People v. Kimbrough

• Decision Date: 20 November 1985
• Docket Number: No. 83-2631,83-2631
• Citation: 93 Ill.Dec. 82,138 Ill.App.3d 481,485 N.E.2d 1292
• Parties: , 93 Ill.Dec. 82 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark S. KIMBROUGH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1292

485 N.E.2d 1292

138 Ill.App.3d 481, 93 Ill.Dec. 82

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark S. KIMBROUGH, Defendant-Appellant.

No. 83-2631.

Appellate Court of Illinois,

First District, Third Division.

Nov. 20, 1985.

James J. Doherty, Chicago, (Mark Stein, of counsel), for defendant-appellant.

Richard M. Daley, Chicago, (Michael E. Shabat, Frank G. Zelezinski, Donna B. More, of counsel), for plaintiff-appellee.

RIZZI, Justice:

A jury found defendant, Mark S. Kimbrough, guilty of deviate sexual assault, aggravated battery and unlawful restraint. He was sentenced to imprisonment for 10 years. On appeal, he contends (1) that it was reversible error to admit facts of a subsequent crime into evidence and (2) that the State's use of its peremptory challenges to systematically exclude blacks from the jury denied him a fair trial. We affirm.

Defendant and the victim were students at a local college in Chicago, Illinois. The victim is significantly shorter and lighter than defendant. The victim testified that on October 26, 1982, at defendant's request, he and defendant went into the school basement. Once in the basement, defendant asked the victim to fill out a card with his name, address and telephone number for a purported gymnastics class. After the victim complied with the request, defendant put the card in his notebook and asked the victim why he always "got hard" in class. Defendant then opened his jacket and showed the victim a pistol, saying, "I don't want to have to use this." The victim was then directed into a nearby washroom. Defendant put the pistol to the victim's neck and chest, then put his mouth on the victim's penis and performed fellatio. Afterwards, defendant and the victim left the washroom. Defendant then warned the victim not to discuss the incident with anyone. Thereafter, defendant and the victim had several homosexual encounters over a period covering five to six weeks. On November 29, 1982, the victim told security officers what had happened. That was the first time the victim told anyone what had occurred.

The State called another witness who testified to an encounter he had with defendant. The witness was also a student at the school attended by defendant and the victim. Like the victim, the witness was significantly shorter and lighter than defendant. The witness testified that on November 24, 1982, defendant asked him to follow defendant to the school basement, and to fill out a card with his name, address and telephone number. In the basement, defendant placed the card in his notebook. He then opened his jacket and pulled a pistol halfway out and said, "Don't run or I won't hesitate to kill you." Defendant then referred to the victim by name stating that the victim had been cooperating with him for five or six weeks, and that if the witness did not also cooperate with him, he would go after the witness's parents. When some people walking by created a disturbance, the witness ran. Defendant chased and caught him. The two youths struggled, and finally defendant was apprehended by security guards.

At trial, defendant's notebook which both students identified as containing their respective information cards, was admitted in evidence. The pistol, which was discovered to be merely a starter pistol for sporting events, was also admitted in evidence.

Defendant first contends that it was reversible error to admit in evidence the testimony relating to the subsequent criminal act of defendant. Defendant makes the same arguments that are often made when the admissibility of other crimes or wrongful conduct is raised. We shall therefore discuss the arguments involving this issue in a compendious fashion.

Evidence of other crimes or wrongful conduct is not admissible to show the defendant's character or propensity to commit crime or wrongful acts. ¹ Where evidence has no value beyond the inference that the defendant has a propensity for the crime charged, the evidence is excluded. The underlying rationale is that such evidence is objectionable not because it has no appreciable probative value, but because it has too much. The law distrusts the inference that because a man has committed other crimes, he is more likely to have committed the crime charged. People v. Lehman (1955), 5 Ill.2d 337, 342, 125 N.E.2d 506, 509; People v. Romero (1977), 66 Ill.2d 325, 330, 5 Ill.Dec. 817, 819, 362 N.E.2d 288, 290. However, evidence of other crimes is admissible if it is relevant for any purpose other than to show the defendant's character or propensity to commit crime. People v. Stewart (1984), 105 Ill.2d 22, 61-62, 85 Ill.Dec. 241, 261, 473 N.E.2d 840, 860; People v. Baptist (1979), 76 Ill.2d 19, 27, 27 Ill.Dec. 792, 796, 389 N.E.2d 1200, 1204. Thus, evidence of the commission of other crimes is admissible if it is relevant to prove modus operandi (People v. Matthews (1985), 137 Ill.App.3d 870, 92 Ill.Dec. 592, 485 N.E.2d 403; People v. Lewis (1983), 115 Ill.App.3d 389, 400-01, 71 Ill.Dec. 198, 206, 450 N.E.2d 886, 894, rev'd on other grounds, 103 Ill.2d 111, 82 Ill.Dec. 442, 468 N.E.2d 1222 (1984)), motive (People v. MacRae (1977), 47 Ill.App.3d 302, 311, 5 Ill.Dec. 362, 369, 361 N.E.2d 685, 692), knowledge (People v. Riley (1981), 94 Ill.App.3d 775, 777, 50 Ill.Dec. 239, 241, 419 N.E.2d 106, 108), intent (People v. Bartall (1983), 98 Ill.2d 294, 310-14, 74 Ill.Dec. 557, 564, 456 N.E.2d 59, 66; Riley, 94 Ill.App.3d 775, 776, 50 Ill.Dec. 239, 241, 419 N.E.2d 106, 108), absence of mistake or accident (Lehman, 5 Ill.2d 337, 343, 125 N.E.2d 506, 509), defendant's state of mind (People v. Hoddenbach (1983), 116 Ill.App.3d 57, 61-62, 72 Ill.Dec. 100, 104, 452 N.E.2d 32, 36), absence of an innocent frame of mind or the presence of criminal intent (People v. McKibbins (1983), 96 Ill.2d 176, 185-86, 70 Ill.Dec. 474, 478, 449 N.E.2d 821, 825), circumstances or context of defendant's arrest (Bartall, 98 Ill.2d 294, 310, 74 Ill.Dec. 557, 564-565, 456 N.E.2d 59, 66-67; McKibbins, 96 Ill.2d 176, 184, 70 Ill.Dec. 474, 477, 449 N.E.2d 821, 824), placement of defendant in proximity to the time and place of the crime (Lewis, 115 Ill.App.3d 389, 400, 71 Ill.Dec. 198, 206, 450 N.E.2d 886, 894; People v. Reppa (1982), 104 Ill.App.3d 1123, 1127, 60 Ill.Dec. 853, 857, 433 N.E.2d 1091, 1095), identification of the weapon used in the crime (People v. Carter (1967), 38 Ill.2d 496, 504, 232 N.E.2d 692, 697), consciousness of guilt (Bartall, 98 Ill.2d 294, 313-14, 74 Ill.Dec. 557, 566, 456 N.E.2d 59, 68; Baptist, 76 Ill.2d 19, 27, 27 Ill.Dec. 792, 796, 389 N.E.2d 1200, 1204), that the crime charged was part of a common design, scheme or plan of the defendant (Lehman, 5 Ill.2d 337, 343, 125 N.E.2d 506, 509; People v. Kissinger (1983), 116 Ill.App.3d 826, 831-32, 72 Ill.Dec. 362, 365-366, 452 N.E.2d 615, 618-19), circumstances of the crime charged that would otherwise be unclear (People v. Cole (1963), 29 Ill.2d 501, 504-05, 194 N.E.2d 269, 271; People v. Turner (1979), 78 Ill.App.3d 82, 92, 33 Ill.Dec. 415, 422, 396 N.E.2d 1139, 1146), whether the crime charged was actually committed (People v. Fuller (1983), 117 Ill.App.3d 1026, 1034, 73 Ill.Dec. 474, 481, 454 N.E.2d 334, 341) and opportunity or preparation (United States v. Robinson (2d Cir.1977), 560 F.2d 507, 513; see Fed.R.Evid. 404(b), cited in Wernowsky v. Economy Fire & Gas Co. (1985), 106 Ill.2d 49, 53, 87 Ill.Dec. 484, 486, 477 N.E.2d 231, 233).

In addition, evidence of other crimes is admissible to demonstrate the defendant's dislike for, or attitude toward, the victim (Kissinger, 116 Ill.App.3d 826, 832, 72 Ill.Dec. 362, 368, 452 N.E.2d 615, 619), or to explain an otherwise implausible fact relating to the crime charged, as where evidence of a narcotics agent's prior drug purchases from the defendant is admitted to explain the otherwise unrealistic ease with which the purchase in question was made (Romero, 66 Ill.2d 325, 331, 5 Ill.Dec. 817, 819, 362 N.E.2d 288, 290). Further, evidence of other crimes is admissible on rebuttal to contradict defendant's denials (Kissinger, 116 Ill.App.3d 826, 832, 72 Ill.Dec. 362, 368, 452 N.E.2d 615, 619), to disprove a defense of entrapment (People v. Outten (1958), 13 Ill.2d 21, 25, 147 N.E.2d 284, 286), or to disprove an alibi defense (Romero, 66 Ill.2d 325, 330, 5 Ill.Dec. 817, 819, 362 N.E.2d 288, 290). The listing of these instances as to when evidence of other crimes may be admitted should not be taken to mean that these are the only purposes for which evidence of other crimes may be admitted. See Stewart, 105 Ill.2d 22, 61-62, 85 Ill.Dec. 241, 261, 473 N.E.2d 840, 860. Also, some of the instances listed often crossover and interrelate with other instances in a given case.

In the present case, the State argues that the subsequent act was admissible to prove a common scheme or design and to show the circumstances of defendant's arrest. We disagree with the State's arguments, although we believe the evidence was admissible to prove modus operandi and that the crime charged was actually committed.

Modus operandi and common design, scheme or plan are distinct concepts, and therefore they are not interchangeable bases for the admissibility of evidence of other crimes. Different principles are applicable to each. People v. Barbour (1982), 106 Ill.App.3d 993, 999, 62 Ill.Dec. 641, 646, 436 N.E.2d 667, 672.

A common design, scheme or plan refers to a criminal scheme of which the crime charged is only a part. Barbour, 106 Ill.App.3d 993, 999-1000, 62 Ill.Dec. 641, 646, 436 N.E.2d 667, 672. If evidence of other crimes is offered to establish that the crime charged was part of a common design, scheme or plan of defendant, there must be a high degree of identity between the facts of the crime charged and those of the other crime. The two crimes must be so similar that evidence of the other crime tends to prove defendant guilty of the crime charged. The reason this similarity is...