*1 205 ILLINOIS, Plаintiff-Appellee, THE OF OF PEOPLE STATE THE COOPER, Defendant-Appellant. BERNARD 76-452 Fifth District No. January 1979.
Opinion Rehearing filed denied December JONES, J., dissenting. Morris, Office, Kathy Appellate Geis and M. both State Defender’s of James Chicago, аppellant.
of Attorney, Murphysboro (Bruce Howard D. of Irish and Ann Singleton, Association, counsel), E. Attorneys both of Illinois State’s of People. Mr. PRESIDING GEORGE MORAN delivered the JUSTICE J.
opinion of the court: Cooper, robbery
Defendant Bernard his appeals cоnviction armed trial, County, from the circuit a where Jackson years was sentenced to 20 imprisonment. trial, In the first day of defendant moved for directed verdict defense, denied. As defendant was prеsent about to his matter of impeachment by prior conviction arose. The State informed the court that assuming defendant him offering a record felony conviction for objected, arguing dоcuments did not meet the requirement law. The trial under sustained the
Following day, ruling, the same explained day, He presence Carbondale arrest, accounted for activity at behavior the time of denied wore, wearing clothing on April 20 which victim stated he denied carrying gun, question. and denied committing offense trial, moved for the introduction day again the second admissibility of this Immediately preсeding arguments the court stated: degree,
“We have to some Jochums, I assume
this?” This argument time with party citing position, each one case for concerning impeaching such documents must the form with which argued that it was additionally cоnform continued. Defense counsel imposed for the sentence to informed of entirety. in its conviction. The exhibit was introduced presented The State in rebuttal which contradicted also рortion testimony. substantial of defendant’s guilty a verdict of armed returned (1) for appeal fundamentally It was unfair defendant contends: prior conviction judge impeachment allow defendant to initial subsequent because the taken the to the court’s defendant had stand evidence; ruling (2) deprived the defendant to exclude such prove erroneously a fair it allowed the State trial because insufficient documentation prior and the circumstances of permitted the State to introduce the detailed robbery conviction. imposed sentence for defendant’s directing for our attention We reverse and remand a new trial defendant’s first contention. in,
After the State’s evidence was the record discloses not ruling conviction would court made definitive that defendant’s assumption based on the ruling be admitted and for directed verdict testify. After defendant’s motion defendant presented, the trial court stated: Now, Mr. denied. that motion is “Let the record show testify— going assuming the defendant Assuming Attorney]: MR. HOOD [The an exhibit.” impeaching to offer the State colloquy the trial court entered the of counsel it which resulted in the stated: order case, relatively Hood is a recent
“COURT: There [State’s going to examine it of this circuit. and I think is out Attorney], Do either of saying anything else. first before documents may be what sources recent authorities can’t find. case that I is a recent impeachment? There used for Burke, association, Rex My MR. Counsel]: [Defense JOCHUMS book. borrow a the street to look and went across has COURT: The wishes the record to show that the court providеd by the State for the reviewed —the form has proposed impeachment purposes is as that used same Illinois, have some doubt as to how it fits into the Illinois side, I motion going grant scheme and to bе on the safe am impeachment and not admit this for because doesn’t contain the same elements that we Illinois. This is what we to use the court’s sign minutes and we use to them and the court’s minutes were аs I impeachment purposes. admissible understand Not addition, alone. In there had be mittimus and certain am, therefore, findings. way. hope we somewhere. on the side if I am erring.”_ This afforded the defendаnt knowledge definitive advance subjected impeachment by not be of his he decided take the witness stand.
Having proceed obtained the sought, did the stand. After he completed rested State moved introduction of the self-same excluded record defendant’s Indiana conviction as Although *3 definitely court had evidence, ruled to exclude the nonetheless matter, entertained furthеr noting the that only “[w]e previously discussed this to degree.” some vigorously counsel reiterated amplified his objections to the admission of the but the trial its previous reversed decision. “hope court’s that we can
somewhere” ambiguous was an remark which did not render the interlocutory nor afford defendant actual notice that the matter reopened. The trial court was in error tо assert the had matter degree when it had sustained objection. The fact that effort locate defense counsel’s authority, motion, initiated granting the trial court’s enabled him morning to mention a сase name to the trial court the next does not demonstrate that the by the was considered Further, no sound reasons to believe trial the court’s initial untimely was erroneous. revocation thе ruling was fundamentally placed unfair to the him in an prejudicial untenable and situation. important
The most factor which the trial court when it considers excludes a
inducement of the
testify
thereby
servе the cause of
People Montgomery,
by
truth. This is
47 Ill.
language
made clear
the
695, 699,
510, 517-18,
quotes
Court
Supreme
wherein the
268 N.E.2d
States,
v. United
If
1965).
from the case of Luck
Cir.
(D.C.
In instant Under have led might must, conclusively circumstances, demonstrate *4 it did not testimony. This induce the did not court’s decision do. and remanded this cause reasons foregoing
For the new trial. and remanded.
Reversed
EARNS, J., concurs. JONES, dissenting:
Mr. JUSTICE I disagree majority’s with the conclusion definitively to exclude the evidence of the Indiana conviction. ruled majority’s opinion is an unwarranted further believe the result of the by the trial and that overturning proper of a exercise of discretion in proрerly results in an which a could consider exclusion of evidence rendering accordingly respectfully its verdict. dissent.
I think it the actions of evident from the trial court’s remarks and counsel for both that thе initial prosecution the defense considered “not admit The court stated into evidence because it doesn’t the same elements that we have contain * * * in Illinois. I hope that we cаn better information somewhere. erring.” During argument on the side of the defendant objected on the matter on the basis incomplete. documentation conviction was However, neither he рrosecution nor the case citations or authority support positions The then took taken. reconvened, following day, The before the Attorney again moved for the The conviction. court noted “we have discussed this to degree. assume to the [To counsel:] objection
introduction of this?” Counsel for the defendant renewed his and then offered case citations and other authority support of position. prosecution prepared also was on this occasion authorities support its arguments. hearing argument, court indicated that although he preferrеd would have that the conviction be documented in a different form he would permit nevertheless introduced into A impeachment. proper limiting given instruction was jury. to the
I think it fair to infer that proseсution both defense and counsel had done research and authority support were to cite of their respective positions because each was the issue aware finally admissiоn of defendant’s prior conviction had not been resolved and that subject the court would entertain further since he wanted “better making binding ruling. information” before a final and I do not believe that thе defendant was therefore unfairly surprised. Whether or not to admit evidence of a prior resting conviction is a matter within the discretion of the trial (People Montgomery, court. Ill. 510, 268 695.) N.E.2d That discretion was not abused in the instant case. may entertain this issue more than during trial and may use its discretion to differently rule when the issue is reconsidered. People v. Spicer, 44 Ill. App. 3d N.E.2d
I would affirm the court’s in admitting action the record of the Indiana conviction.