No. 2--01--0091

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS	

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE OF    ) Appeal from the Circuit Court

ILLINOIS,                     ) of Lake County.

                              )

	Plaintiff-Appellee,      )

                              )      

v.                            ) No. 00--CF--528         

                              ) 

GARTH D. COLLINS,             ) Honorable                  

                              ) James K. Booras,

                              ) Victoria A. Rosetti,   

	Defendant-Appellant.     ) Judges, Presiding.

_________________________________________________________________

	JUSTICE McLAREN delivered the opinion of the court:						

	Defendant, Garth D. Collins, appeals from his conviction of unlawful possession of a controlled substance with intent to

deliver (720 ILCS 570/401(a)(2)(A) (West 2000)).  We reverse and

remand.

	Defendant was charged with multiple drug and weapon offenses

after police executed a search warrant on his residence on February

16, 2000.  After a jury trial, defendant was found guilty of the

charge of possession with intent to deliver and several lesser

drug-possession charges.  The trial court denied defendant’s

motions for a new trial and for judgment notwithstanding the

verdict and sentenced defendant to a term of six years in prison. 

This appeal followed.

	Defendant first contends that he was denied a fair trial by

the State’s failure to disclose material information regarding

Muriel Spencer, one of the State's witnesses.  Defendant raised an entrapment defense, contending that Spencer was an agent of the

police and provided the drugs that were found during the search of

defendant's residence.

	Due process and Supreme Court Rule 412(c) require the State to

disclose to a defendant any material or information within its

possession or control that tends to negate the guilt of the

defendant as to the offense charged.  See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); People v. Preatty, 256 Ill. App. 3d 579, 589 (1994); 188 Ill. 2d R. 412(c).  To establish a violation of this rule, the evidence not disclosed

to the defendant must be both favorable to the defendant and

material.  People v. Vasquez, 313 Ill. App. 3d 82, 98 (2000).  Evidence is material if there is a reasonable probability that, had

the evidence been disclosed, the result of the proceeding would

have been different.  Vasquez, 313 Ill. App. 3d at 98.  The question is not whether the accused more likely than not would have

received a different verdict had the evidence been disclosed but,

whether, in the absence of the evidence, he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence. 

Vasquez, 313 Ill. App. 3d at 98.   

	Defendant filed motions to quash and suppress the manner of

entry and to compel THE the disclosure of a confidential informant,

alleging in both that an unidentified man knocked at defendant’s

door and entered his residence at the time the police entered the

residence and executed the search warrant. A hearing on the motions

was held on June 13, 2000.  Defendant testified that on February 16

he received a telephone call from Muriel Spencer at about 6 p.m. or 7 p.m.  Defendant had purchased some items from Spencer in the past

and knew who Spencer was.  About 25 minutes later, defendant heard

a knock at his back door.  Seeing Spencer standing there, defendant

opened the door and allowed Spencer into his kitchen.  Several

police officers rushed in behind Spencer and executed the search

warrant.  Defendant lost sight of Spencer at that time.  Defendant

testified that a plastic bag of drugs was found on a countertop in

his kitchen, about seven feet from his back door.  Spencer was

never handcuffed while he was in defendant's kitchen, and no one

ever asked his name or what he was doing there.  Defendant never

heard the police knock or announce their office before they entered

his home.  Defendant also stated that Spencer had placed the drugs

in the kitchen earlier that day.  On cross-examination, defendant

stated that he was aware that cocaine was also found on some plates

in a cabinet.  He stated that Spencer had been to his house

approximately one hour before the search warrant was executed and

that "it had to be" Spencer who put the drugs in his apartment.  He

did not see Spencer put the drugs in the apartment, and he did not

know that the drugs were there before the police arrived.

	After defendant's testimony, the court asked the assistant

State’s Attorney if Spencer were the confidential informant

referred to in the search warrant.  The assistant stated that she

did not know the name of the informant.

	Officer George McClary, Jr., of the North Chicago police

department, testified that he was present at the execution of the

warrant and that the black male who knocked at defendant’s back

door never entered defendant’s residence.  On cross-examination, McClary testified that he had had contact with the black male

before and that the man was "an integral part" of the plan for the

execution of the warrant.  

	The trial court found that Muriel Spencer was the black male

that knocked at defendant’s door and that, because he had actively

participated in the execution of the warrant, his identity had to

be disclosed, although it was apparent that defendant already knew

Spencer’s identity.  The court ordered the State to disclose

Spencer’s name, address, prior convictions, and "anything that goes

to his bias or his credibility." The court also denied defendant's

motion to quash and suppress the method of entry.

	On June 29, defendant moved for the reconsideration of the

court’s ruling on the motion to quash and suppress and presented

the testimony of Muriel Spencer as an offer of proof.  Spencer

testified that he was forced by the North Chicago police department

to go to defendant’s residence on February 16.  Some member of the

department put a gun to his head and told him to knock on

defendant’s door.  He never entered defendant’s residence but was

handcuffed and placed in a car.  He had been arrested prior to

February 16 for "speeding tickets, a bunch of junk," but there was

no criminal charge arising from the arrest.  He was taken to

defendant’s residence by police two different times.  He was under

no agreement with the North Chicago police department prior to

February 16.  After the offer of proof, the court struck the motion

to reconsider, finding that no new facts would have been presented. 

The court also found that there was no agreement between Spencer

and the police.

  	On that same date, the State presented Spencer’s testimony in relation to its motion to revoke defendant’s bond.  Spencer

testified that, since February 16, he had been shot at by someone

in a car who stated that "they" would kill him because he "rat out

[sic] on our friends."  His car had been vandalized and he had also been threatened by a man named Tracie O’Brian.  On cross-

examination, when asked if he were a confidential informant,

Spencer replied, "No, I’m not.  Hell no I’m not.  No, I’m not. 

Hell no."  When asked again, he stated, "No, I’m not.  I said no,

hell no."  He denied being under any agreement with the North

Chicago police department, and he denied having any arrangement

with the police regarding the entry into defendant's home. 

Although a police officer had placed a gun to his head to make him

knock at defendant’s door, he had not been threatened by the police

department, as placing the gun to his head was not a threat.  The

court found Spencer's credibility "questionable to say the least"

and denied the motion.

	On July 19, during argument on various motions filed by

defendant, the following colloquy on disclosure of information

regarding Spencer took place:

		"THE COURT: If there is anything that would go and [sic] towards bias, et cetera, et cetera, anything that should be discoverable, deemed to be discoverable I think that should be

disclosed by the State.

		MS. [MEISTER] FALBE [Assistant State’s Attorney]: Your

Honor, I guess I need more specific clarification because we

did have a hearing on whether or not the confidential informant should be revealed and the Court’s ruling was that

it was not[,] that the name of the person at the house when

the search warrant was executed should be revealed.

		THE COURT: The fact could be revealed, though.

		MS. [MEISTER] FALBE: But the Court never ruled that the

confidential informant--

		THE COURT: But there is some monetary or pecuniary

interest that he has I think that it should be exploited by

the defense and perhaps if the witness has some bias I think--

if the State knows, if the State knows.

		MS. [MEISTER] FALBE: So if it’s your Honor’s ruling that

if Mr. Spencer had been paid or had a bias regarding going to

the house when the execution of the search warrant [sic], then that should be revealed.

		THE COURT: I think it should.

		MS. [MEISTER] FALBE: Okay."

	On August 9, defendant asked leave of the court to file a

motion for supplemental discovery and alleged that the North

Chicago police department had background information on the

confidential informant.  When the court granted the motion, the

following colloquy took place:

		"MS. MEISTER FALBE: I do have an objection.  I don’t

think the record has been clear as to determining if the

confidential informant has been revealed.  The Court has

ordered in the past that we disclose information pertaining to

Mr. Spencer and any contracts that he had pertaining to his going to the house during the execution of the search warrant,

which I have tendered everything, because there are none.

		THE COURT: Well, Mr. Spencer has already testified.  Mr.

Spencer has already been revealed.  And Mr. Spencer had

admitted during his testimony that he was there pursuant to

the police’s request.

		MS. MEISTER FALBE: During the execution of the search

warrant, correct, and there were no agreements with the police

regarding that.

		THE COURT: I don’t know about that.

		MS. MEISTER FALBE: Well, I do know and I’m indicating

that there aren’t any."

	On August 23, the court heard argument on defendant's petition

for a hearing to quash and suppress the search warrant pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).  At that time, the court stated:

		"I ordered the State to disclose the identity of the

person that was present at the time of the execution of the

search warrant.  I don't know if he was the one that made the

[controlled] buy [that was the basis for the search warrant]. 

I don't think I did order the State to disclose that."

Defense counsel stated, "That's true."  Defendant still had not

received the background information on Spencer.  The State assured

defendant that the information was to be obtained from the police

department that afternoon and would be forwarded by the next day.

	On August 28, defense counsel stated that he had received from

the State an arrest report concerning the February 8, 2000, arrest of Spencer by the North Chicago police department.  The State had

authorized felony charges for various drug violations at that time. 

However, defense counsel had checked the computer records of the

clerk's office that morning before court and discovered that no

charges had been filed against Spencer.  According to defendant,

this was evidence of consideration between the North Chicago police

and Spencer that had not been tendered by the State.  Defendant

asked that the case be dismissed for failure to tender that

information.  The State denied that there was a failure to tender

anything and that the State had "nothing else to tender on this

matter."  The court denied defendant's motion to dismiss but stated

that, based on the facts, it appeared that Spencer was "working off

charges" and that the State must investigate the existence of any

discussions with Spencer regarding his charges and cooperation with

the police.  

	On September 28, the matter was in court for a hearing on the

State's obligation to tender information.  The State indicated that

there was "no information that needs to be tendered.  There is

nothing in writing.  There [are] no written agreements" regarding

the lack of charges filed against Spencer after his February 8

arrest.  The following colloquy then took place:

		"THE COURT: Assuming that you [defendant] win the motion,

what do I order them to produce?

		MR. RITACCA [Defense counsel]: They--assuming I win the

motion, and you determine that he is a confidential informant?

		THE COURT: Oh, I did that a long time ago.

		MS. MEISTER- []FALBE: That's already been determined.

		MR. RITACCA: Well they're not--they're not saying that. 

You can say that, but they are not saying that."  

Later, when asked if Spencer were a confidential informant, the

State replied, "No, I'm not saying he's a confidential informant."

The following then took place:

		"MR. RITACCA: How do I know--how do we know that there is

[sic] no conversations between the police and Muriel Spencer?  He got arrested for 5.5 grams of cocaine.

		MS. MEISTER-[]FALBE: I didn't say there wasn't a

conversation.

		MR. RITACCA: Well, that's part of it.  That's part of it

judge.

		THE COURT: All right.  But for our sake--for our motions,

assume that he is a confidential informant.  Assume that he is

cooperating with the police.  It's obvious from the record

that he is doing that.  So--and it's obvious that he got

rewarded.  What else do you need?

		MR. RITACCA: I need the State to say--I need the State to

say that he's a confidential informant working for North

Chicago, that he was in the house with Garth Collins."

The court then ruled that defendant was to be allowed to view all

reports that North Chicago had regarding any relationship between

Spencer and North Chicago.

	The trial began on October 4.  Detective Michael Newsome of

the North Chicago police department testified that he was involved

in the execution of the search warrant on February 16.  He observed

a black male approach defendant's back door.  When the door opened, Newsome and other officers entered the building.  Newsome believed

that the black male who approached the door was a confidential

informant.  

	Spencer testified for the State.  He stated that on February

8, 2000, police executed a search warrant on his residence and

found cocaine and "some other property."  He was arrested and taken

to the North Chicago police department, where he spoke to Detective

Garagall and Sergeants Sain and Brown about their their helping him with his

case if he would help them with some investigations.  Spencer was

not charged with any crime related to the February 8 search of his

residence.  He had been told that such would be the case if he

helped the police.

	Two or three days before the search of defendant's residence,

Spencer went to defendant's home to make a controlled purchase of

cocaine for the police.  He met with Sain and Brown again on

February 16 and was told to meet them that night at defendant's

house.  He was told by police already outside the house to knock on

defendant's door.  He did so, and when defendant answered, the

police entered and executed the warrant.  

	On cross-examination, Spencer said that he had been a

confidential informant for the police for a short time, only since

February 8.  He had an agreement with the police that they would

not proceed with charges against him if he helped them.  He stated

that he signed a statement to the effect that he used cocaine and

sold it to his friends only because he was told that he would get

a break if he signed it.  He denied ever going inside defendant's

house.  He also denied being at defendant's house more than once on February 16.  The drug deal with defendant was the only deal that

he had been requested to set up.  He admitted that he went before

a judge and swore an affidavit to get the search warrant for

defendant's house, and he signed the affidavit as "John Doe"

because he was asked by the police to do so. 

	Detective Carl Sain testified that Spencer made a deal with

the  North Chicago police to provide information.  Spencer was their

only source of information that defendant had been selling drugs

from his house. 

	We conclude that defendant was denied due process by the

State's subterfuge regarding Spencer's relationship with the North

Chicago police department.  Fairness is the core meaning of due

process.  People v. Hall, 198 Ill. 2d 173, 177 (2001).  Throughout the pretrial proceedings, the State constantly fought defendant's

attempts to learn of this relationship between Spencer and the

police.  On June 13, the State was ordered to turn over information

on Spencer's prior convictions and "anything that goes to his bias

or his credibility."  The State presented Spencer's testimony at

the hearing to revoke defendant's bond, in which Spencer adamantly

denied being a confidential informant or having any deal with the

North Chicago police department.  The State stood before the court

on several occasions and stated that there were no contracts or

agreements between Spencer and the police regarding the execution

of the search warrant at defendant's home and said that there was

no information to tender.  On August 28, defendant discovered, on his own investigation, that Spencer had never been criminally charged after the search of his home, even though felony charges had been approved.  Even in the face of this revelation and the

court's order that the State investigate the existence of any

discussions with Spencer regarding his charges and cooperation with

the police, the State again stood before the court on September 28

and stated that there was "no information that needs to be

tendered.  There is nothing in writing.  There [are] no written

agreements" regarding the lack of charges filed against Spencer. 

Later on that same date, however, when defendant questioned such a

possibility of conversations between Spencer and the police, the

State coyly answered, "I didn't say there wasn't a conversation." 

All of this denial and evasion ended only six days later, when the

State presented to the jury the testimony of Newsome, Spencer, and

Sain, including Spencer's detailed explanation of his agreement and

cooperation with the North Chicago police department.  This series

of evasions, obfuscations, and outright lies clearly denied

defendant a fair trial and cannot be condoned.  

	The State argues that, even if it did fail to disclose

information regarding Spencer's agreement with the police,

defendant discovered before trial that no charges were filed

against Spencer; thus, defendant suffered no prejudice at trial or

in presenting his defense.  This argument has no merit.  Guilty or

not, a defendant is entitled to a fair trial with at least the

appearance of a right to prepare his defense.  Discovery is not a

game of hide-and-seek; the State's pretrial chicanery impinged upon

the integrity of the judicial system and requires reversal

regardless of the weight of the other evidence.  See People v. Lambert, 288 Ill. App. 3d 450, 462 (1997); People v. Thomas, 123 Ill. App. 3d 857, 867 (1984).  We would be in dereliction of our

duties as a reviewing court were we to allow defendant's conviction to stand in light of such deceit.  Discovery requirements are mandatory, and the State is not free to disregard them.  People v. Norris, 303 Ill. App. 3d 163, 174 (1999).  Defendant requested evidence, and the court ordered the production of that evidence. 

The State presented false testimony at a pretrial hearing and

quibbled that, while there were no written agreements to turn over,

"I didn't say there wasn't a conversation."  Due process of law

cannot hinge upon such a gossamer distinction.  See People v. Ellis, 315 Ill. App. 3d 1108, 1114-15 (2000).  The State knew that an agreement between Spencer and the police existed, yet the State

never, before trial, admitted the existence of the agreement or

acknowledged its terms. It was content to parse words and make

defendant discover on his own that some such agreement must exist

and learn the details at trial.  We need not conclude that the

jury's verdict would have been different had the State disclosed

this evidence prior to trial, when it was ordered to do so.  See

Vasquez, 313 Ill. App. 3d at 98.  We do conclude, however, that defendant did not receive a fair trial that resulted in a verdict

worthy of confidence.  For this reason, the judgment of the circuit

court must be reversed and the cause remanded for a new trial.

	Because of our disposition of this issue, we need not address

defendant's other contention.  

	For these reasons, the judgment of the circuit court of Lake

County is reversed, and the cause is remanded for a new trial.

	Reversed and remanded.

	BOWMAN and BYRNE, JJ., concur.