{ "id": 2862627, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Booker Blakes, Defendant-Appellant", "name_abbreviation": "People v. Blakes", "decision_date": "1975-03-31", "docket_number": "No. 73-302", "first_page": "439", "last_page": "444", "citations": [ { "type": "official", "cite": "27 Ill. App. 3d 439" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "257 N.E.2d 583", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill.App.2d 233", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1582615 ], "weight": 2, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/121/0233-01" ] }, { "cite": "241 N.E.2d 485", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill.App.2d 101", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2821284 ], "weight": 2, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/100/0101-01" ] }, { "cite": "201 N.E.2d 756", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "52 Ill.App.2d 177", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5279938 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-2d/52/0177-01" ] }, { "cite": "221 N.E.2d 68", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill.App.2d 458", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2580672 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0458-01" ] }, { "cite": "117 N.E. 286", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "opinion_index": 0 }, { "cite": "280 Ill. 32", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4890968 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/280/0032-01" ] }, { "cite": "277 N.E.2d 547", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill.App.3d 512", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2842322 ], "weight": 3, "pin_cites": [ { "page": "514" }, { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0512-01" ] }, { "cite": "322 N.E.2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill.2d 516", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2959707 ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0516-01" ] } ], "analysis": { "cardinality": 508, "char_count": 10551, "ocr_confidence": 0.759, "pagerank": { "raw": 1.4064277772564744e-07, "percentile": 0.6459532968910543 }, "sha256": "8fc1e2b5a17a4d496fdc64954a42957b7a457aeaa22b3c33e0aa43f8c61aa8cd", "simhash": "1:8aa61c484e078bc2", "word_count": 1787 }, "last_updated": "2023-07-14T15:22:05.356803+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. Booker Blakes, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE STOUDER\ndelivered the opinion of the court:\nAfter trial by jury in the circuit court of Peoria County, defendant, Booker Blakes, was convicted of armed robbery and sentenced to a term of not less than 5 years nor more than 20 years in the Illinois State Penitentiary. This appeal is from that judgment.\nOn January 29, 1973, at approximately 8:30 P.M. a man came into the Western Avenue Liquor Store and committed an armed robbery. About 2 weeks later defendant was arrested for this armed robbery. Prior to trial, defendant was served with a motion that he inform the People prior to trial if he intended to assert an alibi defense and if so, the names and addresses of witnesses whom he might call in support of that defense. Defendant objected to the request. His objection was overruled and he was ordered to respond. (This order was prior to the holding in People v. Fields, 59 Ill.2d 516, 322 N.E.2d 33, and the propriety of the order is not in issue.) Defendant submitted a list containing the names and addresses of four witnesses he intended to call to establish his alibi defense. Of the four names defendant listed he called two, his sister Dorothy Jackson and his friend John Fleming. The defendant\u2019s sister, Dorothy Jackson, testified defendant came to her house at about 5 minutes after 8 on January 29, 1973, and left 15 minutes later. John Flemming testified he was at Dorothy Jackson\u2019s house when defendant arrived about 8 o\u2019clock and they left together at about 8:15. He drove defendant to Neal\u2019s Lounge and dropped him off, and defendant was still there when Flemming returned at 9 o\u2019clock. He also stated that the Western Liquor Store is about 2Vz miles from Neal\u2019s Lounge. Defendant testified he remained at Neal\u2019s Lounge from the time he was dropped off until about 1:30 A.M.\nOn cross-examination of defendant the following testimony occurred regarding defendant\u2019s presence in Neal\u2019s Lounge:\n\u201cQ. Who was in Neal\u2019s at the time you went there January 29, 1973?\nA. There were quite a few people in there.\nQ. Who, in particular that you knew?\nA. George Johnson, William Cathrew, a guy by the name of Russell, Joe Moore, Herman Carter. There was a lot of others but I can\u2019t remember everybody\u2019s name.\nQ. Those names you happen to remember right now?\nA. Yes.\u201d\nNone of these names were on the list of four witnesses submitted by defendant prior to trial. It should also be noted defendant was not asked who saw him in the lounge on the date in question. He was asked who was in the lounge that he knew.\nThe first issue on appeal relates to the propriety of the assistant State\u2019s attorney\u2019s eliciting from defendant on cross-examination the names of potential alibi witnesses. A recent case, People v. Mays, 3 Ill.App.3d 512, 277 N.E.2d 547, disposes of this issue. In Mays the defendant claimed the prosecution\u2019s comment upon defendant\u2019s failure to produce certain witnesses shifted the burden of proof to defendant to prove his innocence. The court cited People v. Munday, 280 Ill. 32, 117 N.E. 286, for the general rule that it is improper for the prosecution to comment on defendant\u2019s failure to present witnesses when such witnesses are easily accessible to both parties and People v. Smith, 74 Ill.App.2d 458, 221 N.E.2d 68, for the further rule that such comment is permitted where such witnesses are unavailable to the prosecution. The court went on to state, \u201cAs a subsidiary application of the general rule potential alibi witnesses injected into the case by the defendant are deemed unavailable to the prosecution and comment with regard to the failure of such witnesses to testify is proper. People v. Gray, 52 Ill.App.2d 177, 201 N.E.2d 756.\u201d (3 Ill.App.3d 512, 514.) The issue in Mays was whether the potential witnesses there were injected into the case by defendant. The court in resolving the questions held: \u201cWhen the names are elicited by cross-examination it is our conclusion that the responsibility for the failure of the defendant to produce such witnesses can not be assessed against the defendant or has the same significance as when the defendant himself refers to such potential witnesses in an apparent attempt to bolster his defense.\u201d (3 Ill.App.3d 512, 516.) We hold it was error in the case at bar to allow the People to elicit from defendant on cross-examination the names of potential alibi witnesses.\nThe related issue is whether it was reversible error for the assistant State\u2019s attorney to comment in closing argument on defendant\u2019s failure to produce these potential alibi witnesses. A portion of the assistant State\u2019s attorney\u2019s closing argument which defendant contends was error and which is directly related to the above cross-examination of defendant is:\n\u201c* * * he said he went into the tavern, remained there from 8:20 p.m. until 1:30 a.m. the foHowing morning. And I asked the defendant if he was familiar with the place, knew the place, people in the place were familiar with him. He said they were. And I asked him what particular individuals were in the place at that time, and he named a number of names, about five in all, a Cathrew, Moore, Carter, and a couple of others I can\u2019t recall. As I recall there were about five names of people that were there when he was; none of them were called to testify.\nMR. BARTON [defense counsel]: I object to this Judge and move for mistrial. I would like tire jury to be instructed to disregard that. MR. INMAN [assistant States\u2019 attorney]: Your Honor, if I may call three cases to the court\u2019s attention on that point.\nTHE COURT: The objection is overruled; motion for mistrial is denied. You may proceed.\nMR. INMAN: These five people were not here. You never heard them testify fom that stand; t\u00edrese five people who, if they saw defendant at that time and place, could have established that alibi for the defendant. But these five people were not here. Where they were, why they weren\u2019t here, why they were not subpoenaed by the defendant I don\u2019t know. I didn\u2019t know of them until this morning. But when you come to consider the defendant\u2019s testimony in connection with this, remember it is his testimony only that is called to establish his alibi, his testimony only out of the six who might have been called to testify.\u201d\nThe People cite three cases in support of their argument that the allowance of the assistant State\u2019s attorney\u2019s comments on closing argument did not constitute reversible error. The first cited case, People v. Munday, 280 Ill. 32, 117 N.E. 286, is cited for the general rule that the omission or failure of a defendant in a criminal case to call as witnesses those who could testify of their own knowledge to material facts raises no presumption of law that if called they would have testified unfavorably to him, but tire jury may consider his failure to produce or to endeavor to produce such witnesses as a circumstance in determining his guilt provided it is manifest that it is within the power of the accused to produce such witnesses who are not accessible to tire State. We have no argument with this general rule; however, in the Monday case, the court held it was error for the prosecution to comment on defendant\u2019s failure to call his codefendants as witnesses. The State also cited People v. Sanford, 100 Ill.App.2d 101, 241 N.E.2d 485. The Sanford case is distinguishable in that there the court found there was nothing in the record to indicate the State knew prior to the defendant\u2019s testimony that he would claim an alibi or the names of those witnesses he would call to support his story that he was in another place at the time of the crime. In tire case at bar the prosecution was well aware of the fact that the defendant claimed an alibi, and defendant had presented to the State a list of witnesses whom he intended to call. The State itself elicited the five additional names from defendant. In Sanford the court went on to cite the rule of People v. Gray, 52 Ill.App.2d 177, 201 N.E.2d 756: \u201c Where the defendant injects into the case his activities with potential witnesses during a particular period of time ostensibly for the purpose of establishing an alibi for the time of the commission of the crime charged, his failure to produce such witnesses is a proper subject of comment on the part of the State.\u2019 \u201d (100 Ill.App.2d 101, 105.) As already noted, the defendant in the case at bar did not inject the names of the potential witnesses into this case. The State also cites People v. Poole, 121 Ill.App.2d 233, 257 N.E.2d 583. In Poole the prosecution commented on defendant\u2019s failure to call two witnesses to corroborate his story. Defendant had testified on direct examination that he was on a particular comer at a particular time with these two witnesses whom he did not call. Defendant himself injected the names of these potential witnesses into the case. The court stated further: \u201c* * * in the absence of an express prohibition every facet which is not improperly before the jury and which may reasonably influence their judgment is a proper subject of comment in argument.\u201d (121 Ill.App.2d 233, 241.) It has already been held here that the names of the potential witnesses in the case at bar were improperly before the jury since it was error for the prosecution to elicit these names on cross-examination.\nIn the instant case it was error both to allow the prosecution to elicit the names of potential alibi witnesses from the defendant on cross-examination and to allow his comments during closing argument regarding defendant\u2019s.failure to call these same potential witnesses. The prosecution contends the errors complained of were harmless but we believe otherwise. The State\u2019s case depended on the identification of defendant by one of the victims- in opposition to defendant\u2019s claim of alibi. The evidence in support of the prosecution\u2019s case is not overwhelming, and we are unable to say the errors which substantially affected the defendant\u2019s alibi defense constituted harmless errors.\nFor the foregoing reasons the judgment of the circuit court of Peoria County is reversed and remanded with directions that defendant be granted a new trial.\nJudgment reversed and remanded.\nSTENGEL and BARRY, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE STOUDER" } ], "attorneys": [ "James Geis, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Michael Mihm, State\u2019s Attorney, of Peoria (James Christy, Assistant State\u2019s Attorney, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Booker Blakes, Defendant-Appellant.\n(No. 73-302;\nThird District\nMarch 31, 1975.\nRehearing denied May 7, 1975.\nJames Geis, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nMichael Mihm, State\u2019s Attorney, of Peoria (James Christy, Assistant State\u2019s Attorney, of counsel), for the People." }, "file_name": "0439-01", "first_page_order": 465, "last_page_order": 470 }