APPEAL from the Circuit Court of McLean County; the Hon.
LUTHER DEARBORN, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
The defendant, Andre Gibson, was convicted for having delivered 2.08 grams of phenobarbital, a Schedule 4 controlled substance, to an undercover police officer in violation of section 401 of the Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401). The defendant's principal defense was that two undercover agent-informers had entrapped him into delivering the drugs to the officer. The defendant's counsel was permitted to interview the two informers some 2 1/2 months prior to trial, but the defendant was not allowed to participate in such interview and the identities of the two informers were not divulged.
Despite repeated defense requests, the State refused to reveal the identities of the two informers maintaining that disclosure might endanger their lives. Pretrial discovery revealed that the informers were material witnesses because they were responsible for arranging the delivery. One informer had introduced the defendant to the buying officer, and both informers were present during the delivery by the defendant to the officer.
Nevertheless, the trial court refused to compel disclosure of the identities of the two informers until the close of the State's case, at which time the court reconsidered its position and ruled that the informers were material witnesses whose identities must be disclosed. On the morning following the close of the State's case, the names of the two informers were made available to the defense, but no street addresses were provided. The informers were later called at trial as court's witnesses.
The defendant contends that he was denied his constitutional right to present witnesses because the delay in disclosure effectively prevented him from adequately investigating the substance of the testimony and credibility of the informers. On the other hand, the State argues that the interview of the informers by the defendant's attorney precluded infringement of the defendant's right to present witnesses. Thus, two issues arise from the facts already stated: (1) whether the interview of the informers by the defendant's counsel was a valid substitute for the disclosure of the identities of the informers; and (2) if it was not, whether the disclosure of the informers' identities after the close of the State's case was sufficient to inform the defendant and to allow him to prepare his defense. A third issue has also been raised on appeal: (3) whether the trial court erred in refusing to permit defense counsel to directly question prospective jurors in the voir dire examination.
1 In regard to the first issue, the interview of the informers was not a proper substitute for disclosure of their identities. The interview of an informer who is a material witness is allowable as a substitute for disclosure of the informer's identity only where "it can truly be shown that his life or safety is in jeopardy." (People v. Lewis (1974), 57 Ill.2d 232, 238, 311 N.E.2d 685, 689.) Here, the State merely asserted that the safety of the informers could be endangered by disclosure of their identities. Under Lewis, such assertion is not enough, for to hold otherwise would permit the State to always claim the informer would be endangered. Further, the State should not be permitted to avoid disclosure by the similar tactic of merely assigning an informer to another case and claiming that disclosure would, therefore, jeopardize his safety. The record here establishes that the defendant was a 19-year-old college student with no prior history of violence. These circumstances, coupled with the State's failure to offer any evidence of danger to the informers, clearly indicate that the interview was not a valid substitute for disclosure of the informers' identities.
2 In regard to the second issue, the disclosure here was insufficient to inform the defendant and to allow him to prepare his defense. The disclosure of the names of the informers without supplying their addresses is an effective barrier to investigation by the defendant. In addition, this partial disclosure came at the close of the State's case, which was simply too late to provide an adequate opportunity for the defendant to prepare his defense.
3 In regard to the third and final issue, we note that a number of recent appellate court opinions have discussed the question of whether counsel have a right to actively participate in the voir dire examination of jurors. (E.g., People v. Brumfield (1977), 51 Ill. App.3d 637, 366 N.E.2d 1130; People v. Thornton (1977), 54 Ill. App.3d 202, 369 N.E.2d 358; People v. Menken (1977), 54 Ill. App.3d 199, 369 N.E.2d 363.) With these cases in mind, and after carefully reviewing the record, we have found no indication that the defendant was prejudiced by the court's refusal to permit defendant's counsel's participation. We, therefore, find no reversible error in the manner in which voir dire was conducted here.
For the foregoing reasons, we reverse defendant's conviction for delivering a controlled substance and we remand the cause for a new trial.
Reversed and remanded with directions.
Mr. JUSTICE TRAPP, dissenting:
It is to be recalled that in Roviaro v. United States (1957), 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623, and People v. Lewis (1974), 57 Ill.2d 232, 311 N.E.2d 685, the court's attention was directed to cases where the informer witness was never identified, was never interviewed by defendant's counsel and did not appear as a witness at trial. Such facts are not present here.
In the context of constitutional rights, there is no fixed rule with respect to disclosure of informer witnesses by the State. (Roviaro, 353 U.S. 53, 62, 1 L.Ed.2d 639, 646, 77 S.Ct. 623.) It appears that such language and principle is ...