People v. Johnson

• Decision Date: 12 December 1990
• Docket Number: No. 4-90-0078,4-90-0078
• Citation: 206 Ill.App.3d 318,564 N.E.2d 232
• Parties: , 151 Ill.Dec. 255 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael Ray JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 232

564 N.E.2d 232

206 Ill.App.3d 318, 151 Ill.Dec. 255

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael Ray JOHNSON, Defendant-Appellant.

No. 4-90-0078.

Appellate Court of Illinois Fourth District.

Dec. 12, 1990.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Lawrence J. Essig, Asst. Defender, Springfield, for defendant-appellant.

Lawrence R. Fichter, State's Atty., Decatur, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, David E. Mannchen, Staff Atty., Springfield, for plaintiff-appellee.

Justice McCULLOUGH delivered the opinion of the court:

After a jury trial, defendant Michael Ray Johnson was found guilty of burglary (Ill.Rev.Stat.1989, ch. 38, par. 19-1(a)) and sentenced to seven years' imprisonment. He appeals, contending (1) the circuit court erred in refusing to instruct the jury on theft as an included offense of burglary, (2) the circuit court improperly permitted the prosecutor to cross-examine him as to his prior convictions, and (3) the circuit court should have granted him a new trial because one of the jurors was not a resident of the county where the burglary with which he was charged was committed.

Because defendant does not assert he was not proved guilty beyond a reasonable doubt, only a brief recitation of the evidence is necessary. At about 11 p.m. on August 29, 1989, two Decatur police officers, who were on routine patrol, observed defendant about 10 feet from the front entrance of Peerless Cleaners carrying clothes wrapped in cleaning bags over his shoulder. The officers stopped defendant and determined that the cleaning bags he was carrying had the name and logo of Peerless Cleaners on them. Both the bags and the clothing were clean. Subsequent investigation revealed that the Peerless Cleaners building had been burglarized sometime between 5:30 p.m. on that date and the time of defendant's apprehension, and that the only items missing from the building were the clothes the police officers saw defendant carrying.

Defendant presented the testimony of two female acquaintances in an apparent effort to establish that he was intoxicated at the time of his apprehension. Testifying on his own behalf, defendant stated that as he was walking past the Peerless Cleaners building, he noticed the clothes laying on the ground, that he picked them up, and that he then began to walk toward the home of a niece. He denied burglarizing the Peerless Cleaners building.

I.

Defendant first contends the circuit court improperly refused to instruct the jury as to the lesser offense of theft. Defendant's bases for this argument are that the information charging him with burglary also alleged the specific intent to commit theft, and the evidence established commission of that offense.

In support of his contention that the jury should have been instructed concerning the offense of theft, defendant relies principally on People v. Dace (1984), 104 Ill.2d 96, 83 Ill.Dec. 573, 470 N.E.2d 993. In Dace, the defendant was charged with residential burglary with intent to commit a theft, and the evidence established that the defendant committed a theft. The supreme court held that under these circumstances, the circuit court erred in refusing to instruct the jury as to the offense of theft.

In People v. Schmidt (1988), 126 Ill.2d 179, 127 Ill.Dec. 816, 533 N.E.2d 898, however, the supreme court implicitly overruled Dace. The Schmidt court premised its decision on the fundamental principle that one charged with a single offense cannot be found guilty of an uncharged offense unless it is an included offense of the charged offense. Observing that theft is not an included offense of burglary, the court held that when a defendant is charged only with burglary, there must not be a verdict regarding a theft offense.

The sole charge against the defendant in the present case was burglary. Thus, under Schmidt, it would have been improper for the jury to return a verdict on the offense of theft. It follows that the circuit court did not err in refusing to instruct the jury as to that offense.

II.

At the beginning of his testimony on direct examination, defendant acknowledged three prior theft convictions. With respect to the third theft conviction, defendant stated, "[i]t's--it wasn't where--well, it wasn't where I was actually caught stealing anything. But * * * it's theft." During the State's cross-examination of defendant, the following occurred:

"Q. * * * Mr. Johnson, you are as your counsel has pointed out a convicted thief; correct?

A. No.

Q. You're not a convicted thief?

A. No. I have theft convictions. I'm not a thief.

Q. Mr. Johnson, is someone who is convicted of theft, is that a thief?

A. I already answered your question once. I already know what you're trying to imply.

Q. So, in 85-CF-404, you were convicted ...

[Defense counsel]: Your Honor, I object. He admits that he has these theft convictions.

A. Anyway ...

[Defense counsel]: Wait a minute. Object to him going ...

THE COURT: Overruled.

Q. You were convicted on October the 29th of 1985 of theft of property with a prior theft conviction, correct?

[Defense counsel]: Your Honor, once again ...

A. True.

[Defense counsel]: ... I object to these.

THE COURT: He may answer.

A. True.

Q. So, you were convicted of theft?

A. Yeah. This is '89, what have you got since then?

Q. Since '85, what have I got; well, 88-CF-436, on August the 31st of 1988, you were convicted of theft of property; correct?

A. August the 31st?

Q. Of 1988.

A. Yeah. Yeah, I was.

Q. Okay. So, there is something since 1985; isn't there?

A. Yes, sir.

Q. And, of course, 85-CM-337, on April the 24th of 1985, you were convicted of theft; correct?

A. I don't know about all that. You would get anybody to plead guilty to these charges if you keep them up in jail long enough regardless if they're innocent or guilty.

Q. Your Honor, I'd object to that remark.

THE COURT: Sustained.

Q. I'd ask the jury be instructed to disregard it.

THE COURT: Motion granted."

Defendant asserts the cross-examination as to his prior convictions was improper because (1) a defendant generally may not be cross-examined concerning prior convictions, and (2) the proper method of impeaching a defendant testifying on his own behalf with prior convictions is to introduce into evidence the record of the prior convictions or an authenticated copy thereof. Defendant suggests that this procedure should be followed even when, for tactical reasons, a defendant anticipates the introduction by the prosecution of records of his prior convictions by acknowledging the convictions in his direct testimony. Defendant contends that cross-examination as to prior convictions should be permitted only where a defendant testifies falsely on direct examination concerning his prior convictions.

As noted by both defendant and the State, it is generally improper to cross-examine a defendant concerning his prior convictions. The State may impeach the credibility of a defendant who testifies on his own behalf with evidence of prior convictions only by introducing into evidence records of the prior convictions or authenticated copies thereof. (People v. Flynn (1956), 8 Ill.2d 116, 133 N.E.2d 257.) When, however, a defendant testifies on direct examination concerning his prior convictions, the State may cross-examine him as to the convictions. The rationale for this exception to the general rule is that a defendant cannot complain if, on cross-examination, the State pursues a line of questioning which the defendant initiated. People v. Seider (1981), 98 Ill.App.3d 175, 53 Ill.Dec. 413, 423 N.E.2d 1217.

We cannot agree with defendant's contention that the State may cross-examine a defendant as to prior convictions only when the defendant testified falsely concerning prior offenses. Such a holding would prevent the State from cross-examining as to prior-offense testimony which, although not patently false, might have a tendency to leave the trier of fact with an inaccurate understanding of the prior offenses. In the present case, for instance, one of the defendant's statements on direct examination, at least arguably, was intended to minimize the gravity of one of his prior offenses. In this type of situation, the State should be accorded an opportunity, through cross-examination, to dispel the impression the defendant made concerning the seriousness of his prior offenses.

As defendant points out, the State did not introduce into evidence the records of his prior convictions or authenticated copies thereof. We agree that the better practice is to follow this procedure in order to establish a defendant's prior convictions. (Flynn, 8 Ill.2d 116, 133 N.E.2d 257.) In the present case, however, the defendant informed the jury of all of his prior convictions on direct examination, and therefore, introduction of the records of these convictions or authenticated copies thereof would have been a useless formality. (See generally People v. Bey (1969), 42 Ill.2d 139, 246 N.E.2d 287.) We conclude that no reversible error occurred with respect to the presentation of evidence concerning defendant's prior convictions. III.

One of the members of the jury which found defendant guilty of burglary was Mayola Phillips. During the jury selection process, no one questioned Phillips concerning her residence.

In support of defendant's motion for a new trial, defendant's trial attorney submitted an affidavit in which he stated he had conversed with juror Phillips, and that she told him (1) she lived in Champaign and had lived there since August 1989, (2) she last voted in Macon County in 1988 and had not changed her voter registration, (3) she is employed and is attending a community college in Champaign, (4) "she moved to Champaign to move out of her parents [sic] home in Mt. Zion [in Macon County]," and (5) she "did not tell the...