People v. Bass

JUSTICE EGAN, specially concurring:

It is my impression that one of the most often-recurring assignments of error before courts of review in this State involves the prosecution’s claim that certain evidence is admissible to explain the narrative of events leading up to a defendant’s arrest. That claim is made here to refute the defendant’s argument that the testimony of Officer Bogucki violated the general rule against proof of other crimes. The majority recognize that the evidence was improper here, and I agree.

Some appellate court opinions have recognized an exception to the general rule barring proof of other crimes when the evidence is offered to provide a narrative of events leading up to the defendant’s arrest. (See, e.g., People v. Hunley (1989), 189 Ill. App. 3d 24 , 545 N.E.2d 188 ; People v. Goka (1983), 119 Ill. App. 3d 1024 , 458 N.E.2d 26 ; but see contra People v. Spiezio (1982), 105 Ill. App. 3d 769 , 434 N.E.2d 837 .) I concur specially to emphasize that any such appellate court authority is contrary to the pronouncements of our supreme court.

To my knowledge, no preeminent authority on evidence (e.g., Wig-more, McCormick, Wharton, Cleary or Graham) has ever recognized such an exception. That exception is not specified in Corpus Juris Secundum (see 23 C.J.S. Criminal Law §§825 through 832 (1989)) nor in American Jurisprudence (see 29 Am. Jur. 2d Evidence §§320 through 333 (1967)). Most important, however, our supreme court has expressly refused to recognize such an exception to the general rule denying admissibility of other offenses.

In People v. Bartall (1983), 98 Ill. 2d 294 , 456 N.E.2d 59 , the supreme court held that the evidence of a subsequent crime was admissible to establish intent. The court referred to People v. McKibbins (1983), 96 Ill. 2d 176 , 449 N.E.2d 821 , as approval of the admission of evidence of a subsequent robbery in a trial for murder and armed robbery in order to show “the defendant’s intent and the context of his arrest.” (Bartall, 98 Ill. 2d at 310 .) However, in People v. Richardson (1988), 123 Ill. 2d 322 , 528 N.E.2d 612 , the supreme court held inadmissible evidence of an armed robbery two years after the crime for which the defendant was on trial. The State argued that the evidence was admissible to show the circumstances leading up to the defendant’s arrest, citing McKibbins. To that argument the supreme court spoke as follows:

“Although the People assert numerous grounds for admitting evidence of the May 4, 1982, armed robbery, we find no justifiable basis for its admission. Contrary to the People’s assertion, the evidence was not admissible merely to show how the investígation unfolded and how defendant came into custody. These purported bases for admission beg the critical question of relevance to prove defendant’s commission of the crimes in issue and are not supported by our prior decisions. For example, in People v. McKibbins (1983), 96 Ill. 2d 176 , cited by the People, this court affirmed the admission of evidence detailing the events of the defendant’s arrest when discovered in the act of robbing a jewelry store, but only where the evidence was also relevant to specifically connect the defendant with the crimes for which he was being tried, a robbery and murder which had occurred two days earlier. ( 96 Ill. 2d at 184 .) The circumstances of the jewelry store robbery tended to establish that the defendant had participated in the earlier murder with the necessary criminal intent. ( 96 Ill. 2d at 186 .)” (Emphasis added.) 123 Ill. 2d at 342 .

The court held that the error was harmless and affirmed the judgment. Justice Clark dissented from the affirmance; he did not agree that the error was harmless and added this observation:

“The majority concedes that there was ‘no justifiable basis’ for the State’s introduction of evidence of the May 4, 1982, armed robbery. ( 123 Ill. 2d at 342 .) Indeed, the evidence did not tend to prove identity, knowledge, motive, opportunity, or any other fact in issue. Nor was the evidence of the May 1982 offense admissible to show how the defendant was apprehended, as the State otherwise argues. Our decisions have never recognized such an exception to the general rule requiring that other-crimes evidence be excluded.” (Emphasis added.) 123 Ill. 2d at 367 (Clark, J., dissenting).

As noted by the majority, the defendant may open the door for the admission of evidence of another crime (People v. Johnson (1986), 114 Ill. 2d 170 , 499 N.E.2d 1355 ); and evidence of another crime may be admitted when showing resistance to an arrest. People v. Sustak (1958), 15 Ill. 2d 115 , 153 N.E.2d 849 .

I agree with the majority that the verdict would have been no different if the improper evidence had been excluded. The defendant’s confession was entirely consistent with and corroborated the testimony of the occurrence witnesses. In this regard, this case is distinguishable from the cases cited by the defendant, People v. Mullen (1990), 141 Ill. 2d 394 , 566 N.E.2d 222 , and People v. Johnson (1990), 202 Ill. App. 3d 417 , 559 N.E.2d 1041 . In addition, the State’s case in both Mullen and Johnson contained other infirmities not present here.

Officer Bogucki’s testimony that after speaking to Willie Anderson he began to look for Patricia Bass did not violate the hearsay rule. He did not testify to the contents of his conversation with Anderson. (See People v. Gacho (1988), 122 Ill. 2d 221 , 522 N.E.2d 1146 .) However, I express no view on the question of whether the hearsay rule was violated by Bogucki’s testimony that he examined police reports of other robberies and the defendant’s name surfaced.