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03/02/88 the People of the State of v. Dan Gray Et Al.

March 2, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAN GRAY ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

520 N.E.2d 93, 166 Ill. App. 3d 586, 117 Ill. Dec. 103 1988.IL.284

Appeal from the Circuit Court of Whiteside County; the Hon. Robert W. Castendyck, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BARRY delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Defendants Dan Gray and Doreen Morehead were convicted of nine counts of delivery of controlled substances following a jury trial in the circuit court of Whiteside County. Gray was sentenced to 10 years in the penitentiary, and Morehead was sentenced to 30 days in the penitentiary followed by four years' probation. On appeal, defendants seek a new trial.

Stated briefly, the evidence at trial disclosed that Timothy Buckley acted as a "confidential source" for the Illinois Department of State Police from October 16, 1984, to October of 1985, during which time he made approximately 80 buys of illegal drugs under controlled situations. As to the transactions involving Gray and Morehead, the procedure used was as follows: Buckley would meet an officer who would drive him to a prearranged location. The officer would search Buckley and then would provide him with funds to use in buying drugs. Under observation of two officers, Buckley would proceed to the Morehead house at 303 West 12th Street, Rock Falls, Illinois, where he would enter the back door and return the same way some five minutes later. Buckley was then transported by an officer back to the prearranged location, where he was again searched. After each transaction, Buckley would produce controlled substances (e.g., LSD or cocaine) and would no longer have the money. Buckley was the only witness to the identity of the drug suppliers. These drug buys took place between April 5 and July 10, 1985.

Morehead testified that she had a lot of visitors in her home and that Buckley had visited there some 40 times between April and October of 1985. A search of the premises disclosed two grams of cannabis and a letter from defendant Gray. One police officer testified that she recognized Gray as a person who arrived at Morehead's house during one of the controlled buys. Defendants stipulated to the results of the laboratory tests of the drugs obtained by the State from these transactions.

A few days after the jury returned its verdict of guilty in this cause, the police were interviewing Buckley in the course of preparing for trial of another case against one Harold Barnes. Barnes had produced an alibi for the dates of the alleged drug transactions (August 7 and 22, 1985), and Buckley admitted that he had lied to the police earlier and that in fact he did not purchase the drugs from Barnes on those occasions. The State thereafter dismissed the remaining drug cases involving Buckley, and charges of obstructing Justice in the Barnes case were filed against him to which he ultimately entered a plea of guilty.

In the case at bar, defendants filed a post-trial motion, alleging, inter alia, that the newly discovered evidence of Buckley's prevarication to authorities entitled defendants to a new trial. The parties stipulated that Buckley's later statement concerning the Barnes transaction is inconsistent with the notes made by an officer at the time of the Barnes transaction. The trial court denied defendants' motion for a new trial, and this appeal followed.

The rule in Illinois governing the granting of a new trial on the basis of newly discovered evidence has been stated as follows:

"'To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence.'" (People v. Molstad (1984), 101 Ill. 2d 128, 134, 461 N.E.2d 398, 402, quoting People v. Baker (1959), 16 Ill. 2d 364, 374, 158 N.E.2d 1, 6.)

Here the trial court found that the attorney for defendants had exercised due diligence in discovering the evidence, but a new trial was denied on the ground that the evidence was merely cumulative of other evidence tending to impeach Buckley's testimony.

A review of the many cases cited to us by the parties to this appeal demonstrates conclusively that newly discovered evidence can justify the grant of a new trial only when that evidence directly concerns the crime for which defendants were convicted. When the newly discovered evidence relates to the credibility of a party or other witness, it has been held either not material to the issue of guilt or not so conclusive as to affect the result or, as here, merely cumulative of other evidence going to the credibility of the witness. It is not disputed that Buckley has admitted lying about two drug transactions occurring after the ones for which defendants were convicted and that he has been convicted for obstructing Justice in those cases. Further, it is not disputed that Buckley's admissions and ...


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