People v. Carlson , 92 Ill. 2d 440 ( 1982 )

JUSTICE GOLDENHERSH,

dissenting:

I dissent. I do not agree with the majority that the errors here were harmless, and in my opinion the defendant did not receive a fair trial.

It should be noted that only the testimony of Robert Babczak connected the defendant with the sale of LSD. The forensic chemist who testified knew nothing concerning the alleged sale, and the other rebuttal witnesses testified only that defendant was present at the time that a fight occurred. Opposed to this was the alibi testimony of a number of witnesses who had attended the gathering at the McElhinney residence. This record does not support the conclusion of the majority that the evidence of guilt was overwhelming.

The charge here was possession and delivery of a controlled substance. Although the testimony erroneously admitted concerning defendant’s having smoked marijuana might have been harmless under some circumstances, it was extremely harmful in a case involving a controlled substance. The error was exacerbated by the State’s Attorney’s improper argument and further aggravated by the fact that the court’s noncommittal comment could be interpreted to mean that there was evidence to support the prosecutor’s comment. Not as important as the other two matters, but notable because of its cumulative effect, is the manner in which the court ruled on the matter of the letter.

In Duffy v. Cortesi (1954), 2 Ill. 2d 511, 517, this court said:

“Where error is shown to exist, it will compel reversal, unless the record affirmatively shows that the error was not prejudicial.”

This record fails to make that affirmative showing, and I would reverse the judgment and remand the cause for a new trial.

JUSTICE SIMON joins in this dissent.