{
  "id": 2855341,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Gerald Garnes, Defendant-Appellant",
  "name_abbreviation": "People v. Garnes",
  "decision_date": "1973-05-25",
  "docket_number": "No. 57083",
  "first_page": "210",
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  "last_updated": "2023-07-14T15:56:16.526311+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Gerald Garnes, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE LORENZ\ndelivered tire opinion of the court:\nDefendant was found guilty after a jury trial of the crimes of burglary in violation of Ill. Rev. Stat. 1969, ch. 38, \u00a7 19 \u2014 l, and for possession of burglary tools in violation of Ill. Rev. Stat. 1969, ch. 38, \u00a7 19 \u2014 2. The following issues are raised by defendant in this appeal: whether the refusal of the trial court to grant a mistrial was reversible error, whether the admission into evidence of defendant\u2019s prior conviction was reversible error, and whether the conviction for possession of burglary tools must be reversed since both it and the conviction for burglary arose out of the same conduct.\nIn the early hours of the morning of August 1, 1969, Louis Seghers heard a noise in the basement of his apartment that sounded like splintering wood and after investigation discovered defendant in the basement. Seghers restrained defendant with a gun while Seghers\u2019 wife called the police. Upon examining the premises, it was discovered that Seghers\u2019 personal locker had been broken into. While searching defendant, police officer Lawrence Traub found a small, bent screwdriver, a table knife, and a small spoon in defendant\u2019s pocket.\nDefendant was tried before a jury on January 21, 1970. During direct examination of police officer Traub, the following conversation occurred:\n\u201cPROSECUTOR: After you recovered these particular implements and placed the defendant under arrest what, if anything, did you next do?\nOFFICER TRAUB: He was then transported to the 20th District Station where he was informed of his rights. He refused to make any statement and we processed him.\nPUBLIC DEFENDER: Object, Judge, to that.\nTHE COURT: Sustained.\nPROSECUTOR: He made no statement?\nOFFICER TRAUB: That\u2019s right.\nPUBLIC DEFENDER: Object to that.\nTHE COURT: Disregard it.\nPROSECUTOR: The State will join in the motion.\u201d\nThe defense then moved for a mistrial which was denied. Defendant then took the stand and testified that he entered the apartment basement for the sole purpose of looking for toilet facilities. The State, for the purpose of impeaching defendant\u2019s credibility as a witness, introduced into evidence a certified copy of defendant\u2019s eight-year-old conviction for burglary. Defense counsel had previously objected to the admission of the prior conviction, claiming that the jury should, at the most, only be informed that defendant was previously convicted of a felony.\nDefendant was found guilty of burglary and the possession of burglary tools. After a hearing in aggravation and mitigation, he was sentenced to three to twelve years for burglary and two years to two years and one day for possession of burglary tools, the sentences to run concurrently.\nOPINION\nOfficer Traub\u2019s reference during direct examination to defendant\u2019s silence was volunteered and unresponsive to the prosecutor\u2019s question. The prosecutor\u2019s subsequent reference to defendant\u2019s silence (\u201cHe made no statement?\u201d), even after the court properly sustained an objection to Officer Traub\u2019s statement, was certainly improper. The exercise by the accused of his constitutional right against self-incrimination shall not be subject to comment at trial. (Miranda v. Arizona (1966), 384 U.S. 436.) We agree with defendant that the prosecutor\u2019s question was error.\nIn deciding whether the prosecutor\u2019s question amounted to reversible error, we must apply the standard established in Chapman v. California (1967), 386 U.S. 18. The Supreme Court there held that in order for an error involving the denial of a federal constitutional right to be held harmless in a state criminal case, the reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendant\u2019s conviction. In United States v. Wick (7th Cir. 1969), 416 F.2d 61, the court considered, as we must, the prejudicial effect of the introduction at trial of defendant\u2019s reliance at the interrogation on his fifth amendment privilege. Applying Chapman, the court at 416 F.2d 61, 62, found no prejudicial error:\n\u201cHere, the two statements, one by the witness and one by the government attorney, amidst the overwhelming evidence against the defendant including two positive identifications, co\u00fcld not have contributed to the jury\u2019s verdict, and we do not think that he was prejudiced.\u201d\nIn the case at bar, the evidence against defendant is overwhelming, and his defense that he entered the building to seek toilet facilities is farfetched. Thus, we are bound by the Wick decision and hold that under Chapman v. California, beyond a reasonable doubt, the error did not contribute to the defendant\u2019s conviction.\nDefendant next argues that the admission of his eight-year-old conviction for burglary violates the standards established in People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695. In holding that the trial judge has discretion to deny the admission of a prior conviction, the Illinois Supreme Court in Montgomery adopted the guidelines established by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. Defendant contends that the Montgomery rule was violated by the trial judge. We need not reach this question since we hold that Montgomery is not retrospective. The Illinois Supreme Court stated in People v. Montgomery (1971), 47 Ill.2d 510, 519, 268 N.E.2d 695, 700, that: \u201cIn our opinion, the provisions of this Rule should be followed in future cases.\u201d We believe that the court\u2019s choice of the words \u201cfuture cases\u201d indicates a clear intention to limit its decision to prospective use only. This court has already so limited Montgomery. (People v. Hyde (1971), 1 Ill.App.3d 831, 275 N.E.2d 239.) This trial, held on January 21, 1970, occurred before Montgomery was decided, January, 1971. Since the prior burglary is clearly admissible under pre-Montgomery standards, we find that the trial court\u2019s ruling, allowing the introduction of the evidence, is proper. In so holding, we do not wish to be understood as indicating, one way or the other, any opinion as to the admissibility of such evidence if offered in a current trial under the circumstances of this case.\nThe final question raised is whether the conviction for possession of burglary tools must be reversed since both it and the conviction for burglary arose out of the same conduct. The state confesses error on this point, and we are required to follow People v. Blahuta (1970), 131 Ill.App.2d 200, 205-6, 264 N.E.2d 819, 822 \u2014 3, which has already decided this issue:\n\u201cIn the instant case there is nothing in the record which shows that the acts which constituted the crime of attempted burglary were independently motivated or otherwise separable from the conduct which constituted the offense of possession of burglary tools. Therefore, since attempted burglary is the more serious of the two offenses, * * # the judgment entered for attempted burglary is affirmed and the judgment entered for the offense of possession of burglary tools is reversed.\u201d\nThe judgment entered for burglary is affirmed and the judgment entered for possession of burglary tools is reversed.\nAffirmed in part, reversed in part.\nDRUCKER, P. J., and ENGLISH, J., concur\nSection 19 \u2014 1 provides in part:\n\u201c(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building * * \u00b0 with intent to commit therein a felony or theft 6 *\nSection 19 \u2014 2 provides in part:\n\u201cWhoever possesses any key, too], instrument, device, or any explosive, suitable for use in breaking into a building * * * with intent to enter any such place and with intent to commit therein a felony or theft * *",
        "type": "majority",
        "author": "Mr. JUSTICE LORENZ"
      }
    ],
    "attorneys": [
      "James J. Doherty, Public Defender, of Chicago, (Ira Churgin and John T. Moran, Jr., Assistant Public Defenders, of counsel,) for appellant.",
      "Bernard Carey, State\u2019s Attorney, of Chicago, (Thomas Mauet, Assistant State\u2019s Attorney, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Gerald Garnes, Defendant-Appellant.\n(No. 57083;\nFirst District (5th Division)\nMay 25, 1973.\nJames J. Doherty, Public Defender, of Chicago, (Ira Churgin and John T. Moran, Jr., Assistant Public Defenders, of counsel,) for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago, (Thomas Mauet, Assistant State\u2019s Attorney, of counsel,) for the People."
  },
  "file_name": "0210-02",
  "first_page_order": 230,
  "last_page_order": 234
}