{ "id": 2547402, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES KANNAPES, Defendant-Appellant", "name_abbreviation": "People v. Kannapes", "decision_date": "1990-12-27", "docket_number": "No. 1\u201489\u20141917", "first_page": "400", "last_page": "407", "citations": [ { "type": "official", "cite": "208 Ill. App. 3d 400" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "508 N.E.2d 202", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542942 ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0265-01" ] }, { "cite": "535 N.E.2d 889", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "127 Ill. 2d 12", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5563775 ], "year": 1986, "pin_cites": [ { "page": "42-43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0012-01" ] }, { "cite": "560 N.E.2d 611", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "137 Ill. 2d 31", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251694 ], "weight": 9, "pin_cites": [ { "page": "52" }, { "page": "52" }, { "page": "53" }, { "page": "52" }, { "page": "54" }, { "page": "55" }, { "page": "53" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0031-01" ] }, { "cite": "452 N.E.2d 148", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3558607 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/1038-01" ] }, { "cite": "498 N.E.2d 732", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604118 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0621-01" ] }, { "cite": "528 N.E.2d 1356", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "174 Ill. App. 3d 726", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3515506 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0726-01" ] }, { "cite": "288 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "52 Ill. 2d 558", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392845 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/52/0558-01" ] }, { "cite": "500 N.E.2d 1014", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 619", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3462681 ], "year": 1972, "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0619-01" ] }, { "cite": "522 N.E.2d 1146", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "122 Ill. 2d 221", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549839 ], "year": 1986, "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0221-01" ] }, { "cite": "469 N.E.2d 119", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152504 ], "pin_cites": [ { "page": "149-50" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0133-01" ] }, { "cite": "549 N.E.2d 268", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. 2d 173", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260348 ], "pin_cites": [ { "page": "217-18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0173-01" ] } ], "analysis": { "cardinality": 701, "char_count": 15985, "ocr_confidence": 0.766, "pagerank": { "raw": 7.49901393780839e-08, "percentile": 0.44617022073487683 }, "sha256": "f1c45179fec06a3e4db1ed1488c432db5d52c2e515881c64871b11646b15d9b9", "simhash": "1:a29678f67e3f67ee", "word_count": 2541 }, "last_updated": "2023-07-14T21:36:42.825942+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES KANNAPES, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE McMORROW\ndelivered the opinion of the court:\nFollowing a jury trial, defendant James Kannapes was convicted of delivery of a controlled substance (cocaine) (Ill. Rev. Stat. 1987, ch. 56\u00bd, par. 1401(a)(2)) and sentenced to 10 years\u2019 imprisonment. Because we agree with defendant\u2019s argument that he was deprived of a fair trial when the State was permitted to introduce into evidence, and argue an inference of defendant\u2019s guilt from, a photograph of defendant wearing a T-shirt that bore the words \u201cEnjoy Cocaine,\u201d we reverse and remand for a new trial.\nDefendant was convicted for the May 4, 1987, sale of approximately 193.9 grams of cocaine to undercover police officers assigned to the Northeastern Metropolitan Enforcement Group (MEG). Brian Reaves (Reaves) and Carina Hernandez (Hernandez) also participated in the transaction. Evidence introduced at trial indicates that arrangements for the drug sale were made by Reaves with MEG Officer Joseph Errico. The controlled substance was delivered in Hernandez\u2019 purse, by defendant and Hernandez, to MEG Officer Patricia Jordan in that officer\u2019s car while Officer Errico and Reaves waited nearby. The transaction occurred at a gas station owned by Reaves\u2019 father in the City of Chicago.\nOfficer Errico testified that at one point during the transaction, Reaves told Officer Errico that he had to call his \u201cconnect, Jimmy,\u201d and that a short time later, defendant drove into the gas station in a black Cadillac and met Reaves, Hernandez, and Officer Errico in the gas station parking lot. Officer Errico testified that while he was alone with defendant, defendant told Officer Errico that he should \u201cdeal directly\u201d with defendant, because defendant would charge less money for an ounce of cocaine than did Reaves.\nBoth Hernandez and Officer Jordan testified that while Hernandez and defendant were sitting in Officer Jordan\u2019s automobile, defendant told Hernandez to give her purse to Officer Jordan. Defendant then turned, took Hernandez\u2019 purse from her, and removed from it a clear plastic bag containing a white substance. Hernandez and Officer Jordan testified that defendant handed the plastic bag to Officer Jordan, asking her if she \u201cknew what good cocaine smelled like.\u201d However, Hernandez and Officer Jordan also acknowledged that at a preliminary hearing, each had testified that she could not recall anything that defendant had said while in the officer\u2019s car.\nOfficers Errico and Jordan also testified that the drug transaction that occurred on May 4, 1987, and resulted in the arrests and instant prosecution had originally been arranged to occur on April 30. However, at this meeting on April 30, Reaves informed Officers Errico and Jordan that the sale could not be consummated because Reaves\u2019 \u201cconnect\u201d could not obtain the cocaine on that date. While in Reaves\u2019 company, Officers Errico and Jordan were approached by defendant, who was driving a black Cadillac. Defendant told the officers that he would have the narcotics the following evening.\nAt the conclusion of the narcotics purchase on May 4, 1987, and following the arrest of Reaves, Hernandez, and defendant, MEG officers seized defendant\u2019s automobile and the items therein. Included in the defendant\u2019s personal items was a photograph of the defendant. Officer Errico, who inventoried the items, identified the photograph at trial. Officer Errico also testified that defendant telephoned him shortly after defendant\u2019s arrest and requested the return of the photograph. Defendant\u2019s request was refused.\nAt the close of the State's case against defendant, the court held an in-chambers hearing at which defendant objected to the admission into evidence of the photograph and its publication to the jury, as well as any cross-examination of defendant regarding the photograph or his request for its return. The State argued that the photograph and defendant\u2019s request for the return of the photograph were admissible to show defendant\u2019s \u201cstate of mind\u201d and \u201cconsciousness of guilt,\u201d because defendant would not have requested the photograph\u2019s return if it were not incriminating. The trial court overruled defendant\u2019s objections.\nDefendant testified in his own behalf at trial, stating that he had no knowledge that the events at which he had been present were a drug transaction. He testified that he had never used, sold, or facilitated the sale of any illicit or controlled substance. Defendant explained that he had gone to the gas station on May 4, 1987, because Reaves\u2019 father had agreed to repair the brakes on defendant\u2019s car. Reaves\u2019 father confirmed at trial that on that date, defendant waited at the gas station for Reaves\u2019 father to repair the brakes.\nDefendant stated that while he was at the gas station, he saw Reaves, Hernandez, and Officer Errico. Defendant had not previously met Officer Errico, but was acquainted with Reaves and Hernandez. Defendant spoke to Reaves while in the company of Hernandez and Officer Errico. At one point, Reaves suggested that defendant walk Hernandez to a beige Camaro parked nearby. Because Errico and Hernandez also suggested that defendant do so, defendant complied. When they arrived at the car, Hernandez got into the back seat. The woman sitting in the driver\u2019s seat (Officer Jordan) asked defendant to sit in the front seat of the car, and defendant did so. Officer Jordan then asked, \u201cWhere\u2019s the stuff?\u201d Defendant testified that Hernandez handed her purse to Officer Jordan, who opened it and withdrew a clear plastic bag containing a white substance. Within moments, police surrounded the vehicle and forcibly removed defendant from the car.\nOn cross-examination by the State, defendant stated that he had telephoned Officer Errico to request the return of a photograph of defendant that had been taken from defendant\u2019s car and retained in police custody. Defendant explained that the T-shirt in the photograph bore the words \u201cEnjoy Cocaine\u201d and was a parody of an advertisement for Coca-Cola. He stated that the garment was popular and readily available for sale when he had been vacationing in Acapulco and the photograph in question had been taken.\nIn its closing statements to the jury, the State argued that defendant\u2019s testimony was not credible and suggested to the jury that it could not be a \u201ccoincidence that he\u2019s in Acapulco wearing an Enjoy Cocaine tee-shirt that\u2019s with him when he\u2019s arrested, that he feels obliged *** to call the Officer and say I want this *** back.\u201d Later, in rebuttal closing argument, the State argued, \u201cThe shirt that says Enjoy Cocaine, that\u2019s circumstantial evidence that he\u2019s a cocaine dealer, that he knows about dealing drugs and that that\u2019s what he\u2019s involved in.\u201d\nBased upon all of the evidence, including the photograph published to the jury during deliberations, the jury found defendant guilty as charged. Thereafter, the trial court denied defendant\u2019s post-trial motion, entered judgment in conformity with the jury\u2019s verdict, and sentenced defendant to 10 years\u2019 imprisonment. Defendant\u2019s timely appeal followed.\nDefendant argues on appeal that he should receive a new trial because he was prejudiced by the erroneous admission into evidence of the photograph of him, the State\u2019s elicitation of testimony regarding what the photograph depicted and his request for the return of the photograph. He further argues that the remarks of the prosecutor during closing argument with respect to the significance of the photograph and defendant\u2019s request for the return of the photograph constituted reversible error. Based upon our review of the record, we agree. ,\nEvidence is relevant, and thus admissible, where it tends to prove a material fact in issue and its probative value outweighs its prejudicial effect. (People v. Eyler (1989), 133 Ill. 2d 173, 217-18, 549 N.E.2d 268.) Defendant\u2019s identity was not at issue during his trial, and no argument is made that the photograph was admissible in order to prove that defendant had been properly identified. (See, e.g., People v. Holman (1984), 103 Ill. 2d 133, 149-50, 469 N.E.2d 119.) Also, the State does not argue that the defendant\u2019s request for the return of the photograph was admissible to show defendant\u2019s consciousness of guilt on the theory that defendant was attempting to conceal or destroy State evidence. (See, e.g., People v. Gacho (1988), 122 Ill. 2d 221, 247, 522 N.E.2d 1146; People v. Veal (1986), 149 Ill. App. 3d 619, 625, 500 N.E.2d 1014.) Nor does the State argue that defendant\u2019s T-shirt was a type of \u201cdrug paraphernalia\u201d or distinctive marking indicative of drug use, admissible to show defendant\u2019s knowledge with respect to the use of illicit substances. See, e.g., People v. Harris (1972), 52 Ill. 2d 558, 288 N.E.2d 385; People v. Johnson (1988), 174 Ill. App. 3d 726, 528 N.E.2d 1356.\nThe State argues on appeal that the photograph, and defendant\u2019s request for its return, were admissible to prove defendant\u2019s bad moral character. To support this argument, the State cites People v. Randle (1986), 147 Ill. App. 3d 621, 498 N.E.2d 732. In Randle, the court determined that the trial court had erred in permitting the State to introduce evidence that a defense witness had prior misdemeanor convictions in order to show that witness\u2019 propensity to violence. Randle is distinguishable and has no significant bearing on the issue in this appeal.\nThe State also relies upon People v. Allison (1983), 115 Ill. App. 3d 1038, 452 N.E.2d 148. In Allison, the defendant was charged with indecent liberties with a child. He testified on cross-examination that he had no child pornography at his residence. The State was permitted to introduce into evidence exhibits consisting of advertisements for child pornography that had been seized from defendant\u2019s residence after his arrest. The court found that the trial court did not abuse its discretion in admitting these exhibits into evidence for the limited purpose of impeaching defendant\u2019s trial testimony. The court noted that defendant\u2019s trial testimony opened the door for impeachment and that the reception of collateral evidence was a matter within the trial court\u2019s discretion. Allison is inapposite to the instant cause, since the photograph here was not admitted for the limited purpose of impeaching defendant\u2019s trial testimony, but was admitted as substantive evidence of defendant\u2019s guilt.\nThe cases of Randle and Allison do not support the State\u2019s argument that the defendant\u2019s photograph, or his request for its return, were admissible to prove defendant\u2019s lack of moral character. The Illinois Supreme Court\u2019s decision in People v. Hendricks (1990), 137 Ill. 2d 31, 560 N.E.2d 611, demonstrates that the challenged evidence was inadmissible for the purpose of proving defendant\u2019s lack of moral character.\nIn Hendricks, the Illinois Supreme Court addressed the question of whether certain evidence regarding a defendant\u2019s past encounters with female models during his business activities was properly admissible against the defendant in his trial for the murder of his wife and children. The supreme court stated that as a general rule, \u201ca defendant\u2019s prior misconduct is not admissible for the purpose of establishing his bad character or propensity to commit illegal or immoral acts, because the prejudicial impact of such evidence outstrips its negligible probative value. [Citation.]\u201d (137 Ill. 2d at 52.) The court noted that such evidence \u201coverpersuades\u201d the jury against the defendant and \u201cundermines the presumption of innocence. [Citation.]\u201d (137 Ill. 2d at 52.) However, the court also noted that such evidence may be admissible to prove a defendant\u2019s motive, intent, identity, or absence of mistake. 137 Ill. 2d at 53.\nIn this context, the Illinois Supreme Court in Hendricks rejected the State\u2019s argument that the challenged evidence was properly admissible to prove defendant\u2019s motive for the killing of his family. The court observed that the evidence \u201cpresents no more than a haphazard series of encounters\u201d (137 Ill. 2d at 52), and that admission of the evidence would permit defendant to be convicted because of \u201cthe idiosyncrasies of his past life.\u201d (137 Ill. 2d at 54.) The court also observed that the error of admitting this evidence was not harmless, as the evidence was used by the State to prove its case against defendant. 137 Ill. 2d at 55.\nThe Illinois Supreme Court\u2019s analysis in Hendricks is applicable to the case at bar. In the instant cause, the State argues that defendant\u2019s decision to be photographed in a T-shirt bearing the words \u201cEnjoy Cocaine,\u201d and his desire that the photograph be returned to him from police custody, tended to prove that the defendant is of low moral character. This evidence might have been properly admitted if it bore upon the defendant\u2019s motive, intent, identity, or absence of mistake (Hendricks, 137 Ill. 2d at 53), but the State does not argue the applicability of any of these exceptions.\nAssuming arguendo that the defendant\u2019s photograph and request for its return are properly classified as tending to prove either defendant\u2019s intent, motive, or absence of mistake, we nonetheless conclude that the prejudicial effect of the challenged evidence far outweighed whatever probative value, if any, that such evidence may have had on the question of defendant\u2019s moral character. Consequently, we determine that it was error to admit into evidence, as substantive evidence of defendant\u2019s guilt, both the photograph seized from defendant\u2019s automobile after his arrest and the conversation between defendant and the police officer wherein defendant requested that the photograph be returned.\nThe State also claims that error in the admission of this evidence was harmless in light of the overwhelming evidence of the defendant\u2019s guilt. We disagree. The record shows that the evidence presented by the State and defense was in sharp conflict. Although State witnesses testified to the defendant\u2019s words and conduct during the drug transaction on May 4, 1987, and the aborted drug sale that occurred a few days earlier, defendant repudiated any knowledge of or participation in these incidents. Whether defendant had, in fact, made the incriminating statements attributed to him by witnesses for the State was pivotal to the prosecution\u2019s case against defendant. As a result, the jury\u2019s assessment of defendant\u2019s credibility at trial was crucial to its resolution of defendant\u2019s guilt.\nIn its closing argument, the State expressly directed the jury\u2019s attention to the words appearing on the defendant\u2019s T-shirt and explicitly advised the jury that the words \u201cEnjoy Cocaine\u201d were \u201ccircumstantial evidence that he\u2019s a cocaine dealer, that he knows about dealing drugs and that that\u2019s what he\u2019s involved in.\u201d By so doing, the State invited the jury to draw the conclusion that defendant was guilty of the charge of delivery of cocaine, because of defendant\u2019s decision to be photographed in a T-shirt bearing the words \u201cEnjoy Cocaine.\u201d Under these circumstances, the decision cited by the State on appeal (People v. Jimerson (1989), 127 Ill. 2d 12, 42-43, 535 N.E.2d 889) is factually distinguishable, and we cannot say that the error was harmless. See Hendricks, 137 Ill. 2d at 55; People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202.\nIn light of this disposition, we do not address the other arguments raised by defendant on appeal, as the matters are not likely to arise on remand.\nFor the reasons stated, the judgment of the circuit court of Cook County is reversed, and the cause remanded for a new trial.\nReversed and remanded.\nJIGANTI and JOHNSON, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McMORROW" } ], "attorneys": [ "Arthur Engelland, of Chicago, for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Cunta Z. Hadac, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES KANNAPES, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201489\u20141917\nOpinion filed December 27, 1990.\nArthur Engelland, of Chicago, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Cunta Z. Hadac, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0400-01", "first_page_order": 422, "last_page_order": 429 }