{ "id": 5156057, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES CHARLES, Defendant-Appellant", "name_abbreviation": "People v. Charles", "decision_date": "1992-11-30", "docket_number": "No. 1\u201487\u20143614", "first_page": "752", "last_page": "764", "citations": [ { "type": "official", "cite": "238 Ill. App. 3d 752" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "485 N.E.2d 1292", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 481", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499200 ], "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0481-01" ] }, { "cite": "397 N.E.2d 148", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 277", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5605856 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0277-01" ] }, { "cite": "518 So. 2d 515", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7569351 ], "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/so2d/518/0515-01" ] }, { "cite": "383 So. 2d 1", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9545786 ], "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/so2d/383/0001-01" ] }, { "cite": "378 S.E.2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "324 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485564 ], "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0360-01" ] }, { "cite": "247 Mont. 63", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 5316408 ], "weight": 2, "pin_cites": [ { "page": "72-73" }, { "page": "542-43" } ], "opinion_index": 0, "case_paths": [ "/mont/247/0063-01" ] }, { "cite": "785 F. 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App. 3d", "case_ids": [ 3588829 ], "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0209-01" ] }, { "cite": "519 Pa. 532", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1813544 ], "weight": 2, "pin_cites": [ { "page": "543" }, { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/pa/519/0532-01" ] }, { "cite": "557 N.E.2d 611", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 860", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2466990 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "875" }, { "page": "875" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0860-01" ] }, { "cite": "447 N.E.2d 174", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. 2d 303", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106373 ], "weight": 2, "pin_cites": [ { "page": "318" }, { "page": "317", "parenthetical": "holding no abuse of discretion in admitting \"gory\" evidence of other offense; \"[t]he evidence was gruesome because the crime was gruesome\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0303-01" ] }, { "cite": "502 N.E.2d 399", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 510", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3541228 ], "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0510-01" ] }, { "cite": "402 N.E.2d 238", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "79 Ill. 2d 129", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070395 ], "year": 1986, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0129-01" ] }, { "cite": "456 N.E.2d 59", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "98 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3123281 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0294-01" ] }, { "cite": "449 N.E.2d 821", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "96 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3115107 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "182" }, { "page": "185-86" }, { "page": "186-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0176-01" ] }, { "cite": "560 N.E.2d 258", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "137 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251434 ], "weight": 3, "pin_cites": [ { "page": "107" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0065-01" ] }, { "cite": "566 N.E.2d 352", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "207 Ill. 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JAMES CHARLES, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GORDON\ndelivered the opinion of the court:\nA jury found defendant James Charles guilty of the attempted armed robbery and the murder of Willie Rodgers, and the armed robbery of DeWanda Rodgers. The trial court sentenced defendant to concurrent prison terms of 60 years for murder, 30 years for armed robbery and 15 years for attempted armed robbery. On appeal, defendant contends that the trial court erred in denying his motion in limine to exclude evidence of a pending attempted murder charge; that the State exercised its peremptory challenges in a discriminatory manner; that prosecutorial closing argument shifted the burden of proof; and that the sentence is excessive.\nPrior to trial, defendant filed a motion in limine to bar the admission of evidence concerning a charge of attempted murder pending against defendant. The court denied the motion.\nDuring voir dire the State exercised 7 out of 11 peremptory challenges against black individuals. Defendant moved for a mistrial based on discriminatory use of peremptory challenges, and the court denied the motion. The trial court considered the prosecutor\u2019s reasons for excluding six of the seven prospective black jurors; the prosecutor could not remember the reason for excluding the seventh venireperson. The court then denied defendant\u2019s motion.\nAt trial, DeWanda Rodgers, the victim\u2019s wife, testified for the State. On May 29, 1986, between 2:30 p.m. and 3 p.m., she was upstairs at her mother\u2019s home in Chicago with her sister, Edwina Cummings, and their children. DeWanda\u2019s husband, Willie Rodgers, was downstairs. She heard fighting downstairs and heard Willie calling for help from Edwina. DeWanda went downstairs, where she saw Willie holding defendant by the wrists. DeWanda did not know defendant, but knew that Willie\u2019s cousin was married to defendant\u2019s sister. Defendant was holding a small handgun and a shotgun and was demanding $105 from Willie. As DeWanda entered the room, the two men separated. Defendant sat down in a chair. Willie stepped through the room\u2019s doorway and picked up his wallet.\nDeWanda testified further that Willie returned through the doorway, stood about six feet from defendant, and told defendant, \u201cYou move your m\u2014 f-\u2014 feet\u201d off the chair. Defendant \u201csat up and pulled the [shotjgun and shot\u201d Willie. Defendant stood up, pointed the shotgun at DeWanda and demanded money. DeWanda picked up Willie\u2019s wallet and handed defendant the $32 that was in the wallet. Willie died at the hospital at 7:30 p.m. that evening. DeWanda denied later telling Willie\u2019s cousin that defendant only fired after Willie slapped his feet off the table.\nEdwina Cummings testified similarly to DeWanda Rodgers. Cummings added that she knew defendant because defendant\u2019s sister was married to Willie\u2019s cousin. While the two men were arguing, Cummings telephoned the police. After defendant shot Willie, Cummings saw defendant leave in a blue car with a sunroof. When the police arrived, she gave them defendant\u2019s name, a description of defendant, and a description of his car. At a subsequent lineup which included defendant, Cummings did not identify him as the assailant because she was \u201cshaken up\u201d and \u201cscared.\u201d\nJames Sanford, a salesman for Midwest Appliances, testified for the State that on May 24, 1986, he sold a stove and refrigerator to defendant. On May 29, 1986, defendant entered the store between 2 p.m. and 2:30 p.m., carrying a shotgun. As he stood about 15 feet from Sanford, defendant raised the gun and shot Sanford in the stomach.\nOfficer Willie Anderson testified that on May 29, 1986, at 2:30 p.m., he and his partner responded to a radio call of shots fired at the appliance store. At the store, defendant was named as the assailant, and the police were given defendant\u2019s receipt for the appliances he had purchased. The receipt showed defendant\u2019s name and address. While proceeding to that address, 10 to 15 minutes after they received the Sanford shooting report, the officers heard a radio report of the Rodgers shooting. The officers stopped at the Rodgers home, where they received a description of defendant and of his blue Thunderbird. The police immediately proceeded to defendant\u2019s home, where they arrested defendant when he drove up in the Thunderbird. A search revealed a revolver and a live 12-gauge shotgun shell.\nDr. Shaku Teas, a medical examiner, testified for the State that she performed an autopsy on the decedent. The cause of death was a shotgun wound to the abdomen. The gun was fired at \u201cfairly close range,\u201d somewhere between a few inches and 10 feet. There was also an abrasion near decedent\u2019s left eyelid and a bruise on the lower lip with a cut on the inside of the lip. These injuries were consistent with blunt trauma which might have occurred during a fight or from falling.\nOfficer Robert Smuda testified for the State that he was an evidence technician and that on May 29, 1986, he photographed the murder scene at the Rodgers home. Later, he was at the appliance store where he recovered a fired shotgun shell. He later performed a gunshot residue test on the shell.\nOfficer Raymond Lenz testified for the State that he was a crime laboratory technician. He performed a gunshot residue test on a shell, and the test was positive.\nDaniel Friel, an assistant public defender, testified for the defense that in investigating the case in April 1987 he spoke with DeWanda Rodgers. DeWanda told him the fight between defendant and Willie lasted approximately 5 to 10 minutes.\nTyra Rodgers, Willie\u2019s second cousin, testified for defendant that he has known defendant for 10 or 12 years. Defendant and Willie had a \u201cdrug related\u201d relationship. About six months before the shooting, defendant began giving Willie drugs to sell. On May 29, 1986, at the hospital where Willie had been taken, Tyra heard DeWanda say that Willie was shot after he approached defendant and slapped his feet off a table.\nJames Schreiner, a Chicago police officer, testified for the defense that he interviewed DeWanda on the night of the murder. DeWanda told him the argument between the decedent and defendant was about \u201c$105 that was \u2014 had something to do with the sale of leaf.\u201d\nOpinion\nDefendant contends that the prosecution exercised its peremptory challenges in a discriminatory manner in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Under Batson, the defendant must first state a prima fade case of purposeful discrimination. Once a prima facie case of discrimination has been established, the State then bears the burden of coming forward with its race-neutral explanations for the challenges. (Batson, 476 U.S. at 93-98, 90 L. Ed. 2d at 85-89, 106 S. Ct. at 1721-24.) The trial court must then make \u201ca sincere and reasoned attempt to evaluate the prosecutor\u2019s explanation in light of the circumstances of the case.\u201d People v. Fuentes (1991), 54 Cal. 3d 707, 718, 818 P.2d 75, 81, 286 Cal. Rptr. 792, 798.\nThe trial court here did not make a finding regarding defendant\u2019s prima facie case; instead, it requested an explanation from the State for its reasons for the exclusions. However, once the State offers its reasons, the question of a prima facie case becomes moot. See Hernandez v. New York (1991), 500 U.S. 352, 358, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866; People v. Walls (1991), 220 Ill. App. 3d 564, 581 N.E.2d 264.\nMoreover, the prima facie case can be established by showing that defendant belongs to a cognizable racial group; the State excused venirepersons of that race; and any other relevant circumstances. (Batson, 476 U.S. at 93-96, 90 L. Ed. 2d at 85-87, 106 S. Ct. at 1721-22.) Other relevant circumstances include whether there is a pattern of strikes; whether the group of venirepersons is otherwise heterogeneous, sharing race as their only common characteristic; and the prosecutor\u2019s statements during voir dire. Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723; People v. McDonald (1988), 125 Ill. 2d 182, 196, 530 N.E.2d 1351.\nIn the present case, defendant is black. The final jury included four blacks and two Hispanics, along with one black alternate and one Asian alternate. While four black jurors were seated, this is not determinative, since a \u201csingle invidiously discriminatory governmental act\u201d is sufficient to require a new trial. Batson, 476 U.S. at 95, 90 L. Ed. 2d at 87, 106 S. Ct. at 1722; see also People v. McDonald, 125 Ill. 2d at 200.\nThe State exercised 11 of its 14 peremptory challenges, seven of which were used to exclude black persons, and four of which were exercised against nonblacks. See People v. Lockhart (1990), 201 Ill. App. 3d 700, 710-11, 558 N.E.2d 1345 (five out of eight challenges exercised against blacks); People v. Colley (1988), 173 Ill. App. 3d 798, 806-07, 528 N.E.2d 223 (four out of eight challenges exercised against blacks); People v. Seals (1987), 153 Ill. App. 3d 417, 422, 505 N.E.2d 1107 (6 out of 10 challenges exercised against blacks).\nIn addition, the excluded black persons comprised a heterogeneous group. Their occupations varied, including a State inspector, a shipping and receiving clerk, a full-time student, several office workers and unemployed persons. Some of the venirepersons had grown children, some had school-age children, and some had no children.\nWe also note the prosecutor referred to one black venireperson, Mr. Zebedee M. Braithwaite, as \u201cZippodee Dooda.\u201d\n\u201c[PROSECUTOR]: *** [0]f those seven challenged, two of them were challenged by the defense. One being in the first panel, that being Mr. Brethweidic, Zippodee Dooda (phonetic spelling) Brethweidic.\n[DEFENSE COUNSEL]: Judge, I would note for the record the statement made by the State\u2019s Attorney, calling the black gentleman Zippodee Dooda.\n[PROSECUTOR]: That\u2019s his name.\nTHE COURT: Number one, I don\u2019t know. Well, go out and get the list now.\n[PROSECUTOR]: Judge, I mispronounced the man\u2019s name.\n[DEFENSE COUNSEL]: I would point out, Judge, for the record, that Zippodee Dooda refers to, I suppose, the [\u2018Song of the South\u2019] language of the old black man in that movie.\n[PROSECUTOR]: Judge, that wasn\u2019t my intent. I mispronounced the man\u2019s name.\nTHE COURT: Be that as it may, you have stated it.\u201d\nThe court may consider such prosecutorial remarks in finding that a prima facie case was made. People v. McDonald, 125 Ill. 2d 182, 530 N.E.2d 1351.\nThus, notwithstanding the absence of a specific finding by the trial court, the record demonstrates that defendant established a prima facie case of discrimination.\nWe need not discuss the race-neutral reasons offered by the State for excusing six of the seven venirepersons, since we reverse based solely on the State\u2019s failure to offer any explanation at all for its excusing one person, Colette Amico. As stated above, the \u201cexclusion of even just one minority venireperson on account of race is unconstitutional and would require reversal of the conviction below.\u201d (People v. Harris (1989), 129 Ill. 2d 123, 175, 544 N.E.2d 357, 380.) In regard to Amico, the prosecutor simply stated: \u201cI don\u2019t recall exactly for Miss [Amico]. If we could move on.\u201d\nThe State \u201ccannot rebut a prima facie case of discrimination by stating that it does not know why it exercised its peremptory challenges.\u201d (People v. Harris, 129 Ill. 2d at 181; see also People v. Drew (1990), 201 Ill. App. 3d 271, 277, 559 N.E.2d 40.) Although the prosecutor\u2019s reason need not rise to the level of a challenge for cause (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723), the prosecutor may not \u201crebut the defendant\u2019s case merely by denying that he had a discriminatory motive or \u2018affirming] [his] good faith in individual selections.\u2019 \u201d (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723-24.) We are forced to conclude that the prosecutor\u2019s failure to recall his reason for using a peremptory challenge to strike this juror was insufficient to satisfy the Batson requirement that the \u201cprosecutor *** must articulate a neutral explanation related to the particular case to be tried.\u201d Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1724.\nThe court in Harrison v. Ryan (E.D. Pa. April 12, 1990), No. 87\u20147439, _ F. Supp. _, aff\u2019d (3d Cir. 1990), 909 F.2d 84, explained the reasoning for finding that a prosecutor\u2019s failure to recall his reason for using a peremptory challenge to strike a black juror does not meet the burden under Batson:\n\u201c[The prosecution] seems to argue that \u2018not knowing\u2019 is the functional equivalent of providing a neutral reason, particularly when a period of years has elapsed. This court does not agree. There are no degrees of \u2018not knowing.\u2019 A statement by a prosecutor that he does not remember his reasons for exercising his peremptory strike can only be found to be a lapse in proof or gap in evidence. This court does not agree that the appropriate interpretation of Batson would be to find that a lapse in memory, even when several years have passed, is presumptively a neutral reason for exclusion of a black juror. Such a finding would thwart the constitutional principles expounded in Bat-son.\u201d Harrison v. Ryan, _ F. Supp. at _(prosecution\u2019s motion for stay of order pending appeal denied).\nAccord Harrison v. Ryan (3d Cir. 1990), 909 F.2d 84, 87-88 (prosecutor articulated race-neutral explanations for challenging five of six venirepersons, but was not able to recall why he dismissed the sixth person; court granted defendant\u2019s writ of habeas corpus and ordered a new trial); United States v. Cunningham (M.D.N.C. 1988), 713 F. Supp. 165, 170-71 (prosecutor unable to recall specific reasons for challenging five black jurors; court found that \u201cthe only remedy [was to grant] a new trial,\u201d despite the fact that defendant had already completed his sentence, because \u201cthe effect of the lack of recollection is that the prosecutor has not rebutted the prima facie case as a matter of law\u201d); People v. Mitchell (1992), 228 Ill. App. 3d 167, 172, 592 N.E.2d 175 (where prosecutor merely stated that defense counsel \u201cknows our reason\u201d for excusing one juror and trial judge stated \u201cI think I know why,\u201d appellate court held that the remark did not constitute a race-neutral explanation, reversed the conviction, and remanded for a new trial); People v. Blunt (1991), 176 A.D.2d 741, 742, 574 N.Y.S.2d 812, 813 (prosecutor unable to recall specific reason for peremptorily striking all but 2 of 11 females; court orders new trial, since prosecutor\u2019s testimony \u201camounted to little more than a denial of discriminatory purpose and a general assertion of good faith\u201d); Brooks v. State (Tex. Crim. App. 1991), 802 S.W.2d 692, 695 (prosecutor could not remember reasons for striking two of five black venirepersons; court had \u201cno alternative\u201d but to remand for a new trial since the State \u201cutterly failed to demonstrate that it struck [these two] venirepersons *** for permissible race neutral justifications\u201d); Henry v. State (Tex. App. Nov. 19, 1987), No. B14\u201484\u2014592\u2014CR, slip op. at 2 (prosecutor unable to recall why he struck two jurors; court has \u201cno choice but to reverse and remand for a new trial\u201d). See also People v. Turner (1986), 42 Cal. 3d 711, 725, 726 P.2d 102, 110, 230 Cal. Rptr. 656, 664 (prosecutor did not \u201cremember exactly\u201d why he excused a black woman, but thought it might have been due to \u201csomething in her work\u201d; court found the explanation was \u201cso lacking in content\u201d as to amount to no explanation at all), quoted in People v. Kindelan (1991), 213 Ill. App. 3d 548, 556, 572 N.E.2d 1138. But see State v. Bell (Tenn. 1988), 745 S.W.2d 858, 867 (court remands for \u201ca further [Batson] hearing\u201d where the State would be \u201cgiven an opportunity to explain its reasons for the racial exclusion,\u201d notwithstanding the fact that when the Batson issue was raised prior to trial, the prosecutor expressly stated that he could not recall why he had challenged one venireperson).\nThe State relies on People v. Mack (1989), 128 Ill. 2d 231, 243, 538 N.E.2d 1107, where the prosecutor was \u201cunable to recall\u201d during a Batson hearing on remand why he challenged one juror. The Illinois Supreme Court held, without addressing the prosecutor\u2019s failure to recall a reason, that the trial court\u2019s finding of race-neutral reasons was not against the manifest weight of the evidence. We presume, however, that the court considered the fact that it was a pre-Batson trial, and consequently the prosecutor did not have the benefit of the Supreme Court\u2019s decision in Batson prior to jury selection.\nFor the reasons discussed above, therefore, we hold that the State failed to rebut the prima facie evidence of discrimination, and we reverse the conviction and remand for a new trial.\nOrdinarily, the fact that we have found defendant is entitled to a new trial would alleviate our need to address any remaining issues raised by defendant. However, one other issue raised in defendant\u2019s appeal may reoccur on retrial, and, thus, we go on to discuss that issue.\nDefendant contends that the trial court erred in admitting evidence of the attempted murder charge pending against defendant. The trial court denied defendant\u2019s pretrial motion in limine to exclude the evidence. The court later cautioned counsel not to \u201cget involved in the nature and extent of the injuries that Mr. Sanford sustained as a result of this incident.\u201d The court instructed the jury at the close of the trial to consider the other crimes evidence for only two purposes \u2014 identification and intent.\nThe parties agree that there is no question regarding the identification of Rodgers\u2019 killer. The evidence established that the eyewitnesses knew defendant, who was related to Rodgers by marriage. Moreover, in his opening statement, defense counsel admitted that defendant shot Willie. The State recognizes this when, on appeal, it concedes in its brief that \u201cidentity was not in issue in this case.\u201d It maintains, however, that the Sanford shooting was relevant to prove defendant\u2019s intent in killing Rodgers. (See People v. Tipton (1990), 207 Ill. App. 3d 688, 696, 566 N.E.2d 352.) The State maintains that the evidence was properly admitted to establish \u201cthat defendant did not act in self-defense or by accident, but intended to shoot both Willie Rodgers and James Sanford.\u201d\nEvidence of other crimes is not admissible for the purpose of showing that defendant has a general propensity to commit crimes. (People v. Bean (1990), 137 Ill. 2d 65, 107, 560 N.E.2d 258.) However, evidence of other crimes is admissible \u201cif relevant to any other material issue.\u201d (People v. Bean, 137 Ill. 2d at 107.) For example, evidence of other crimes may be relevant to prove modus operandi, intent, identity, motive, or absence of mistake. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821; see generally 2 J. Wigmore, Evidence \u00a7304 (Chadbourn rev. ed. 1979).) It is within the sound discretion of the trial court to determine whether evidence of other crimes is relevant to a material issue and whether the probative value of such evidence outweighs its prejudicial impact. People v. Bean, 137 Ill. 2d 65, 560 N.E.2d 258; People v. Tipton, 207 Ill. App. 3d 688, 566 N.E.2d 352.\nDefendant argues that the Sanford shooting was not sufficiently similar to the Rodgers shooting to meet the threshold for admissibility because the only two details they had in common were that they both occurred on the afternoon of May 29, 1986, and both involved the use of a shotgun. In his brief, defendant states that the Sanford shooting was apparently \u201cin some way related to the purchase of appliances some five days earlier,\u201d and there was no indication that robbery was the purpose, while, in contrast, the Rodgers shooting involved family members and apparently money owed for selling narcotics.\nGenerally, the two offenses must be similar enough that evidence of one offense tends to prove the defendant guilty of the other offense. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59; 2 J. Wigmore, Evidence \u00a7304, at 249 (Chadbourn rev. ed. 1979).) The degree of similarity required is less, however, where the other offense is introduced to prove criminal intent.\n\u201c[T]he same degree of identity of the two offenses is not necessary when evidence of defendant\u2019s involvement in another offense is not offered to prove the commission of the crime charged, but is offered to prove the absence of an innocent frame of mind or the presence of criminal intent. In such a case, mere general areas of similarity will suffice. If these general similarities are shown, evidence of the defendant\u2019s involvement in another offense may be shown to establish the necessary criminal intent of the defendant in the offense charged.\u201d People v. McKibbins, 96 Ill. 2d at 185-86, 449 N.E.2d 821, citing 2 J. Wigmore, Evidence \u00a7\u00a7302, 304, at 241-47, 249-51 (Chadbourn rev. ed. 1979).\nThe State counters that the Sanford and Rodgers shootings were strongly similar because (1) both involved a shooting with a shotgun from a distance of 6 to 10 feet; (2) both occurred within 10 to 15 minutes of each other; and (3) both occurred in close geographical proximity to each other.\nThe trial court was free to weigh the unique facts here, where within minutes of the Sanford shooting, the police received a report of the Rodgers shooting, along with facts which immediately pointed to the same assailant for both crimes.\nTime and place proximity, without more, is an insufficient basis for admission of other crimes evidence. (People v. Lindgren (1980), 79 Ill. 2d 129, 139, 402 N.E.2d 238; People v. Lee (1986), 151 Ill. App. 3d 510, 520, 502 N.E.2d 399.) Notably, however, the other crimes evidence was not admitted merely to show that defendant was in the area near the time of the Rodgers murder. Instead, the \u201cevidence was used to prove the intent of defendant, the critical issue in this case.\u201d (People v. Tiller (1982), 94 Ill. 2d 303, 318, 447 N.E.2d 174.) The defense theory was that the Rodgers killing was committed in self-defense.\nThe reasoning behind the rule permitting other crimes evidence to show criminal intent, and a corresponding absence of an innocent frame of mind, is that showing criminal intent for one crime increases the probability that defendant also acted deliberately in the second crime. People v. Brown (1990), 199 Ill. App. 3d 860, 875, 557 N.E.2d 611; see also Commonwealth v. Donahue (1988), 519 Pa. 532, 543, 549 A.2d 121, 127 (\u201cIt is merely a matter of probabilities\u201d), cited in People v. Brown, 199 Ill. App. 3d at 875. See generally 2 J. Wigmore, Evidence \u00a7302 (Chadbourn rev. ed. 1979).\nOther crimes evidence, therefore, may be found relevant to defendant\u2019s intent to kill because it tends to negate inadvertence, accident or other forms of innocent intent. (See, e.g., People v. Tucker (1988), 176 Ill. App. 3d 209, 222, 530 N.E.2d 1079 (defendant claimed shooting was done in self-defense; that several hours prior to the shooting in question defendant placed a gun against another man\u2019s stomach, saying he was going to take care of a \u201cwar\u201d between murder victim and another man; court held that the other crimes evidence was \u201cparticularly relevant to the issue of whether [defendant\u2019s] stated purpose in introducing the gun into the confrontation *** was as an instrument of protection or as an instrument of aggression\u201d).) While an innocent state of mind might be present in one instance, the more often it occurs with similar results, the less likely that it was without criminal intent to kill with legal justification. (See 2 J. Wigmore, Evidence \u00a7302, at 241 (Chadbourn rev. ed. 1979).) \u201cSince it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance.\u201d 2 J. Wigmore, Evidence \u00a7302, at 245 (Chadbourn rev. ed. 1979). Accord United States v. Weddell (8th Cir. 1989), 890 F.2d 106 (evidence of defendant\u2019s general habit of using knives was admissible to rebut defendant\u2019s claim of self-defense in stabbing victim); United States v. Fountain (7th Cir. 1985), 768 F.2d 790 (evidence of defendant\u2019s prior use of knife in prison, including stabbing an inmate 57 times, was admissible to illuminate intent in defendant\u2019s stabbing and killing prison guards where defendant claimed self-defense); Sadowski v. McCormick (D. Mont. 1992), 785 F. Supp. 1417, 1420 (\u201cevidence pertaining to his previous use of a weapon for the purpose of threatening or attacking another individual was legitimately admitted to rebut [defendant\u2019s] claimed purpose\u201d); State v. Sadowski (1991), 247 Mont. 63, 72-73, 805 P.2d 537, 542-43 (other crimes evidence relevant to issue of whether defendant acted with criminal intent or in self-defense); State v. Groves (1989), 324 N.C. 360, 370, 378 S.E.2d 763, 770 (other crimes evidence relevant to negate self-defense); State v. Harris (La. 1980), 383 So. 2d 1, 8 (\u201cWhile a single instance of a killing in self-defense may rationally and hypothetically be occasioned by an act in self-defense, four similar killings by the same person in an eight week span under peculiarly similar circumstances are not nearly as likely to be in self-defense\u201d); State v. Hereford (La. App. 1987), 518 So. 2d 515, 517 (other crimes evidence relevant to rebut self-defense theory).\nThus, the relevance of the evidence derives from the logic that the mere fact that defendant fired a shotgun into one person\u2019s abdomen (and clearly not acting in self-defense) made it less likely that he fired the same shotgun into Rodgers\u2019 abdomen in self-defense 15 minutes later. This \u201cmatter of probabilities\u201d is relevant evidence which the jury is permitted to weigh along with the other evidence.\nDefendant argues that even if the evidence was admissible, the prejudicial effect outweighed the probative value. It is not always possible to limit the prejudicial effect of other crimes evidence. (See People v. Tiller, 94 Ill. 2d at 317 (holding no abuse of discretion in admitting \u201cgory\u201d evidence of other offense; \u201c[t]he evidence was gruesome because the crime was gruesome\u201d).) In any event, the balancing of the prejudicial effect against the probative value is an exercise of discretion which will have to be made by the trial court at defendant\u2019s new trial.\nDefendant argues further that, even if some evidence of other crimes could be properly admitted, the State admitted excessive details, conducting a mini-trial of the Sanford shooting. Our supreme court has cautioned against such a practice.\n\u201cWe agree that it was not necessary to conduct a mini-trial of the [subsequent] jewelry store robbery case in order to establish acts from which defendant\u2019s criminal intent with regard to the [charged offense of] robbery-murder could be inferred, and for the sake of economy of judicial time, we advise against such detailed evidence of other offenses.\u201d People v. McKibbins, 96 Ill. 2d at 186-87.\nSee also People v. Diaz (1979), 78 Ill. App. 3d 277, 397 N.E.2d 148 (in reversing conviction for armed robbery of a tavern, court held that limited amount of evidence of subsequent robbery of two women was admissible to show circumstances of defendant\u2019s arrest and recovery of the gun used in both crimes, but detailed evidence of the robbery, including details of threats made to the women and their children, was error).\nSanford testified that he sold a stove to defendant on May 24, 1986, five days before Willie was killed. He was permitted to testify at length regarding the store\u2019s invoice system, the sale of appliances to defendant, and the delivery of the appliances to defendant\u2019s address. Sanford testified further regarding the May 29, 1986, shooting, when defendant walked into the appliance store and, without speaking, shot Sanford in the abdomen.\nTwo police officers testified about their investigation of the incident. Smuda testified that he recovered a shotgun shell from the appliance store and later performed a gunshot residue test on the shell. Anderson also testified about the expended shotgun shell and his search of the store. In addition, Lenz, a criminologist, testified regarding his analysis of the gunshot residue kit, concluding that it tested positive. The State also offered as exhibits the store\u2019s copy of the invoice; defendant\u2019s copy of the invoice; and the shotgun shell.\nOn retrial, the trial judge should therefore consider carefully whether all of these details are necessary in proving defendant\u2019s intent in shooting Rodgers. The extensive nature of the testimony and physical evidence may unnecessarily result in trying defendant for the attempted murder of Sanford. See People v. Bartall, 98 Ill. 2d at 315; People v. Kimbrough (1985), 138 Ill. App. 3d 481, 489, 485 N.E.2d 1292.\nIn view of our disposition of this case, we need not consider the remaining issues raised by defendant.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nMcNULTY, P.J., and MURRAY, J., concur.", "type": "majority", "author": "JUSTICE GORDON" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES CHARLES, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201487\u20143614\nOpinion filed November 30, 1992.\nRita A. Fry, Public Defender, of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0752-01", "first_page_order": 770, "last_page_order": 782 }