dissenting:
I must respectfully dissent from my colleague’s opinion. The defendant should have been allowed to establish all the benefits the witness received in exchange for his testimony at trial. I do agree with the majority’s disposition on the defendant’s claim of denial of his right to a speedy trial.
It is important to delineate the precise issue involved with defendant’s claim that he has been denied his right to effective cross-examination. I would agree that it would be improper to use a witness’ plea of guilty and probation under section 410 of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56½, par. 1410) for purposes of impeaching the witness by means of a prior conviction. But such is not an issue in this case. What is at issue is whether defendant was entitled to establish that the State had withdrawn or dismissed an earlier petition to revoke the witness’ probation as part of the agreement between the State and the witness. Such a fact would establish further motive or bias in addition to Ferrin’s having also received immunity from prosecution. A defendant is entitied to have the jury know not only the fact that lenient treatment has been given, but also its extent as well.
As indicated by the majority, Ferrin received immunity from prosecution on November 18, 1974. On that date the witness was still on probation under section 410 and prior to this time, the State had filed a petition to revoke his probation based upon Ferrin’s participation in the burglary of the Cordell house. The general rule on cross-examination of accomplice witnesses was well stated in People v. Maggio, 324 Ill. 516, 529, 155 N.E. 373, 378, and has been reaffirmed in more recent opinions.
“The testimony of an accomplice is competent evidence, and, although uncorroborated, may be sufficient to sustain a conviction if it is of such a character as to prove guilt beyond a reasonable doubt. It is always, however, subject to grave suspicion and should be acted on with great caution. [Citations.] A defendant against whom an accomplice in the crime testifies is therefore entitled to cross-examine such witness and interrogate him freely as to his motives, bias and interest, his relation to the crime and the persons connected with it, and any matters which tend to impeach his fairness or impartiality.” (Accord, People v. Norwood, 54 Ill. 2d 253, 296 N.E.2d 852, People v. Baker, 16 Ill. 2d 364, 158 N.E.2d 1.)
Though the scope of cross-examination is within the trial court’s discretion, as is correctly stated by the majority, “the widest latitude should generally be allowed the defendant in cross-examination for the purpose of establishing bias.” (People v. Mason, 28 Ill. 2d 396, 403, 192 N.E.2d 835, 838-39.) I believe application of these principles clearly requires that defendant should have been allowed to cross-examine Ferrin concerning the petition to revoke his probation.
In deciding adversely to defendant’s claim of error, the majority has attributed certain significance to the fact that the witness’ probation was over at the time of trial and therefore the State could no longer use revocation of probation as a means to secure the witness’ cooperation. I believe such to be erroneous. The mere fact that leniency or benefits have already been conferred upon a witness may lesson its detrimental affect on the witness’ credibility, but it cannot be the basis for excluding cross-examination as to the existence of leniency or benefits received.
In People v. Bote, 376 Ill. 264, 33 N.E.2d 449, an accomplice pleaded guilty for his participation in the alleged offense charged against defendant and also signed a confession. Defendant attempted to prove on cross-examination that after the witness had signed a confession, he received different kinds of food from other prisoners, and also attempted to prove that after the witness pleaded guilty, he was not taken into custody nor locked up in the county jail. The court held that it was error to limit defendant’s cross-examination. In People v. Garrett, 44 Ill. App. 3d 429, 358 N.E.2d 364, defendant attempted on cross-examination to elicit from a police officer that a state’s witness had been helped financially before trial and that the defendant’s mother had made complaints about the witness. In holding that error had been committed in limiting the cross-examination, the court stated:
“The jury was entitled to know the witness’ past and current relationship with the police.” 44 Ill. App. 3d 429, 438, 358 N.E.2d 364, 371.
In People v. Norwood, 54 Ill. 2d 253, 296 N.E.2d 852, a juvenile witness for the State was an accomplice to the defendant in an armed robbery which resulted in the robbery victim being shot and killed. Defense counsel sought to show that the witness had received lenient treatment, both for his involvement in the homicide with defendant and for past offenses for which he was in custody of the State. The court upheld defendant’s claim that he was entitled to elicit on cross-examination whether the witness’ testimony was attributable to lenient treatment which he had received or had been promised. From the reasoning in these cases, I believe the fact that the witness’ probation was no longer subject to being revoked at the time his testimony was given does not prevent inquiry into why the petition to revoke was not acted upon or was withdrawn by the State.
The primary reason advanced by the trial court for limiting cross-examination into the area of the State’s petition to revoke the witness’ probation, was that under a section 410 proceeding there was no adjudication of guilty and hence the plea of guilty cannot be used for impeachment. While the majority have refrained from discussing the propriety of the trial court’s reasoning, I believe it merits discussion.
Neither the fact that there has been no judgment of conviction nor the fact that the cross-examination may reveal to the jury the basis for the section 410 probation should limit defendant’s right to cross-examination the witness as to any benefits he received in exchange for his testimony. Both the United States and Illinois Supreme Courts have ruled that it is permissible to cross-examine a witness about prior arrests or criminal misconduct where the witness’ present testimony may be motivated by hopes of lenient treatment in the other proceeding. Hence, the general rule against admitting prior criminal misconduct does not prevent the defendant from showing the witness’ bias because of expectation of lenient treatment in the other proceeding. In People v. Norwood, 54 Ill. 2d 253, 296 N.E.2d 852, the court held that section 2 — 8 of the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, par. 702 — 8) did nor bar disclosure of juvenile records of a witness in so far as they might be relevant to the defendant’s claim that the witness’ testimony was attributable to lenient treatment which he had received or had been promised. If cross-examination as to bias or motive for testimony may be conducted even though such an inquiry may reveal nonpublic juvenile records, then so too should cross-examination into bias be permitted which might incidentally reveal a section 410 probation or the events which culminated in that probation.
The defendant in this case should have been allowed to cross-examine the witness to show the reason why the petition to revoke probation was not acted upon or was withdrawn by the State after the witness had agreed to testify.
While it is unclear whether the majority position is founded upon the absence of error or upon the lack of reversible error, I believe the limitation of defendant’s cross-examination of Ferrin was both error and reversible error.
Of crucial significance in determining whether reversible error has been committed is the extent to which the defendant was prejudiced by the error. I believe that when the sole evidence which connects a defendant to the commission of a criminal offense is the testimony of an accomplice and cross-examination of the accomplice as to bias or motive is improperly limited, then defendant suffers prejudice which can be remedied only by a new trial.
The defendant in People v. Whitehead, 35 Ill. 2d 501, 221 N.E.2d 256, was improperly prevented from impeaching one of the State’s most important identification witnesses. Recognizing that the identification of the defendant was a crucial issue to a trial, the court found that the error was prejudicial and ordered a new trial. In People v. Norwood, 54 Ill. 2d 253, 296 N.E.2d 852, the court found that error was committed when defendant was prevented from conducting proper cross-examination of a witness and since the only person who implicated the defendant was that witness, the court ordered a new trial. In People v. Jackson, 2 Ill. App. 3d 297, 275 N.E.2d 737, defendant attempted to use a prior inconsistent statement to impeach the credibility of a police officer to whom the defendant had allegedly made an inculpatory statement. Recognizing the importance of the inculpatory statement and hence the credibility of the officer, the court held that the error prejudiced the rights of the defendant and a new trial was ordered.
In the instant case the sole evidence connecting the defendant to the criminal offense was Perrin’s testimony. If the jury disbelieved Perrin’s testimony, there was no evidence from which defendant could be convicted. Hence, preventing defendant from conducting proper cross-examination prejudiced defendant’s rights to a fair trial and the cause should be reversed and remanded for a new trial.