Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Sangamon
County, the Hon. Ben K. Miller, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial in Sangamon County, the defendant, James Eddington, was convicted of the crime of solicitation to commit murder. The trial court sentenced Eddington to 20 to 40 years' imprisonment. The appellate court affirmed this conviction and issued a certificate of importance. 64 Ill. App.3d 650.
The certificate of importance related to the question of a conflict of interest of defense trial counsel who had as a partner a special assistant Attorney General. Other questions raised on this appeal are whether the trial court abused its discretion in restricting cross-examination of the State's principal witness regarding pending charges against him and whether the trial court's misstatement of the minimum sentence for the crime of solicitation to commit murder constituted harmless error under the circumstances present in this case.
Throughout the trial proceedings Eddington was represented by a lawyer who maintained a partnership with another lawyer. This second lawyer served as a special assistant Attorney General for condemnation cases. Trial counsel informed neither Eddington nor the judge of this partnership or of the possible conflict of interest caused by it. Defendant does not contend that he was prejudiced by this conflict but contends the right to adequate representation by counsel is so fundamental that he must be granted a new trial because of the mere existence of the conflict of interest.
The holding of this court in People v. Lykins (1979), 77 Ill.2d 35, is dispositive of the conflict-of-interest issue. Here, as in Lykins, the issue was not raised in the trial court or in the appellate court. It must be considered that the defendant has waived his right to raise the issue in this court. Also, here, as in Lykins, the conflict-of-interest rule adopted in People v. Fife (1979), 76 Ill.2d 418, cannot be applied because in Fife we held that the rule announced in that case would only be prospectively applied to cases involving prosecution for offenses occurring subsequent to the filing of that opinion.
At the trial of this case, the State's principal witness, Gregory Fife, testified that Eddington offered him $1,000 if he would kill an Illinois Bureau of Investigation agent. The agent was to testify against Eddington in a separate drug case. Fife, an IBI informant, passively cooperated with Eddington in planning the murder and electrically recorded incriminating evidence against the defendant on a hidden tape recorder.
At Eddington's trial the prosecutor filed a motion in limine to bar cross-examination of Fife regarding unrelated drug charges pending against Fife in another county. Out of the jury's presence, the trial judge explored the issue by questioning both Fife and the prosecutor. The judge concluded that no leniency had been offered to Fife for his testimony and that none was expected by him.
The testimony the witness, Fife, was to give at trial related to matters that had occurred in April and May of 1975. The witness had given a statement concerning these matters, which statement had been transcribed and a copy furnished to defendant's counsel. At the hearing on the motion in limine the defendant's counsel had been given wide latitude in examining the witness with regard to his various transgressions of the law, one of which had resulted in a sentence of probation for two years on December 7, 1976. One of the conditions of probation was that the witness refrain from using cannabis. On August 24, 1977, the witness was arrested and charged with possession and delivery of cannabis in Menard County and was incarcerated in the county jail. He was still in jail on that charge, which was undisposed of, at the time of the trial in the defendant's case in September 1977. The court, in ruling on the State's motion in limine not to permit the witness to be cross-examined about the 1977 drug charge, in addition to concluding that no leniency had been offered and none was expected, considered the history of the defendant's case and how this recent charge against the witness could affect his testimony. The court stated that the events about which the witness would testify occurred in 1975. Considering all the facts and circumstances, the fact that a statement of the witness had been previously taken, that the witness had previously testified at another hearing in the case, and that the cannabis charge was in a different court and had been filed only recently, the court was of the opinion that it was not reasonable to believe that the testimony of the witness would be influenced by any interest or bias in connection with the cannabis charge.
In People v. Mason (1963), 28 Ill.2d 396, 400-01, this court stated:
"[S]howing interest or bias on the part of a witness is also an accepted method of impeachment, and even in jurisdictions where evidence of arrest or indictment is not ordinarily admissible to impeach credibility generally, the fact that a witness has been arrested or charged with a crime may be shown or inquired into where it would reasonably tend to show that his testimony might be influenced by interest, bias or a motive to testify falsely."
This rule has been consistently followed by this court. See People v. Barr (1972), 51 Ill.2d 50; People v. Norwood (1973), 54 Ill.2d 253; People v. Galloway (1974), 59 Ill.2d 158.
The appellate court in this case, relying on People v. Martin (2d Dist. 1978), 59 Ill. App.3d 785, noted that at the hearing in limine there was no showing of any expectation of leniency regarding Fife's drug charges in Menard County and also that the prosecutor had testified that no attempt would be made to obtain leniency for Fife. Therefore, it was not an abuse of discretion to bar the cross-examination of Fife concerning the pending drug charges.
We do not believe that these matters should be resolved solely in limine. In situations involving assessment of credibility, the jury should have a right to consider the pending charges, and, of course, the prosecution should have the right to show that no leniency was offered and that none was expected. The jury would then be able to consider any subliminal influences that could be exerted by the particular situation. In this case, however, following a lengthy hearing in limine, the trial court was satisfied that the testimony of the witness, which had been recorded prior to the cannabis charge that was then pending against the witness, could not have been affected by any bias or interest arising out of this ...