dissenting:
It is to be recalled that in Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623, and People v. Lewis (1974), 57 Ill. 2d 232, 311 N.E.2d 685, the court’s attention was directed to cases where the informer witness was never identified, was never interviewed by defendant’s counsel and did not appear as a witness at trial. Such facts are not present here.
In the context of constitutional rights, there is no fixed rule with respect to disclosure of informer witnesses by the State. (Roviaro, 353 U.S. 53, 62, 1 L. Ed. 2d 639, 646, 77 S. Ct. 623.) It appears that such language and principle is adopted in Lewis (1974), 57 Ill. 2d 232, 238, 311 N.E.2d 685, 687.
In Lewis, the court said:
“[T]he defendant must, at minimum, be allowed to interview the informer, and if he desires, call him as his own witness, ° ° (57 Ill. 2d 232, 238, 311 N.E.2d 685, 689.)
This record discloses that defendant was accorded greater rights than the minimum stated in Lewis, for he was permitted to examine the informer witnesses under oath in a recorded interview some two months prior to trial, to call the informers as his own witnesses and to examine one of such witnesses as upon cross-examination.
It is reasonably apparent that if defendant had simply been supplied with the names and addresses of the witnesses he would be faced with the fact that a witness has no obligation to discuss the case with defense counsel. (People v. Peter (1973), 55 Ill. 2d 443, 303 N.E.2d 398; People v. McAleer (1975), 34 Ill. App. 3d 821, 341 N.E.2d 72.) Here, he received more.
This record makes clear that the identities and the addresses of the witnesses were under the control of a Federal agency and that they were participating in continuing informer activity for that agency. The “informer’s privilege” is recognized as necessary. Roviaro, 353 U.S. 53, 59, 1 L. Ed. 2d 639, 644, 77 S. Ct. 623.
It appears that the State’s Attorney informed the defendant of the identity of the witnesses promptly upon receiving the information and that such witnesses had no known felony convictions. It is further shown that the State’s Attorney arranged for the witnesses to be present to testify if defendant wished to call them and that the permanent address of each was outside of this State.
The transcripts of the tape recording interviews between counsel and the witnesses are included in the record. They disclose no limitation upon counsel’s questioning of the witnesses at the interview. The defendant argues that his interview was limited by the fact that he was not permitted to be present when counsel interviewed such witnesses. The report of proceedings indicates that defendant’s counsel again interviewed the two witnesses prior to calling them at trial. There is no suggestion that the interview was restricted in time or content. From the record it may be inferred that defendant was not present at this interview, but it is not claimed that he was excluded by order of the court or action of the State’s Attorney.
We have examined both the transcript of the interviews prior to. trial and the testimony of the witnesses at the trial. Defendant’s inquiries of the witnesses at trial was narrower than the interview and was directed essentially to whether the informers first met the defendant on the day of the delivery transaction, or had been at his home prior to that date. As to the informer examined as upon cross-examination, there was no attempt to impeach by inquiry as to prior felony convictions, there was no inquiry before the jury as to the manner of employment as informers or as to compensation for purposes of establishing bias. In substantial terms, defendant did not interrogate the informer witnesses with regard to their activities in arranging for defendant’s delivery of a substance to the Federal agent, nor did he interrogate these witnesses concerning the details of the actual delivery.
In short, the facts of record do not disclose that defendant was denied a constitutional fair trial within the rule of Roviaro and that he did have the interviews and did call the informers as his witnesses within the rule of Lewis. I suggest that this court seriously errs in stating a per se rule when both Roviaro and Lewis expressly determine that there is no such fixed rule. The judgment should be affirmed.