{ "id": 5678808, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN TENNIN, Defendant-Appellant", "name_abbreviation": "People v. Tennin", "decision_date": "1984-04-24", "docket_number": "No. 83\u2014372", "first_page": "894", "last_page": "899", "citations": [ { "type": "official", "cite": "123 Ill. App. 3d 894" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "451 N.E.2d 1011", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 1046", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3557247 ], "pin_cites": [ { "page": "1050" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/1046-01" ] }, { "cite": "453 N.E.2d 1327", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 788", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482476 ], "year": 1983, "pin_cites": [ { "page": "798-99" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0788-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "449 N.E.2d 821", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1971, "opinion_index": 0 }, { "cite": "96 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3115107 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0176-01" ] }, { "cite": "415 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "83 Ill. 2d 411", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473000 ], "year": 1983, "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0411-01" ] }, { "cite": "419 N.E.2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "94 Ill. 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App. 3d", "case_ids": [ 5677661 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0788-01" ] }, { "cite": "459 A.2d 795", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 214883 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/pa-super/313/0173-01" ] }, { "cite": "578 F.2d 896", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 870265 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/f2d/578/0896-01" ] }, { "cite": "582 F.2d 1356", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 857789 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "1366" } ], "opinion_index": 0, "case_paths": [ "/f2d/582/1356-01" ] }, { "cite": "602 F.2d 855", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1448688 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/f2d/602/0855-01" ] }, { "cite": "536 F.2d 1137", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1056845 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/536/1137-01" ] }, { "cite": "544 F.2d 791", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1020833 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/f2d/544/0791-01" ] }, { "cite": "401 N.E.2d 517", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "78 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3073237 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/78/0465-01" ] }, { "cite": "403 N.E.2d 229", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "opinion_index": 0 }, { "cite": "79 Ill. 2d 341", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070433 ], "weight": 8, "pin_cites": [ { "page": "351" }, { "page": "351" }, { "page": "352" }, { "page": "353" }, { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0341-01" ] } ], "analysis": { "cardinality": 611, "char_count": 11818, "ocr_confidence": 0.762, "pagerank": { "raw": 1.8578569135722589e-07, "percentile": 0.7244399190840856 }, "sha256": "669f53281bfc046719e4498292d5f494d41f7ebb3c8af1515bc7424c8e99b468", "simhash": "1:b5b85efc545f2946", "word_count": 1955 }, "last_updated": "2023-07-14T17:44:31.202001+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN TENNIN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE REINHARD\ndelivered the opinion of the court:\nDefendant, Kevin Tennin, appeals from his conviction, after a jury trial, for the offense of attempt (burglary) (Ill. Rev. Stat. 1981, ch. 38, par. 8 \u2014 4(a)). He was sentenced to a five-year term of imprisonment.\nDefendant raises the following issues on appeal: (1) whether he was denied a fair trial because of the introduction into evidence of a plea-related discussion, and (2) whether the trial court erred in permitting defendant\u2019s impeachment with a prior burglary conviction.\nDefendant and another person were found on the second-floor landing of an outside staircase at the rear of Rosales\u2019 Bar in Waukegan, Illinois, at approximately 1 a.m. on January 21, 1983, by police who were dispatched to a possible burglary. The arresting officer observed that insulation had been pulled from the housing around two vents on the outside of the rear portion of the building. The vents led into the bar. A hammer was found on the ground near these vents. The owner of the bar testified that the appearance of the vents with the insulation pulled out was different from their appearance prior to the date of defendant\u2019s arrest.\nDetective Steven Anderson interviewed defendant after defendant had been read the Miranda warnings. Anderson testified that defendant initially told Anderson that defendant was behind the bar \u201cto meet some lady\u201d at the time of his arrest. Anderson testified that after he told defendant that that was not true, defendant gave an oral and a written statement admitting he had taken the insulation from around the vents with the intention of getting inside the bar and taking some money.\nDefendant testified at trial that he was behind the building at the time because he went to that vicinity to get into a fight with the brother of a woman who lived next to the bar, and that he told Anderson this. He testified that Detective Anderson told him he did not believe him, and Anderson threw a chair, struck, kicked and choked him, and that he gave the inculpatory statement so Anderson would not continue to hit him. Anderson denied these allegations on rebuttal.\nDefendant first contends that certain testimony given by Anderson on rebuttal concerned an inadmissible plea-related statement made by defendant. He maintains that the admission of this testimony was in violation of Supreme Court Rule 402(f) (87 Ill. 2d R. 402(f)), and that it denied him a fair trial. The challenged testimony occurred in response to the prosecutor\u2019s question concerning when Anderson had talked with defendant about a person named \u201cPena Boy,\u201d who was suspected of an unrelated crime. Anderson answered the question by saying:\n\u201cAfter I gave him the statement and we were bringing him back to the cell, he stated did I know Pena Boy and I said yes. I said, \u2018Where is he at?\u2019 He said, T want to make a deal.\u2019 I said, \u2018I don\u2019t make deals.\u2019 \u201d\nDefendant moved for a mistrial at this point. The trial court denied this motion.\nThe State on appeal has chosen not to argue that this statement of defendant\u2019s to Anderson was not plea-related. It contends instead that assuming, pursuant to People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229, the statement \u201cwas an offer to bargain and, therefore, was an inadmissible plea-related statement,\u201d the admission of the statement was harmless error.\nSupreme Court Rule 402(f) provides:\n\u201cIf a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.\u201d (87 Ill. 2d R. 402(f).)\nThe purpose of the rule is to encourage the negotiated disposition of criminal cases through elimination of the risk that the accused enter plea discussion at his peril. (People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229.) The test for determining whether a statement is plea-related is whether the accused exhibited a subjective expectation to negotiate a plea and whether this expectation was reasonable under the totality of the objective circumstances. (People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229.) This determination must be made from the particular facts of each case. (People v. Friedman (1980), 79 Ill. 2d 341, 352, 403 N.E.2d 229.) In Friedman our supreme court held that defendant\u2019s inquiry about \u201cmaking a deal\u201d and his stating generally the terms upon which he would be willing to bargain, was a plea-related statement and, therefore, was inadmissible. 79 Ill. 2d 341, 403 N.E.2d 229.\nThe troublesome question before us, which we must first address\neven though not argued by the State, is whether defendant\u2019s nonspecific statement that \u201cI want to make a deal,\u201d which Detective Anderson rejected, can be characterized as plea-related and therefore inadmissible under Rule 402(f). In contrast to the statements by the defendant in Friedman where the terms upon which defendant would be willing to bargain were generally stated, the statement by the defendant in the case at bar does not indicate an explicit offer to plead guilty.\nIn cases where the court found a statement inadmissible as plea-related, each defendant clearly sought a concession in return for his guilty plea. (People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229; People v. Hill (1980), 78 Ill. 2d 465, 401 N.E.2d 517; United States v. Herman (5th Cir. 1977), 544 F.2d 791; United States v. Brooks (6th Cir. 1976), 536 F.2d 1137.) However, other decisions have held that where the defendant has not made manifest his plea offer, a statement cannot be characterized as part of plea discussion. United States v. Pantohan (9th Cir. 1979), 602 F.2d 855; United States v. Robertson (5th Cir. 1978), 582 F.2d 1356; United States v. Levy (2d Cir. 1978), 578 F.2d 896; Commonwealth v. Calloway (1983), _Pa. Super. _, 459 A.2d 795; see also People v. Austin (1984), 123 Ill. App. 3d 788.\nOur supreme court stated in Friedman as follows:\n\u201cWhere a defendant\u2019s subjective expectations are not explicit, the objective circumstances surrounding defendant\u2019s statement take precedence in evaluating defendant\u2019s subsequent claim that the statement was plea related. Before a discussion can be characterized as plea related, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State. [Citations.]\u201d (People v. Friedman (1980), 79 Ill. 2d 341, 353, 403 N.E.2d 229.)\nDefendant\u2019s subjective expectations in the case at hand are not explicit when we look to his sole statement in the record concerning negotiation, i.e., \u201cI want to make a deal.\u201d After Detective Anderson testified to this statement, defendant did not seek to explain outside the presence of the jury what his state of mind was in making this statement. Although an accused\u2019s subsequent account of his prior subjective mental impression cannot be the sole determinative factor (United States v. Robertson (5th Cir. 1978), 582 F.2d 1356, 1366), it is a factor that can be considered in determining his subjective intent. Since defendant\u2019s subjective expectations are not explicit, we must focus on the objective circumstances surrounding defendant\u2019s statement to determine if it is plea-related.\nIn this regard, we are guided by our supreme court\u2019s pronouncement in Friedman that \u201c[bjefore a discussion can be characterized as plea related, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State.\u201d (People v. Friedman (1980), 79 Ill. 2d 341, 353, 403 N.E.2d 229.) Defendant here has not made manifest any indication to plead guilty or what the terms are under which he would be willing to bargain. We cannot assume that every statement by a defendant to the effect of \u201cmaking a deal\u201d is plea-related. There are other possible explanations underlying a motivation to make a \u201cdeal,\u201d such as a defendant negotiating for his release without a cash bond or on a low bond, or the dropping of charges against him in return for information he might supply. Not all statements made in hopes of some concession are necessarily plea discussions. (People v. Victory (1981), 94 Ill. App. 3d 719, 722, 419 N.E.2d 73.) On this record, defendant has not demonstrated a subjective expectation to negotiate a plea and we find no error in admission of his statement. See People v. Austin (1984), 123 Ill. App. 3d 788.\nIn making this determination, we do so under the particular facts of this case mindful of the salutary purpose of Rule 402(f) in protecting a defendant from adverse inferences based upon statements made in circumstances in which the accused is seeking to negotiate a plea agreement. The plea negotiation process is significant to the administration of justice and is encouraged by Rule 402(f) through elimination of the risk that the accused enter plea discussion at his peril. We emphasize that we do not require a formal ritualistic expression of intent to enter plea negotiations by the accused, but under the facts here the defendant\u2019s statement cannot fairly be characterized as part of a plea discussion.\nDefendant also contends that the trial court erred in permitting the State to impeach him by introduction into evidence of his prior 1981 burglary conviction. Defendant contends that the trial court either failed to exercise discretion by balancing the probative value of the impeachment evidence against the prejudicial impact of this evidence, or, if it did exercise discretion, abused that discretion in allowing the impeachment evidence.\nFrom our review of the record, it is evident that the trial judge did exercise discretion and weigh the probative value against the danger of unfair prejudice. Defense counsel, in arguing the motion in limine to bar the prior conviction, referred to the court\u2019s \u201csound discretion\u201d in making its decision on the motion. It is also clear from the court\u2019s comments that it conducted the balancing test. Next, the burden is on the defendant to demonstrate prejudice by admission of this evidence (People v. Leonard (1980), 83 Ill. 2d 411, 423, 415 N.E.2d 358), and the trial court will not be reversed unless there is an abuse of its discretion. People v. McKibbins (1983), 96 Ill\nIn People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821, the court noted that People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, refers to four factors to be considered in determining whether the probative value is substantially outweighed by the unfair prejudice: (1) the nature of the crime; (2) nearness or remoteness; (3) subsequent career of the person; and (4) whether the crime was similar to the one charged. (People v. McKibbins (1983), 96 Ill. 2d 176, 188, 449 N.E.2d 821.) Application of the factors articulated in Montgomery to the facts in the record clearly supports the trial court\u2019s decision. See People v. Hall (1983), 117 Ill. App. 3d 788, 798-99, 453 N.E.2d 1327; People v. Minor (1983), 115 Ill. App. 3d 1046,1050, 451 N.E.2d 1011.\nFor the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.\nAffirmed.\nHOPF and VAN DEUSEN, JJ., concur.", "type": "majority", "author": "JUSTICE REINHARD" } ], "attorneys": [ "G. Joseph Weller, Paul J. Glaser, and Nicholas J. Kritikos, all of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Fred L. Foreman, State\u2019s Attorney, of Waukegan (Phyllis J. Perko and Sally A. Swiss, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN TENNIN, Defendant-Appellant.\nSecond District\nNo. 83 \u2014 372\nOpinion filed April 24, 1984.\nRehearing denied May 31, 1984.\nG. Joseph Weller, Paul J. Glaser, and Nicholas J. Kritikos, all of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nFred L. Foreman, State\u2019s Attorney, of Waukegan (Phyllis J. Perko and Sally A. Swiss, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0894-01", "first_page_order": 916, "last_page_order": 921 }