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04/07/89 the People of the State of v. Benjamin Barnes

April 7, 1989





537 N.E.2d 949, 182 Ill. App. 3d 75, 130 Ill. Dec. 620 1989.IL.488

Appeal from the Circuit Court of Cook County; the Hon. James M. Schreier, Judge, presiding.


PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.


Defendant Benjamin Barnes appeals his conviction and sentence after a second jury trial for the crime of unlawful use of firearms by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1). The first trial ended in a mistrial being declared because the jury was unable to reach a verdict. After defendant was found guilty in the second trial, he was sentenced to five years' imprisonment and fined $10,000. On appeal, defendant charges that a number of evidentiary errors denied him a fair trial. He also contends that the fine imposed was "erroneous" because the court failed to consider his financial resources or his ability to pay and he was denied his constitutional rights to equal protection and due process because he was prosecuted under section 24-1.1 of the Criminal Code of 1961 (unlawful use of firearms by a felon), rather than section 24-3.1 (unlawful possession of firearms) (Ill. Rev. Stat. 1985, ch. 38, pars. 24-1.1, 24-3.1). For the following reasons we reverse and remand the cause for a new trial.

Pursuant to the case presented by the State, on October 4, 1984, three police officers observed a 1974 blue Cadillac near the intersection of Francisco and Adams in Chicago, Illinois. The Cadillac had license plates registered to a different car. A male driver later determined to be defendant and a female passenger later determined to be defendant's girlfriend, Unita Brown, were in the car. After waiting a few minutes, the officers drove their car up behind and to the right of the Cadillac. One of the officers knocked on the window of the Cadillac on the passenger side and asked Brown to open it. Another officer noticed defendant had a gun tucked into the back of his pants on the left side, and he yelled to his fellow police officers that defendant had a gun. A second officer also saw the gun. All three officers then drew their own guns and ordered defendant and Brown out of the car. Instead of complying with the request, defendant put the Cadillac in gear and drove off at a high speed southbound on Sacramento. The police got into their car and pursued defendant west on Adams, south on Sacramento and east down an alley. The three officers subsequently saw defendant throw the gun out of his car window into the alley and continue driving to the next street, where he turned and stopped. The officers thereafter placed defendant and Brown under arrest, put them in the backseat of their car, and drove back to the alley where defendant had tossed the gun. They recovered the gun on the apron of a garage in the alley. One of the officers unloaded the gun, a .380 semi-automatic.

The police then took defendant and Brown to the police station. At the station, the police inventoried defendant's possessions, which consisted of a beeper and $4,229 in cash. Although the officers later stated they did not see the gun in Brown's possession, one of the reasons given for her arrest was "possible" unlawful use of weapons. None of the officers who arrested, questioned and booked Brown mentioned her name in their official police reports. Brown was released several hours after her arrest. Defendant subsequently stipulated that he had been convicted of burglary on November 7, 1979.

Defendant's and Brown's testimony indicated that Brown and defendant were on their way to a bank to get a cashier's check with which defendant intended to purchase a home when they were approached by the police. Defendant testified that it was not until after he and Brown had been told to get out of the car that he learned Brown had a gun. He then drove away from the scene and, while passing through an alley, he stopped the car to enable Brown to open her door to throw the gun out because her window would not open. Brown stated that she threw the gun over the hood of the car into a nearby yard. She further stated that she had gotten the gun two weeks earlier from her brother's friend because she had been attacked on two different occasions; the first time she was robbed and the second time a man exposed himself and made sexual advances to her before she was able to get away from him., Defendant was subsequently found guilty of unlawful use of firearms by a felon, sentenced to five years' imprisonment, and fined $10,000.

On appeal, defendant, with respect to his evidentiary errors argument, asserts that the exclusion of testimony concerning his good character and peacefulness -- his specific community, political and church activities -- admitted at his first trial without objection by the State and excluded in his second trial was reversible error, that the repeated admission of evidence that $4,229 in small bills was recovered from his person was reversible error, and that the State's cross-examination of him about his fatherhood of children by different women, his employment history and his opinion on the credibility of adverse witnesses was reversible error. The State argues that much if not all of the claimed evidentiary errors were either justified by defendant's trial tactics or waived by a failure to object or raise the issues in his post-trial motion. In response, defendant contends that in any event the cumulative effect of the evidentiary errors was tantamount to plain error. We agree with defendant.

We find it unnecessary to delve into the record to determine whether defendant waived his right to raise these evidentiary errors on appeal because, even if he had, we may nonetheless consider them pursuant to Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)), in the interest of Justice, since we believe they resulted in extreme prejudice to defendant, thus denying him a fair trial. With respect to defendant's first argument concerning the exclusion of character evidence, we observe that it is well settled that relevant character traits may be admissible in a criminal case if such traits are inconsistent with the commission of the crime charged. (People v. Wells (1967), 80 Ill. App. 2d 187, 224 N.E.2d 288.) This is accomplished not by introducing evidence of specific acts or personal opinion (Voga v. Nelson (1983), 115 Ill. App. 3d 679, 450 N.E.2d 1364), but by introducing evidence of a defendant's general reputation for the specific character trait (People v. Lewis (1962), 25 Ill. 2d 442, 185 N.E.2d 254).

Here, the State argues that defendant failed to properly seek to introduce evidence of good reputation, but rather sought to introduce evidence of specific acts of goodwill -- his regular attendance at "block club" meetings, coaching and sponsorship of the neighborhood basketball team, fundraising and leadership duties at awards banquets at his church, and his candidacy for State Representative of the 19th Legislative District -- and that those specific acts were completely irrelevant, as determined by the trial court, to his guilt or innocence of the crime for which he was charged, i.e., the unlawful use of firearms by a felon. Moreover, the State argues, the trial court did permit defendant at his second trial to give a "brief biographical sketch" and, accordingly, defendant was in fact allowed to introduce evidence of his general reputation for good character as to his employment, marital status, ordinary church attendance and a "reference" to community work. The State therefore contends that the trial court properly denied the proffered evidence of defendant's specific activity in his community.

We agree with the State that specific acts by defendant in support of his character were properly denied by the court, but only initially. We find that as the trial progressed, and as a result of the State's introduction of specific bad character evidence against defendant, which we believe the trial court erroneously admitted because it was irrelevant to the crime charged, defendant should have been allowed to respond with evidence of his specific acts of goodwill, since it is well settled that a party may introduce evidence that would ordinarily be improper to introduce where the other party has opened up the issue and the party seeking to introduce the otherwise improper evidence will be prejudiced unless he is allowed to introduce it. (See Voga v. Nelson (1983), 115 Ill. App. 3d 679, 450 N.E.2d 1364.) More specifically, we note that the case against defendant depended solely on the weight the jury accorded the testimony of the witnesses as to whether it believed defendant, rather than Brown, possessed the gun. Defendant's credibility was critical to a determination of this issue by the jury since there was no overwhelming evidence as to defendant's guilt, i.e., the only evidence presented was the testimony of the three police officers that defendant possessed the gun as opposed to defendant's and Brown's testimony that Brown possessed the gun. As discussed more fully below, the State's evidence concerning defendant's possession of $4,229 in cash in small bills, his fatherhood of two children by different women, and his employment history was irrelevant to the crime for which he was charged and was presented by the State for the sole purpose of unfairly damaging defendant's credibility by depicting him as a person involved in illegal enterprises, a womanizer, an untrustworthy, trouble-making employee, and a liar.

For example, based on the State's sole position that evidence of the $4,229 in cash found in defendant's possession when he was arrested should be admitted to inform the jury of police investigatory procedure, the trial court allowed all three officers to testify as to the "small" bills recovered, the denominations of which were delineated to the jury as 20 50-dollar bills, 104 20-dollar bills, 73 10-dollar bills, 3 5-dollar bills, and 4 1-dollar bills. The court also allowed the State to cross-examine Brown concerning the money, i.e.:

": Now you said that you and Mr. Barnes were -- where was it that you were going to?

: We were going to purchase a cashier's check.

Q. What was that for, ma'am?

A. For a building that Ben was going to buy.

Q. Did he buy the building?

A. No.

Q. Where was he going to get the money from [ sic ] the cashier's check?

A. He had the money on him.

Q. How much money was that again, $4,229?

A. That is correct.

Q. Did you see him with that money before he got in the car?

A. I know he had it on him.

Q. You know he had the $4,000 on him?

A. Right.

Q. Where did he get that $4,000 ?

A. He worked for the city.

Q. Does he get paid in 20's and 10's ?

A. I'm not sure how he gets paid, sir.

Q. So you don't know where he got the money from, is that correct ?

Q. Did you ever see him walking around with $4,000 or that kind of money before ?" (Emphasis added.)

The State further cross-examined defendant in great detail regarding the money, i.e.:

": [The money that you were taking to the bank to purchase a cashier's check] was the money, the $4,229.00?

: Yes it was.

Q. That money was in what type of bills ?

A. Different numbers on the bills, 50's, 20's, 10's.

Q. Mostly 20's and 10's, correct ?

: Objection.

: Sustained.

: Tell us what kind of bills they were and what type of ...

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