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People v. Boand9/30/2005
f any evidence of other crimes that were committed two to three years prior to the commission of the present offense. However, the State will be allowed to introduce evidence of those crimes in their rebuttal or to refute or during, perhaps, cross-examination of the defendant, should the defendant take the stand, for impeachment purposes and/or to refute the defendant's defense that it wasn't he that gave the methadone."
The court revisited the other-crimes issue at trial when the State called Brounstein and Semmen in its case in chief. Defense counsel argued that evidence of defendant's prior criminal sexual assaults was irrelevant to whether he delivered methadone to Levin. The court stated, "I want to reiterate that there is testimony that the defendant has denied that he gave the methadone, and as to the identity as to who gave the methadone, it's certainly admissible and relevant." The court also ruled that the other-crimes evidence was admissible to show defendant's propensity to commit criminal sexual assault.
The trial court admitted the testimony of Brounstein and Semmen over defendant's objection. The court initially provided an oral jury instruction, stating "evidence of other crimes as it is presented now before you is received for a limited purpose, and that limited purpose is to establish identity, intent, and motive, so you must at this time * consider it for that limited purpose." (Emphasis added.) The court later told the jury that it could "also consider this testimony * regarding the defendant's propensity to commit the crime of criminal sexual assault." The trial court provided an even broader written instruction:
"Evidence has been received that the defendant has been involved in offenses other than that charged in the indictment. This evidence has been received on the issues of the defendant's propensity to commit the offense of criminal sexual assault, modus operandi, motive, intent, opportunity and identity and may be considered by you only for those limited purposes.
It is for you to determine whether the defendant was involved in the offenses, and, if so, what weight should be given to this evidence on the issues of propensity to commit the offense of criminal sexual assault, modus operandi, motive, intent, opportunity, and identity."
We note that the written instruction regarding other-crimes evidence distinguishes among the three charged offenses only once. It informs the jury that the evidence is relevant to defendant's propensity to commit criminal sexual assault. From this the jury was to infer correctly that the evidence was not relevant to defendant's propensity to commit drug-induced homicide and involuntary manslaughter. See, e.g., People v. Heard, 187 Ill. 2d 36, 70 (1999) (evidence of other crimes is not admissible for the purpose of showing the defendant's propensity to engage in criminal activity).
In contrast, the remaining issues cited in the instruction (i.e., modus operandi, motive, intent, opportunity, and identity) are not linked to any of the three charged offenses. This lack of particularity in the instruction suggests that the jury was to consider the other-crimes evidence when determining defendant's modus operandi, motive, intent, opportunity, and identity in committing criminal sexual assault as well as drug-induced homicide and involuntary manslaughter. During the instruction conference, defendant objected to the written instruction, asserting that the jury should be instructed to disregard the other-crimes evidence entirely.
On appeal, the State has completely glossed over the nuances of the written jury instruction. Instead, the State argues that defendant waived any chall
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