People v. Barney

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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(unpublished order under Supreme Court Rule 23).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«
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, 2« 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 alia, 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. The
notion that the possibility of conviction may color a defendant's
testimony is so basic, so rooted in common experience and human
nature, that it would be taken into account by the jurors whether
the prosecutor mentioned it or not. When the prosecution makes the
point during closing argument, it is merely stating the obvious.
The complexion of the case is unchanged.
Defendant contends that a prosecutor's reference to an
accused's interest in acquittal is nevertheless improper because of
an overriding consideration, the presumption of innocence. We note,
however, that assailing a defendant's testimony by pointing out his
interest in being acquitted no more erodes the presumption of
innocence than any other attempt by the State to prove its case and
refute the evidence presented by the defense. The presumption of
innocence remains. Arguing bias is merely one means for the State
to try to rebut that presumption.
When the defendant contends that the State should not be
allowed to argue that he is biased because he has an interest in
avoiding conviction, what he is really suggesting is that his
testimony should be cloaked with a presumption of veracity. No such
presumption exists. As Illinois Pattern Jury Instructions,
Criminal, No. 1.02 (3d ed. 1992), recognizes, the testimony of a
criminal defendant is entitled no greater deference than the
testimony of any other witness. This court made that clear nearly
40 years ago when it expressly held:
"When a defendant elects to testify in his own
behalf, his credibility is to be tested by the usual
rules applicable to other witnesses. In determining the
credibility of a witness, including a defendant, the jury
may take into consideration, among other things, the
probability or improbability of the truth of his
statements in the light of human experience. [Citations.]
The jury are not entitled to disregard the accused's
testimony merely because he is the defendant in the case,
but it may consider his interest in the result of the
trial in weighing his testimony." People v. Malmenato, 14 Ill. 2d 52, 59 (1958).
These principles remain the law in Illinois, and they are
dispositive of this appeal. Because the jury was entitled to
consider the defendant's interest in the result of the trial in
weighing his testimony, the prosecutor's statement that defendant
had an interest or bias in being found not guilty was not
reversible error.
For the foregoing reasons, the judgment of the appellate court
is affirmed.

Affirmed.