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No. 2--01--1383

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JUSTICE McLAREN delivered the opinion of the court:

Defendant, Kirill Balayants, appeals his conviction of robbery (720 ILCS 5/18--1 (West2000)), after the trial court barred evidence regarding the complainant's pending criminal charges. We reverse and remand for a new trial.

The following facts are taken from the record. Defendant was charged with the robbery ofRobert Cundiff (the complainant). Before trial, the State filed a motion in limine, requesting thatdefendant be prohibited from eliciting any evidence of the complainant's prior bad acts or arrests. Before the trial, defendant "voir dired" the complainant. At the time, the complainant had a pendingaggravated robbery charge set for trial and was in custody in the Lake County jail. The complainanttestified that he had been in jail for 100 days awaiting trial, was told that he faced up to 15 years injail, and was represented by Doug Roberts. Roberts objected when defense counsel asked thecomplainant whether he would try to negotiate a deal with the State. Roberts told the court that hewas taking the complainant's case to trial and would not negotiate with the State. The complainantstated that he told defendant's counsel the week before the voir dire that the complainant was tryingto do everything to get rid of his own case. The complainant stated that he did not know who wasprosecuting him, but that he would do whatever he could to avoid prison and wanted a good deal. The complainant testified that the State had not made any offers or promises based on his testimonyagainst defendant and that he had not spoken with the prosecutor.

Defense counsel then "voir dired" Roberts, who stated that he would be pleased if the Statemade an offer in the complainant's case but that Roberts did not ask for or receive an offer inexchange for the complainant's testimony. The only thing Roberts told the complainant about histestimony in defendant's case was to tell the truth.

After the voir dire, the trial court granted the State's motion in limine barring evidence of thecomplainant's pending charge. However, the court stated that it would allow defense counsel to elicittestimony that the complainant was currently in jail.

At the trial, the complainant testified that he was 18 years old and currently living day-to-dayin the Lake County jail. On April 17, 2001, around midnight, as the complainant walked from hisapartment building parking lot to the building, defendant and another individual exited a car andapproached the complainant. The two individuals asked complainant where Jeff lived. When thecomplainant told the two individuals that he did not know, the second individual punched thecomplainant in the face and again asked the complainant where Jeff lived. Defendant said that Jeffowed defendant money. The complainant then walked to his car to get his address book, which wasin his wallet, so that he could show the two individuals that Jeff's address was not in his addressbook. When the complainant returned with his wallet, the second man grabbed the wallet and thecomplainant's keys and then told the complainant that he and defendant would be back in the morningso that complainant could show them where Jeff lived. Defendant told the complainant that, if theydid not find Jeff, the complainant would be responsible for the money Jeff owed them. As the twomen left, the second man gave defendant the complainant's wallet. The complainant then went to hisapartment and called the police. The next day, the complainant went to defendant's house and askeddefendant's mother for the wallet and keys, but "they" did not have them.

The complainant also testified that a month before the alleged robbery, defendant and thesecond individual met with the complainant and asked if he knew where Jeff lived and where themoney was. Although the complainant knew where Jeff lived, he did not tell them. Defendant andthe second individual told the complainant that they would be back in a month and that if they did notfind the money, they would come after the complainant.

Vernon Hills police officer Vince Utter testified that, when he met with the complainant thenight of the alleged robbery, the complainant had redness under his left eye.

The jury returned a guilty verdict. The trial court denied defendant's motion for a new trialand then sentenced defendant to three years' imprisonment. Defendant filed this timely appeal.

On appeal, defendant argues that the trial court erred by granting the State's motion in limine,barring evidence regarding the complainant's pending charge of aggravated robbery. Defendantargues that this error denied him a fair trial and warrants a new trial.

A criminal defendant has a fundamental constitutional right to confront the witnesses againsthim and this includes the right to conduct a reasonable cross-examination. People v. Triplett, 108Ill. 2d 463, 474 (1985). A witness may be impeached by evidence that the witness has pendingcharges or is in State custody at the time of trial, as it tends to show that the testimony may beinfluenced by bias, interest, or motive to lie. Triplett, 108 Ill. 2d at 481-82. A defendant need notshow that the witness has been promised leniency; the evidence must only give rise to the inferencethat the witness has something to gain by testifying. People v. Davis, 185 Ill. 2d 317, 337 (1998). A jury is entitled to the details of the theory of defense so it can make an informed judgment, andthus, the right to cross-examine is satisfied when counsel is permitted to "expose to the jury the factsfrom which jurors, as the sole triers of fact and credibility, could appropriately draw inferencesrelating 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). The decision to bar evidence of a witness's pending charges will notbe disturbed absent an abuse of discretion. People v. Nutall, 312 Ill. App. 3d 620, 627-28 (2000).

For example, in People v. Wilkerson, 87 Ill. 2d 151 (1981), our supreme court held that thetrial court erred by barring cross-examination regarding the charges against the witness that werepending in the same county as the defendant's charges. Despite the witness's denial of any bias orpromise of leniency for her testimony, our supreme court stated:

"The defendants should have been permitted on cross-examination to develop mattersthat would reasonably show the bias, motive or willingness of the State's witnesses to testify,and this included the fact that Katie Bolden was charged with a crime. [Citation.] The widestlatitude should have been given to the defendants to show bias. [Citation.] Defense counselshould have been allowed to present the theory that the witness was not credible because shewas being rewarded for her testimony, and should have been allowed to expose to the jurythe underlying charges so that the jurors could consider their effect, if any, on the reliabilityof the witness." Wilkerson, 87 Ill. 2d at 156.

The supreme court then affirmed the appellate court's reversal and grant of a new trial afterdetermining that the error was not harmless because the witness's testimony was the "linchpin" of theState's case. Wilkerson, 87 Ill. 2d at 157.

Here, defendant was barred from cross-examining the complainant regarding his pendingcharge of aggravated robbery. At the time of the trial, the complainant was in custody and wasawaiting trial. The complainant's attorney was hoping for a deal for his client. The complainant saidthat he would do whatever he could to avoid prison and his attorney said that he would welcome adeal from the prosecutor. We recognize that the voir dire did not reveal an absolute expectation ofleniency from the prosecutor. However, we believe that it was for the jury to decide whether thepending criminal charges against the complainant provided a motive to offer false testimony beyondthe self-evident interest of a victim of a crime. Contrary to the State's contention, the fact that thecomplainant may not have known who was prosecuting him does not preclude the possibility that hispending charges provided a motive to lie as a State witness at defendant's trial. To say that thepossibility that the complainant had a motive to lie is too remote in this case is to substitute the trierof fact's prerogative to give the complainant's testimony the appropriate weight. The ruling of thetrial court restricting cross-examination prevented the jury from hearing evidence that could haveaffected the complainant's credibility and was an abuse of discretion. Defendant had the right topresent this evidence to the jury, and the trial court's decision to bar this evidence was an abuse ofdiscretion.

The improper denial of a defendant's constitutional right to cross-examination does not alwaysmandate reversal, but may be found to be harmless error. Davis, 185 Ill. 2d at 338. Thus, we mustdetermine if the error was harmless or denied defendant a fair trial. To determine whether an errorwas harmless, we may consider such factors as the importance of the witness's testimony in theState's case, whether the testimony was cumulative, the evidence corroborating or contradicting thetestimony of the witness on material points, the extent of cross-examination actually allowed, and the overall strength of the prosecution's case. Davis, 185 Ill. 2d at 338.

Here, the complainant was the only eyewitness called against defendant. The complainant hadpending charges of aggravated robbery and was in State custody at the time of defendant's trial. Further, the credibility of the complainant was critical to the State's case. Evidence that he mighthave been biased or had a motive to lie could have changed the jury's decision. This evidence wasadmissible to show bias or a possible reason for the complainant to fabricate his testimony. The failureof the trial court to admit this evidence substantially undermines our confidence in the verdict and,because the complainant's testimony was the linchpin of the State's case, the error was not harmless. The complainant was the only occurrence witness presented by the State. Therefore, the errorwarrants a new trial. See Wilkerson, 87 Ill. 2d at 157.

The State cites People v. Johnson, 150 Ill. App. 3d 1075, 1083 (1986), and People v. Lewis,229 Ill. App. 3d 874, 882 (1992), to support its argument. However, we disagree with the reasoningin these cases, wherein the courts determined that no error occurred when the trial court barredevidence of a witness's pending charges because there was no proof of an offer of leniency or a dealin exchange for the witness's testimony against the defendant. In a more recent case, our supremecourt made it clear that a defendant does not need to show that the witness has been promisedleniency; rather, it is enough if the evidence gives rise to the inference that the witness has somethingto gain by testifying. Davis, 185 Ill. 2d 317. Thus, Johnson and Lewis are not controlling here.

For these reasons, the judgment of the circuit court of Lake County is reversed and the causeis remanded for a new trial.

Reversed and remanded.

HUTCHINSON, P.J., and BOWMAN J., concur.