People v. Barney

678 N.E.2d 1038, 176 Ill. 2d 69, 223 Ill. Dec. 30, 1997 Ill. LEXIS 25
CourtIllinois Supreme Court
DecidedMarch 20, 1997
Docket81389
StatusPublished
Cited by19 cases

This text of 678 N.E.2d 1038 (People v. Barney) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Barney, 678 N.E.2d 1038, 176 Ill. 2d 69, 223 Ill. Dec. 30, 1997 Ill. LEXIS 25 (Ill. 1997).

Opinion

JUSTICE HARRISON

delivered the opinion of the court:

The issue in this case is whether a criminal defendant who has testified on his own behalf is entitled to a new trial because the prosecutor told the jury during closing argument that the defendant had an interest or bias in being found not guilty. Adhering to its recent decision in People v. Armstrong, 275 Ill. App. 3d 503 (1995), the Fourth District of the Appellate Court held that such remarks did not constitute reversible error, reasoning that the State is entitled to comment on the bias or prejudice of the defendant, just as it may with any other witness. No. 4 — 94—0850 (unpublished order under Supreme Court Rule 23).

The appellate court’s position has been followed by the First Division of the First District of the Appellate Court, which held that argument by the prosecutor -'that asks the jury to consider a defendant’s interest in the outcome of the case in evaluating his credibility is proper.” People v. Falconer, 282 Ill. App. 3d 785, 790 (1996). By contrast, the Third District of the Appellate Court (People v. Walton, 246 Ill. App. 3d 552, 555 (1993); People v. Crowder, 239 Ill. App. 3d 1027, 1030-31 (1993); People v. Ellis, 233 Ill. App. 3d 508, 511 (1992); People v. Watts, 225 Ill. App. 3d 604, 606-07 (1992)) and the Second Division of the First District of the Appellate Court (People v. Cross, 272 Ill. App. 3d 354, 364 (1995)) have taken the position that such comments constitute reversible error because they imply that a defendant is presumed to lie simply because of his status as a defendant and diminish his fundamental right to the presumption of innocence. We granted defendant’s petition for leave to appeal (155 Ill. 2d R. 315) to resolve this conflict among the districts, and for the reasons that follow, we affirm.

The facts pertinent to the case are straightforward. Defendant was searched by police following his arrest for driving without a license. During the course of the search, police found what turned out to be cocaine in one of defendant’s coat pockets. Based on that discovery, defendant was charged with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1992)) and unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(d) (West 1992)).

Defendant was given a jury trial on the charge of unlawful possession. At trial, defendant did not deny that there was cocaine in his coat pockets. His defense was that he should not be found guilty because the law requires that the possession be knowing (720 ILCS 570/ 402 (West 1992)) and that element was not present here. According to defendant, the coat was not his — it belonged to his mother — and he had no idea that there were illegal drugs in the pockets at the time of his arrest.

Defendant presented various witnesses to substantiate that the coat was, in fact, his mother’s and not his. The most significant testimony came from defendant himself, who told the jury that he owned no coat of his own, that he usually wears one of his brother’s coats, that this coat was just lying around the house, that although the coat belonged to his mother she was no longer staying at the house, that he had worn the coat occasionally, that other people had worn the coat as well, and that he had not known that small plastic bags containing the cocaine were located in the pockets.

At the close of the evidence, an instructions conference was held during which the court indicated its intention to use Illinois Pattern Jury Instructions, Criminal, No. 1.02 (3d ed. 1992), a standard instruction given to the jury in nearly every criminal case. The court used the version of the instruction applicable where, as here, a defendant has testified. The instruction provided:

"Only you are the judges of the believability of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.
You should judge the testimony of the defendant in the same manner as you judge the testimony of any other witness.”

In contemplation of this instruction, the prosecutor addressed the issue of defendant’s bias during closing arguments. He stated:

"Obviously the defendant has an interest or bias here, and that interest or bias here is that, you know, he wants to be found not guilty.”

This remark drew an unsuccessful objection and motion for mistrial, and it is the basis for this appeal.

Defendant was ultimately found guilty and sentenced to 21h years’ probation. Pursuant to an agreement with the prosecutor, he subsequently pleaded guilty to the companion charge of unlawful possession with intent to deliver and received the identical sentence, 21h years’ probation, to be served concurrently.

Defendant has never attempted to withdraw his guilty plea for the offense of unlawful possession with intent to deliver, but he did file a post-trial motion with respect to his conviction on the unlawful possession charge. That motion contended, inter alla, that the prosecution should not have been permitted to make the argument that defendant was biased because he had an interest in being acquitted.

. Defendant’s post-trial motion was denied. The appellate court subsequently affirmed in an unpublished order under Supreme Court Rule 23, invoking its recent decision in People v. Armstrong, 275 Ill. App. 3d 503 (1995), to hold that the prosecutor’s remarks were not improper. This appeal followed.

In assailing the judgment of the appellate court, defendant contends that the prosecutor’s remarks were improper and that he should be granted a new trial because the challenged remarks contravened his presumption of innocence. This argument was previously considered and rejected by the Fourth District in People v. Armstrong, 275 Ill. App. 3d 503 (1995), and by the First Division of the First District of the Appellate Court in People v. Falconer, 282 Ill. App. 3d 785, 790 (1996). Although a contrary position has been taken by judges in the Third District of the Appellate Court (see People v. Walton, 246 Ill. App. 3d 552, 555 (1993); People v. Crowder, 239 Ill. App. 3d 1027, 1030-31 (1993); People v. Ellis, 233 Ill. App. 3d 508, 511 (1992); People v. Watts, 225 Ill. App. 3d 604, 606-07 (1992)) and the Second Division of the First District of the Appellate Court (see People v. Cross, 272 Ill. App. 3d 354, 364 (1995)), we cannot agree with the reasoning in this second line of cases.

Where, as here, a prosecutor suggests to the members of the jury that a defendant’s testimony is biased because he has an interest in the outcome of the case, the prosecutor is not telling them anything they do not know and are not already thinking.

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Bluebook (online)
678 N.E.2d 1038, 176 Ill. 2d 69, 223 Ill. Dec. 30, 1997 Ill. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-barney-ill-1997.