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People v. Bailey





APPEAL from the Circuit Court of Peoria County; the Hon. ROBERT E. MANNING, Judge, presiding. MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

The defendant, Timothy R. Bailey, was convicted of the offense of aiding a fugitive following a jury trial in the Circuit Court of Peoria County. He received a determinate sentence of two years' imprisonment.

In this appeal the following issues are raised by the defendant: whether the trial judge properly admitted into evidence testimony concerning criminal activities engaged in by the defendant subsequent to the specific offense charged; whether the trial judge properly refused the defendant's tendered jury instructions relating to the affirmative defense of compulsion; and whether the two-year term of imprisonment imposed upon the defendant was excessive.

The evidence adduced at trial revealed the following. On September 25, 1979, the defendant was charged by indictment with aiding a fugitive in violation of section 31-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 31-5). Specifically, the indictment alleged that on September 18, 1979, the defendant, knowing that one Alan Bannister had committed an armed robbery and intending to prevent the apprehension of Bannister, drove Bannister away from the scene of the offense.

Prior to the trial the defendant orally moved in limine to bar the State from introducing any evidence showing criminal activity on his part occurring subsequent to the offense charged. The State was prepared to introduce such evidence in the form of the defendant's post-arrest statement to Detective Dearborn.

In his statement to Detective Dearborn, the defendant stated that he and Alan Bannister were driving around together on September 18, 1979. The defendant was driving and Bannister asked him to stop at a Convenient Food Store. The defendant drove to the food store, but was told by Bannister to park about a block away from the store. Although the defendant thought this was strange he did as Bannister asked. Bannister entered the food store and within a few minutes reappeared, carrying a gun in one hand and two cartons of cigarettes in the other. At that moment the defendant realized that Bannister had probably robbed the store. Bannister got into the car, told the defendant that he had robbed the store and instructed him to start driving.

The defendant then told Detective Dearborn of the following events, all of which occurred after he drove Bannister away from the scene of the armed robbery. They first drove to the Slipper Club, where they met a woman. The three of them then drove to Farmington Road, where Bannister had sex with the woman. They then drove to a restaurant for breakfast, at which time the woman solicited their help in finding and assaulting a girl with whom the woman had been having problems. The trio searched for this girl but could not find her. They did chance upon another girl, however, one whom the woman said could be robbed. The three picked up this girl and returned to Farmington Road. There Bannister allegedly forced the girl to perform fellatio on him, while the defendant had consensual sex with the first woman in the front seat. The girl left the car following the alleged assault and telephoned the police, who subsequently stopped the three in the automobile. The defendant told Detective Dearborn that his role in these events was merely that of a driver.

In ruling on the defendant's motion in limine, the trial judge stated that Detective Dearborn could relate his conversation with the defendant as to what the defendant told the officer concerning the Convenient Food Store occurrence and about what transpired thereafter that evening, with the exception that all references to the sexual acts which occurred must be deleted. According to the trial judge, the express purpose for allowing the testimony regarding the subsequent conduct of the defendant as well as at the actual offense itself was to show the knowledge and intent of the defendant at the time of the alleged armed robbery. The defendant protested, claiming that the evidence failed to serve that purpose. Despite the defendant's protests, Detective Dearborn was called to testify and reiterated the events as described to him by the defendant, omitting any references to the sexual acts involved, as required by the trial judge's ruling on the defendant's motion in limine.

On cross-examination the detective recalled the defendant's saying that Bannister had a gun and that "he [the defendant] wasn't going to do anything he wasn't told by Mr. Bannister," and that he had not received any proceeds of the robbery from Bannister.

Also testifying for the State was Kim Engquist, a part-time employee of the Convenient Food Store which was robbed, and Brian Loflin, a friend of Ms. Engquist's who was in the store at the time of the robbery. Both testified as to events in the store involving Bannister, but neither was aware of the defendant's presence outside the store. The defendant offered no evidence in his own behalf.

During closing arguments the prosecutor outlined Detective Dearborn's testimony. He mentioned that the girl with whom Bannister and the defendant had breakfast also solicited them to commit an armed robbery of another woman. The defendant's objection to this remark was sustained, the judge instructing the jury to disregard the prosecutor's remark about another armed robbery. The prosecutor then simply asked the jury to recall the various events testified to by Detective Dearborn.

The defendant contends that the evidence of other criminal activity in which he was involved was improperly received. He asserts that it was irrelevant to the crime charged, or, if relevant, was so remote as to be inadmissible upon comparison with its potential for prejudice. The State maintains that the evidence was properly admitted as it was independently relevant because it established the defendant's intent with respect to the crime charged.

• 1 It is clear that a defendant is entitled to have his guilt or innocence determined solely with reference to the crime of which he is charged. (People v. Hartness (1977), 45 Ill. App.3d 129, 358 N.E.2d 954.) As a general rule, evidence is held inadmissible if it points to crimes unrelated and unconnected to the crime for which the defendant is being tried. (People v. Tranowski (1960), 20 Ill.2d 11, 169 N.E.2d 347; People v. Hughes (1977), 51 Ill. App.3d 985, 367 N.E.2d 485.) However, evidence of other offenses is admissible if relevant for any purpose other than to show propensity to commit a crime. (People v. McDonald (1975), 62 Ill.2d 448, 343 N.E.2d 489.) Evidence of other crimes which shows motive or intent, identity, absence of mistake or accident, or the existence of a common scheme or design may be admitted as independently relevant. (People v. Lehman (1955), 5 Ill.2d 337, 125 N.E.2d 506.) In deciding whether to admit evidence of another crime the defendant is alleged to have committed, the trial judge must balance the relevancy of the evidence offered against its tendency to inflame or prejudice the jury. People v. Copeland (1978), 66 Ill. App.3d 556, 384 N.E.2d 391.

Illinois law also requires that otherwise admissible evidence must be purged of references to other crimes if it is at all possible to do so without doing violence to the probative value of the evidence. Application of this rule is illustrated in People v. Donaldson (1956), 8 Ill.2d 510, 134 N.E.2d 776, in which the Illinois Supreme Court held that confessions or statements of the defendant must be edited to exclude reference to other offenses, and in People v. Pelate (1977), 49 Ill. App.3d 11, 363 N.E.2d 860, in which the appellate court held that evidence of flight, while admissible, had to be presented so as to exclude details of a crime committed during the flight.

In the case at bar the evidence to which the defendant objects, specifically the defendant's activities with Bannister subsequent to the armed robbery, was admitted as probative of the defendant's knowledge and intent at the time he aided the departure of Bannister from the scene of the armed robbery. We note that the State does not pursue the knowledge rationale on appeal and rightly so, for as the defendant points out in his brief, the evidence in question is not probative on that element of the offense charged. The relevant knowledge in the case against the defendant was his knowledge that Bannister had committed the offense of armed robbery. Since the State had the defendant's statement ...

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