People v. Natoli

• Decision Date: 28 March 1979
• Docket Number: No. 77-1485,77-1485
• Citation: 26 Ill.Dec. 266,387 N.E.2d 1096,70 Ill.App.3d 131
• Parties: , 26 Ill.Dec. 266 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph D. NATOLI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1096

387 N.E.2d 1096

70 Ill.App.3d 131, 26 Ill.Dec. 266

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph D. NATOLI, Defendant-Appellant.

No. 77-1485.

Appellate Court of Illinois, First District, Third Division.

March 28, 1979.

James J. Doherty, Public Defender, Cook County, Chicago (Robert P. Isaacson, Asst. Public Defender, Chicago, of counsel), for defendant-appellant.

Bernard Carey, State's Atty., Cook County, Chicago (Lee T. Hettinger, Rimas F. Cernius and Marva W. Cohen, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

SIMON, Presiding Justice:

The defendant, Joseph D. Natoli, appeals from his conviction in a jury trial of possession and delivery of a controlled substance (ethclorvynol), and his sentences of 1 to 3 years for delivery and 2 to 6 years for possession to run concurrently. He did not dispute his possession of the controlled substance, or that he delivered it to an informer, Kathy Krause, who was accompanied by an Elmwood Park police officer, Thomas Braglia, when she met with the defendant for the purchase. His defense was entrapment.

The defendant attacks his conviction on several grounds: (i) the trial court erred in permitting the prosecutor to cross-examine the defendant about a previous conviction, and even about charges on which he was never convicted; (ii) the prosecutor committed error in his closing argument when he called the defendant derogatory names, told the jury that the defendant's business was burglary and selling drugs, urged the jury to consider the defendant's prior burglary conviction for purposes other than determining his credibility, and suggested to the jury that the defendant was on parole and had violated his parole; (iii) the trial court improperly denied the defendant the opportunity to impeach an informer with evidence of her bad reputation for truth and veracity; (iv) the evidence failed to prove guilt beyond a reasonable doubt; and (v) the statutory classification of possession of ethclorvynol as a class 3 felony (Ill.Rev.Stat.1977, ch. 56 1/2, par. 1402(b)), while its delivery is denominated a class 4 felony, a lesser offense (Ill.Rev.Stat.1977, ch. 56 1/2, par. 1401(e)), is unreasonable, and violates the defendant's equal protection rights. U.S.Const., amend. XIV; Ill.Const.1970, Art. I, § 2.

The State concedes that prosecutorial errors occurred; its position is that the evidence of guilt is so overwhelming that the errors were harmless. The evidence against the defendant was strong, but he still was entitled to present his defense to a jury that would judge his credibility free from prejudice created by the trial tactics of the prosecutors. The defendant's explanation for his conduct was that the State's informer, Kathy Krause, telephoned him or his home approximately a dozen times on the day he met her and during the preceding 3 days, importuning him to supply her with drugs, and he did so only because he felt sorry for her. Prosecutorial errors detracted from the defendant's credibility when he took the stand to present this defense, and thus prejudiced him. As a reviewing court, we are unable to say with reasonable certainty how the jury would have viewed the defense of entrapment absent prosecutorial conduct designed to inflame the jury against the defendant and deny him a fair trial. Had the prosecutor engaged in only one impropriety, the error might more easily be excused as not substantially affecting the outcome of the trial. But in view of the combination of errors committed, it is pure speculation to say the jury would have reached the same conclusion had the errors not occurred. (People v. Patterson (1976), 44 Ill.App.3d 894, 900, 3 Ill.Dec. 479, 358 N.E.2d 1164.) We believe that the defendant's conviction should be reversed, and that he should be retried on the charge of delivery. But, because of the sentencing provision for possession discussed below, the defendant cannot be retried on that charge.

Many of the errors the defendant complains of are not likely to recur at a new trial; therefore, we shall consider primarily those issues which may. These errors alone warrant granting a new trial.

First, the defendant had a previous burglary conviction, which could be used to impeach him. (People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695.) The accepted way to introduce a prior conviction to impeach the credibility of a defendant who testifies in his own behalf is by offering an authenticated copy of the record of conviction during rebuttal. When direct examination has not covered that subject, it is improper to cross-examine a defendant about a previous conviction. People v. Flynn (1956), 8 Ill.2d 116, 133 N.E.2d 257; People v. Kosearas (1951), 408 Ill. 179, 96 N.E.2d 539; People v. Ring (1967), 89 Ill.App.2d 161, 232 N.E.2d 23.

The prosecutor not only violated this established rule but went on to ask the defendant about other charges preferred against him, including charges of armed robbery and possession of stolen goods. The defendant had not been convicted on any of these additional charges. Impeaching a defendant by showing that he has been arrested and charged with an offense for which he was not convicted is not permissible. People v. Bennett (1953), 413 Ill. 601, 110 N.E.2d 175.

The prosecutor compounded the prejudice to the defendant by proceeding to question the defendant on re-cross-examination about the specific facts surrounding the armed robbery charge. This interrogation only emphasized to the jury that the defendant in addition to being convicted of burglary had been charged with armed robbery. This entire examination was an erroneous and prejudicial incursion into areas where the prosecution should not tread. See Bennett.

People v. Nicholson (1978), 61 Ill.App.3d 621, 18 Ill.Dec. 427, 377 N.E.2d 1063, to which the State refers us, clearly differs from this case. There, a police officer on cross-examination by defense counsel referred in a non-responsive answer to a prior arrest of the defendant. The trial judge, on his own motion, immediately recessed the proceedings and offered defense counsel the opportunity to move to strike the officer's answer.

The next series of prosecutorial errors we note occurred in final argument. The prosecutor called attention to the defendant being on parole, and continued:

"That man, that parolee, and by the way, you know what parolee means. Parole, when you are released from the pen, comes from a French word which means 'word of honor.' You see what Mr. Natoli's word of honor is worth. He goes out and delivers dope."

This argument was improper and prejudicial. First, the words "That man, that parolee" in effect use the defendant's prior conviction to render him a bad person instead of simply to attack his credibility. Second, the emphasis upon the defendant's having violated his "word of honor" invited the jury to convict the defendant because he was a burglar and had violated the terms of his parole, rather than because he was guilty of the charges being tried.

Further, the prosecutor referred frequently to crime being the defendant's business. Some of his remarks were:

"(H)is business, ladies and gentlemen of the jury, is selling drugs."

"The devil didn't make him sell drugs. That is his business."

"He didn't come out rehabilitated. No he goes right back out on the streets and says now I am not going to be a burglar anymore. I am going to be a dope dealer."

It is reversible error for a prosecutor to refer to a defendant as a habitual or professional criminal, or to suggest that the defendant's business or occupation is crime. (People v. Weathers (1975), 62 Ill.2d 114, 338 N.E.2d 880; People v. Donaldson (1956), 8 Ill.2d 510, 518, 134 N.E.2d 776.) In People v. McCray (1978), 60 Ill.App.3d 487, 490, 17 Ill.Dec. 856, 377 N.E.2d 46, the prosecutor asked the defendant whether he had any "occupation other than robbing people," and this was held to be reversible error. The court reasoned that the resolution of conflicting testimony revolved around credibility, and the prosecutor's question prevented the jury from evaluating the defendant's testimony dispassionately even though in that case the trial judge had sustained an objection and instructed the jury to disregard the question. Here, the reference to burglary and dealing in dope as the defendant's business, and to the defendant's decision not to be a burglar anymore, improperly diverted the jury from deciding the issue of entrapment on the evidence. In addition, the suggestion that the defendant had not been rehabilitated by his prior prison sentence but decided to become a dope dealer instead of a burglar, was an effort to use his burglary conviction to tell the jury that the defendant had a propensity to commit crime, an obviously improper implication.

Defense counsel failed to bring these defects in the prosecutor's argument to the trial court's attention through a timely objection; but they affected substantial rights of the defendant, and justice requires that we take note of them under the plain error rule. (See Illinois Supreme Court Rule 615(a).) In applying the plain error rule we are mindful of the directives of our supreme court in People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856, and in People v. Roberts (1979), 75 Ill.2d 1, 25 Ill.Dec. 675, 387 N.E.2d 331, that the rule is only a limited exception to the doctrine of waiver. However, in several instances in this case, as in McCray, the prejudice occurred when the prosecutor's statements were uttered, and could not have been cured even by a timely objection.

Next, the defendant complains that the trial judge refused to permit a defense witness to testify about the informer's reputation in the community. The State concedes this was error, but contends it was harmless because there was ample evidence already before the jury to prove that Kathy Krause was an agent for the Metropolitan Enforcement Group for...