dissenting:
I dissent from the imposition of the death sentence because I believe that the Illinois death penalty statute is unconstitutional. As I explained in my dissents in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), and People v. Silagy (1984), 101 Ill. 2d 147 (Simon, J., dissenting), when a substantial constitutional question is presented, the legal doctrine of stare decisis should not dictate the outcome. Four members of this court have stated that the decision in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, is incorrect. (77 Ill. 2d 531, 544 (Ryan, J., dissenting, joined by Goldenhersh, C.J., and Clark, J.); People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting).) I believe that the defendant’s due process rights are violated when a majority of the justices currently comprising this court hold the opinion that the death penalty statute is unconstitutional, yet that penalty is imposed on the defendant because of adherence to an inapplicable legal doctrine.
Even if there were no constitutional difficulty with the use of the Illinois death penalty statute, I believe that a serious error occurred during the guilt phase of the proceeding which requires a new trial. Defense counsel sought to discredit the identification testimony of David Toliver by establishing, on cross-examination, that the State granted him a specific favor by not charging him with a Class X offense which the circumstances of his crime warranted, in exchange for testifying against defendant. Toliver had already admitted that he had been convicted earlier for burglary, theft and forgery and had four theft charges and a burglary charge pending against him at the time of trial, and while he denied that he received any consideration from the State for his testimony, he indicated, on direct examination, that he thought his testimony “might help [his own] case out.” The trial court prevented the defense from pursuing its inquiry, which was aimed at showing that To-liver was armed while committing a burglary and was therefore a candidate for a charge of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). The majority, in affirming this ruling, cites the various admissions Toliver had already made and concludes that the information sought by the defense would have been cumulative or of no effect.
The basic interest protected by the sixth amendment right of confrontation (U.S. Const., amend. VI; see Ill. Const. 1970, art. I, sec. 8) is the right to cross-examine adverse witnesses to determine the truth of what they assert or to ascertain their bias, motive or interest in testifying. (Davis v. Alaska (1974), 415 U.S. 308, 315-16, 39 L. Ed. 2d 347, 353-54, 94 S. Ct. 1105, 1110; Burr v. Sullivan (9th Cir. 1980), 618 F2d 583, 586; People v. Barr (1972), 51 Ill. 2d 50, 51-52; People v. Andrae (1920), 295 Ill. 445, 460.) The courts of this State have consistently held, even in cases which do not involve the death penalty that a criminal defendant should be given wide latitude in developing this kind of evidence. (E.g., People v. Wilkerson (1981), 87 Ill. 2d 151, 156; People v. Barr (1972), 51 Ill. 2d 50, 51-52; People v. Mason (1963), 28 Ill. 2d 396, 403.) Although this maxim is not entirely consistent with the “ ‘general rule’ ” cited by the majority that “ ‘ “*** the latitude to be allowed in cross-examination of witnesses rests largely in the discretion of the trial court ***”’” (People v. Kline (1982), 92 Ill. 2d 490, 504, quoting People v. Gallo (1973), 54 Ill. 2d 343, 356), both Kline and Gallo involved bench trials, unlike the instant case, which was tried before a jury. Moreover, in Kline, the only case mentioned by the majority, the court prefaced its discussion of the issue by “notpng] initially that this was a bench trial” (People v. Kline (1982), 92 Ill. 2d 490, 504). Whereas, in bench trials, a judge might be within his discretion in deciding in advance that certain lines of cross-examination will not be fruitful or will unduly embarrass the witness, the rule in cases where a jury is the trier of fact should be as set forth in People v. Wilkerson (1981), 87 Ill. 2d 151, 156, a case very similar to the one at bar: “Defense counsel should [be] allowed to present the theory that the witness was not credible because [he] was being rewarded for [his] testimony, and should [be] allowed to expose to the jury the underlying charges so that the jurors could consider their effect, if any, on the reliability of the witness.”
Toliver’s credibility was vital to the outcome of the trial because he was the principal witness for the prosecution, in a case with little physical evidence and no eyewitnesses: he not only testified that the defendant told him he had murdered George Kallai but identified a voice on a tape recording of the confession as being that of the defendant. I am not persuaded by the majority’s view that the evidence to be adduced on cross-examination was merely corroborative of evidence that was already in the record. Even if there were reasons for ignoring in some cases the holding of People v. Wilkerson that “a court may not exclude otherwise admissible impeachment because it feels that the witness has already been sufficiently impeached” (87 Ill. 2d 151, 158), this should not be a case where this is done because the other “impeaching” evidence that was submitted to the jury was of a general and inconclusive nature and was contradicted by Toliver’s assertion that he had received no consideration from the State in exchange for his testimony. Had this been augmented by evidence of a specific way in which Toliver might have received consideration for testifying against the defendant, the jury might well have chosen not to believe his testimony, a decision which it did not make on the basis of the insubstantial evidence of self-interest with which it had been presented. I cannot conclude that the defendant’s inability to develop evidence that Toliver was a candidate for an armed-violence charge was harmless beyond a reasonable doubt, and would therefore reverse the conviction and remand for a new trial.