People v. Holmes

• Citation: 142 Ill.Dec. 172,135 Ill.2d 198,552 N.E.2d 763
• Decision Date: 24 January 1990
• Docket Number: No. 68448,68448
• Parties: , 142 Ill.Dec. 172 The PEOPLE of the State of Illinois, Appellant, v. Louis HOLMES, Appellee.
• Court: Supreme Court of Illinois

Page 763

552 N.E.2d 763

135 Ill.2d 198, 142 Ill.Dec. 172

The PEOPLE of the State of Illinois, Appellant, v. Louis HOLMES, Appellee.

No. 68448.

Supreme Court of Illinois.

Jan. 24, 1990.

Rehearing Denied April 9, 1990.

Neil F. Hartigan, Atty. Gen., Springfield, and Raymond Kimbell III, State's Atty., Galesburg (Robert J. Ruiz, Sol. Gen., and Terence M. Madsen and Michael J. Singer, Asst. Attys. Gen., Chicago, and Kenneth R. Boyle and John X. Breslin, of the State's Attys. Appellate Prosecutor, Ottawa, of counsel), for people.

Robert Agostinelli, Deputy Defender, and Joseph N. Ehmann, Asst. Defender, of the Office of the State Appellate Defender, Ottawa, for appellee.

Justice CLARK delivered the opinion of the court:

The central question raised by this appeal is whether the State should be required to produce a government informant for trial where that informant's testimony could undermine the State's case against the defendant.

On November 6, 1986, defendant, Louis Holmes, was indicted in the circuit court of Knox County on two counts of unlawful delivery of cannabis (Ill.Rev.Stat.1985, ch. 56 1/2, pars. 705(c), (d)). The first count alleged that defendant sold cannabis to a police officer named Carl Powell in the presence of a government informant named Wayne Lee on February 25, 1986. The second count alleged that defendant sold cannabis to the informant on March 5, 1986.

On February 5, 1988, defendant moved to dismiss the indictments on the grounds that the informant used by the State in the investigation that resulted in the indictments could not be located. A hearing on the motion was held on February 8, 1988.

Defendant argued at the hearing that under the three-part test articulated by the Illinois appellate court in People v. Stumpe (1979), 80 Ill.App.3d 158, 163, 35 Ill.Dec. 458, 399 N.E.2d 292, the indictments should be dismissed. The Stumpe test requires that in order for an indictment to be dismissed due to the unavailability of a government informant, a defendant must first establish that the informant's testimony would be relevant and material. If that is established, the State must produce the informant for trial or show that it has made a reasonable good-faith effort to locate the witness. If the State meets its burden, the indictment can only be dismissed if the defendant can demonstrate that the informant's testimony would likely be exculpatory or, in the alternative, would likely be impeached in a way that would create doubt as to the reliability of the State's case. Stumpe, 80 Ill.App.3d at 163, 35 Ill.Dec. 458, 399 N.E.2d 292.

The State, however, citing People v. Contursi (1979), 73 Ill.App.3d 458, 29 Ill.Dec. 774, 392 N.E.2d 331, and People v. Williams (1968), 40 Ill.2d 367, 240 N.E.2d 580, argued that the test set forth in Stumpe is inappropriate. Instead, the State contended that under Contursi and Williams, the indictments should not be dismissed unless defendant could show that the State was responsible for the unavailability of the informant. The trial court disagreed, holding that the defendant's claim should be assessed under the Stumpe test.

Both parties agreed that the informant's testimony would be material and relevant. Accordingly, under the Stumpe test the State then had the burden of proving that it had made a good-faith effort to locate the informant. (See Stumpe, 80 Ill.App.3d at 163, 35 Ill.Dec. 458, 399 N.E.2d 292.) To meet its burden, the State presented the testimony of two police officers. The officers testified that they had unsuccessfully attempted to locate the informant by repeatedly going to the informant's house and speaking with people in the town where the informant lived and at a bar which the informant frequented. They also stated that the informant never told them that he would be unable to testify at trial. Finally, they both testified that they had not encouraged the informant to make himself unavailable. On cross-examination, both officers admitted that they had not spoken with anyone in the informant's family or contacted the Federal Bureau of Investigation, the Illinois State Police, or any other police agency in attempting to locate the informant.

The trial court found that the State met its burden of proving that it had made a reasonable good-faith effort to locate the informant. The burden then shifted to defendant to show that the informant's testimony would be exculpatory, or, in the alternative, would likely be impeached in a manner that would create a doubt as to the reliability of the State's case. See Stumpe, 80 Ill.App.3d at 163, 35 Ill.Dec. 458, 399 N.E.2d 292.

Defendant first asked the trial judge to take judicial notice of the fact that the informant had five convictions for theft and three convictions for unlawful possession of cannabis. Defendant also noted that the State had stipulated to the fact that the State paid cash to, and promised to be lenient with, the informant in return for his services.

Defendant then gave the following testimony in regard to the events which took place on February 25, 1986, the day on which he allegedly delivered cannabis to a police officer. Defendant stated that he was in a bar with the informant on February 25, 1986, when the informant asked defendant to go out with him to defendant's car. While they were in the car, the informant told defendant that the informant needed some marijuana. Defendant told the informant that defendant did not know where to find any. While they were talking, a man left the bar and got into a car that was five or six car lengths away. Defendant asked the informant if the man was the person who wanted the marijuana and the informant said yes. Defendant then told the informant that the man looked like a police officer and the informant said that it did not matter. The informant then pulled a bag of marijuana out of his pants and asked defendant if it looked like an ounce. Defendant replied that it did not make any difference because the police officer would take it in any event.

The informant then asked defendant to drive around the block while the informant talked to the other man. Defendant proceeded to drive around the block while the informant went over to talk to the other man. The other man was in fact a police officer.

After driving for a couple of blocks, defendant returned to the bar, intending to finish his game of pool. Before defendant could enter the bar, the informant came over to defendant's car and told defendant that he had told the other man to come over and that defendant should ask the other man for $50. Defendant told the informant that he did not want anything to do with the transaction. The informant then opened the door and waved to the other man, who then came over and got in the back seat of defendant's car. The informant then passed the bag of marijuana he had taken from his pants to the other man. The other man then rolled the marijuana into a cigarette, lit it, and passed it to the informant. The informant took a puff of the cigarette and offered it to defendant, but defendant refused it. The informant then passed the cigarette back to the other man. The informant asked the man to pass forward $50. The man placed the money on the armrest in the front seat of the car. The informant took the money from the armrest and then left the car with the other man.

The State rebutted defendant's testimony through testimony from the police officer who had been involved in the drug transaction. The officer testified that the informant prepared a written statement eight days after the drug transaction which contradicted defendant's testimony. In particular, the statement indicated that it was defendant, not the informant, who possessed the marijuana and sold it to the police officer. The statement was then introduced into evidence.

Following argument by counsel, the trial judge found that defendant established that the informant's testimony would likely be exculpatory, or, in the alternative, would likely be impeached in a manner that would create a doubt as to the reliability of the State's case. Consequently, the trial judge dismissed the indictments with leave to reinstate upon the production of the informant for trial. The appellate court, in an unpublished order (184 Ill.App.3d 1111), affirmed the trial court's decision pursuant to Supreme Court Rule 23 (107 Ill.2d R. 23). We subsequently granted the State's petition for leave to appeal (107 Ill.2d R. 315).

Both the State and defendant renew here the arguments that they made below: the State argues that the indictments should only be dismissed if the State itself caused or encouraged the informant's unavailability and defendant argues that the Stumpe test should be applied.

The question presented in this case has not been addressed by this court in the past. In People v. Williams (1968), 40 Ill.2d 367, 370, 240 N.E.2d 580, and People v. Wilson (1962), 24 Ill.2d 425, 430, 182 N.E.2d 203, the question before the court was whether a conviction can stand where the government caused an informant to be unavailable for trial. This court held that such intentional governmental conduct deprived the defendants in each case of their due process rights. (Williams, 40 Ill.2d at 370-71, 240 N.E.2d 580; Wilson, 24 Ill.2d at 430-32, 182 N.E.2d 203.) In the instant case, however, the government did not cause the informant's unavailability.

We similarly find People v. Bowen (1963), 29 Ill.2d 349, 194 N.E.2d 316, distinguishable. In that case, the police searched the defendant without a warrant after an informant had told them that the defendant was selling drugs. The defendant unsuccessfully moved at trial to suppress the evidence obtained from that search on the basis that the police did not have reasonable grounds for the search. (Bowen, 29 Ill.2d at 352-53, 194 N.E.2d 316.) On appeal, the defendant argued that there was "good reason to believe that the defendant was hampered in securing the...