{ "id": 2656849, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUCIUS CLARK, Defendant-Appellant", "name_abbreviation": "People v. Clark", "decision_date": "1989-07-10", "docket_number": "1\u201486\u20142397", "first_page": "109", "last_page": "116", "citations": [ { "type": "official", "cite": "186 Ill. App. 3d 109" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "422 N.E.2d 1158", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1163" } ], "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 319", "category": "reporters:state", "reporter": "Ill. 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App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3615563 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0947-01" ] }, { "cite": "520 N.E.2d 836", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 833", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3614730 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0833-01" ] }, { "cite": "388 N.E.2d 1046", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "1050" } ], "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 859", "category": "reporters:state", "reporter": "Ill. 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LUCIUS CLARK, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nFollowing a jury trial, Lucius Clark, (defendant) was found guilty of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24 \u2014 1.1) and sentenced to five years in the Illinois Department of Corrections. Defendant appeals his conviction, contending that the trial court committed reversible error in denying his motions to suppress his statement and to exclude commentary on the nature of a prior conviction and that he was denied a fair trial by improper prosecutorial comments during closing argument. For the following reasons, we reverse defendant\u2019s conviction and remand for a new trial.\nThe State adduced the following evidence at trial. On December 7, 1985, Chicago police officers Robert Malinowski and Roy Whitmore, on patrol in a paddy wagon, noticed a commotion in the vicinity of Jackson and Halsted Streets in Chicago. The officers observed defendant walking in the middle of Halsted Street, and they drove up to him. After defendant responded with obscenities to the officers\u2019 requests that he leave the street, the officers exited the paddy wagon and approached him. Defendant struggled with the officers. Subsequently, the officers handcuffed defendant and arrested him for disorderly conduct. At this time, the officers smelled an odor of alcohol on defendant\u2019s breath.\nBefore escorting defendant into the paddy wagon, Malinowski conducted a protective search and found a loaded .32 caliber handgun in defendant\u2019s front coat pocket. Malinowski showed the gun to Whit-more and stated, \u201cLook at this.\u201d Defendant then retorted, \u201cI need that for the gangbangers.\u201d Defendant was thereafter arrested for unlawful use of weapons and advised of his Miranda rights.\nChicago police officer James Vantilburg, supervisor of the latent print development unit of the crime lab, testified that no fingerprints were recovered from the gun found on defendant, but stated that the lack of prints was not unusual, as the recovery rate on all types of evidence is approximately 20%.\nAt the close of the State\u2019s case in chief, a certified copy of defendant\u2019s prior armed robbery conviction, stipulated to by counsel, was admitted into evidence. The State read the stipulation to the jury, which included that defendant had \u201centered a plea of guilty to armed robbery on April 24, 1978.\u201d\nDefendant did not testify at trial. Janet Horn, defendant\u2019s live-in girl friend, testified on his behalf. Horn stated that she stored a handgun, which she had purchased on July 16, 1981, under her mattress in her home in Palatine, Illinois. A week before the day in question, she moved the gun from that location so that she could use the top mattress as a bed for her nieces and placed the gun into a pocket of a long, heavy wool overcoat. She never told defendant that she had placed the gun in the coat pocket.\nIn the early morning hours of December 7, 1985, defendant returned home drunk. After Horn later sent him to purchase cigarettes, defendant returned with cigarettes and a pint of either vodka or gin. Horn observed defendant drink some of the vodka or gin.\nDefendant then informed Horn of his intent to go to Chicago. Horn called a cab for this purpose and informed the cab company of defendant\u2019s intended destination. Horn did not observe defendant when he left because she was in her son\u2019s bedroom at the time. Defendant left wearing the overcoat containing the gun.\nOn appeal, defendant first contends that the trial court erred in denying his motion to suppress his statement made after his arrest for disorderly conduct but before Miranda warnings were issued. He argues that his statement should have been suppressed because it was procured by police during a \u201ccustodial interrogation.\u201d Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, requires the suppression of statements given in response to \u201ccustodial interrogation\u201d prior to the issuance o\u00ed Miranda warnings, but this exclusionary rule does not apply to volunteered statements which are made in the absence of questioning initiated by law enforcement officials. Defendant\u2019s statement here was clearly made while defendant was in custody; at issue is whether the statement was given in response to an \u201cinterrogation.\u201d\nThe United States Supreme Court has found that \u201cinterrogation\u201d is not limited to express questioning by law enforcement personnel, but includes its \u201cfunctional equivalent,\u201d words or actions that the police should know are reasonably likely to elicit an incriminating response. (Rhode Island v. Innis (1980), 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689-90; see also People v. Scott (1987), 159 Ill. App. 3d 459, 463, 512 N.E.2d 836, 838-39 (\u201c[rjemarks by the police which are designed to gain a response or admission constitute \u2018interrogation\u2019 \u201d).) Defendant maintains that an \u201cinterrogation\u201d exists here because the officer applied a psychological ploy, consisting of holding up the gun and directing an open-ended statement to his partner, to elicit an incriminating response from defendant.\nThe record does not support defendant\u2019s interpretation of the evidence. The transcript indicates that the officer stated to his partner, \u201cLook at this,\u201d immediately after discovering a gun in an after-arrest, protective, pat-down search of defendant. The record does not show that the officer held up the gun for defendant\u2019s view or otherwise made an effort to display the gun. Whitmore testified merely that Malinowski showed him the gun when making the statement. We do not believe the officer\u2019s spontaneous response to the discovery of a weapon should be held to be reasonably likely to elicit an incriminating response or designed to gain such a response from defendant.\nDefendant\u2019s next contention concerns the trial court\u2019s denial of his motion in limine to exclude any reference to the nature of the prior conviction underlying the felony-use-of-weapons charge. Section 24 \u2014 1.1 of the Criminal Code of 1961 makes it unlawful for a person to knowingly possess a weapon where the person has previously been convicted of a felony. (Ill. Rev. Stat. 1985, ch. 38, par. 24 \u2014 1.1.) Prior to trial, defendant requested that the court limit the State in introducing evidence of defendant\u2019s prior conviction to the fact that defendant had a prior felony conviction. The court refused to exclude reference to that conviction as an \u201carmed robbery\u201d conviction.\nDefendant does not dispute that the crime of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24 \u2014 1.1) requires the State to plead and prove defendant\u2019s prior felony conviction as an element of the offense (People v. Palmer (1984), 104 Ill. 2d 340, 472 N.E.2d 795; People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496), but argues that it was error to allow comment on the nature of the prior conviction, especially in light of his stipulation to the felony conviction. Essentially, defendant has two separate contentions in this regard: first, that he was denied a fair trial because any reference to the nature of the prior conviction where a defendant stipulates to the element to be proved is improper; and, second, that the prosecutor\u2019s repeated emphasis on his previous armed robbery conviction rose to the level of prejudice requiring reversal because of the increased likelihood that the jury would base its verdict upon defendant\u2019s propensity to commit the charged crime.\nBefore addressing these contentions, we note that the State objects to our review of these contentions because defendant failed to specifically allege the errors in his post-trial motion and did not object at trial when the State introduced the evidence of the nature of the conviction. Defendant adequately objected at trial by arguing for exclusion of the evidence in his motion in limine. (People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563.) Even though defendant did not specifically allege the error in his post-trial motion, we will not find a waiver here because the claim affects defendant\u2019s substantial rights. People v. Sexton (1987), 162 Ill. App. 3d 607, 615, 515 N.E.2d 1359,1365.\nDefendant cites no Illinois case law holding that the nature of the prior felony conviction underlying the felony-use-of-weapons charge may not be introduced in proving the element of the prior conviction. Illinois appellate courts which have specifically addressed this issue have not adopted a blanket rule that introduction of the nature of the conviction would violate a defendant\u2019s due process rights, even where a defendant has stipulated to an undesignated felony conviction. (See People v. Tilden (1979), 70 Ill. App. 3d 859, 388 N.E.2d 1046; People v. McGee (1987), 165 Ill. App. 3d 833, 520 N.E.2d 836.) The only case to suggest that reference to the nature of the conviction should not be admissible is People v. Tilden (1979), 70 Ill. App. 3d 859, 864, 388 N.E.2d 1046, 1050, where the court, in dictum, advocated a rule that where a defendant offers to stipulate in a comprehensive manner to the undesignated previous conviction, evidence of the nature of the conviction should be inadmissible because the State\u2019s burden would be satisfied.\nWe will not hold that the trial court abused its discretion in allowing introduction of the nature of the prior conviction here. No Illinois case so holds, and the legislature has not precluded the State from presenting such evidence. Moreover, we do not believe that a defendant is denied due process by introduction of the nature of the conviction where the conviction is an element of the offense, even where there is a stipulation to the undesignated felony.\nTurning to defendant\u2019s second contention regarding his prior conviction, defendant directs our attention to seven separate instances during opening and closing argument where the prosecutor commented as to defendant\u2019s conviction for a felony or for armed robbery. Defendant has not cited any Illinois cases which have found that a prosecutor\u2019s emphasis on the prior crime underlying the felony-use-of-weapons charge, or the nature of that crime, denied a defendant due process. Defendant, however, analogizes the situation here with that in People v. Pruitt (1988), 165 Ill. App. 3d 947, 520 N.E.2d 867, where the court found that the prosecutor\u2019s admonishments in closing argument, that the defendant\u2019s prior convictions were to be considered only for impeachment purposes, caused the jury to focus its attention on the similar prior crimes and the probability that he had once again committed the crimes with which he was charged. The court explained that admission of the prior crimes evidence \u201crose to the level of proof to show defendant\u2019s propensity to commit a crime ***. The result was not only to conceivably inflame the jury\u2019s passions, but also to cause a search for the truth based upon defendant\u2019s prior convictions.\u201d Pruitt, 165 Ill. App. 3d at 953, 520 N.E.2d at 871.\nWhile we acknowledge the proposition that a prosecutor may comment on facts in evidence (People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254), we believe that under the circumstances present here, the prosecutor went- beyond fair comment on the evidence. The jury\u2019s verdict here, as evidenced by defendant\u2019s defense, necessarily turned on how it resolved the dispute as to defendant\u2019s knowledge in possessing the weapon on December 7, 1985. The prior conviction the prosecutor emphasized, that of armed robbery, is similar to the crime with which defendant was charged in that both involve the knowing possession of a weapon. Although we find that evidence of the nature of the conviction is admissible because the conviction is an element of the charge, the State\u2019s repeated emphasis on defendant\u2019s prior armed robbery conviction increased the likelihood that the jurors would find defendant knowingly carried a gun on December 7, 1985, because he previously carried a gun in the commission of a crime.\nIn addition to the prosecutor\u2019s comments regarding defendant\u2019s prior armed robbery conviction, defendant points to numerous other prosecutorial comments that we find to be improper. Commenting on defense witness Horn\u2019s testimony that defendant took a taxicab to the Palatine train station, the prosecutor stated in closing argument: \u201cI don\u2019t know what Lucius Clark was doing that day. I haven\u2019t seen any taxicab receipts. I haven\u2019t seen any Northwestern receipts.\u201d This comment improperly shifted the burden of proof to defendant by emphasizing defendant\u2019s lack of evidence. Similarly, in People v. Lopez (1987), 152 Ill. App. 3d 667, 678, 504 N.E.2d 862, 870, this court found that the prosecutor improperly shifted the burden of proof by his statement, \u201cWhere are those people that can clear the defendant?\u201d This court also found, in People v. Giangrande (1981), 101 Ill. App. 3d 397, 402, 428 N.E.2d 503, 507, that the prosecutor\u2019s statement, \u201cNow where\u2019s the evidence that the defendant didn\u2019t do it?\u201d shifted the burden of proof to the defense. We reject the State\u2019s assertion that the prosecutor was properly commenting on the evidence and defense witness Horn\u2019s credibility. The prosecutor\u2019s preliminary comment, \u201cLet me say by my commenting on anything that Janet Horn has said or anything that the defense has suggested\u201d (emphasis added), clearly emphasized the defense\u2019s failure to produce certain evidence.\nThe next comments we find improper are the prosecutor\u2019s statements, \u201cIt sounded like she was saying that [the officers] would be willing to give up their pensions *** put their family security in jeopardy, lose their jobs, possibly be indicted for perjury because they want to lie on Lucius Clark.\u201d It is established that a prosecutor may not argue that a witness is more credible because of his status as a police officer. (People v. Richardson (1985), 139 Ill. App. 3d 598, 601-02, 487 N.E.2d 716, 718; People v. Parker (1979), 72 Ill. App. 3d 679, 681, 391 N.E.2d 89, 91.) The prosecutor\u2019s comments here played upon the jury\u2019s sympathies and improperly implied that the officers were more believable because of their positions as police officers.\nFinally, the prosecutor stated that defendant\u2019s defense was a smoke screen. This comment has repeatedly been held by courts to be improper. E.g., People v. Wilson (1983), 120 Ill. App. 3d 950, 961, 458 N.E.2d 1081, 1089; People v. Young (1981), 97 Ill. App. 3d 319, 325-26, 422 N.E.2d 1158,1163.\nAccordingly, we find that the cumulative effect of the above comments denied defendant a fair trial. We, therefore, reverse defendant\u2019s conviction and remand for a new trial.\nReversed and remanded.\nMANNING, P.J., and CAMPBELL, J., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Paul D. Bellendir and Robert P. Isaacson, Assistant Public Defender, of counsel), for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and David L. Studenroth, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUCIUS CLARK, Defendant-Appellant.\nFirst District (1st Division)\n1\u201486\u20142397\nOpinion filed July 10, 1989.\nRandolph N. Stone, Public Defender, of Chicago (Paul D. Bellendir and Robert P. Isaacson, Assistant Public Defender, of counsel), for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and David L. Studenroth, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0109-01", "first_page_order": 131, "last_page_order": 138 }