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10/14/87 the People of the State of v. Joseph Cobbins

October 14, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOSEPH COBBINS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

516 N.E.2d 382, 162 Ill. App. 3d 1010, 114 Ill. Dec. 227 1987.IL.1538

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

After a jury trial in the circuit court of Cook County, defendant Joseph Cobbins was convicted of possession of a controlled substance with intent to deliver and of possession of cannabis with intent to deliver. The trial court sentenced him to three years on the former offense and to two years on the latter offense, the sentences to run concurrently. The jury also acquitted defendant of two counts of armed violence and two counts of felony unlawful use of a weapon.

On appeal defendant contends: (1) he was denied a fair trial when the State presented (a) prejudicial evidence of another crime in its opening argument and its case in chief and (b) irrelevant evidence of his prior acquaintance with the gang crimes officers who attempted to arrest him; (2) prosecutorial misconduct in closing arguments had a material effect on the jury verdict; (3) the State did not prove him guilty beyond a reasonable doubt and (4) the trial court denied him a fair trial by improperly stifling his opening argument to the jury.

The evidence adduced at trial revealed the following. Chicago police sergeant James Moran, assigned to the gang crimes south unit, was on duty at the unit's offices at 5101 South Wentworth, Chicago, on the morning of June 1, 1983, when Helen Crutcher, defendant's former girlfriend, came in and told him that she had been the victim of a battery and signed a complaint against defendant. Sergeant Moran noticed that Crutcher had swelling around one eye. At approximately noon or half past noon, he and two other officers in the gang crimes unit, James Bauer and James Fitzmaurice, went to defendant's home at 5953 South Indiana in Chicago. Upon arriving, Sergeant Moran and Officer Fitzmaurice went up to the second-floor apartment while Officer Bauer went to the rear of the building. Defendant's mother allowed Moran and Fitzmaurice into the apartment after they told her they wanted to speak to defendant about the incident between him and Crutcher. At that time, they noticed two other persons in the apartment whom they did not know. After Bauer reached the back of the apartment building, he heard a window being raised on the side of the building and saw defendant lean out of a second-floor window and throw a bag up to the second-floor rear porch landing of the apartment across from his. Bauer then heard a "metal like sound hit the ground" and thereafter saw a gun lying in the open courtyard below the window. After defendant left the window, Bauer picked up the gun, a .45 caliber automatic, and the bag, which contained a large quantity of tinfoil packets and small manila envelopes. Bauer waited a few minutes to allow Moran and Fitzmaurice to gain entry into the apartment and called out to them. He then went around to the front of the building, met Moran and Fitzmaurice on the stairs and told them that he had seen defendant throw a bag of "dope" and a gun out of a window and to go back and get him. Bauer then ran to the rear of the building and, as he did so, heard someone running down the rear stairs. When he reached the base of the stairs, he saw defendant coming down and stop when he saw Bauer. Defendant then turned, ran across the first-floor landing and jumped over the railing. When defendant landed, he had a small black derringer in his hand and pointed it at Bauer. Bauer backed up, announced "Police," told defendant to drop the gun, and tripped over the support post of the rear stairwell. As Bauer was falling, he fired three or four shots at defendant, who then turned and started running away. Defendant jumped over the backyard fence and Bauer gave chase. After Bauer climbed the fence and ran behind defendant through a vacant lot, he saw the small derringer lying on the ground and retrieved it. Bauer fired a total of 14 shots at defendant during the chase. Defendant did not fire at Bauer. Thereafter, the police searched the area without success. Approximately an hour later, defendant surrendered to Chicago police officer Peck, in Bauer's presence, and was taken to the hospital for treatment of a bullet wound to his right arm.

Defendant testified that he was returning home from a friend's house at approximately 12:30 p.m. when he stopped to speak with a neighbor on the rear porch next to his. After talking with the neighbor, defendant ascended the rear stairs and saw Bauer with his gun drawn when he reached the second-floor landing. Defendant walked down the stairs and came upon Bauer, who blocked his exit and said "I'll kill you m f ." Defendant panicked and jumped over the bannister because he was scared of Bauer. Defendant denied being in his apartment and throwing anything out of the window from which Bauer claimed he saw him and which defendant identified as part of the dining room of the apartment. He also denied seeing a paper bag or a .45 automatic in Bauer's possession when he saw him at the bottom of the stairs.

Chicago police officer Bolda interviewed defendant at Billings Hospital in the presence of Officer Peck. Bolda advised defendant of his Miranda rights, which defendant stated he understood. Defendant told Bolda he was at home when the police arrived and that he ran out the back door when they knocked on the front door. He also told Bolda that he kept on running when the man at the bottom of the stairs identified himself as a police officer. Defendant did not tell Bolda that he was not home when the police came to the apartment and that Bauer did not identify himself as a police officer. Defendant denied having thrown the bag with narcotics or the .45 caliber automatic out of the window and having a derringer in his possession that day.

Dorothy Wader, a police department chemist, tested the contents of 6 of the 61 foil packets in the paper bag and concluded they contained heroin. She also tested the contents of 17 of the 34 small manila envelopes in the paper bag and concluded they contained marijuana.

Opinion

Defendant first contends he was denied a fair trial by the State's references in its opening statement and its case in chief to Helen Crutcher's injuries. Specifically, he complains of the State's reference in its opening statement to the fact that Crutcher had a bloody nose when she first made the battery complaint against defendant and of Sergeant Moran's testimony that Crutcher had swelling around one eye when she returned to sign the formal complaint against defendant. Defendant contends the references to Crutcher's injuries violated the rule that evidence of other crimes cannot be used to show a defendant's propensity to engage in criminal conduct. He concedes that evidence of other crimes is admissible when relevant to the police investigation of the crime charged where it was an integral part of the defendant's arrest. However, he argues that under this exception, unnecessary details of the other crime have been held prejudicial. He notes that although the trial court denied his motion in limine to exclude evidence of the battery complaint, it did prohibit the State from going into the details of the battery. Moreover, he notes that the trial court denied his request to inform the jury that the battery complaint was eventually dismissed although, in other cases, it has been held reversible error to prohibit a defendant from informing the jury of his acquittal on an armed robbery charge brought out by the State in opening argument. (People v. Mordican (1976), 64 Ill. 2d 257, 356 N.E.2d 71.) Defendant asserts that the unnecessary details of Crutcher's injuries caused the jury to regard him as a bad person before he presented any evidence.

The State responds that the isolated references to Crutcher's injuries were permissible to show the circumstances of the defendant's arrest and that the battery complaint was genuine. Moreover, it argues, even if they did constitute error, they were harmless beyond a reasonable doubt in view of the overwhelming evidence against defendant and the jury's partial acquittal of him.

Generally, evidence of other crimes is inadmissible to show guilt of the offense charged. (People v. Harris (1980), 91 Ill. App. 3d 112, 414 N.E.2d 755.) Such evidence is admissible if relevant for any other purpose other than to show propensity to commit crime (People v. Hoppock (1981), 98 Ill. App. 3d 58, 423 N.E.2d 1351), including when relevant to the police investigation of the crime charged where such investigatory procedures involved an integral part of the narrative of defendant's arrest (People v. Davis (1981), 93 Ill. App. 3d 187, 416 N.E.2d 1179). However, introduction of unnecessary details of the other crime may be prejudicial. People v. Diaz (1979), 78 Ill. App. 3d 277, 397 N.E.2d 148.

We believe the facts of this case are governed by People v. Mordican (1975), 33 Ill. App. 3d 196, 338 N.E.2d 107, aff'd (1976), 64 Ill. 2d 257, 356 N.E.2d 71. Therein, the State in its opening statement referred to the defendant's arrest on an unrelated armed robbery offense and in its case in chief presented the testimony of one of the police officers who arrested defendant on that charge without informing the jury, as it knew, that the defendant had been acquitted of the charge. The supreme court held that the opening statement, coupled with the State's objection when the defendant attempted to inform the jury of his acquittal, was "plainly prejudicial" and warranted a new trial. The instant case is strikingly similar to Mordican and that similarity is not vitiated merely because there was only a civilian complaint against defendant rather than a formal charge. Here, as in Mordican, the defendant was prevented from informing the jury of the subsequent dismissal of the charge brought out by the State. Moreover, appellate court cases such as People v. Davis (1981), 93 Ill. App. 3d 187, 416 N.E.2d 1179, cited by the State, do not compel a contrary Conclusion.

Although Mordican requires us to hold that the references to the battery complainant's injuries in the State's opening argument and case in chief constituted error, we believe the defendant's acquittal on the armed violence and felony unlawful use of a weapon counts demonstrates that this error was harmless beyond a reasonable doubt. It is untenable to argue, and it would be illogical to hold, that the prohibited references to the battery complaint prejudiced defendant on only half the charges against him. Surely, if the prohibited references had prejudiced the jury against defendant, it would have convicted him of all the charges. Defendant's partial acquittal demonstrates instead that these references had no effect on the jury's determination of his guilt on any of the charges and, thus, that they were harmless beyond a reasonable doubt.

Defendant next contends that the admission of irrelevant evidence of his prior acquaintance with Officers Moran, Bauer and Fitzmaurice of the gang crimes unit also denied him a fair trial. Specifically, he complains of the State's reference in its opening statement to the fact that Officers Bauer and Fitzmaurice knew defendant, had seen him before and knew where he lived, and Sergeant Moran's testimony that he knew defendant and his mother. He asserts that the State's cross-examination of him, wherein it elicited admissions that he knew Sergeant Moran and Officer Bauer and asked him the basis of his acquaintance with them, confirms its intent to prejudice him. He contends these actions were intended to invite speculation by the jury as to his criminal habits. Defendant argues that only Officer Bauer's prior acquaintance with him was material to his identification, since Bauer was the only one who saw defendant throw the contraband out of the window. Finally, he asserts that the State's repeated references to the police officers as "gang crimes specialists" was unnecessary and intended to stir the jury's hostility toward him since this was not a gang crime and no specialized investigative techniques were used.

The State asserts that the evidence that the arresting officers were previously acquainted with defendant does not necessarily imply he had a criminal record. It argues this evidence was necessary to establish that defendant knew who the officers were since they were in plain clothes when they went to his apartment. Moreover, the State argues, evidence of the prior acquaintance between defendant and the officers, coupled with his flight from Officer Bauer, establishes a consciousness of guilt. It further argues that it was permissible to show the unit to which the officers were assigned and that defendant cannot complain in view of his exhaustive cross-examination of Sergeant Moran as to the activities and purposes of the gang crimes unit.

We believe the State's introduction of evidence of the testifying officers' prior acquaintance with defendant was intended to serve no purpose but to prejudice the jury against him. As defendant notes, only the prior acquaintance between him and Bauer, whom he encountered on the rear stairs, was relevant and material to any issues in the case, i.e., his identification and consciousness of guilt. Evidence that an arresting officer was previously acquainted with the defendant does not necessarily imply a criminal record. (People v. Rogers (1940), 375 Ill. 54, 59, 30 N.E.2d 77; People v. Stover (1982), 89 Ill. 2d 189, 196, 432 N.E.2d 262.) However, there was no apparent reason for the State to argue and establish that Sergeant Moran and Officer Fitzmaurice, who, along with Officers Bauer and Peck, were described as "gang crime specialists," were also acquainted with defendant. (Cf. People v. Stover (1982), 89 Ill. 2d 189, 196, 432 N.E.2d 262 (no apparent reason existed to inquire of defendant's prior acquaintance with police officer unless State intended to imply prior criminality where, although knowledge of police officer's status was essential element of offense charged, defendant's knowledge thereof was already clearly established).) It is clear from the record that, on the day of defendant's arrest, Sergeant Moran and Officer Fitzmaurice did not come face-to-face with him before he was arrested. As such, evidence of their prior acquaintance with defendant could serve only to raise an inference in the jurors' minds that defendant had previously been involved in criminal conduct.

The State's repeated references to the officers as "gang crimes specialists" likewise were intended to prejudice defendant. As the State notes, it was permissible to elicit from the officers the unit to which they were assigned and from Sergeant Moran the duties and responsibilities of the unit. However, the State's repeated use of the phrase "gang crimes" and its repeated reference to the officers as "gang crimes specialists" far exceeded the proper use of this testimony. There were no allegations here that defendant was a gang member or that these offenses were part of gang activity. As such, the repeated references to "gang crime" could only serve to permit the jury to make such unwarranted and impermissible inferences.

Although this prosecutorial misconduct constitutes error, we are compelled to conclude that it was harmless beyond a reasonable doubt. As previously noted, defendant was acquitted on two of the four substantive charges against him: armed violence and felony unlawful use of a weapon. As such, we cannot perceive how defendant could have been denied a fair trial as to the charges on which he was convicted since all of the charges against him were ...


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