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People v. Boand9/30/2005
he federal and the state constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8; People v. Ramey, 152 Ill. 2d 41, 67 (1992), citing Davis v. Alaska, 415 U.S. 308, 39 L.Ed. 2d 347, 94 S.Ct. 1105 (1974). " 'Moreover, the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. The widest latitude should be given the defense on cross-examination when trying to establish a witness' bias or motive.' " Ramey, 152 Ill. 2d at 67, quoting People v. Gonzalez, 104 Ill. 2d 332, 337 (1984). " 'Where the defendant's theory is that the prosecution's witness is unbelievable, it is error not to allow the cross-examination on matters which would reasonably tend to show bias, interest or motive to testify falsely. [Citation.] However, evidence of bias, interest or motive must not be remote or uncertain *.' " (Emphasis omitted.) People v. Green, 339 Ill. App. 3d 443, 455 (2003), quoting People v. Furby, 228 Ill. App. 3d 1, 3-5 (1992). As noted in People v. Davis, 185 Ill. 2d 317 (1998), a defendant need not show that a promise of a special favor has been made to the witness or even that an expectation of a 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 State's obligations 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 the 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 to show a promise of leniency or promise of a special favor, but has discretion only to preclude repetitive or unduly harassing interrogation on the issue. Davis, 185 Ill. 2d at 337, quoting Ramey, 152 Ill. 2d at 67.
In this case, defendant produced a handwritten note in which the assistant State's Attorney allegedly informed Shepherd that she would not be charged because the State viewed her as a victim and not as a potential defendant. We conclude that this evidence of Shepherd's possible motive to testify falsely was neither uncertain nor speculative. Although the note, without proper authentication, was inadmissible to prove that the State had, in fact, promised to refrain from charging Shepherd, the cross-examination of Shepherd was appropriate to show how the note affected her state of mind in deciding to testify for the State. The admissibility of the note, or any other basis for Shepherd's state of mind, was irrelevant. The State could have responded to the note by eliciting on redirect examination that it did not affect Shepherd's decision to testify because she received it several months after she began cooperating with the investigation. Thus, the jury would have had the opportunity to determine whether Shepherd had something to gain by testifying. See Davis, 185 Ill. 2d at 337. Rather than affording defendant the widest latitude in cross-examination to establish Shepherd's bias or motive, the court erred in barring any questions regarding Shepherd's perceptions about prosecutorial leniency. See Ramey, 152 Ill. 2d at 67.
2. Hoerer
Defendant also argues that the trial court erroneously denied him the opportunity to cross-examine Hoerer about his motives to testify falsely. At trial, Hoerer acknowledged that he was under indictment for the criminal sexual assault of Levin based on her inability to consent to sexual intercourse. Hoerer admitted that he was charged with two count
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