Appeal from Circuit Court of Champaign County No. 00CF627 Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Knecht
On August 11, 2000, defendant was convicted by a jury of unlawful delivery of a controlled substance (720 ILCS 570/407(b)(2) (West 2000)). Defendant appeals and alleges the prosecution denied him due process by refusing to negotiate toward a plea bargain after defense counsel sought the identity of an informant. We affirm.
On April 4, 2000, defendant was charged by information with unlawful delivery of a controlled substance, a Class X felony (720 ILCS 570/407(b)(1) (West 2000)). The information alleged defendant, on March 8, 2000, knowingly delivered 1 gram or more, but less than 15 grams, of cocaine while within 1,000 feet of a place of religious worship. On April 18, 2000, the trial court entered a pretrial discovery order, by which it ordered disclosure of information, such as identity of witnesses and exculpatory evidence, to defendant. The State responded by listing witnesses, but did not list the name of the confidential informant. The State averred it provided any exculpatory evidence.
Defendant, on May 12, 2000, filed a motion to disclose the name and address of the confidential informant listed in a police report. On May 18, 2000, the State disclosed the name and criminal history of the informant.
On May 22, 2000, defendant moved to dismiss for prosecutorial misconduct and moved for appointment of a special prosecutor. According to the motion, defense counsel Scott Lerner spoke with Assistant State's Attorney Duke Harris on May 16, 2000, regarding plea offers. Harris told Lerner he would make no plea offers in cases where the defendant requested the name of a confidential source and no offers in any case for which Lerner was the attorney. Harris also informed Lerner all offers he earlier made to Lerner were void. The motion concedes "the State is not required to make an offer" but argues "it is not proper to refuse to give an offer based on personal feelings about a client's attorney."
On May 31, 2000, a hearing was held on defendant's motion. The trial court accepted counsel's recitation of facts. According to Lerner, he spoke to Harris on May 16, 2000, regarding plea offers. Harris told Lerner he would make no offer in a case to which defendant requested the name of the confidential informant. Lerner asked Harris regarding another defendant he represented, Jonte Brim, who did not seek the name of the confidential informant. Harris refused to make a plea offer to Brim. In the case of Frank Piotroski, another of Lerner's clients, Harris also refused to make an offer.
Harris offered to clarify Lerner's statements. According to Harris, the same informant in Champaign was involved in a number of "video buys" and approximately 20 cases. Of those 20 cases, Lerner represented three defendants, including Brim and Moore. Lerner moved to disclose the informant in those cases. Harris told Lerner "if the State is forced to disclose informants that are otherwise usable tools of law enforcement, there would be no offers in those cases." Lerner continued to demand the name of the informant. The State turned it over and refused to plea bargain. Harris acknowledged Lerner did not file a motion to disclose in Brim's case, but stated it involved the same informant. Harris stated once the informant has been turned over, it was turned over in all of those cases and he had no motivation to negotiate.
Lerner did not dispute these facts but contended Harris's "recitation of the facts appears to be more narrow than what his position actually is." Lerner stated Harris made no offer regarding Frank Piotroski, even though Piotroski's case did not involve the informant. Harris stated in the Piotroski case no offer was made because Piotroski demanded a speedy trial. Lerner did not object to this statement.
The trial court concluded the evidence of any discrimination by Harris against Lerner was insufficient to justify relief on that ground. The trial court further held the following:
"I don't see any effort here to deny the [d]efendant
a right to trial. There is, I believe, no right to
a plea offer. And if the State chooses to offer
under some circumstances and not in others, I
believe there's case law saying that the State can
The trial court denied defendant's motion to dismiss and for other relief. The trial court, however, granted Lerner's motion to withdraw as defendant's counsel. The trial court appointed new counsel, David Rumley, to represent defendant.
On August 10, 2000, defendant was charged with the lesser offense of unlawful delivery of a controlled substance, a Class 1 felony (720 ILCS 570/407(b)(2) (West 2000)), for defendant's alleged conduct on March 8, 2000. The information lessened the amount of cocaine allegedly delivered to less than ...