People v. Mills

• Decision Date: 29 May 1968
• Docket Number: No. 40375,40375
• Citation: 40 Ill.2d 4,237 N.E.2d 697
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Matthew MILLS, Appellant.
• Court: Illinois Supreme Court

Page 697

237 N.E.2d 697

40 Ill.2d 4

The PEOPLE of the State of Illinois, Appellee, v. Matthew MILLS, Appellant.

No. 40375.

Supreme Court of Illinois.

May 29, 1968.

Sam Adam, Chicago, for appellant.

William G. Clark, Atty. Gen., Springfield, and John J. Stamos, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane, James B. Zagel, and James Veldman, Asst. State's Attys., of counsel), for appellee.

UNDERWOOD, Justice.

This is a direct appeal by the defendant, Matthew Mills, from a jury conviction in the circuit court of Cook County for unlawful possession of drugs in violation of section 22--3 of the Criminal Code. (Ill.Rev.Stat.1965, chap. 38, par. 22--3.) He was sentenced to imprisonment for not less than two nor more than seven years, and he now argues (1) that the prosecutor violated his right against self-incrimination by commenting on his failure to testify, (2) that the indictment did not allege a crime because it failed to charge that Mills 'knowingly' possessed narcotics, (3) that his right to confrontation was abridged when a bailiff communicated with the jury, (4) that the court's instructions to the jury were confusing and erroneous, (5) that the use of testimony by an informer paid on a contingent fee basis violated due process of law, and (6) that the evidence failed to prove him guilty beyond a reasonable doubt.

A summary of the facts relevant to the defendant's initial contention is that on February 18, 1965, Nathaniel Clayton, a special employee of the Chicago Police Department, drove with two police officers to a tavern known as the 'Corner Club' at the corner of 63rd and Ingleside streets at about 10:30 A.M. Clayton entered the tavern three or four times and each time upon leaving walked directly to report to the officers who waited in an unmarked squad car which was parked near the tavern. On his last entry into the tavern at 2:00 P.M., Clayton observed the defendant who was seated on a stool at one end of the bar. Clayton testified that a man he knew as 'Pete' walked up to defendant and engaged him in conversation. During this conversation Clayton stated that he saw defendant place his hand under the plastic covering of the bar stool on which he was sitting and take out a cigarette package which he held in front of him and then replaced under the plastic cover of the stool. After viewing this incident Clayton immediately left the tavern and informed the waiting police officers who thereupon entered the tavern, arrested defendant, and seized the cigarette package from under the plastic cover of his stool. This package contained two small tinfoil packets of heroin.

Three witnesses were called by the defense at the trial during which defendant did not testify. The first defense witness was Clifton White, Nathaniel Clayton's probation officer, who testified that Clayton had failed to report during certain months while he was on probation, thereby impeaching Clayton's testimony that he had always reported. The other two defense witnesses were friends of the defendant who were called to show that defendant had not been in the tavern more than 5 or 8 minutes before his arrest. One of these witnesses, James Davis Bell, testified that he was sitting at the bar when defendant entered and sat on a stool at the bar. Bell stated that he exchanged greetings with the defendant, that the defendant ordered a beer but was arrested before he was served.

In seeking a reversal for improper closing argument by the State, the defendant relies on the self-incrimination clause of the Federal constitution which was held to be violated in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, by direct prosecutorial comment on a defendant's failure to testify. He also relies on a similar provision of the Illinois constitution (article II, section 10 S.H.A.), as well as section 155--1 of the Code of Criminal Procedure which provides in pertinent part that 'a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.'

The prosecutor's argument which the defendant alleges violated his right to be tried free of comment on his failure to testify was as follows: 'And I say the only evidence in this case is that this man had this pack in his hand * * * he put that pack under the stool. There is no issue on that, except that Clayton forgot to report to his probation guy four or five times. There is no issue, there is not another bit of evidence from anyone in that bar at that time that it wasn't under there. There is no one who sat on those stools who didn't say, or came in here to say that * * * this man didn't have it in his hand. Of the people who were there the only one who comes before you is Clayton. And he says he had it in his hands. White doesn't say he didn't have it. Mr. Bell doesn't say he didn't have it, or anyone else who you know was in that bar. The only one is Clayton.'

An appropriate test in deciding whether such closing argument violated the defendant's right to remain silent under section 155--1 of the Code of Criminal Procedure was set out in Watt v. People, 126 Ill. 9, 32, 18 N.E. 340, as whether 'the reference (was) intended or calculated to direct the attention of the jury to the defendant's neglect to avail himself of his legal right to testify?' We have held it permissible, however, for a prosecutor to comment on the uncontradicted nature of the State's case even where the only person who could have contradicted the State's evidence was the defendant himself. (People v. Norman, 28 Ill.2d 77, 81, 190 N.E.2d 819, and cases cited therein.) In People v. McMahon, 244 Ill. 45, 91 N.E. 104, the defendant did not testify during his trial for the murder of a young girl by poisoning. Although the defendant's conviction was reversed on other grounds, the court noted that the prosecutor had not exceeded the permissible limits in commenting that no one had denied the testimony of a prosecution witness who stated that the defendant told him that if someone squealed on him he would 'give him the same dose * * * (he) gave the other little bitch.' The witness testified that this statement was made by the defendant in the presence of the witness and the defendant's wife, and the prosecutor commented as follows: 'Has it been denied? Has it been disputed? * * * There has been no disputing of it by any man or woman or any individual on the face of the earth. It stands. It is the evidence in this case. You can't get away from it. It has not been denied. It has not been disputed. There isn't anything to the contrary.' Referring to the testimony of another witness for the State, the prosecutor said: 'Is there a man or woman on earth that ever came in here and contradicted her in the least? No, sir.' In stating that such closing argument did not go beyond the pale of allowable comment the court said: 'If this were the most serious objection to this record we would not be disposed to reverse for that reason, although we regard the argument of the State's attorney as near the danger line. He had the right to refer to and comment on the testimony of the witnesses for the prosecution and call the jury's attention to the fact, where such was the fact, that their testimony had not been contradicted or disputed, even though plaintiff in error was the only person who was in a position to have disputed such testimony.' (244 Ill. at 59, 91 N.E. at 109; see also People v. Norman; People v. Novak, 370 Ill. 220, 222, 18 N.E.2d 235; People v. Birger, 329 Ill. 352, 368, 160 N.E. 564; People v. Donahoe, 279 Ill. 411, 433, 117 N.E. 105.) In contrast to this line of decisions are the cases of People v. Wollenberg, 37 Ill.2d 480, 229 N.E.2d 490, and People v. Morgan, 20 Ill.2d 437, 170 N.E.2d 529. In Wollenberg the prosecutor listed the six State witnesses and two defense witnesses and then commented 'No one else testified. Let's get that straight', and in Morgan the prosecutor made repeated references to the fact that only one witness testified on behalf of the defendant. In these cases, however, the prosecutorial design appears to have been to point the finger of blame directly at the defendant for his failure to testify when it was within his power to enlighten the jury.

In the instant case Nathaniel Clayton testified that there were approximately eight or nine people in the Corner Club tavern when he entered, and defense witness Bell stated that excluding the bartender there were between ten and twelve people present when the defendant arrived. We find it to be entirely relevant and material in evaluating the defendant's case to point out that he presented only one witness (Bell) who was in the bar when the defendant was alleged to have handled the cigarette package found under his stool. There were estimates of between eight and thirteen people in the bar at the time the defendant was said to have committed the act which provided the basis for imputing knowledge to him of narcotics which were concededly within his dominion and control, and under the circumstances we cannot accept the defense contention that the prosecutor's argument that no one had controverted the State's principal witness constituted a covert reference to the defendant's failure to take the witness stand. See People v. Lawson, 331 Ill. 380, 394, 163 N.E. 149, cert. denied 282 U.S. 815, 51 S.Ct. 332, 75 L.Ed. 729.

The indictment returned against Mills for possession of heroin stated that: '* * * on February 18th, 1965, at and within said (Cook) County, Matthew Mills committed the offense of possession of a narcotic drug, in that he unlawfully possessed and had under his control, otherwise than as authorized in the Uniform Narcotic Drug Act of said State of Illinois then in force and effect, a...