{ "id": 3632643, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY STRANGE et al., Defendants-Appellants", "name_abbreviation": "People v. Strange", "decision_date": "1984-06-19", "docket_number": "No. 82\u20142692", "first_page": "43", "last_page": "50", "citations": [ { "type": "official", "cite": "125 Ill. App. 3d 43" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "407 N.E.2d 49", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480877 ], "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0187-01" ] }, { "cite": "429 N.E.2d 1375", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3075876 ], "pin_cites": [ { "page": "1025" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/1018-01" ] }, { "cite": "420 N.E.2d 1035", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 1097", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3119991 ], "year": 1982, "pin_cites": [ { "page": "1098" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/1097-01" ] }, { "cite": "343 N.E.2d 258", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 71", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2634075 ], "year": 1981, "pin_cites": [ { "page": "73-74" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0071-01" ] }, { "cite": "427 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 982", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5500036 ], "pin_cites": [ { "page": "984" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0982-01" ] }, { "cite": "440 N.E.2d 961", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 446", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5450512 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "453" }, { "page": "454" }, { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0446-01" ] }, { "cite": "358 N.E.2d 1164", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 894", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2813772 ], "pin_cites": [ { "page": "900" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0894-01" ] }, { "cite": "398 N.E.2d 38", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 318", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5610043 ], "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0318-01" ] }, { "cite": "145 N.E. 149", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1983, "opinion_index": 0 }, { "cite": "313 Ill. 312", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2434981 ], "year": 1983, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill/313/0312-01" ] }, { "cite": "444 N.E.2d 674", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 633", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5440776 ], "weight": 3, "pin_cites": [ { "page": "636" }, { "page": "636" }, { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0633-01" ] }, { "cite": "170 N.E. 690", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1982, "opinion_index": 0 }, { "cite": "339 Ill. 78", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5241169 ], "year": 1982, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/ill/339/0078-01" ] }, { "cite": "253 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2844221 ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0375-01" ] }, { "cite": "96 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "451 N.E.2d 1298", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 384", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520847 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "390-91" }, { "page": "390-91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0384-01" ] }, { "cite": "455 N.E.2d 41", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "97 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5516622 ], "year": 1983, "pin_cites": [ { "page": "497-98" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0487-01" ] }, { "cite": "338 N.E.2d 880", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "62 Ill. 2d 114", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971537 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "117-21" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0114-01" ] }, { "cite": "428 N.E.2d 894", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3085259 ], "pin_cites": [ { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0830-01" ] }, { "cite": "431 N.E.2d 1154", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 711", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5483509 ], "year": 1981, "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0711-01" ] }, { "cite": "326 N.E.2d 507", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill. App. 3d 171", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2865748 ], "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0171-01" ] }, { "cite": "428 N.E.2d 510", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 522", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3084672 ], "year": 1975, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0522-01" ] }, { "cite": "430 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. 2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083259 ], "weight": 2, "pin_cites": [ { "page": "250" }, { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0245-01" ] }, { "cite": "399 N.E.2d 1283", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. 2d 292", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3075190 ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0292-01" ] } ], "analysis": { "cardinality": 820, "char_count": 14512, "ocr_confidence": 0.735, "pagerank": { "raw": 2.431680767846063e-07, "percentile": 0.8020934811257335 }, "sha256": "da1214f05ea8b40858d02c4da331755dff1c7270216701b3e935ba80ba8d81d8", "simhash": "1:aa041add4ee936d9", "word_count": 2396 }, "last_updated": "2023-07-14T15:49:19.537276+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. TIMOTHY STRANGE et al., Defendants-Appellants." ], "opinions": [ { "text": "PRESIDING JUSTICE HARTMAN\ndelivered the opinion of the court:\nDefendants Howard Moody and Timothy Strange, found guilty by a jury of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 \u2014 1), were sentenced to seven-year terms. Defendants appeal, raising as issues whether the circuit court erred by: (1) permitting impeachment of Strange; (2) permitting instances of prosecutorial misconduct; (3) failing at sentencing to consider the alternative disposition available to drug abusers; and, (4) imposing excessive sentences.\nAt trial, the State\u2019s evidence revealed that in the early morning of May 24, 1982, St. Marthal Missionary Baptist Church was reported to have been burglarized. A boarded-up basement window was broken and the candy counter in the basement kitchen area ransacked. Nothing was missing.\nChicago police officers arrived at the church at about 2:50 a.m. on May 24, shortly after receiving a report of a burglary in progress. A window on the side of the building was missing. One officer using a flashlight looked into the building, noticed a shadow moving, went to the rear of the building while his partner remained at the window, and placed Moody under arrest when he exited the rear door. Other officers had by then arrived at the scene. At the front of the church, officers saw another person, identified as Strange, who also was arrested. The basement kitchen area was in disarray; utensils were on the floor and drawers and cabinets were open. Defendants had no weapons, burglary tools, or items belonging to the church in their possession.\nStrange testified for the defense. He and Moody took public transportation to 47th Street and were walking toward Strange\u2019s home, located one block from the subject church, in the early morning of May 24, 1982. As they approached, he observed three persons entering the church. Viewing these \u201cmanifestations of criminal activity,\u201d he and Moody stopped and formulated a plan to catch the intruders, and entered the church through the rear door, which was \u201cwide open and propped.\u201d Moody went to the front of the building and Strange stayed behind, but they lost contact with each other in the darkness. Strange went downstairs and noticed that the drawers and cabinets were open. They were inside about 5 to 10 minutes when the police arrived. Strange told the arresting officers that there may be some \u201ckids\u201d nearby, but the police failed to look for anyone else.\nI\nDefendants contend that they were denied a fair trial when the State was improperly permitted to impeach Strange with evidence of a prior conviction. The instant trial began on October 13,1982. After Strange testified, the State introduced a certified copy of his April 21, 1970, Michigan conviction for breaking and entering. Although conceding that this copy did not reflect the date of his release from custody, the prosecutor told the court that Strange was released in September 1973. The court examined the document and, noting that the minimum sentence for the offense was three years, stated \u201cso he could not do less than the three, right, which would put him within the ten years.\u201d Strange\u2019s counsel objected, asserting that Strange was released in 1972 because of \u201cgood time,\u201d whereupon the court ruled, \u201cI will permit you to use it on its face.\u201d The admission of Strange\u2019s 1970 conviction, based upon the prosecutor\u2019s unsupported and contradicted statement and the presumption that Strange must have served the minimum sentence, was erroneous. (People v. Yost (1980), 78 Ill. 2d 292, 399 N.E.2d 1283.) The State, in seeking to impeach Strange, was obligated to present proper evidence of the previous conviction and release date. Having failed to do so requires reversal and remandment for a new trial.\nII\nDefendants next argue that they were denied a fair trial by certain prejudicial remarks made by the prosecutor in closing argument and during the cross-examination of Strange. Strange\u2019s motion for a new trial failed to refer to any such remarks; therefore, unless the remarks constitute plain error, the objections to them were waived. (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091.) Moody assigned error in his post-trial motion only to \u201cprejudicial inflammatory and erroneous statements in closing argument designed to arouse the prejudices and passions of the jury,\u201d which is insufficient to preserve specific remarks for review, absent plain error. (People v. Turk (1981), 101 Ill. App. 3d 522, 530, 428 N.E.2d 510; People v. Bell (1975), 27 Ill. App. 3d 171, 176, 326 N.E.2d 507.) Certain comments, claimed to have been objectionable, were within permissible boundaries; however, several of the remarks complained of were of such prejudicial magnitude as to have deprived defendants of a fair trial. (87 Ill. 2d R. 615(a); People v. Lucas (1981), 88 Ill. 2d 245, 251.) We limit our analysis to the latter.\nThe prosecutor called Strange a \u201cliar\u201d and said he wished the jury had \u201ca built-in shockproof B.S. detector\u201d with which to evaluate Strange\u2019s testimony. A defendant can be called a \u201cliar\u201d in argument, provided evidence of lying exists or reasonable inferences of lying can be drawn from the evidence. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 721, 431 N.E.2d 1154; People v. Dowd (1981), 101 Ill. App. 3d 830, 848, 428 N.E.2d 894.) Here, Strange\u2019s testimony was not inconsistent with that of any other witnesses. Argument which charges a defendant with lying, which has no basis in the record, may be severely prejudicial (People v. Weathers (1975), 62 Ill. 2d 114, 117-21, 338 N.E.2d 880), and is entirely improper. People v. Emerson (1983), 97 Ill. 2d 487, 497-98, 455 N.E.2d 41; People v. Starks (1983), 116 Ill. App. 3d 384, 390-91, 451 N.E.2d 1298, appeal denied (1984), 96 Ill. 2d 548.\nDefendants also argue that prejudice resulted when the State asked Strange on cross-examination whether he had ever used any other name but subsequently failed to present evidence that Strange had in fact used another name. This abortive and bad-faith attempt at impeachment, defendants contend, was only designed to disparage Strange\u2019s character by innuendo. (People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353.) Although, as the State correctly maintains, the fact that Strange may have used an alias was only collateral to the issues in the case, the question was nevertheless improper since it could suggest to the jury that Strange had reason to use an alias and was therefore not worthy of belief. (See People v. Fiorita (1930), 339 Ill. 78, 88, 170 N.E. 690; People v. Scaggs (1982), 111 Ill. App. 3d 633, 636, 444 N.E.2d 674.) Evidence which has no tendency to prove an issue at trial and serves only to persuade a jury that the defendant is a bad or evil person and therefore likely to have committed the crime charged has been repeatedly and consistently condemned. (People v. Lewis (1924), 313 Ill. 312, 319, 145 N.E. 149; People v. Starks (1983), 116 Ill. App. 3d 384, 390-91; People v. Scaggs (1982), 111 Ill. App. 3d 633, 636.) Defendants\u2019 case hinged entirely on Strange\u2019s credibility. The State\u2019s failure to rebut Strange\u2019s negative response to the challenged question amounted to plain error. People v. Morris (1979), 79 Ill. App. 3d 318, 330, 398 N.E.2d 38.\nWe cannot say that the cumulative effect of the foregoing remarks did not contribute to defendants\u2019 convictions. (People v. Weathers (1975) , 62 Ill. 2d 114.) Clearly, they denied defendants a fair trial. (People v. Scaggs (1982), 111 Ill. App. 3d 633, 637; People v. Patterson (1976) , 44 Ill. App. 3d 894, 900, 358 N.E.2d 1164.) Accordingly, this case must be reversed and remanded for a new trial for these reasons as well.\nIll\nSince there must be a new trial in this case, we will consider certain alleged sentencing errors identified by defendants. They maintain that the circuit court erred by failing to advise them at sentencing of possible alternative dispositions under the Dangerous Drug Abuse Act (Act). (Ill. Rev. Stat.1981, ch. 911/2, par. 120.1 et seq.) Section 10 of the Act provides that if the court has \u201creason to believe\u201d a convicted defendant is an addict or if defendant states he is an addict, \u201c*** the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program designated by the Commission.\u201d (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.10.) A defendant is not eligible to make such election, however, if barred by the exclusions enumerated in section 8 of the Act. Ill. Rev. Stat. 1981, ch. 911/2, par. 120.8.\nOnce a court has \u201creason to believe\u201d an otherwise eligible defendant is an addict, the court must advise him of his option to elect treatment. (People v. Beasley (1982), 109 Ill. App. 3d 446, 453, 440 N.E.2d 961; People v. Chaput (1981), 100 Ill. App. 3d 982, 984, 427 N.E.2d 595.) In general, \u201clittle should be required to give a court reason to believe defendant is an addict.\u201d (People v. Beasley (1982), 109 Ill. App. 3d 446, 454.) Facts in a presentence report are enough to suggest a \u201creason to believe.\u201d (People v. Melson (1976), 36 Ill. App. 3d 71, 73-74, 343 N.E.2d 258; People v. Davis (1981), 95 Ill. App. 3d 1097, 1098, 420 N.E.2d 1035.) A reviewing court may examine the facts to determine the existence of a \u201creason to believe,\u201d even where the trial court made no such determination, as here. People v. Beasley (1982), 109 Ill. App. 3d 446, 454.\nNone of the section 8 exclusions applied to Strange; he was otherwise eligible to be advised of his election under the Act. His presen-tence report noted a 20-year history of heroin use, the use of \u201cTs and Blues\u201d from 1978 until his incarceration, and a recommendation for treatment in a drug abuse program. At sentencing, Strange requested to be \u201cparoled\u201d to the T.A.S.C. (Treatment Alternatives to Street Crime) program. His counsel, moreover, noted the presence in court of a T.A.S.C. representative. These facts reasonably suggest that the circuit court should have found \u201creason to believe\u201d Strange to be an addict. The court, however, instead of advising him of his election, noted his presentence report and his request for treatment and said a drug program would not be \u201cappropriate.\u201d Strange was then sentenced to seven years\u2019 imprisonment.\nThe State argues, without citation of authority, that the court properly exercised its discretion in determining that Strange was not an \u201caddict\u201d and not eligible to elect the treatment alternative because section 10 refers to an \u201cindividual convicted of a crime,\u201d while section 8 refers to an \u201caddict.\u201d The State concludes from this choice of words that a sentencing court has discretion to determine whether a defendant is an addict before the alternative disposition is considered; and such discretion serves to eliminate meritless claims of addiction. The State\u2019s argument must be rejected.\nSection 10, entirely consistent in its use of terms, provides that once a court has \u201creason to believe\u201d defendant to be an addict, it has no initial discretion to reject the alternative disposition. Under section 10, the court \u201cshall\u201d advise an \u201cindividual\u201d whom it has reason to believe is an \u201caddict\u201d that he has an election, and must also order an examination by a licensed program of the \u201cindividual\u201d who then elects treatment; only after the licensed program reports to the court does the court determine whether \u201csuch an individual is an addict\u201d and whether, in light of defendant\u2019s history and character and the circumstances of the offense, the treatment alternative should be ordered. If the court decides to sentence defendant to imprisonment, it must specify \u201con the record the particular evidence, information or other reasons that led to such opinion.\u201d (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.10.) The circuit court\u2019s rejection of Strange\u2019s request for treatment, therefore, in the face of sufficient grounds to believe him eligible, was a premature exercise of discretion contrary to the express terms of section 10. By neither advising Strange of his election nor ordering his examination by a licensed agency, the circuit court deprived him of his statutory right to have the court consider the licensed program\u2019s report before rendering its disposition.\nAs for Moody, the record contains sufficient indication that there was \u201creason to believe\u201d that he, too, was an addict. Moody\u2019s presentence report indicated that he had admitted to heroin use for the past four to five years, but noted that he had never participated in a drug treatment program. The report also observed that he had been given a five-year sentence for armed robbery in 1978, from which the inference could be drawn that at the time of trial, in 1982, he was still on parole or probation. The State also advised the court of this conviction at sentencing. There was, however, no explicit indication that Moody was, in fact, a parolee or probationer, which would have made him expressly ineligible under section 8(e) of the Act to make the election for alternative sentencing, unless he made an affirmative showing that he had obtained consent to the treatment alternative from the appropriate parole or probation authority. Ill. Rev. Stat. 1981, ch. 911/2, par. 120.8(e); People v. Blair (1981), 102 Ill. App. 3d 1018, 1025, 429 N.E.2d 1375.\nIn sentencing Moody, the circuit court did not state whether it had considered an alternative disposition under the Act, but only noted that probation was inappropriate in view of Moody\u2019s past criminal history. The use of the ambiguous term \u201cprobation\u201d makes it unclear whether the Act had been taken into consideration. (See People v. Teschner (1980), 81 Ill. 2d 187, 193, 407 N.E.2d 49.) Because there was sufficient \u201creason to believe\u201d Moody an addict, and in the absence of direct proof that he was on parole or probation, the circuit court was obliged at least to inquire into Moody\u2019s eligibility under section 8.\nFor the aforesaid reasons, this cause must be reversed and remanded for a new trial.\nReversed and remanded.\nSTAMOS and PERLIN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HARTMAN" } ], "attorneys": [ "Steven Clark and Scott Graham, both of State Appellate Defender\u2019s Office, of Chicago, for appellants.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Mark L. Lefevour, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY STRANGE et al., Defendants-Appellants.\nFirst District (2nd Division)\nNo. 82\u20142692\nOpinion filed June 19, 1984.\nSteven Clark and Scott Graham, both of State Appellate Defender\u2019s Office, of Chicago, for appellants.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Mark L. Lefevour, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0043-01", "first_page_order": 65, "last_page_order": 72 }