{ "id": 2646554, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES L. MORSE, Defendant-Appellant", "name_abbreviation": "People v. Morse", "decision_date": "1989-07-19", "docket_number": "No. 5-87-0482", "first_page": "503", "last_page": "510", "citations": [ { "type": "official", "cite": "185 Ill. App. 3d 503" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "497 N.E.2d 1360", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1361-62" } ], "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3605455 ], "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0193-01" ] }, { "cite": "521 N.E.2d 174", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "175" } ], "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 251", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3470863 ], "year": 1986, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0251-01" ] }, { "cite": "488 N.E.2d 1087", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1092" } ], "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 433", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3532102 ], "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0433-01" ] }, { "cite": "404 N.E.2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "238" } ], "opinion_index": 0 }, { "cite": "79 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069192 ], "year": 1986, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0564-01" ] }, { "cite": "483 U.S. 756", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 28110 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/483/0756-01" ] }, { "cite": "424 N.E.2d 29", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 1083", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3108074 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/1083-01" ] }, { "cite": "428 N.E.2d 894", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3085259 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0830-01" ] }, { "cite": "362 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5465234 ], "weight": 2, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0317-01" ] }, { "cite": "532 N.E.2d 472", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 602", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3621483 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0602-01" ] }, { "cite": "438 N.E.2d 565", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "567" } ], "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 1019", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3025257 ], "year": 1987, "pin_cites": [ { "page": "1023" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/1019-01" ] }, { "cite": "514 N.E.2d 799", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "802" } ], "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 447", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466990 ], "weight": 2, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0447-01" ] }, { "cite": "451 N.E.2d 603", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 104", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3518809 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0104-01" ] }, { "cite": "280 N.E.2d 708", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. 2d 50", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392468 ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0050-01" ] }, { "cite": "360 U.S. 264", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9052 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/360/0264-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 3, "year": 1959, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] } ], "analysis": { "cardinality": 703, "char_count": 13828, "ocr_confidence": 0.767, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.33297906557486556 }, "sha256": "3f1fb47bb538c947f96bda1221125c95f474cbc4384b190fbfd9c17b80850c36", "simhash": "1:3b183ddcea96e3f7", "word_count": 2290 }, "last_updated": "2023-07-14T17:15:46.579667+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES L. MORSE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOWERTON\ndelivered the opinion of the court:\nThe 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.\nWe affirm defendant\u2019s conviction despite the State\u2019s 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\u2019s witness.\nDefendant 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.\nThe informant had been persuaded to participate in the setup by the Massac County State\u2019s Attorney\u2019s 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\u2019s 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\u2019s Attorney further agreed to refrain from transferring a case against the informant\u2019s son from juvenile to criminal court.\nNotwithstanding 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 \u201cBrady material,\u201d and therefore, not discoverable.\nNevertheless, after a pretrial conference, defense counsel asked if any deals had been made with the informant and the State\u2019s Attorney replied that he had agreed to reduce the armed violence charge and to recommend probation when defendant pleaded guilty. However, the State\u2019s Attorney did not disclose information concerning dismissal of the traffic cases.\nBefore trial, the State\u2019s Attorney left office, and a new one appointed.\nOn the day defendant\u2019s 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.\nAt 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.\nDefendant moved for a mistrial based on the State\u2019s refusal to disclose. The circuit court denied that motion.\nThe State called as a witness the previous State\u2019s Attorney. He testified to the promise of leniency for the informant as well as for the informant\u2019s son, but denied deliberately allowing the speedy trial period to run. The ex-State\u2019s Attorney further denied that the traffic cases were dismissed in consideration of the informant\u2019s efforts against defendant.\nDisclosure of leniency is critical to the integrity of the fact-finding process. A defendant has the right to question a witness concerning any matter which would tend to discredit the witness, and the fact that a witness has been charged with a crime may be shown where it reasonably tends to show bias or motive to fabricate. (People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708.) The State usually has superior access to information regarding a promise of leniency. Because a defendant cannot cross-examine on what he does not know, we require the State to give the defendant this information to allow him the opportunity to show bias. However, if that defendant has knowledge of the promise of leniency, there is no prejudice in failure to disclose. See People v. Elbus (1983), 116 Ill. App. 3d 104, 451 N.E.2d 603.\nHere, defendant not only knew of the promise, but extensively cross-examined the informant on it, as well as on the dismissal of the pending traffic cases. While, in this case we find that there was no prejudice, ordinarily, refusal to disclose will result in a denial of due process.\nDefendant complains that the ex-State\u2019s Attorney should not have been allowed to testify as to his motivations in making the promise of leniency to the informant, and that his testimony had the effect of vouching for the credibility of the informant. Defendant further claims that the circuit court erred in allowing the ex-State\u2019s Attorney to testify, because he was not one of the witnesses listed in the State\u2019s discovery answer. The State cites People v. Hudson (1987), 161 Ill. App. 3d 447, 514 N.E.2d 799, and counters that because it had no intent to call the ex-State\u2019s Attorney to testify until defendant\u2019s opening remarks concerning the \u201cdeal\u201d struck between the ex-State\u2019s Attorney and the informant, it had no duty to disclose the witness\u2019 name prior to trial.\nThe question of whether a witness who has not been listed should testify is submitted to the discretion of the circuit court, and absent a showing of surprise or prejudice, the circuit court\u2019s decision to permit a witness to testify will not be reversed. (People v. Taylor (1982), 107 Ill. App. 3d 1019, 1023, 438 N.E.2d 565, 567; People v. Hudson (1987), 161 Ill. App. 3d at 452, 514 N.E.2d at 802.) We find no such abuse of discretion.\nThe ex-State\u2019s Attorney\u2019s testimony was relevant to show the terms of the promise of leniency and was made critical to the State\u2019s case when defendant implied that the speedy trial period for the informant\u2019s armed violence case deliberately had been allowed to expire. The only means the State had to rebut that implication was through the testimony of the ex-State\u2019s Attorney, himself. Further, the defendant had implied that the traffic cases had been dismissed in exchange for the informant\u2019s efforts in this case. Again, the testimony of the ex-State\u2019s Attorney was relevant to rebut that implication. Both implications were made by defendant\u2019s cross-examination of the informant. Ordinarily, witnesses who are called to rebut material presented by the defense need not be listed as witnesses. (People v. Fox (1988), 177 Ill. App. 3d 602, 532 N.E.2d 472.) We feel that the same theory should apply here, since the implication was made by the defense, not by the State. Since the implication that was made here ordinarily would not be one that would be part of the State\u2019s case in chief, we do not feel that the circuit court abused its discretion in allowing the ex-State\u2019s Attorney to testify.\nThe ex-State\u2019s Attorney was allowed to testify as to why he exchanged leniency for the informant\u2019s work. Defendant now says those reasons are irrelevant. They are. Illinois has adopted Rule 401 of the Federal Rules of Evidence. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) \u201c \u2018Relevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d (Monroe, 66 Ill. 2d at 322, 362 N.E.2d at 296.) Here, the fact of consequence is not the reason the offer of leniency was made, rather it is the bias of the informant shown by the promise of leniency. However, we find that the defendant waived any claim of prejudice in this case. When the prosecutor asked the ex-State\u2019s Attorney how he arrived at the decision to offer leniency, defense counsel objected, and then said, \u201cI will withdraw that objection. I will take that up on cross-examination, Judge.\u201d That is more than waiver, it amounts to a request, and overt approval.\nDefendant next complains that the circuit court erred in overruling his objection to the portion of the ex-State\u2019s Attorney\u2019s testimony wherein he said he thought the informant was sincere; defendant points out that it is error for one witness to comment on the credibility of another witness. (See People v. Dowd (1981), 101 Ill. App. 3d 830, 428 N.E.2d 894; People v. Best (1981), 97 Ill. App. 3d 1083, 424 N.E.2d 29.) The proposition of law defendant has relied on is correct; however, it has no application in this case. This testimony came when the ex-State\u2019s Attorney was asked how he arrived at the decision to promise leniency. When defendant\u2019s objection had been withdrawn, the witness began to give his reason, and when he said, \u201cIt also appeared to me that the information that he was providing was one of first hand knowledge, and that he was sincere,\u201d defendant objected that the witness was trying to vouch for the credibility of the informant. The circuit court properly overruled this objection. Defendant wanted the witness to give the reasons. Sincerity of the informant most likely will always be a reason to offer leniency. Defendant cannot withdraw an objection and then later reassert the objection merely because the testimony becomes unfavorable to him. He cannot have it both ways.\nDefendant next complains that he was prejudiced despite the circuit court\u2019s sustaining his objection to a witness making an unsubstantiated claim that defendant had a drug operation. We find no error. When a circuit court sustains an objection, ordinarily there can be no reversal. Only in instances of extreme prejudice has a reviewing court found error and reversed a conviction. (Greer v. Miller (1987), 483 U.S. 756, 97 L. Ed. 2d 618, 107 S. Ct. 3102; People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233, 238; People v. Whitfield (1986), 140 Ill. App. 3d 433, 441, 488 N.E.2d 1087, 1092.) That is not presented here.\nOnly one fleeting reference was made to the \u201coperation\u201d and defendant\u2019s objection to the reference was promptly sustained. Furthermore, there can be no prejudice because the informant had testified without objection that he and defendant had been involved together in drug trafficking six or seven times before, and that in these instances defendant would deliver the drugs to the informant, who then would go out and sell them and then pay defendant, and further that he owed defendant $3,000 from an earlier drug deal.\nDefendant next urges this court to reverse his conviction because of \u201cbad faith\u201d on the part of the State. He argues that refusing to disclose the promise of leniency, together with the testimonial improprieties establish a course of conduct that should not be sanctioned. Suspicions of reasonable people are aroused by the fact sequence of this case: The State refused to disclose leniency, denied dismissing traffic cases as a payoff for the informant\u2019s efforts, and then claimed that taking a dismissal of the informant\u2019s case the very day defendant\u2019s trial began because the speedy trial period had run was a coincidence. However, neither this court nor any other court can give judgment on suspicion. No lawyer should be found in \u201cbad faith\u201d on suspicion. The record in this case does not support defendant\u2019s contention.\nDefendant lastly contends that he was fined too much under section 5 \u2014 9\u20141.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 9\u20141.1). Under the provisions of that section, a person convicted of unlawful delivery of drugs must be fined not less than the \u201cfull street value of the [drugs].\u201d (Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 9\u20141.1.) The circuit court relied on the expert opinion of a drug agent that the street value of the drugs involved was $11,000. Defendant contends that the value should have been determined by the amount defendant charged for the drugs, $4,800. We reject defendant\u2019s claim. Where a quantity of drugs larger than would be used for personal consumption is sold, the \u201cstreet value fine\u201d can be higher than the price actually paid on the theory that the price paid is wholesale, but the value on the street is retail. (People v. Lusietto (1988), 167 Ill. App. 3d 251, 253, 521 N.E.2d 174, 175; People v. Pilcher (1986), 147 Ill. App. 3d 193, 196, 497 N.E.2d 1360, 1361-62.) Defendant sold 56.1 grams of cocaine; the evidence showed that cocaine usually is sold in quantities of eight grams or less in Massac County. The cocaine sold was 68% pure; the evidence showed that cocaine sold in Massac County is rarely more than 50% pure, and ordinarily in the range of 34%. This evidence justified the circuit court in imposing a fine in excess of the amount paid to the defendant.\nThe circuit court is affirmed.\nAffirmed.\nGOLDENHERSH and RARICK, JJ., concur.", "type": "majority", "author": "JUSTICE HOWERTON" } ], "attorneys": [ "Daniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, and Lori J. Lanciani, of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Mark C. Hunter, State\u2019s Attorney, of Metropolis (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES L. MORSE, Defendant-Appellant.\nFifth District\nNo. 5-87-0482\nOpinion filed July 19, 1989.\nDaniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, and Lori J. Lanciani, of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nMark C. Hunter, State\u2019s Attorney, of Metropolis (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0503-01", "first_page_order": 529, "last_page_order": 536 }