dissenting:
The admission into evidence of the gun and bullets found in the nightstand next to the bed in which the defendant was sleeping at the time of his arrest was improper, in my opinion, because it was not relevant. In addition, I do not believe that the admission of the evidence can be denominated as harmless. Consequently, I respectfully dissent.
All relevant evidence is admissible unless there is a particular reason to exclude it. (People ex rel. Noven v. Dempsey (1957), 10 Ill. 2d 288, 139 N.E.2d 780; People v. Pointer (1981), 93 Ill. App. 3d 1064, 418 N.E.2d 1; Cleary & Graham’s Handbook of Illinois Evidence sec. 402.1 (4th ed. 1984).) “ ‘ “Relevant evidence” means evidence having any tendency to make the existence of any fact, that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” (People v. Monroe (1977), 66 Ill. 2d 317, 322, 362 N.E.2d 295, citing Rule 401 of the Federal Rules of Evidence, 65 F.R.D. 131, 142.) At no point in the proceedings of this case was there a suggestion that a gun was used in the commission of the offense. Therefore, I do not believe that the gun is relevant. The State does not argue that it is relevant, rather it argues that the gun is a circumstance of the arrest and therefore admissible.
The notion that a gun is admissible evidence because it is a circumstance of the arrest has been frequently stated. As to this argument, the State correctly relies on People v. Longstreet (1974), 23 Ill. App. 3d 874, 320 N.E.2d 529. However, based on the following, I believe Longstreet was incorrectly decided. The defendant there was arrested sometime after the occurrence. The actual weapon used in the offense and a second weapon were discovered at the head of the defendant’s bed during the search of the defendant’s apartment. The weapon used in the offense was admitted, but the defendant objected to the admission of the second weapon. The trial court admitted the second weapon, and in affirming that admission on appeal the court cited the supreme court opinion in People v. Jackson (1956), 9 Ill. 2d 484, 138 N.E.2d 528, in which the court stated that “[i]t has long been the rule that ‘even though no claim is made that the accused used [the particular] weapon in committing the particular crime, the weapon may be subject of testimony concerning the details of the arrest and also be admitted into evidence.’ ” People v. Longstreet (1974), 23 Ill. App. 3d 874, 882, 320 N.E.2d 529, 534, citing People v. Jackson (1956), 9 Ill. 2d 484, 492, 138 N.E.2d 528, 532 (citations and emphasis omitted).
In support of this proposition, the court in Jackson cited People v. Dale (1934), 355 Ill. 330, 189 N.E.2d 269, People v. Lenhardt (1930), 340 Ill. 538, 173 N.E. 155, and People v. Durkin (1928), 330 Ill. 394, 161 N.E. 739. Considering these cases and subsequent cases, I believe the rule of law has been overstated.
One of the supreme court cases cited, Durkin, involved the murder with a revolver of a special agent of the Department of Justice. The question concerned the admissibility of two pistols taken from the defendant when he was arrested three months later. The supreme court briefly considered the issue and held that the testimony concerning what was found in the defendant’s possession, along with the conversation with the defendant at that same time, were “competent as evidence of the details of the arrest.” People v. Durkin (1928), 330 Ill. 394, 406, 161 N.E. 739, 744.
Four years later, in Lenhardt, the victim was also murdered with a revolver. The defendant was arrested some months later. When arrested he had a revolver in his possession. The defendant argued that there was no showing that he used it in committing the crime charged. The court in approving its admission commented that “[i]t is competent to prove that an accused person, when arrested, possessed a weapon suitable for the commission of the crime charged against him, even though no claim is made that he actually used it in committing the particular crime.” People v. Lenhardt (1930), 340 Ill. 538, 549, 173 N.E. 155, 159.) Two years later the supreme court made a similar comment in People v. Dale (1934), 355 Ill. 330, 189 N.E. 269.
In People v. Smith (1952), 413 Ill. 218, 108 N.E.2d 596, the victim was murdered with a revolver. Admitted into evidence were two sawed-off shotguns found in the trunk of the car in which the defendant was arrested six months after the offense. The supreme court reversed the trial court’s admission of that evidence based on the fact that there was no showing that the defendant had possession of the guns or that they were under his control. Possession is not an issue in the instant case, but Smith is significant because of the following case. In People v. Jones (1961), 22 Ill. 2d 592, 177 N.E.2d 112, a gun was found in an automobile in which the defendant was riding when arrested eight days after the commission of the crime. A witness testified that it was similar to and looked like the revolver that was in the defendant’s hands at the time of the shooting. The court identified the problem as being one of relevance. The court explained that a gun is relevant if there is evidence to connect it with the defendant and the crime. The court then commented on the Smith case and noted that in Smith it had held that under the circumstances there the admission of the gun was reversible error. The Jones court pointed out that in Smith the opinion revolved around possession. The court said “[h]owever, the real basis for the [Smith] decision was not the question of possession. Even if the shotguns had been in the defendant’s lap instead of in the trunk of the car, they would still not have been relevant, since all of the evidence indicated that the crime had been committed with a gun of an entirely different type.” (People v. Jones (1961), 22 Ill. 2d 592, 600, 177 N.E.2d 112, 116.) The court further commented that “[t]hus the question is not whether the gun was in the possession of the defendant, but rather whether the gun had bee,n sufficiently connected with the crime and the defendant to make it relevant evidence.” People v. Jones (1961), 22 Ill. 2d 592, 600, 177 N.E.2d 112, 116.
In the instant case there is no suggestion that the gun is connected to the crime. Consequently, there is no relevance to the admission of the gun. As in Smith and Jones, the admission of the gun is error. The broad proposition that guns generally are admissible as evidence surrounding the arrest is not supported by the rationale in the recent Illinois Supreme Court cases of Smith and Jones. The supreme court has clearly stated that the evidence must meet the test of relevancy.