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07/19/89 the People of the State of v. James L. Morse

July 19, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JAMES L. MORSE, DEFENDANT-APPELLANT



Before trial, the State's Attorney left office, and a new one appointed.

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

541 N.E.2d 868, 185 Ill. App. 3d 503, 133 Ill. Dec. 657 1989.IL.1124

Appeal from the Circuit Court of Massac County; the Hon. George Oros, Judge, presiding.

APPELLATE Judges:

JUSTICE HOWERTON delivered the opinion of the court. GOLDENHERSH and RARICK, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON

The State must disclose charges pending against one of its witnesses and must disclose the terms of any deal for leniency for that witness so that a defendant can show bias. Failure to so disclose can deprive a defendant of due process of law as guaranteed by the fifth amendment to the Constitution of the United States, made applicable against the several States by operation of the fourteenth amendment. See, e.g., Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194; Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173.

We affirm defendant's conviction despite the State's erroneous position taken both at trial and on appeal that there is no duty to disclose these matters, because the record establishes that defendant knew of the pending charges, was not restricted in his cross-examination, and thereby was able to show the bias of the State's witness.

Defendant was convicted by a jury of unlawful delivery of a controlled substance. The drug deal was set up by drug agents and utilized an informant who wore an eavesdropping device. The drug agents watched and listened as defendant sold cocaine to the informant.

The informant had been persuaded to participate in the setup by the Massac County State's Attorney's offer of leniency on an existing charge of armed violence, a Class X, nonprobational felony. The armed violence charge arose out of the informant shooting into a house. In exchange for the informant wearing an eavesdropping device and arranging a drug deal with defendant, the State's Attorney promised both to reduce the armed violence charge to a probational offense and to recommend probation upon a plea of guilty. The deal was sweetened later when the State's Attorney further agreed to refrain from transferring a case against the informant's son from juvenile to criminal court.

Notwithstanding a request by defendant during discovery, the State refused to disclose this promise of leniency. The State also failed to disclose information concerning the dismissal of certain traffic charges involving the informant. The State claimed that this was not " Brady material," and therefore, not discoverable.

Nevertheless, after a pretrial conference, defense counsel asked if any deals had been made with the informant and the State's Attorney replied that he had agreed to reduce the armed violence charge and to recommend probation when defendant pleaded guilty. However, the State's Attorney did not disclose information concerning dismissal of the traffic cases.

On the day defendant's trial commenced, the armed violence charges against the informant were dismissed because the speedy trial period had expired. Additionally, charges against the informant of driving under the influence, driving while license revoked, and driving with a suspended license had been dismissed between the time defendant had been arrested and put on trial.

At trial, the informant was cross-examined by defendant about the dismissal of the pending traffic cases, the deal that he had made on the armed violence charges, and the favorable treatment that his son had received. The cross-examination dwelled, at length, on the fact that the armed violence charges had been dismissed because of a speedy trial violation instead of resulting in probation on a lesser charge., ...


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