People v. Spates

• Decision Date: 02 October 1979
• Docket Number: No. 51174,51174
• Citation: 395 N.E.2d 563,32 Ill.Dec. 333,77 Ill.2d 193
• Parties: , 32 Ill.Dec. 333 The PEOPLE of the State of Illinois, Appellee, v. Lester SPATES, Appellant.
• Court: Illinois Supreme Court

Page 563

395 N.E.2d 563

77 Ill.2d 193, 32 Ill.Dec. 333

The PEOPLE of the State of Illinois, Appellee, v. Lester SPATES, Appellant.

No. 51174.

Supreme Court of Illinois.

Oct. 2, 1979.

Ralph Ruebner, Deputy State Appellate Defender, Daniel A. Cummings, Asst. State Appellate Defender, and Randy K. Johnson, law student, Chicago, for appellant.

William J. Scott, Atty. Gen., Chicago, and Daniel D. Doyle, State's Atty., Rockford (Donald B. Mackay, Melbourne A. Noel, Jr., and Michael B. Weinstein, Asst. Attys. Gen., Chicago, of counsel), Phyllis J. Perk and Martin P. Moltz, State's Attys. Appellate Service Commission, Elgin, for the People.

CLARK, Justice:

The defendant, Lester Spates, was convicted of armed robbery in the circuit court of Winnebago County. The appellate court affirmed the conviction. (62 Ill.App.3d 890, 20 Ill.Dec. 36, 379 N.E.2d 869.) The defendant contends that the trial court erroneously denied a motion In limine which would have prevented the admission of a prior misdemeanor theft conviction as evidence impeaching the defendant's credibility. We granted the defendant's petition for leave to appeal because there is a conflict within the first appellate district and among the appellate districts on this issue and because we deem it important to the proper conduct of trials, both civil and criminal, that this issue be clearly resolved.

The defendant was convicted of armed robbery on September 28, 1976, after a jury trial. The evidence adduced at trial showed that on February 6, 1976, the defendant was patronizing a bar in Rockford. Further, it was shown that the defendant and another man attacked Floyd Ross at the back exit to the bar. The defendant hit Ross in the face with a beer bottle, breaking the bottle and knocking Ross' glasses off in the process. The other man punched Ross in the jaw and knocked him down. They turned Ross over and removed his wallet from his back pocket and fled in a northerly direction. Ross testified that he had cashed his paycheck in the bar earlier and had placed most of the money in his wallet. The defendant was arrested on February 27, 1976. Subsequently, Ross positively identified the defendant in a police lineup and again at trial.

Rockford city police officer Casky testified that, when he arrived at the bar shortly after the robbery, he walked in the direction the two men had fled. Approximately 15 feet north of the robbery scene he found two copies of city traffic citations lying on the ground. The citations had been issued to the defendant. The police officer testified that the citations were dry and that they were lying on top of the snow.

Another witness, John Kellems, testified that he had been in the bar with the defendant and another man on the evening of February 6, 1976. Kellems and the defendant played pool together for a time, after which Kellems went home. Kellems further testified that the police came to his home that same evening to ask him the name of the person with whom he had played pool at the bar. He told the police he knew the man only as Lester. Shortly after the police left, the defendant came to Kellems' home to ask him what the police wanted. Kellems said he did not know. Kellems stated that the defendant repeatedly said that he did not "do it." Kellems subsequently identified the defendant in a police lineup as the man he had played pool with at the bar, and as the man who came to his home on February 6, 1976. He also identified the defendant at trial.

The defendant testified on his own behalf. He was asked the following questions, Inter alia, by his counsel on direct examination:

"Q. Mr. Spates, were you did you plead guilty to the offense of petty theft on October 31st, 1974?

A. Yes, I did.

Q. And did you plead guilty to the offense of grand theft on November 15, 1968?

A. Yes, I did.

Q. And when is your birthday?

A. March 31st, 1951."

Defendant's counsel made a motion In limine prior to the commencement of trial in an effort to prevent defendant's prior misdemeanor theft conviction from being admitted into evidence. The trial court denied the motion. At the close of evidence, counsel for the defendant requested the court to give an instruction to the jury advising that evidence of prior convictions is to be considered only insofar as it may affect the credibility of a witness, and not as evidence of guilt of the crime with which one is charged. The trial court did deliver that instruction. The defendant contends that he was denied a fair trial because he was forced, as a tactical measure, to introduce his prior misdemeanor conviction into evidence. Defendant prays that the judgment of the appellate court be reversed and that this cause be remanded for a new trial.

At the outset we take note that the misdemeanor theft conviction which defendant contends was erroneously admitted was the defendant's second conviction for the offense of theft. Section 16-1(e) of the Criminal Code of 1961 states that a "second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony." (Ill.Rev.Stat.1975, ch. 38, par. 16-1(e).) While a question of the nature of defendant's conviction is thereby raised, we must assume that the conviction was for a misdemeanor, since we will not inquire into matters which are Dehors the record. Gille v. Winnebago County Housing Authority (1970), 44 Ill.2d 419, 427, 255 N.E.2d 904.

The next question to be decided is whether the defendant properly preserved for review the question of the admissibility of defendant's conviction of misdemeanor theft. It has been held that a defendant cannot on review object to testimony which he himself introduced. (People v. Taylor (1979), 68 Ill.App.3d 680, 686, 24 Ill.Dec. 955, 386 N.E.2d 159, citing People v. Clements (1925), 316 Ill. 282, 284, 147 N.E. 99.) However, the rule as stated in Clements is as follows:

"It is a well-settled principle of law that a party will not be allowed to take advantage of his own wrong or of an error of the court induced by his own motion. If it was error to instruct the jury upon the question of manslaughter and to submit to the jury the question of plaintiff in error's guilt of the crime of manslaughter, plaintiff in error invited the error, and having done so must accept its results. He cannot ask the court below to make a specific ruling or to proceed in a certain manner and then successfully assign as error in a court of review that the ruling or action of the court is erroneous." 316 Ill. 282, 284, 147 N.E. 99, 100.

The foregoing rule refers to jury instructions, not testimony, and to actions taken by the court, not action taken by a party. The court's denial of the motion In limine and the introduction of the conviction by defendant are in a different category. As to those acts, the statement in People v. DeHoyos (1976), 64 Ill.2d 128, 131, 355 N.E.2d 19, 21, is more pertinent:

"This is an example of 'the practice which permits the party who calls a witness with a criminal record to prove the record on direct examination.' (3A Wigmore, Evidence sec. 900, at 667 n.1 (Chadbourn rev. ed. 1970).) It is not impeachment of one's own witness; on the contrary it is an anticipatory disclosure designed to reduce the prejudicial effect of the evidence on the witness' credibility. The evidence is admissible on the ground that 'The proponent of a witness need not allow such information damaging to his credibility to be first established on cross-examination * * *.' United States v. Mahler (2d Cir. 1966), 363 F.2d 673, 678."

See also People v. DeHoyos (1976), 64 Ill.2d 128, 133, 355 N.E.2d 19 (dissenting opinion), where it is stated that "no valid reason" exists to preclude introduction of matters affecting credibility of a witness by the party calling that witness, nor should revelation of the matters await the opponent's decision whether to reveal them.

In sum then, a party waives the right to raise as error action taken by the court at the instance of that party; it is quite another matter when, after an exclusionary motion is denied, the party himself raises a matter so as to lessen its impact, when the party knows that if he does not raise it, the opponent will. The difference is that, in the first instance, the request and the subsequent assertion of error are inconsistent with one another. In the second instance the aim is consistent: once the motion to exclude the matter is denied, the party must try to limit the effect the matter will have on the trier of fact. He has not waived the issue by raising it; he has merely tried to ensure that it does the least damage to his witness' credibility. Under the precise facts presented herein, that is what the defendant has done. Therefore the defendant has properly preserved this issue for review. Compare People v. Price (1976), 41 Ill.App.3d 1059, 355 N.E.2d 732, with People v. Rudolph (1977), 50 Ill.App.3d 559, 8 Ill.Dec. 544, 365 N.E.2d 930.

Thus we proceed to decide whether the trial court committed reversible error when it denied the defendant's motion In limine to exclude the defendant's prior conviction for misdemeanor theft. This issue is governed by the rule enunciated in People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, and enlarged upon in Knowles v. Panopoulos (1977), 66 Ill.2d 585, 6 Ill.Dec. 858, 363 N.E.2d 805. In Montgomery (47 Ill.2d 510, 516, 268 N.E.2d 695, 698) we adopted proposed Federal Rule of Evidence 609, which states, insofar as is pertinent to this case:

"(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of Nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the...