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People v. Bascomb





APPEAL from the Circuit Court of Champaign County; the Hon. ROBERT J. STEIGMANN, Judge, presiding.


Defendant, Roy Bascomb, was charged by information with burglary and theft over $150 (Ill. Rev. Stat. 1977, ch. 38, pars. 19-1, 16-1) in December 1977. On June 15, 1978, defendant was convicted by a jury of both counts. He was sentenced to 3 years' probation with 7 months' periodic imprisonment.

During the early morning of October 11, 1977, the Champaign-Urbana Elks Club was burglarized. Cash, checks, and liquor were taken. The testimony of two alleged accomplices, Roger Young and Robert Smith, was the only evidence that was offered at trial of defendant's involvement in the crime. Defendant, testifying on his own behalf, denied involvement in the incident and stated that he had never seen Robert Smith or Roger Young before they testified against him.

Luke Kennedy, manager of the restaurant where defendant was employed as a dishwasher in October 1977, testified for defendant. Kennedy stated that the restaurant employs approximately 50 persons, that he supervises all employees, and that he regularly talks with his employees. He testified that defendant had worked at the restaurant approximately two or three months prior to October 1977 and that most of the employees knew defendant.

Kennedy further testified that in October 1977, he had the occasion to hear discussions which concerned defendant's reputation for honesty and integrity and that defendant's reputation was good. On cross-examination, the witness testified that most of these conversations occurred around the time of defendant's arrest in December 1977; however, some of them may have occurred in October. The witness specifically remembered that on the night of defendant's arrest, another manager stated that in his opinion Roy Bascomb was probably innocent because he had a very good opinion of defendant's honesty and integrity. Kennedy also remembered talking to another restaurant employee following defendant's arrest.

The State moved to strike Kennedy's testimony concerning defendant's honesty and integrity. The Assistant State's Attorney argued that the conversations all apparently took place some time approximately three months after the incident and that there was no testimony regarding what his specific reputation was at the time of the incident. Defense counsel argued that the witness did testify that he had some general conversations prior to the date of the offense although he could not recall any specifically. Counsel also argued that aside from the conversations that took place in December, there was sufficient foundation to show that Kennedy was acquainted with defendant's reputation.

The court found that the time requirement rule was appropriate and that the reputation testimony of Kennedy should be stricken. The court accordingly refused defendant's instruction which concerned evidence of defendant's reputation for honesty and integrity and instructed the jury that the testimony of Kennedy concerning the reputation of defendant was to be disregarded.

Defendant's first contention in this direct appeal is that the trial court struck the reputation testimony from the record improperly because the testimony provided a sufficient foundation for the witness to testify about defendant's reputation for honesty prior to the offense. We agree.

• 1 Illinois law requires evidence of character to be confined to proof of defendant's general reputation at or prior to commission of the offense. (People v. Willy (1921), 301 Ill. 307, 317-18, 133 N.E. 859; City of Chicago v. Lowy (1976), 40 Ill. App.3d 950, 954, 353 N.E.2d 208, 212; People v. Carruthers (1974), 18 Ill. App.3d 255, 265, 309 N.E.2d 659, 667.) In Willy, the Illinois Supreme Court expressed the rule as follows:

"Evidence of character should be confined to proof of general reputation at or prior to the commission of the offense. It must not be allowed to cover reputation after the commission of the offense or what was said after the offense with reference to the character of the accused either before or after the offense * * *." 301 Ill. 307, 317-18, 133 N.E. 859, 864.

• 2 It is also well settled that a defendant's character can be proved only by evidence of general reputation, not personal opinion, which is based upon the witness' contact with defendant's neighbors and associates. (People v. Moretti (1955), 6 Ill.2d 494, 523-24, 129 N.E.2d 709, 725, cert. denied (1958), 356 U.S. 947, 2 L.Ed.2d 822, 78 S.Ct. 794; Carruthers.) The reputation witness must be shown to have adequate knowledge of the subject. (People v. Reeves (1935), 360 Ill. 55, 65, 195 N.E. 443, 448; People v. McClelland (1968), 96 Ill. App.2d 410, 414, 238 N.E.2d 597, 599.) For example, this court in McClelland determined that certain reputation witnesses were incompetent because they were not from defendant's community and apparently were not familiar with defendant as a member of his home community. In Reeves, none of the reputation witnesses "claimed any acquaintance with the associates or neighbors of the defendant or with the public generally with whom the defendant came in contact." 360 Ill. 55, 64, 195 N.E. 443, 447.

Here, Kennedy, as restaurant manager, had contact with defendant's work associates. The witness supervised defendant, who was a regular employee, for at least two months prior to the break-in at the Elks Club. Kennedy testified that he knew his employees and often spoke with them. The witness certainly was in a position to have been aware of defendant's reputation for honesty among the restaurant staff. Furthermore, we believe that Kennedy's testimony evidenced an actual awareness of the defendant's reputation prior to the October 11 occurrence.

Under Willy, the two December conversations, about which the witness testified, clearly are inadmissible and do not reveal an awareness of defendant's reputation at the critical time. However, on direct examination, the witness gave an affirmative response to the following question: "And you believe as a result of these conversations, as a result of your acquaintance with other employees who worked with Roy Bascomb at the Lamplighter, that you were aware of defendant's reputation for honesty and integrity?" On cross-examination, the witness said that some conversation possibly could have taken place in October, but that he could not recall for sure.

In People v. Dunham (1931), 344 Ill. 268, 274, 176 N.E.2d 325, 328, the supreme court stated that it was not necessary for a reputation witness to be able to testify that he had heard defendant's reputation being discussed for "[h]is reputation may be known though never generally discussed." While in People v. Pieper (1951), 410 Ill. 15, 19, 101 N.E.2d 109, the court determined that the fact that no discussion was heard does not ...

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