People v. Gilmore

• Decision Date: 17 December 1969
• Docket Number: Gen. No. 54129
• Citation: 254 N.E.2d 590,118 Ill.App.2d 100
• Parties: PEOPLE of the State of Illinois, Appellee, v. Samuel GILMORE, Appellant.
• Court: United States Appellate Court of Illinois

Page 590

254 N.E.2d 590

118 Ill.App.2d 100

PEOPLE of the State of Illinois, Appellee, v. Samuel GILMORE, Appellant.

Gen. No. 54129.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 17, 1969.

Sam Adam, Edward Marvin Genson, Chicago, for appellant.

William J. Scott, Atty. Gen., State of Illinois, Springfield, for appellee; Edward V. Hanrahan, State's Atty., County of Cook, Chicago, James B. Zagel, Asst. Atty. Gen., Elmer C. Kissane and Michael D. Stevenson, Asst. State's Attys., of counsel.

DRUCKER, Presiding Justice.

Defendant appeals from his conviction for murder. He was found guilty by a jury and was sentenced to a term of fourteen to seventeen years. Defendant first appealed to the Illinois Supreme Court contending that the introduction of records of prior convictions for impeachment purposes violated his constitutional rights and that the prosecution's final argument was unfair and prejudicial. The Illinois Supreme Court found that '(n)either claim presents a substantial constitutional question, and on the Court's own motion the cause is transferred to the Appellate Court for the First District.'

The defendant raises these same points on appeal in this court.

The defendant does not challenge the sufficiency of the evidence, and the facts may be briefly summarized. On October 18, 1965, at approximately 10:00 P.M. in the vicinity of Leavitt and Madison Streets in Chicago, Willie Harris was shot and killed by the defendant. Joe Lewis Phillips, a cousin of the deceased, was an eye-witness to the event. He observed the deceased drinking while he waited for him in his car. The defendant and a female passenger then drove up in the defendant's car. The deceased and the defendant had an argument. Ultimately the defendant shot the deceased who was unarmed and moving away from the defendant. The defendant ran to his car, but before he could pull away, the police stopped him and placed him under arrest.

Three police officers also testified for the State. One of the arresting officers found two revolvers under defendant's car, one of which was the murder weapon. He also found an open knife approximately five or seven minutes after the shooting lying on the curb fifteen feet from the deceased. Between the deceased and where the knife was found is a paper stand. A crowd had gathered after the shooting. The wife of the deceased testified that this was not her husband's knife.

A second police officer testified that when he arrived upon the scene, he observed Harris lying face down holding a lighted cigarette in his right hand. He took the cigarette out of his hand so he wouldn't burn himself.

The third officer was present at the hospital where Harris was taken after the shooting. He observed a nurse remove a closed knife from a pocket of the deceased's jacket. He further testified as an expert witness that one bullet was fired from the murder weapon while a second shell had misfired.

Leon Jones testified for the defense. He knew both the defendant and the deceased. On the night in question he saw the deceased standing in a restaurant located on the corner of Leavitt and Madison arguing with the defendant. He asked the deceased to refrain and led him by the arm into the street. The deceased then pushed him into a paper stand. He did not see deceased do anything and returned to the restaurant. Both the defendant and the deceased were sober.

A police detective, testifying for the defense, stated that the defendant was a police informant. On the night in question the defendant was told to look for a specific person who was wanted by the police. The defendant subsequently notified the police upon seeing the wanted man. The defendant had been seen in the company of other city and federal police officers.

Helen Gowdy testified for the defense. She is a narcotic addict and a police informant. She had used narcotics on the morning of October 18. She heard the deceased accuse the defendant of informing on his friend. The deceased was the aggressor in the argument and was threatening the defendant with a knife before the defendant shot him.

The defendant testified that he had provided information leading to the arrest of the deceased's friend and that the deceased had demanded bond money for his partner. When he refused to provide the money, the deceased threatened him with a knife. He shouted a warning but the deceased continued to advance with the knife in his hand. He finally shot the deceased. He denied attempting to shoot the deceased twice.

On rebuttal the State offered into evidence the defendant's 1953 conviction for 'armed robbery' and his 1954 conviction for the sale of narcotics. These were introduced for the purpose of impeaching the defendant's credibility.

The defendant contends that the court erred in allowing evidence of defendant's prior convictions to be presented to the jury. When the defendant elects to take the stand to testify, he will be treated like any other witness, and a prior conviction may be properly used for impeachment of his credibility. People v. Williams, 17 Ill.2d 193, 161 N.E.2d 295; People v. Lacey, 24 Ill.2d 607, 182 N.E.2d 730; and People v. Wright, 72 Ill.App.2d 150, 218 N.E.2d 798. There is also a statutory provision authorizing the State to introduce a defendant's prior conviction into evidence for the purpose of his impeachment. Ill.Rev.Stats.1965, ch. 38, § 155--1:

No person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility:

The defendant argues that this statute vests the trial court with the discretion to exclude prior convictions and that the trial court abused its discretion in this case. The defendant cites Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, to support this contention. In Luck the court determined that the word 'may' in the District of Columbia statute gave the trial court the discretion whether or not to admit evidence of prior convictions.

In State v. Hawthorne, 49 N.J. 130, 228 A.2d 682, the New Jersey Supreme Court discussed the use of the word 'may' as it appeared in their impeachment-of-witness statute. (It should be noted that the New Jersey statute is substantially the same as ours.) In Hawthorne, supra, 228 A.2d 684, the court said:

Thus, the 'may' in the statute does not bespeak a grant of permission or discretion to the trial judge to receive or reject the proof. On the contrary, the parties are invested with the option and if it is exercised the examination must be allowed or the record of conviction received when offered.

The trial judge cited Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (D.C.App.1965), in support of his view as to the import of the New Jersey statute. The District of Columbia code is substantially the same as ours, saying that the fact of a witness's conviction of crime 'may be given in evidence of affect his credit as a witness.' The Court of Appeals declared that the word 'may' leaves room for the exercise of judicial discretion respecting the admissibility of a prior conviction of a defendant. We consider that construction strained and not justified by the context of the statute.

Since the presentation of evidence of show an interest or prior conviction is the responsibility of the parties and not of the court, we too hold that 'may' does not grant discretion to the court to receive or reject the proof of a prior conviction. When properly presented it is mandatory that the court receive evidence of defendant's prior conviction.

The defendant next argues that it is fundamentally unfair 'to require a defendant to present evidence of his affirmative defense of self-defense, and then use his prior conviction to impeach his credibility.' However, in the instant case the defendant's testimony was not essential to establish his defense since Helen Gowdy testified that the deceased was the aggressor and came at the defendant with a knife. The defendant voluntarily testified in his own behalf, and like that of any other witness his credibility could be impeached by the use of prior convictions for infamous crimes.

The defendant next asserts that the jury was not capable of considering the introduction of his prior convictions solely for impeachment purposes. The State's Instruction 5 admonished the jury that defendant's prior convictions were to be considered by them only for the purpose of affecting his credibility. In People v. Cuttley, 82 Ill.App.2d 321, 226 N.E.2d 479, a similar jury instruction was given and the defendant claimed that 'evidence of defendant's prior criminal record is deemed by the courts to be so prejudicial that it violates defendant's right to a fair trial.' The court, at page 328, 226 N.E.2d at page 483, found that:

The introduction of the record of conviction of an infamous crime for the purpose of affecting the credibility of such a witness is authorized by the Evidence Act (Ill.Rev.Stats., c. 51, § 1) and by the 'Code of Criminal Procedure of 1963' (c. 38, § 155--1). See, also, People v. Schanda, 352 Ill. 36, 185 N.E. 183 (1933); People v. Buford, 396 Ill. 158, 161, 71 N.E.2d 340 (1947). The record here and the law on this point show that the action in the trial court was proper and, therefore, we find no error.

The defendant also argues that the introduction of his prior conviction for 'armed robbery' rather than 'robbery' should be considered as reversible error. At trial the State introduced into evidence two certified copies of defendant's previous convictions, one for the sale of narcotics and the other for 'armed robbery.' The defendant, through his attorney, immediately informed the court that he had been convicted for 'robbery' and not 'armed robbery' but offered no proof thereof. In his ...