People v. Barney
State: Illinois
Docket No: 81389
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
No. 81389--Agenda 5--January 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GEORGE BARNEY,
Appellant.
Opinion filed March 20, 1997.
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(unpublished order under Supreme Court Rule 23).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 2
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