Appeal from the Circuit Court of Lake County. No. 97--CF--2698 Honorable George Bridges, Judge, Presiding.
The opinion of the court was delivered by: Justice Inglis
After a jury trial, defendant, Arthur L. Morey, was convicted of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1996)) and unlawful delivery of a controlled substance (720 ILCS 570/401(e) (West 1996)) and sentenced to two years' probation. On appeal, defendant argues that the trial court erred when it refused to issue a writ of attachment against a defense witness (see 725 ILCS 5/115--17 (West 1996)) and grant defendant a continuance to secure the witness, who left the courthouse shortly before he was to have testified. We reverse and remand.
The State attempted to prove that defendant was the seller in a controlled purchase of cocaine. An undercover officer testified that, on the day of the sale, she and a confidential informant drove to a parking lot, with the informant first making a call from a pay phone nearby. At the parking lot, a man drove up in a maroon minivan, talked briefly with the informant through the open passenger's side window, told the informant he had cocaine, and deposited a small bag of cocaine onto the floor of the officer's car. Several weeks later, the officer identified defendant from a photographic lineup. At trial, she again identified defendant as the seller. Two other officers involved in overseeing the sale also identified defendant in court as the person who exited the maroon minivan and approached the officer's car. The police established that defendant owned the minivan.
Defendant sought in various ways to undermine the officers' identification testimony. At one point, defendant's counsel asked an officer if he knew about the informant's criminal background. The trial court sustained the State's objection, noting that defendant could ask the informant such questions when defendant called him as a witness.
Before putting on defendant's case, his counsel informed the court that she intended to call the informant, who had been present in court pursuant to her subpoena, as her first witness but that the informant had left. Counsel then called defendant, who testified that he had never met the informant or the undercover officer and did not commit the offense. Defendant admitted owning the minivan the seller drove.
Following defendant's testimony, the following colloquy occurred.
"MS. CAHN [defense counsel]: Well, evidently [the informant] isn't here.
THE COURT: Okay. Do you know where he is?
MS. CAHN: No, he was under my subpoena to be here.
THE COURT: Okay. Very well. In light of the time I don't see that you have any options at this time but to rest.
MS. CAHN: Then I ask to be allowed to give background on [the informant], Judge. You can't preclude me from getting into the kind of character this man is and what he had to gain from lying.
THE COURT: Well Mrs. Cahn, if he's not testifying, you can't.
MS. CAHN: Judge, he's under a subpoena. Then I ask for a ...