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09/28/89 the People of the State of v. Tomas Torres

September 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TOMAS TORRES, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

545 N.E.2d 387, 189 Ill. App. 3d 494, 136 Ill. Dec. 863 1989.IL.1532

Appeal from the Circuit Court of Cook County; the Hon. Earl E. Strayhorn, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

After a bench trial in the circuit court of Cook County, defendant was convicted of delivering more than 15 grams of heroin and less than 30 grams of cocaine (Ill. Rev. Stat. 1985, ch. 56 1/2, pars. 1401(a)(1), (b)(2)) and was sentenced based upon the Class X felony to a term of six years' imprisonment. Defendant appeals, contending, as he did before, during and after the trial, that the informant utilized by the police in this case was a transactional informant who was material to his defense and that the State's refusal to provide him with the informant's address and the State's failure to make a diligent effort to produce the informant should have required that the charges against him be dismissed. Defendant also contends that he was denied effective assistance of counsel because a hearing on his motion to disclose was not requested prior to trial.

We reverse and remand.

Background

Defendant was arrested at his home on January 8, 1987, and was charged by information filed February 15, 1987, with delivery of heroin and cocaine to an undercover police officer on September 9, 1986.

On March 26, 1987, defendant filed a motion requesting the State to disclose information concerning the whereabouts of the informant who had been utilized by the police in connection with the case. Defendant claimed in his motion that the informant and the informant's girl friend had been present and participated in the transaction for which defendant was being charged and, thus, the informant was a material witness. Defendant claimed it was necessary for him to be able to interview this witness in order to prepare his defense.

A brief hearing was held in conjunction with defendant's motion, at which time the State agreed to review its records to determine whether the informant was "transitionally involved." The matter was continued until April 23, 1987. Although the record indicates that hearings were held on April 23, May 18, and June 8, 1987, no transcripts of the proceedings have been provided. However, defendant contends and the State does not deny that, during these hearings, the court ordered the State to produce the informant and the State agreed to provide defendant with the opportunity to interview the informant prior to trial.

On July 8, 1987, when the case was called for trial, defense counsel notified the court that the State had repeatedly refused to make the informant available to defendant as ordered by the court and that the informant was again absent from court. Stating that the information known to the informant was essential to the defense, defense counsel requested that the court dismiss the charges against defendant due to the State's refusal to produce the informant. The court refused to grant defendant's motion to dismiss, and the following conversation took place:

"THE COURT: I don't have any basis legally to dismiss the indictment because they [the State] ...


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