FIRST DIVISION

									December 26, 2000

No. 1-99-0292

THE PEOPLE OF THE STATE OF ILLINOIS,		)	Appeal from the

								)	Circuit Court of

		Plaintiff-Appellee,				)	Cook County

								)

	v.							)	

								)

BILLY TRULY,						)	Honorable 	

								)	James P. Flannery and 

		Defendant-Appellant.				)	Lawrence Fox,

								)	Judges Presiding.

	JUSTICE O'MARA FROSSARD delivered the opinion of the court:

	Following a jury trial in the circuit court of Cook County, defendant, Billy Truly, was convicted of the murders of Paul Lowe and Jarvanley Johnson.  For the murders, the circuit court

sentenced defendant to natural life imprisonment.  We affirmed these convictions on direct appeal. 

People v. Truly, No. 1-96-1705 (1998) (unpublished order pursuant to Supreme Court Rule 23).  Defendant filed a timely pro se petition seeking relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998)).  The circuit court dismissed the petition without an evidentiary hearing.  Defendant appeals to this court maintaining that: (1) he was denied his constitutional right to cross-examine a key prosecution witness as to her motive, interest and bias

in testifying; (2) defendant's right to counsel at the lineup was violated; and (3) defendant received

ineffective assistance by appellate counsel.  We reverse and remand this case to the circuit court

for an evidentiary hearing.

BACKGROUND

	Antoinette Bell was the State's only eyewitness to the double murder.  Prior to trial, the

State made a motion in limine to bar any of the officers from testifying that since the murders occurred Antoinette Bell had been arrested on misdemeanor charges which had been dismissed

and that she received a sentence of supervision for criminal trespass to land a few weeks before

she testified against defendant.  The trial court granted the State's motion in limine.

	The evidence at trial established that on August 8, 1992, at approximately 10 p.m., Lowe

and Johnson were sitting on the front porch at 5846 South King Drive.  As defendant and another

man walked past the porch, Johnson made a comment to defendant about his girlfriend. 

Defendant replied, "Man, why you disrespecting me?"  Defendant told Johnson that he was a

member of the Gangster Disciples street gang and then walked away.  Later that night, Johnson

and Beverly Fowler walked to a nearby store and noticed defendant and another man.  Johnson

approached defendant and apologized to him.  Johnson and Beverly Fowler returned to the

apartment building.  A short time later, a group of men walked toward the building and Johnson

went to the front porch to meet them.  Lenora Jones looked out her second-floor apartment

window and heard someone say, "Disrespecting GD.  You have to have a violation."  Beverly

Fowler announced that she had called the police.  The men left the building but said that they

would be back later.    

	A few hours later, Beverly Fowler looked out the window and watched as a group of

people got out of the cars and saw Johnson and Lowe run to the backyard.  Beverly Fowler called

the police.  Antoinette Belle walked onto the back porch and saw defendant pull an 18-inch-long, three-inch-wide pole from the car, approach Johnson and hit him in the head with the pole. 

Defendant then walked in the direction of Lowe.  Bell heard sounds like somebody hitting a

baseball bat.  Defendant walked back over to Johnson, who was lying on the ground, and hit him

again.  He walked over to Lowe, and Bell heard the same sound.  Defendant again walked over to

Johnson, hit him in the head three times with the pole and drove off in a car.   

	At trial, Detective Regal testified that he found the bodies of Lowe and Johnson on the

ground.  He stated that Bell told police what she saw and described the defendant.  However, she

did not give her real name to the police.  Bell identified defendant in a photo array 4 months later. 

She identified defendant in a lineup 13 months later.  Detective Regal further testified that Beverly

Fowler identified defendant as the man Johnson approached and apologized to earlier in the

evening.  Detective Regal testified that Bell was subpoenaed to appear in court to testify but she

did not appear and as a result was arrested for contempt of court. 

	Bell testified that defendant was the only person she saw beating Lowe and Johnson with

the pole.  She further stated that she had never seen defendant before the night of the murders. 

She also testified that she was afraid when she spoke to the officers at the scene and when she

was subpoenaed to testify in court.  She stated that she was held in custody for almost a month

until the day she testified at defendant's trial.  During cross-examination, defense counsel asked

Bell whether the assistant State's Attorneys made any promises to her if she testified at defendant's

trial.  Bell responded that she asked them if they could move her out of the state after she testified

and that they had agreed to do so.  She mentioned no other promises. 

	Following the cross-examination of  Bell, the trial court heard Bell's contempt case.  The  assistant public defender representing Bell requested that the contempt charge against Bell be

purged since Bell testified.  The State agreed and withdrew its petition and the trial court purged

Bell's contempt charge.  The attorney representing Bell then asked the State when they expected

to have Bell's airplane ticket ready.  Defendant's counsel, upon hearing about the plane ticket for

the first time, requested that he be allowed to recall Bell and question her as to whether any other

promises were made to her by the State including the plane ticket and the purging of the contempt

charge.  Defense counsel further sought to recall Bell to ask Bell the destination for the plane

ticket and where she stayed during the period from 1992 to the day of trial.  The trial court denied

defense counsel's requests but allowed defense counsel to question Bell outside the presence of

the jury about her expectation regarding the contempt charge. 

	Defendant presented an alibi defense that he was in Milwaukee, Wisconsin, when the

murders took place.  Defendant’s former girlfriend, Clara Green, and family members testified that

defendant was not in Chicago at the time of the murders.  In rebuttal, Detective Winstead stated

that when he questioned defendant about the murders in August 1992, defendant told him that he

was in prison at the time of the murders.  After Winstead reminded defendant that he had already

been released from prison, defendant responded that he was out of town at the time that the

murders occurred.  However, defendant was unable to state where or with whom he was out of

town.

	The jury found defendant guilty of both the murders of Johnson and Lowe.  Defendant

was sentenced to natural life imprisonment.  Defendant appealed, and his conviction and sentence

were affirmed in an unpublished order.  Thereafter, defendant filed a pro se postconviction petition consisting of approximately 100 pages and 50 pages of exhibits.  The trial court ruled that

defendant's claims were barred by waiver or res judicata and dismissed defendant’s postconviction petition without an evidentiary hearing, finding the petition frivolous and patently

without merit.  Defendant appealed.

ANALYSIS

	Defendant contends that the circuit court erred in summarily dismissing his postconviction

petition without an evidentiary hearing.  A proceeding under the Act is not an appeal; it is a

collateral attack on the prior judgment.  People v. Brisbon, 164 Ill. 2d 236, 242 (1995).  A defendant is not entitled to an evidentiary hearing on a postconviction petition as a matter of

course.  People v. Albanese, 125 Ill. 2d 100, 105 (1988).  In order to survive summary dismissal, a petitioner under the Post-Conviction Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) needs to assert the gist of a constitutional claim.  People v. Coleman, 183 Ill. 2d 366, 380-81 (1998).  However, the gist of a meritorious claim is not established by a bare allegation of deprivation of a

constitutional right.  People v. Prier, 245 Ill. App. 3d 1037, 1040 (1993).  A defendant still must allege sufficient facts from which the trial court could find a valid claim of deprivation of a

constitutional right.  People v. Ramirez, 242 Ill. App. 3d 954, 958 (1993).  A hearing is required only when the allegations of the petition, supported by the trial record and the accompanying

affidavits, make a substantial showing of a violation of a constitutional right.  People v. Hobley, 182 Ill. 2d 404, 427-28 (1998).  All well-pleaded facts are taken as true at this stage; therefore, the summary dismissal of a postconviction petition is subject to de novo review.  Coleman, 183 Ill. 2d at 380-81, 388, 389. 

	The Act provides a remedy to criminal defendants who make a substantial showing that a

violation of their federal or state constitutional rights occurred at the proceedings which resulted

in their convictions, when such a claim has not been, and could not have been, adjudicated

previously.  People v. Griffin, 178 Ill. 2d 65, 72-73 (1997).  Issues that were decided on direct appeal are barred by the doctrine of res judicata and issues that could have been raised on direct appeal, but were not, are deemed waived.  People v. Towns, 182 Ill. 2d 491, 502-03 (1998).  The doctrines of res judicata and waiver will be relaxed "where fundamental fairness so requires."  People v. Gaines, 105 Ill. 2d 79, 91 (1984).  Where the alleged waiver stems from the incompetence of appellate counsel, the doctrine is relaxed.  People v. Barnard, 104 Ill. 2d 218, 229 (1984).  The rule is also relaxed when the facts relating to the claim do not appear on the face

of the original appellate record.  People v. Eddmonds, 143 Ill. 2d 501, 528 (1991).  A claim may survive waiver as the result of any one of these three exceptions.  People v. Whitehead, 169 Ill. 2d 355, 372 (1996).

I. Constitutional Violation of  Right to Confront Witness

	We first consider defendant's argument that his petition makes a substantial showing that

he was denied his sixth amendment (U.S. Const., amend. VI) constitutional right to confront Antoinette Bell, the State's only eyewitness to the double murder, and to cross-examine her as to

her bias, interest and motive in testifying.  Defendant claims the trial court improperly restricted

cross-examination of Bell in four areas: (1) Bell's three prostitution arrests, dismissed prior to

defendant's trial, and her supervision for criminal trespass to land received just weeks before trial;

(2) the fact that after the murders Bell continued to frequent the neighborhood where the murders occurred; (3) Bell's expectation of receiving a plane ticket from the State's Attorney's office in

exchange for her testimony at trial; and (4) her expectation of leniency regarding a pending

contempt charge.  Although the record reflects that defendant  failed to raise these issues on

direct appeal, the application of waiver is relaxed in proceedings on a postconviction petition if

fundamental fairness, as in this case, so requires.  People v. Steidl, 177 Ill. 2d 239 (1997); Gaines, 105 Ill. 2d at 91.  

A.  Restriction of Bell's Cross-Examination Regarding Arrests and Supervision

	Defendant maintains that it was error for the trial court to grant the State's motion in limine prohibiting defense counsel from cross-examining Bell about three prior arrests for prostitution and her supervision for criminal trespass to land which she received a few weeks

before testifying against the defendant.  Specifically, defendant contends that the allegations in his

petition regarding trial court rulings which restricted his cross-examination of Bell establish a

substantial showing of a violation of a constitutional right and thereby entitle him to a hearing on

his postconviction petition. 

	Cross-examination may concern any matter that goes to discredit, modify, explain or

destroy the testimony of the witness.  People v. Averhart, 311 Ill. App. 3d 492 (1999).  Limitation of a defendant's cross-examination of the bias, motive or interest of a witness may

violate a defendant's constitutional right to confront the witnesses against him guaranteed by both

the federal and state constitutions.  U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8.

Therefore, a trial court should be unwilling to grant a motion in limine brought by the State if the result will be an evisceration of the defendant's theory of the case.  People v. Prevo, 302 Ill. App. 3d 1038, 1050 (1999). 

	Before trial, defense counsel informed the court that he had subpoenaed five police

officers to testify about Bell's arrests including criminal trespass to land for which she received

supervision and three prostitution charges which were SOL'd [stricken with leave to reinstate]. 

The State objected and argued:

	"***  And questions like that, I think, are merely

attempting to dirty up the witness.  And they - - she not been

convicted of any felony, crime, nor has she been convicted of any

misdemeanor cases that would go to her credibility like theft case

or things of that nature.

	In fact, the prostitution I think she has four entries on her

rap sheet.  I don't have a rap sheet in front of me.  3 of the arrests

have been SOL'd.  One was a criminal trespass to land, I believe. 

And in which she received supervision.  And those arrests and the

circumstances surrounding those arrests are not relevant

whatsoever to her credibility as a witness."

Defense counsel responded that he wanted to elicit information about the arrests because they

were relevant as they occurred close to the scene of the crime and could be used to impeach Bell's

credibility.  The court reserved its ruling for a later time.  Following jury selection the State

renewed its motion in limine.  Defense counsel argued:

"It's not the arrest itself.  But, if the witness testifies in a different

manner that she's never been in that area where in fact the court

would learn from looking at the arrest slips she had been arrested in

that area.  That she used a different name.  That goes to her

credibility."  

 The trial court responded: 

"Well, first off, not her occupation.  That's going to stay out,

whatever her occupation is.  That's number one.  Number 2: What

areas she frequents is out.  If, however, she says I was—I've never been in whatever area it is, and there's proof that she has been

there, and has been arrested there, then that may come in.  Use of

aliases, I think, comes in.  Okay.  I think that goes to her credibility. 

The fact that she was arrested should not come in for any purpose. 

You know, I don't know what she's going to testify.  I think what

[defense counsel] is saying makes sense, if she says she's never been

there before and in fact, she was arrested there, that's some proof

she's been there."

Before the direct testimony of Bell, the trial court again reiterated its ruling.  The court stated:

"At this time, just to go over again the motion in limine by the State was to keep out the — Miss Bell's— any prior arrests, any

prior misdemeanor convictions.  And anything to do with the

location or being in a certain area on a certain date.  ***  The

motion in limine is granted as to the arrests and the prior convictions.  As to the location, we'll play it by ear.  Before you ask

any questions about any location, we'll have a sidebar." 

	The State contends that defendant has failed to support his allegation with documentation

showing the existence of any agreement or expectations with respect to any of Bell's arrests.  We

note however, during trial defense counsel was precluded from asking Bell anything about her

prior criminal history.  Consistent with the trial court's ruling, no information was elicited during either direct or cross-examination regarding Bell's prior criminal history.  Here, Bell's prior arrests could have served two purposes during cross-examination.  One purpose, articulated by defense

counsel during trial and discussed in greater detail below, was to impeach Bell's direct testimony

that she was too frightened to remain in the area after the murders.  The other reason was to

expose to the jury Bell's motivation for testifying against defendant, which related to Bell's

credibility.  Defense counsel was not allowed to determine whether the State gave Bell any special

consideration regarding crimes she was charged with since the murders. 

	A criminal defendant has a fundamental constitutional right to confront the witnesses against him and this includes the right to conduct a reasonable cross-examination.  People v. Triplett, 108 Ill. 2d 463, 474 (1985).  Evidence that a witness has been arrested or charged with a crime is a proper subject for cross-examination where it would reasonably tend to show that the

witness' testimony might be influenced by bias, interest or motive to testify falsely.  Triplett, 108 Ill. 2d at 475-76.  Contrary to the State's argument, a defendant need not show that a promise of

leniency has in fact been made to the witness or that an expectation of special favor exists; rather,

the evidence need only give rise to the inference that the witness has something to gain or lose by

testifying.  Triplett, 108 Ill. 2d at 475-76.  A jury is entitled to the details of the theory of defense so it can make an informed judgment, and thus the right to cross-examine is satisfied when

counsel is permitted to "expose to the jury the facts from which jurors, as the sole triers of fact

and credibility, could appropriately draw inferences relating to the reliability of the witness." 

Davis v. Alaska,  415 U.S. 308, 318, 39 L. Ed. 2d 347, 355, 94 S. Ct. 1105, 1111 (1974). 

	In this case, the defense counsel was not allowed to question Bell as to whether she was

offered supervision on the charge of criminal trespass to land in exchange for her testimony

against defendant.  Defense counsel was not allowed to cross-examine Bell as to whether the

State dismissed the three prostitution cases in exchange for Bell's testimony against defendant.

Defense counsel was prohibited from potentially providing evidence that could have supported the

inference that the witness had something to gain or lose by testifying.  A hearing is required when the allegations supported by the record make a substantial showing of a violation of a

constitutional right.  Hobley, 182 Ill. 2d at 427-28.  These limitations on cross-examination alleged in the postconviction petition establish a substantial showing of a violation of defendant's constitutional right to confront Bell and probe her credibility as well as her motive, interest and

bias.  Accordingly, defendant is entitled to an evidentiary hearing on these issues.   

		B. Limited Cross-Examination On Areas Frequented by Bell Since the Murders

	In a related argument defendant contends that the trial court erred in limiting defendant's

cross-examination regarding the areas that Bell frequented after the murders.  If the entire record

shows that the jury has been made aware of adequate factors concerning relevant areas of

impeachment of a witness, no constitutional question arises merely because defendant has been

prohibited on cross-examination from pursuing other areas of inquiry.  People v. Hines, 94 Ill. App. 3d 1041, 1048 (1981).  In the present case, when viewed within the total realm of cross-

examination permitted, the limitation placed on cross-examining Bell about the neighborhood she

frequented gains more importance as it potentially prevented defense counsel from eliciting facts

relevant to Bell's credibility. 

	During direct examination Bell testified that on the day of the murders she gave police

officers a fictitious last name and told them that she was a witness but did not provide any further

information.  She stated that she was frightened and hid in her boyfriend's apartment until police

spoke to her.  Bell also made arrangements with one of the detectives to view a lineup, but when

the detective came to pick her up, she hid in the house because she was scared.  She continued to

avoid the police until 13 months after the murders, when she finally went to the police station,

viewed a lineup and identified defendant.  Bell further testified that, two years later, she received a

subpoena to testify at trial, but she failed to come to court because she was afraid.

	On cross-examination, Bell stated that she hid from police because she was scared and that she asked to be relocated to another state after she testified against defendant.  Defense counsel

asked Bell whether she returned to the neighborhood where the murders occurred.  Bell stated

that she was "not sure" how many times she returned to the neighborhood but that it was "not

many."  Defense counsel, in an effort to impeach her, attempted further questioning:

	"DEFENSE COUNSEL: When you went to the

neighborhood this year were you alone or were you with anyone[?]

	THE STATE: Objection, relevance.

	THE COURT: Sustained.

			DEFENSE COUNSEL: When you went to the

neighborhood this year where did you go in that neighborhood?

	THE STATE: Objection as to relevance.

	THE COURT: Sustained.

			DEFENSE COUNSEL: Did you go to the area by 5848

South King Drive?

	THE STATE: Objection.

	THE COURT: Overruled.

	BELL: I went, it was around in that area.

			DEFENSE COUNSEL: In fact, as recently as October 6th

of this year you were at 5909 South Calumet weren’t you? 

	THE STATE: Objection, Judge.

	THE COURT: Sustained."

Defense counsel then stated that he was attempting to show Bell's familiarity with the area to

which the trial court responded, "The jury understands.  She said she was afraid, she said she has

been back there since."  The trial court instructed defense counsel to move to another line of

questioning.  Thus, the record indicates that defense counsel was allowed to elicit very limited

testimony as to the fact that Bell returned to the neighborhood despite her alleged fear after the

murders.  The court sustained objections to three of the four questions asked by defense counsel,

including a question as to whether Bell was in the neighborhood where the murders occurred as

recently as October 6th, which was three weeks before Bell testified against the defendant at trial.

	To determine the constitutional sufficiency of cross-examination, a court looks not to what a defendant has been prohibited from doing, but to what he has been allowed to do.  People v. Maldonado, 193 Ill. App. 3d 1062, 1069 (1989).  The facts that were elicited during cross- examination were that Bell hid from the police for 4 months before viewing a photo array and

identifying defendant; she hid from police for nearly another year before viewing the lineup and

she disregarded a subpoena to appear in court.  She did all of these things, she testified, because

she was afraid.  Bell also requested that she be relocated to another state after she testified against

defendant by the Office of the State's Attorney.  Juxtaposed against this testimony is the fact that

Bell after the murders and before trial was arrested on four different occasions in the same

neighborhood where her fear originated and from which she wanted to be relocated to another

state.  Moreover, as recently as three weeks before trial she was in the neighborhood where the murders occurred.  These were facts that the jury never had a chance to hear.  Although

defendant was allowed some limited cross-examination as to whether Bell returned to the

neighborhood, the defense was allegedly restricted in the impeachment of Bell with the fact that

despite her fear she repeatedly returned to the neighborhood where the murders occurred.  The

limitation placed on this cross-examination as alleged in defendant's postconviction petition

established a substantial showing of a violation of defendant's right to test the credibility of the

only eyewitness in the case.  See Hobley, 182 Ill. 2d at 427-28.  Accordingly, defendant is entitled to an evidentiary hearing on these issues.

C. Limitation of Cross-Examination of Bell Regarding Airplane Ticket

	Defendant further contends that he was denied the right to probe Bell's motive for testifying by questioning her before the jury about the plane ticket she was promised by the State.  

Immediately following Bell's testimony, the case involving Bell's contempt charge was heard. 

During the hearing defendant's counsel learned, for the first time, that the State might have a plane

ticket for Bell.  The discussion was triggered by Bell's attorney:

	"BELL'S ATTORNEY: One thing I would inquire of the

State if they have any timetable of when they might have a plane

ticket.

***	

			DEFENSE COUNSEL: Judge, I'm requesting that I be

allowed to recall her.

	THE COURT: Okay.

*** 

	DEFENSE COUNSEL: As the Court recalls I asked the

question were any promises made, it appears that I have learned

about promise of plane ticket and drop of contempt I think that

should fairly—

	THE COURT: I think you covered that.

	DEFENSE COUNSEL: Should be brought before the jury.

			THE COURT: "*** I think you asked her those questions

already.  What is it you want to ask her?" 

	DEFENSE COUNSEL: As to any promises as to dropping

or releasing her from the contempt charge and also for flying her

somewhere.

	THE STATE: Judge, she has purged the contempt by

testifying there is no issue of whether we can drop it or not.  There

is no basis for the contempt any more ***.

***

			DEFENSE COUNSEL: It can be learned as to whether she

[Bell] had an expectation that if she testified, as appears from the

State here explaining, it may have been explained to her wrongfully

that you purge yourself of the contempt by testifying which is

incorrect.  We may also learn that she actually had an expectation,

some sort of destination and plane tickets.  She said she didn’t

know where she was going to go to.  I find that very incredulous to

believe.  Now I see almost an airplane ticket transaction occurring

here in open court."

	The trial court responded that Bell had already answered questions about whether she was made any promises by the State and whether she was going to be relocated.  However, since

defense counsel first became aware of the plane ticket after he cross-examined her, he only

generally asked Bell about any promises by the State and did not have the opportunity to

specifically ask about the plane ticket.  Moreover, Bell admitted the State promised relocation but

made no mention of a plane ticket.  Defense counsel then requested that the trial court conduct an

examination of Bell as to where she expected to go and what she expected to happen as a result

of her testimony.  Outside the presence of the jury, the following exchange occurred:

	"DEFENSE COUNSEL: I want to ask the Court maybe to

conduct an examination as to where she expected to go and what

she expected to happen.  You can conduct that now and listen to

her answers and decide if she should be recalled before the jury.

	THE COURT: You are still under oath ma'am.  Where do

you want to go?  You're going to be moved out of the state by the

State, is that correct?

	THE STATE: Judge, can I ----

	BELL: Yes.

	THE COURT: Pass the case."

As the record indicates, the case was passed before the trial court completed questioning Bell in

reference to her expectations as requested by defense counsel.  When the case was recalled Bell

was not called to testify.  Rather, another witness, Detective Winstead, was called to testify

before the jury.  Following his testimony, the jury was sent to lunch and the trial court asked

defense counsel to make an offer of proof as to what he thought Bell would testify to if she were

recalled.  Defense counsel stated: 

	"Well I don't know what she would be testifying to, but I

would like to recall her and ask the court to inquire to see if she

should be recalled on two areas.  First, that she [had] an

expectation, a hope that by testifying that the contempt case would

be dismissed and she would be released from jail.  ***  Second area would be did you expect the State to fly you to a destination if you

testified and if you testified in a certain way and if so what destination.  ***  Additionally, I would like to ask her the question

which I would also like to recall her to ask her the question on

direct examination did she leave Chicago in the years '92 through

'95 inclusive, that is from August the 8th of '92 until today.  *** Because that would go to show whether she was afraid.  If she

didn't leave I could then argue to the jury that she certainly was not

so afraid that she didn't leave town."

 The trial court ruled: 

	"Okay, as to the area of where she was going to go or

whether she expected to leave the State, I am not going to allow

you to enter that.  Basically, she has already answered that she

expected to leave the State, that's No. 1. No. 2, whether or not she

left Chicago during the areas of '92 through '95.  ***  With all due

respect you have had a chance to ask her those questions twenty

minutes ago and you didn’t ask her those questions I am not going

to let you recall her to ask her those questions.  As to what her

expectations were we'll get her out here right now, you can make

an offer of proof, ask her those questions what she expected and

what was in her mind and if she gives the answers that I think

warrant her being around then you can recall her."

	Defense counsel was then allowed to question Bell outside the presence of the jury

regarding her expectations concerning her contempt case.  The following exchange occurred: 

	"THE COURT: *** [W]hat do you want to ask her about

her contempt?

	DEFENSE COUNSEL: Ms. Bell, did you expect or hope

that when you testified today the judge would dismiss the contempt

case and that you would be released from jail?

	BELL: I hoped that he did.

	DEFENSE COUNSEL: Okay.  And did you get that hope

from after you spoke to the State’s Attorneys?

	BELL: No, after I testified.

	DEFENSE COUNSEL: After you testified.  And what

made you think that after you testified that the contempt case

would be dismissed and you would get out of jail?

	BELL: Because I’ve been here long enough.

	DEFENSE COUNSEL: And was there anything else that

gave you that feeling?

	BELL: No. 

	DEFENSE COUNSEL: Okay. No further questions, Judge.

				*** 

	DEFENSE COUNSEL: Judge, I don’t make the request as

to that, I certainly make the request as to the other two reasons

which you denied.  If you want I can say it again louder but that

might change your mind.

	THE COURT: No, you want to recall her.	

	DEFENSE COUNSEL: I want to recall her for the other

two points that she has a particular destination and whether she left

Chicago from '92 to today.

	THE COURT: Okay, and that’s going to be denied.  All

right, now so hopefully Ms. Bell is on her way now." 

	As noted in People v. Davis, 185 Ill. 2d 317 (1998), a defendant does not have to show that a promise of a special favor has been made to the witness or even that an expectation of

special favor exists in the mind of the witness; rather, the evidence need only give rise to the

inference that the witness has something to gain or lose by testifying.  Davis, 185 Ill. 2d at 337.  Illinois courts have addressed the issue of the obligations imposed upon the State when its

witnesses offer testimony in exchange for some beneficial treatment or consideration from the

State.  In Davis our supreme court held that the limitation placed on defendant’s cross- examination in that case was harmless beyond a reasonable doubt; however, the court cautioned

that a trial court has no discretion to deny a defendant the right to cross-examine in order to show

a promise of leniency or promise of a special favor, but only to preclude repetitive or unduly

harassing interrogation.  Davis, 185 Ill. 2d at 337, citing People v. Ramey, 152 Ill. 2d 41, 67 (1992).  

	Applying the foregoing principles, we conclude defendant is entitled to an evidentiary

hearing on his claimed denial of his right to cross-examine Bell regarding whether she expected to

receive a plane ticket from the State if she testified in a certain way.  Antoinette Bell was the only witness who identified defendant and testified that he was solely responsible for the deaths of

Lowe and Johnson.  Her testimony was crucial to the State’s case in chief, and the opportunity to

probe her credibility, bias and motive for testifying was clearly important to the defense. 

Essentially, this case was one of credibility.  By limiting the ability of the defense to elicit information before the jury about the plane ticket the State was to obtain for Bell following her

testimony, the defense was allegedly denied an opportunity to attack Bell's credibility on the basis

that the witness had something to gain, specifically an airplane ticket, by testifying against the

defendant.  Cross-examination about the destination of the plane ticket was not relevant and was

properly barred for purposes of Bell's safety.  However, if the State promised her a plane ticket in

exchange for testifying in a certain way, that promise allegedly amounted to a special favor or

beneficial treatment.  We conclude that defendant is entitled to an evidentiary hearing because the

allegation in his petition supported by the record demonstrates a substantial showing of a violation

of his constitutional right to confront the only eyewitness who testified against him regarding her

motive for testifying.  See Hobley, 182 Ill. 2d at 427-28.   

D. Cross-Examination Regarding Contempt Charge

	Defendant also claims that he was denied the right to fully cross-examine Bell regarding

her expectation of leniency for her pending contempt charge in exchange for her testimony against

defendant.  However, a review of the record indicates that defendant had an opportunity for effective cross-examination of Bell regarding the contempt charge.  During cross-examination,

defense counsel in the presence of the jury questioned Bell about the contempt charge.  She stated

that she was arrested, charged with contempt and spent one month in jail before defendant's trial. 

When asked whether she was promised anything by the State she responded, "I asked them after I

testify could they move me out-of-state.  And they said they would."  Defense counsel further

asked Bell where she expected to be moved.  Bell replied, "I'm not sure." 

	After defense counsel learned of the plane ticket, he requested to recall Bell and further

question her as to her expectation concerning the contempt charge.  Over the State's objection,

the trial court ruled that defense counsel could question Bell as to her expectations concerning the

contempt charge and make an offer of proof.  After defense counsel recalled Bell, outside the

presence of the jury, and questioned her about the contempt charge, he abandoned his request to

recall her before the jury to further question her regarding the contempt charge.  However, he 

persisted in seeking to recall her to question her about the plane ticket and her whereabouts from

the time of the murders until trial which the trial court refused to allow.

	Defendant's rights under the confrontation clause are not absolute.  The confrontation

clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent the defense desires.  Delaware v. Fensterer, 474 U. S. 15, 20, 88 L. Ed. 2d 15, 19, 106 S. Ct. 292, 294 (1985); To determine the constitutional sufficiency of cross-examination, a court looks not to what a defendant has been prohibited from

doing, but to what defendant has been allowed to do.  Maldonado, 193 Ill. App. 3d at 1069.  We note that, in the presence of the jury, defense counsel questioned Bell during cross-examination about the contempt charges:  

	"DEFENSE COUNSEL: Did anything happen to you when

you didn't come to court?

	BELL: I was arrested a couple of days later.

	DEFENSE COUNSEL: Okay.  Then what happened?

	BELL: I was locked up.

	DEFENSE COUNSEL: Okay. And have you been locked

up until you testified?

	BELL: Yes.

	DEFENSE COUNSEL: Okay.  Now, in this period of time

that you have been locked up, the state’s attorney talked to you

about your testimony?

	BELL: Yes.

	DEFENSE COUNSEL: And you have talked to him with

what happened?

	BELL: Yes."  

When asked whether she was promised anything regarding the contempt charge in return for her

testimony Bell stated that she requested to be moved out of the state and that the State agreed to

her request.  Based on the record, we conclude that the jury was exposed to the theory of defense and the facts regarding the contempt charge from which they could appropriately draw inferences

regarding Bell's bias, credibility and motive for testifying.  We find defense counsel was not

unduly restricted in his cross-examination of Bell in the presence of the jury regarding the

contempt charge.  The allegations of the postconviction petition regarding the contempt charge

fail to make a substantial showing of a violation of a constitutional right.  Therefore, we affirm the

circuit court's dismissal of this claim without an evidentiary hearing.

E. Evidentiary Hearing

	The facts and circumstances in this case illustrate the problem faced by prosecutors

whenever they call as witnesses persons who have been charged with a criminal offense or who have been promised relocation by the State.  In People v. Nino, 279 Ill. App. 3d 1027 (1996), a witness who was in custody on charges of residential burglary and arson in an unrelated case

testified for the State in a murder case.  When asked whether he received any promises or

consideration in exchange for his testimony he stated, "[t]hey ain't give me no deal," and that he

was "hoping" to get a deal in exchange for his testimony.  279 Ill. App. 3d at 1035.  The day after

the trial, however, the prosecutor who tried defendant's case appeared as the prosecutor in the

witness' case and reduced the charges to burglary and the witness was sentenced to probation. 

The appellate court reversed defendant's conviction, concluding that the witness and the State had

an unspoken agreement.  Nino, 279 Ill. App. 3d at 1041. 

	Similarly, in this case, when Bell was asked whether she was promised anything, she only

stated that she wanted to be moved out of the state and that the State had agreed to her request. 

However, immediately following Bell's testimony, Bell's attorney asked the State about the timetable as to when the State might have Bell's plane ticket.  In the present case, the record

shows that defense counsel first became aware of the airplane ticket after he completed his cross-

examination of Bell.  Without an evidentiary hearing, the record is silent as to whether the State

promised Bell a plane ticket in connection with her testimony against defendant or whether Bell

even knew about the possibility of a plane ticket before testifying.  

	Moreover, three of Bell's prostitution charges had been dismissed before Bell testified

against defendant and Bell was given supervision for criminal trespass just a few weeks before

testifying.  Only the State can dismiss charges or reinstate charges.  In this case, the State

dismissed three previous charges against Bell.  The record does not indicate whether dismissal of these charges was in any way related to Bell's testifying against the defendant.  Cross-examination

about such circumstances regarding these charges was prohibited by the trial court.  Similarly, the

record does not indicate whether the State recommended supervision on Bell's trespass charge or,

if such a recommendation were made, whether resolution of Bell's trespass case was in

consideration for her testimony against the defendant. 

	The plane ticket, the dismissal of Bell's previous charges, Bell's supervision and the areas

Bell frequented after the murders were all factors that the jury was prevented from considering.  

These were facts that the jury was not able to use in its determination and evaluation of Bell's

bias, credibility and motive for testifying.  Bell was the only prosecution witness who identified

defendant as the person responsible for the double murder.  "[T]he jury’s estimate of the

truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and

it is upon such subtle factors as the possible interest of the witness in testifying falsely that a

defendant’s life or liberty may depend."  Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221, 79 S. Ct. 1173, 1177 (1959).

	The question as to whether the plane ticket and the resolution of her criminal cases were

promised to her by the State in exchange for her testimony against the defendant should be

answered by the evidentiary hearing.  The trial court then must evaluate whether the limitation on cross-examination created a reasonable probability that the outcome of defendant's trial would

have been different had the trial court allowed defense counsel to cross-examine Bell before the

jury as to the resolution of her prior criminal charges, the circumstances concerning the airplane

ticket, and her continued contact with the neighborhood where the murders occurred.  These factors should all be scrutinized to determine whether they affected Bell's motive, interest and bias

in testifying and whether limitation of cross-examination regarding these factors affected the

outcome of the trial by impacting on the jury's deliberative process and judgment.  Coleman, 183 Ill. 2d at 396 (1998).  At the evidentiary hearing any benefit, leniency, spoken or unspoken agreements or promises made by the State to Bell regarding her testimony must be evaluated to determine

whether the trial court's limitation on cross-examination created a substantial danger of prejudice

and denied defendant his right to test the accuracy of Bell's account of the events.  People v. Harris, 123 Ill. 2d 113, 145 (1988).  

	We note that Bell was asked by defense counsel whether the State made any promises to

her if she testified against the defendant and she testified that the only promise the State made to

her was to relocate her.  The knowing use of perjured testimony is a violation of a defendant's due

process rights.  People v. Jimerson, 166 Ill. 2d 211, 223 (1995).  This is true even when the testimony does not relate to a material issue but, rather, goes to the credibility of the witness. 

People v. Martin, 46 Ill. 2d 565, 568 (1970).  If a prosecutor knowingly permits false testimony to be used, the defendant is entitled to a new trial.  Jimerson, 166 Ill. 2d at 224.  If Bell knew she was to receive from the State compensation of some kind in the form of a plane ticket or that she

received from the State consideration in the form of criminal charges which were dismissed or

resolved with supervision in connection with her testimony against the defendant and she did not

so testify when asked whether the State made any promises, such factors would be critical in

determining whether defendant's due process rights were violated.  People v. Steidl, 177 Ill. 2d at239, 261-62 (1997).  Based on the record before us, it is not possible to determine whether there was any compensation or consideration related to Bell's testimony against defendant other than the

promise by the State to relocate Bell.  Accordingly, the trial court erred in not holding an

evidentiary hearing at which evidence as to whether Bell expected to receive compensation or had

received consideration could be adduced.  With these principles in mind we order the trial court to

conduct an evidentiary hearing regarding the restriction of the cross-examination of Antoinette

Bell.	

	We note the approach recommended in People v. Ellis, 315 Ill. App. 3d 1108, 1118 (2000), would avoid the problems raised in this case concerning whether a witness receives

consideration for his or her testimony, "[t]he position the State finds itself in regarding these

situations can be resolved in the future by the simple expedient of memorializing the benefit the

witness is to receive and to reveal such circumstances with candor and alacrity."  The Ellis court wisely recognized that the failure to memorialize the benefits makes it much more likely that their

existence will not be disclosed and may encourage witnesses themselves to mischaracterize what

they were to receive in consideration for their testimony.  Ellis, 315 Ill. App. 3d at 1108.	

II. RIGHT TO COUNSEL DURING LINEUP

	We now consider whether the circuit court improperly ruled on defendant's second claim

that the right to counsel attached before the lineup of September 13, 1993, because defendant was

in custody on a related charge, and that defense counsel was ineffective for failing to raise the

issue in the motion to suppress identification.  Where a postconviction petitioner has previously

taken direct appeal from judgment of conviction, judgment of the reviewing court is res judicata as to all issues actually decided by the court, and any other claims that could have been presented to a reviewing court, if not presented, are waived.  People v. Flores, 153 Ill. 2d 264 (1992).  Here, defendant failed to pursue this claim in the trial court or in the direct appeal.  In the direct

appeal, defendant raised other issues related to the motion to suppress the lineup identification. 

As such, this issue has been waived.

	Even if this issue were not waived, we would find defense counsel made a strategic

decision that was in no way fundamentally unfair to defendant.  Defendant contends that the right

to counsel attached before the lineup of September 13, 1993, because defendant was in custody

on an allegedly related charge, the murder of Jeffrey Tolefree and that his trial counsel should

have pursued a motion to suppress the identification on this ground.  The defendant was charged

with the Tolefree murder on December 8, 1992.  The record reflects that defense counsel was

aware of the facts relating to both the charged and the uncharged offenses, as he represented the

defendant on both charges.  Moreover, in defendant's written motion in limine, in which he sought to bar evidence concerning defendant's parole status, defendant alleged that he was in

custody on an "unrelated matter" at or after he made statements to the police on December 9,

1992, and at the time of the lineup in this case on September 13, 1993.  Defendant took a position

at trial, that he was in custody on the Tolefree murder and this was an "unrelated matter," which

is contrary to the position he is now taking.  We further note that trial counsel's strategy in

maintaining that the cases were not related was undertaken in order to avoid the imposition of the

death penalty in this case and such strategy was successful.  Had trial counsel pursued a motion to

suppress on the ground that the crimes were related, any later argument that they were not related

would have been disingenuous in rebutting the State's theory that defendant killed Jeffrey Tolefree because Tolefree witnessed the double murder of Johnson and Lowe.  Defense counsel's decision

was strategic and defendant's claim of ineffective assistance is not supported by the record.  People v. Ramey, 152 Ill. 2d 41(1992).  We therefore affirm the circuit court's dismissal of this claim without an evidentiary hearing as the allegations regarding this issue fail to make a

substantial showing of a violation of a constitutional right.

                                                        III. CONCLUSION

	The circuit court improperly dismissed defendant's postconviction petition without an

evidentiary hearing regarding the allegations concerning defendant's cross-examination of the

State's only eyewitness, Antoinette Bell.  The previously discussed allegations contained in

defendant's postconviction petition regarding cross-examination of Antoinette Bell were sufficient

to make a substantial showing of a constitutional violation and to require an evidentiary hearing to

determine if the violation did in fact occur.  We note that appellate counsel may "refrain from

raising those issues which, in his judgment, are without merit, unless his appraisal of the merits is

patently wrong."  People v. Barnard, 104 Ill. 2d at 218, 230 (1984).  For the reasons set forth in this opinion, appellate counsel should have raised the issue of improper limitations on the cross-examination of

Antoinette Bell, the State's only eyewitness.       	

	We vacate the trial court's judgment dismissing defendant's petition.  We remand this case

to the circuit court with instructions to hold an evidentiary hearing consistent with the views

expressed herein on the issue of whether defendant's constitutional right to confront Antoinette

Bell was violated by the trial court's refusal to allow defense counsel to cross-examine Bell before

the jury as to the following: (1) the circumstances surrounding resolution of her four prior criminal charges; (2) the circumstances surrounding the State obtaining an airplane ticket for Bell;

and (3) the fact that Bell continued to frequent the neighborhood where the murders occurred. 

We emphasize that we make no determination regarding defendant's ultimate success on his

petition. We affirm the circuit court's order dismissing defendant's petition in all other respects.

	Affirmed in part and reversed in part; cause remanded with instructions.

	McNULTY, P.J., and COHEN, J., concur.