dissenting:
The majority has correctly determined that allowing defendant to be impeached by his statements made to a probation officer during his pretrial services interview was error; however, I must dissent from the view that such error is harmless.
The subject matter of the impeachment was defendant’s use of a controlled substance, certainly an issue likely to reflect badly upon defendant during the jury’s deliberations. Drug use is a crime and "[t]he erroneous admission of evidence of other crimes carries a high risk of prejudice and ordinarily calls for reversal.” (People v. Lindgren (1980), 79 Ill. 2d 129, 140, 402 N.E.2d 238, citing R. Traynor, The Riddle of Harmless Error 63 (1970).) Evidence of crimes for which a defendant is not on trial is inadmissible if relevant merely to establish his propensity to commit crime because it "overpersuades the jury, which might convict the defendant only because it feels he is a bad person deserving punishment.” People v. Richardson (1988), 123 Ill. 2d 322, 338-39, 528 N.E.2d 612.
Under limited circumstances, drug use may be relevant to impeach a witness’ ability to observe and narcotics addiction may be relevant to undermine a witness’ credibility. (People v. Willis (1992), 235 Ill. App. 3d 1060, 1073, 601 N.E.2d 1307.) In Willis, the defendant contended that the State had improperly cross-examined him on whether he had a drug problem. The appellate court agreed with the defendant under the facts of the case but did not reverse defendant’s conviction of mob action, reasoning that sufficient proper evidence sustained the conviction and, since defendant had a bench trial, the trial court is presumed to have considered only competent and proper evidence. The Willis court also noted that no proof of drug use or a drug problem was presented.
In People v. Ingram (1980), 91 Ill. App. 3d 1074, 415 N.E.2d 569, this court held that the defendant had been improperly cross-examined about pretrial statements which he made to a probation officer concerning his use of heroin. The defendant admitted on cross-examination that he had used cocaine but steadfastly denied using heroin. The defendant’s admission of heroin use had been made to the probation officer as part of a pretrial investigation report in contemplation of a plea bargain. Ingram found that such discussions are protected by Supreme Court Rule 402(f), which provides now, as it did at the time of the Ingram case, that:
"If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, *** neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” 134 Ill. 2d R. 402(f).
However, the defendant’s conviction of aggravated battery was not reversed in Ingram because, like Willis, the trial was a bench, not jury, trial where the judge is presumed to have considered only competent evidence absent an affirmative showing to the contrary. Moreover, in Ingram, the probation officer’s report was not admitted into evidence and the probation officer was not called as a witness to perfect the impeachment.
Like the defendant in Ingram, who admitted the use of cocaine but denied the use of heroin, defendant in the case at bar admitted that he expected to receive marijuana in exchange for doing Gilreath a favor but denied the use of marijuana to reduce his use of other drugs.
As the disclosure of drug use by the defendants during cross-examination in Willis and Ingram was improper, so also has it been held to be improper in the present case. In the present case, however, the error was compounded by the additional testimony of the probation officer.
Unlike the defendants in Willis and Ingram, defendant in the present case was tried by a jury where the improper infusion of defendant’s drug use into the trial can only be viewed as highly prejudicial in the eyes of the jurors. The prejudicial impact of improperly admitted evidence is more likely to occur in a case decided by a jury as opposed to a judge. Lindgren, 79 Ill. 2d at 140.
The majority suggests that it affirms because it has "considered the totality of the evidence.” (257 Ill. App. 3d at 306.) In that event, it should be led to a different conclusion. This case, by any measure, is close.
My reading of the evidence is that defendant is a not-too-bright individual who is in the wrong place at the wrong time but does not seem to be part of the intricate criminal web that his codefendants developed. The conversations to which the codefendant was prepared to testify were verbal acts and should have been admitted as such rather than for the truth or falsity concerning defendant’s nonparticipation in any part of the planning stages of the charged crimes.
Moreover, as the majority clearly recognizes, there is a strong public policy to encourage a defendant to speak freely and candidly to his probation officer. I believe that the need for candid exchange of information between a defendant and a probation officer is inherent in both Supreme Court Rule 402(f), which prohibits the admission of a defendant’s statements made during plea negotiations, and section 11 of the Pretrial Services Act, which also generally bars such statements as evidence. Allowing impeachment through the use of such statements, finding such to be error and then determining it to be harmless is not likely to send an appropriate message with regard to the treatment to be accorded statements made to a probation officer.
Accordingly, I would reverse and remand for a new trial.