD from the defendant and paid him $225.
The defendant contends that the absence of the informer, Junior Lucas, who was a material witness for the defense, ...