{ "id": 2505051, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARREN GRAY, Defendant-Appellant", "name_abbreviation": "People v. Gray", "decision_date": "1989-12-26", "docket_number": "No. 1\u201486\u20141213", "first_page": "907", "last_page": "920", "citations": [ { "type": "official", "cite": "192 Ill. App. 3d 907" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "520 N.E.2d 1017", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 7", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472031 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0007-01" ] }, { "cite": "513 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "159 Ill. App. 3d 1086", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3610505 ], "weight": 2, "pin_cites": [ { "page": "1090" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/1086-01" ] }, { "cite": "450 N.E.2d 1323", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1332" } ], "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 1077", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3558443 ], "pin_cites": [ { "page": "1090" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/1077-01" ] }, { "cite": "445 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777320 ], "weight": 3, "pin_cites": [ { "page": "272" }, { "page": "389" }, { "page": "1138" } ], "opinion_index": 0, "case_paths": [ "/us/445/0263-01" ] }, { "cite": "464 N.E.2d 1059", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156128 ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0201-01" ] }, { "cite": "463 U.S. 277", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6194264 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/463/0277-01" ] }, { "cite": "428 U.S. 280", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177464 ], "weight": 3, "year": 1983, "opinion_index": 0, "case_paths": [ "/us/428/0280-01" ] }, { "cite": "438 U.S. 586", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1769215 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/438/0586-01" ] }, { "cite": "499 N.E.2d 487", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 362", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3644062 ], "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0362-01" ] }, { "cite": "508 N.E.2d 202", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542942 ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0265-01" ] }, { "cite": "197 N.E.2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826177 ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0359-01" ] }, { "cite": "378 N.E.2d 1318", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 609", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5621459 ], "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0609-01" ] }, { "cite": "518 N.E.2d 154", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 519", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3581354 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0519-01" ] }, { "cite": "367 N.E.2d 1313", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "67 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811071 ], "year": 1988, "pin_cites": [ { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0564-01" ] }, { "cite": "424 N.E.2d 1319", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 117", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3097298 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0117-01" ] }, { "cite": "102 N.E.2d 141", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "410 Ill. 271", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311475 ], "opinion_index": 0, "case_paths": [ "/ill/410/0271-01" ] }, { "cite": "415 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. 2d 411", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473000 ], "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0411-01" ] }, { "cite": "495 N.E.2d 563", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. 2d 193", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5489484 ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0193-01" ] }, { "cite": "390 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 895", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581123 ], "pin_cites": [ { "page": "903" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0895-01" ] }, { "cite": "383 F.2d 936", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2078557, 4067701 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/383/0936-01" ] }, { "cite": "343 N.E.2d 489", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "62 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971950 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-2d/62/0448-01" ] }, { "cite": "443 N.E.2d 226", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 953", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2996392 ], "pin_cites": [ { "page": "955" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0953-01" ] }, { "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 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "522 N.E.2d 1109", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. 2d 411", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549886 ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0411-01" ] }, { "cite": "469 N.E.2d 1137", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 1056", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3563481 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/1056-01" ] }, { "cite": "469 N.E.2d 1062", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. 2d 472", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152531 ], "weight": 2, "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0472-01" ] } ], "analysis": { "cardinality": 1290, "char_count": 30440, "ocr_confidence": 0.749, "pagerank": { "raw": 7.599850070052404e-08, "percentile": 0.4500328011401437 }, "sha256": "f1259236e690be3b84d5d4952db0146cae3cd73be5c93ed38e1568d101f8f969", "simhash": "1:eb33bfcd234cd933", "word_count": 5152 }, "last_updated": "2023-07-14T18:46:08.994081+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. DARREN GRAY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE MANNING\ndelivered the opinion of the court:\nThe defendant, Darren Gray, was charged by indictment with one count of armed robbery. (Ill. Rev. Stat. 1983, ch. 38, par. 18\u20142(a).) Prior to trial, he filed a motion seeking to allow his attorney\u2019s participation in voir dire, or in the alternative, to have specific questions which he submitted propounded to the prospective jurors. The questions pertained to the prospective jurors\u2019 attitudes regarding a defendant\u2019s failure to testify. Defendant also filed a motion in limine to preclude the State from using defendant\u2019s two prior convictions for armed robbery as impeachment in the event he testified, or alternatively, that the State be limited to impeaching by use of the two prior convictions without specifying the nature of the convictions. The court denied both motions but did agree to use the questions submitted by defendant.\nFollowing a jury trial defendant was convicted and sentenced to the penitentiary to a term of natural life imprisonment pursuant to the Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, par. 33B\u20141 et seq.). On appeal he contends: (1) that the trial court\u2019s failure to ask certain questions individually on voir dire to each prospective juror denied him a fair trial by an impartial jury; (2) that the trial court\u2019s denial of his motion in limine to preclude the State\u2019s use of prior convictions for impeachment purposes was an abuse of discretion; (3) that he was not proven guilty beyond a reasonable doubt; (4) that his right to a fair trial was denied when the State was allowed to introduce improper evidence for the sole purpose of inflaming the passions of the juror; (5) that section 5 \u2014 8\u20141(a)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005\u20148\u20141(a)(2)), which provides for mandatory life sentence, is unconstitutional; and (6) that section 33B \u2014 1 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33B\u20141) is unconstitutional in that it was amended in 1980 in violation of article IV, section 8(d), of the Illinois Constitution (Ill. Const. 1970, art. IV, \u00a78(d)).\nThe following pertinent evidence was adduced at trial. Nathaniel Johnson, the 65-year-old victim, testified that on February 14, 1985, he was employed at Hilltop Food and Liquors in Chicago. He stated that he arrived there at 9 a.m. and was in the process of unlocking the door of the store when he felt something at the side of his head. He turned and saw a man holding a brown-handled .38 revolver with a dark or black barrel. Johnson testified that, although he did not recognize the offender, he did see his face. The offender told him to open the door and turn on the lights. After turning off the burglar alarm, Johnson was handcuffed and a dark scarf was tied over his eyes. The offender took his car keys, the store keys and two rings from him. The offender then took him to a storeroom in the back of the store and sat him on a box. Mr. Johnson heard the offender ransack the store; and although he never saw a second man, he heard the offender speak to someone at the back of the store.\nAfter it became quiet and Johnson had waited 10 to 15 minutes, he was able to pull the blindfold down from his face so that he could see. He walked out through the front door, where he saw Ruby Love, who lived next door to the liquor store. He asked her to call the police. At that time he noticed that his car was missing. Shortly thereafter, the police arrived and removed the handcuffs.\nOn April 10, 1985, Mr. Johnson viewed a lineup at the police station, where he identified Darren Gray as the man who had robbed him on February 14. Mr. Johnson identified various exhibits, including a pair of handcuffs and a gun which were similar to those used in the robbery. He also identified the defendant in court.\nOn cross-examination, Mr. Johnson denied that the intruder\u2019s face was covered by a scarf or that he told this to the police. On redirect, Johnson stated that he looked at the defendant\u2019s face and that it is not hard to recall his face.\nNext, Ruby Love testified that she had lived next door to Hilltop. On February 14, at approximately 9 a.m., she was brushing snow off her car when she saw Mr. Johnson go to the house next to hers and pick up the keys to the store. She usually saw him between 8:45 and 9 a.m. She testified that she saw two men in a car stop in front of the store as Johnson was unlocking the front door. Ms. Love knew the defendant and saw him almost daily hanging out in front of the store. He was wearing a scarf which covered the bottom part of his face and a big baggy coat. She stated that she saw the defendant standing next to Mr. Johnson but did not see a gun.\nAfter brushing the snow from her car, Ms. Love went inside for 30 to 40 minutes. When she went back outside, she saw Mr. Johnson with a scarf tied around his face and his hands handcuffed behind his back. Johnson told her he had been robbed. Ms. Love took him inside her house and called the police. However, she did not speak to the police until a couple of days later because she did not want to get involved. Thereafter, she selected defendant\u2019s photograph from a group of pictures.\nOn cross-examination, Ms. Love denied identifying herself to the police as Mary Scott. She admitted telling defense investigators, eight months later, that she saw \u201csome boys\u201d going into the store with Mr. Johnson but denied saying that they had stockings on their faces.\nChicago police officer Daniel Sheehan testified that on the morning of February 14, 1985, he and his partner received an assignment to Hilltop Liquors. Upon arrival there he removed the handcuffs from Mr. Johnson and inventoried them with the police department. He testified that the handcuffs were stamped with the words \u201cSTOP\u201d and \u201cTAI-MAN.\u201d He described the store as \u201ca mess,\u201d and Mr. Johnson\u2019s condition at the time as \u201cupset.\u201d\nOn cross-examination, Officer Sheehan acknowledged that Mr. Johnson told him although there were two men at the scene, he only saw the one who put the gun to his head. The officer did not remember seeing the scarf.\nNext, Richard Leftridge, one of the owners of the store, testified that he arrived at the store at 10:30 a.m., after the robbery. He was missing some liquor and cigarettes valued at approximately $400. Mr. Johnson showed him the scarf that was used as a blindfold. He immediately recognized it because he had seen the defendant, as well as his girlfriend, Ramona, wearing it. He sent his son to Ramona\u2019s house to return the scarf.\nDetective Peter Dignan testified that he spoke with the owners of the store and also interviewed Ruby Love under an \u201canonymous relationship\u201d because she did not want to give her name. He returned to Ms. Love\u2019s home three or four days after the initial interview, at which time she selected the defendant\u2019s photograph from an array of approximately 10 photographs.\nOfficer Armstrong testified that he arrested the defendant on March 3, 1985, after a traffic accident in which the defendant was charged with negligent driving and driving without a valid license. As he stood next to the defendant\u2019s car, he saw a gun in a canvass bag in the back seat. He also found ammunition, a pair of handcuffs and a calculator, which he inventoried.\nDetective Joseph Danzl testified that he conducted a lineup on April 10, 1985, at which time Mr. Johnson identified the defendant as the man who had robbed him on February 14,1985.\nNacy Antoine, an investigator with the public defender\u2019s office, testified for the defense. He stated that he and his partner interviewed Ruby Love on October 10, 1985, at which time she told them she had seen \u201ctwo men going into the store with Nathaniel Johnson\u201d who had \u201cstockings over their faces.\u201d He further testified that Ms. Love told him she did not like the defendant. On cross-examination, Mr. Antoine testified that he works closely with Mr. Green, defense counsel, that he had reviewed the police reports and that he had instructions from Mr. Green that these witnesses would have to be impeached.\nRamona Harrell (Ramona) testified as an alibi witness. She testified that she has known the defendant for 14 years and had been his girlfriend since 1983, except for a time in August 1984 when she dated Nathaniel Johnson. She related that on the evening of February 14, 1985, she went with the defendant, Danny Profit and a man named Edward to a small party at the apartment of Profit and Diane (Dee-Dee) Williams. They first stopped at a liquor store and later arrived at the apartment at approximately 8:30 p.m. The group remained at the apartment overnight. When Ramona awoke at 9:30 a.m. the next morning, DeeDee had left for work; but everyone else, including defendant, remained at the apartment all day, except for a trip to a liquor store in the afternoon. She testified that she left the apartment at approximately 9:30 p.m. When she arrived home she was told that someone from the liquor store had brought a scarf to their house. She denied that the scarf belonged to her.\nNext, Diane (DeeDee) Williams testified. Her testimony was substantially the same as Ramona\u2019s testimony. She related that she took everyone home the evening of February 14. On cross-examination, DeeDee stated that although her husband was employed at the time of the robbery and worked from 8 a.m. to 5 p.m., he probably did not work on February 14. She did not wake anyone before she left for work, not even the children for preschool. However, her husband must have taken them to school during the day because she remembers picking them up from school that evening. She testified that Edward is her brother and that she has known the defendant since 1979.\nGladys Harrell testified that on February 14, 1985, two men came to her house looking for her daughter, Ramona, or the defendant, saying one of them had left a scarf at the liquor store. Although she had never before seen the scarf, she took it and left it on a table by the door.\nIn rebuttal, Mr. Johnson testified that he had never dated or had a relationship with Ramona Harrell. On cross-examination, he denied ever having gone to a motel with her. Officer Danzl testified that when he spoke with the defendant after his arrest, the defendant did tell him about a party on the 13th of February and at the time of the robbery. However, on cross-examination, he conceded that he did not reduce the defendant\u2019s statement to writing.\nIn surrebuttal, Ramona related that in September of 1984 she had been involved in a sexual relationship with Nathaniel Johnson. After closing arguments were heard and the jury was instructed, the jury returned a verdict of guilty of armed robbery. After a hearing on the State\u2019s petition to sentence the defendant as a habitual criminal based on his two prior armed robbery convictions, the court sentenced the defendant to natural life in prison.\nI\nDefendant first maintains that the trial court failed to ask three voir dire questions which go to the heart of a particular bias or prejudice, and therefore, denied him a fair trial by an impartial jury.\nIn People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062, the supreme court held that to insure the selection of a fair and impartial jury, the jurors should be questioned concerning the presumption of innocence, the burden of proof, and the defendant\u2019s right to remain silent. Zehr, 103 Ill. 2d at 477.\nIn the instant case, prior to the jury selection, the defendant made a motion for attorney participation in voir dire, or in the alternative, to have the court question the venire from a list of written questions he submitted, which included the People v. Zehr questions. Although the motion for attorney participation was denied, the trial judge noted that he had considered the requested questions and stated \u201cthat virtually all of the questions are *** put by me to prospective jurors in each case.\u201d The court then addressed the venire en masse, stating that Mr. Gray was presumed innocent of the charge and it was the State\u2019s burden to prove him guilty beyond a reasonable doubt. Further, the court explained that if the State failed to prove the defendant guilty, the jury must return a verdict of not guilty and that the defendant\u2019s failure to testify could not be held against him.\nWhile the defendant recognizes that the court made these admonishments, he still maintains that the court did not sufficiently satisfy People v. Zehr. He maintains that failure to question prospective jurors individually or in smaller panels, coupled with the court\u2019s generalized charge posed in a single question, was inadequate to insure the constitutional protections afforded defendants under People v. Zehr. Defendant argues this approach was inadequate to flush out the type of prejudice the People v. Zehr questions were designed to expose, citing to People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137, for the proposition that People v. Zehr dictates that any potential prejudice would be uncovered, where for example, in addition to the prevoir dire generalized charge, the court also makes specific inquiries to the individual panels.\nThe defendant correctly states the principles and constitutional protections the Zehr questions are intended to provide in the selection of a fair and impartial jury. However, People v. Zehr is not meant to be interpreted so narrowly. The State\u2019s argument is more persuasive. It is clear from the record that the questions submitted by the defense counsel were addressed by the trial court. Further, the court on voir dire explained the nature of the indictment, the defendant\u2019s presumption of innocence, the State\u2019s burden of proof and that the jury could not hold it against the defendant if he chose not to testify on his own behalf. The court then inquired if anyone had any problems or reservations concerning any of these principles. Moreover, the court also informed the venire that they would receive instructions of the law applicable to the facts of the case. The court did in fact so instruct the jury at the close of the evidence and closing arguments. Although the People v. Zehr court did not specifically mandate the manner in which the questions should be posed, our supreme court has since held that a generalized question to the jurors as a whole is sufficient to ensure that the venire harbored no prejudices. People v. Emerson (1987), 122 Ill. 2d 411, 522 N.E.2d 1109.\nIn People v. Emerson, the trial judge instructed the prospective jurors in general statements that it would be their obligation to follow the law as he told them to do and inquired about their ability to do so. The prospective jurors all indicated yes. Later he discussed with them generally the principles regarding the presumption of innocence. Our supreme court determined that the trial court had complied with the requirements of People v. Zehr. Likewise, in the case at bar, the trial court addressed the venire generally and touched upon each of the People v. Zehr questions, inquiring if any prospective juror had a problem adhering to those principles. No juror indicated that he or she had any reservations about following those concepts. Accordingly, we follow the dictates of the supreme court and reject the defendant\u2019s argument.\nII\nDefendant next maintains that the trial court abused its discretion when it denied his motion in limine to preclude the State from impeaching him with his two prior armed robbery convictions, or alternatively, to only allow the State to inform the jury of the unspecified prior convictions. He argues that as a result of the court\u2019s ruling, he did not testify at trial.\nThe law is well settled in Illinois that a defendant\u2019s prior conviction is admissible for impeachment purposes and proper in the exercise of sound discretion of the trial court where (1) the conviction involved a crime which is punishable in excess of one year or involves dishonesty or a false statement; and (2) the trial judge determines that the probative value of the conviction outweighs the prejudicial effect. People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.\nIn the instant case, the convictions were of felonies which were less than 10 years old. Thus, the State maintains that use of the prior convictions met the requirements set forth in People v. Montgomery. Further it asserts the crime of armed robbery relates directly to credibility and veracity. People v. Hancock (1982), 110 Ill. App. 3d 953, 955, 443 N.E.2d 226.\nConversely, defendant maintains that a trial court is required to balance the competing value of admitting a defendant\u2019s prior conviction for impeachment against the danger of any unfair prejudice to the defendant (Montgomery, 47 Ill. 2d 510), because a jury is likely to convict a defendant based on his prior bad acts rather than the evidence introduced against him at trial. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) The defendant further maintains that the decision to admit a prior conviction for the same conduct for which defendant is on trial must.be carefully weighed by the trial court (Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936), to ensure that the prejudicial effect does not outweigh introduction of the evidence which would lead jurors to the natural conclusion that \u201cif he did it before, he probably did so this time.\u201d People v. Siebert (1979), 72 Ill. App. 3d 895, 903, 390 N.E.2d 1322.\nDefendant argues that the trial court gave absolutely no indication it was balancing the probative value of the prior convictions against any unfair prejudice that might inure to the defendant prior to denying the motion. This issue must be resolved in light of People v. Montgomery and the fact that the trial court has wide latitude in determining whether the probative value of a prior conviction outweighs any unfair prejudice to the defendant. In the case at bar, the record supports the conclusion that the facts regarding the prior convictions were presented to the judge before he made his ruling. Additionally, in response to defense counsel\u2019s reservation that the court\u2019s ruling would restrict Mr. Gray in his decision whether or not to testify, the judge stated that the jury would also be instructed on the limited purpose of the evidence.\nThe State\u2019s argument is more persuasive, that where the defendant has failed to show any prejudice, the prior conviction involves a crime which is probative of the offender\u2019s veracity and honesty as a witness and it is not mandatory that convictions for the same type of crime as charged in a case be precluded (People v. Spates (1979), 77 Ill. 2d 193, 495 N.E.2d 563), then the trial court committed no error in denying the defendant\u2019s motion.\nDefense counsel phrased the motion to bar the use of evidence of a prior conviction of the defendant in the alternative: \u201c[y]ou permit Mr. Gray to testify without impeachment of any kind,\u201d or \u201cyou permit Mr. Gray to testify and limit the impeachment.\u201d However, a defendant\u2019s decision whether to testify at trial cannot be used as a bargaining tool with the trial court regarding its determination to grant or deny the motion to preclude evidence of the prior convictions. The defendant\u2019s refusal to testify, standing alone, cannot serve as the basis for a conclusion he is prejudiced. (People v. Leonard (1980), 83 Ill. 2d 411, 423, 415 N.E.2d 358.) Hence, we find defendant\u2019s argument to be without merit.\nIll\nDefendant\u2019s next contention is that the State failed to prove him guilty beyond a reasonable doubt, maintaining that the eyewitness evidence was incredible and that his alibi testimony was unimpeached. He argues that the victim\u2019s identification was based on no more than a fleeting glance; the testimony of the two occurrence witnesses was impeached; that the evidentiary value of the handcuffs found in his car at the time of his arrest is minimal; and that his alibi defense is believable. He further asserts that his conviction rests upon identification which does not produce an abiding conviction of guilt; and therefore, this court must reverse. People v. Kidd (1951), 410 Ill. 271, 102 N.E.2d 141.\nThe State counters that the identification of the defendant by the victim and his neighbor, Ms. Love, was both positive and convincing and that the alibi testimony was impeached. In addition, the cumulative effect of the physical evidence of the gun and handcuffs found in the defendant\u2019s possession at the time of his arrest linked him to the offense.\nIt is well established that the testimony of one identification witness is sufficient to support a conviction (People v. Dotson (1981), 99 Ill. App. 3d 117, 424 N.E.2d 1319), as long as the witness is credible and the accused is viewed under circumstances which would permit a positive identification to be made. See People v. Manion (1977), 67 Ill. 2d 564, 571, 367 N.E.2d 1313; People v. Slim (1988), 164 Ill. App. 3d 519, 518 N.E.2d 154.\nIn the instant case, the victim testified that he was accosted by the defendant as he entered the store. When he turned as the gun was placed to his head, he was very close to the defendant. He was able to describe the defendant to the police immediately after the incident, identify him in a lineup two months later and make an in-court identification. Mr. Johnson described a gun which matched the description of the gun found in the defendant\u2019s possession. Further, the testimony of Ms. Love corroborated and was consistent with that of the victim. The fact that two weeks after the robbery the defendant was in possession of a weapon and handcuffs identical in appearance to those used in the incident, coupled with positive identification of the defendant by two witnesses, was more than sufficient to establish the defendant\u2019s guilt beyond a reasonable doubt. Further, any minor discrepancies in the witnesses\u2019 testimony go to the weight of the testimony as evaluated by the trier of fact. People v. Mendoza (1978), 62 Ill. App. 3d 609, 615, 378 N.E.2d 1318.\nIV\nThe defendant maintains that the admission of evidence which is offered solely to evoke sympathy or to inflame the jury is improper (People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436), and that the evidence of this nature has no relationship to guilt or innocence of the accused and only serves to prejudice the defendant. (People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202.) Defendant contends that these legal principles were continually abused by the State during the trial, and the prosecutorial misconduct was so prejudicial to him that he was denied a fair trial.\nThe alleged improper instances of prosecutorial misconduct follow:\n(1) During opening statements:\n\u201cMR. NORA [Assistant State\u2019s Attorney]: On February 14 *** Darren Gray *** took a revolver, held it to the head of a 65-year-old man, who had already suffered three heart attacks.\u201d\n(2) During the direct examination and redirect examination of Mr. Johnson:\n\u201cQ. When the police got there, describe your physical condition to the \u2014 jury\u2014when the police got there?\nA. I was very weak and upset, very. I had three heart attacks and I was \u2014 .\nMR. PATEL [Defense Attorney]: Objection.\nTHE COURT: Overruled.\nQ. [Assistant State\u2019s Attorney]: Tell us exactly what you-were feeling, at that time.\nA. I don\u2019t know. I know I was weak and sick.\nQ. Did you take time off from work after the incident?\nA. Yes.\nQ. How long did you take off from work?\nA. I was \u2014 it was over a week. I don\u2019t know exactly.\nQ. Have you been in combat before?\nA. Yes.\nQ. Tell us how many combat ribbons you got.\nA. I have three silver stars and one bronze.\u201d\n(3) During the examination of Officer Sheehan:\n\u201cQ. Now, when you say he (Johnson) was upset, what did you actually observe about him?\nA. Well, he was having a hard time talking, short of breath.\nQ. Did he make any complaints about his physical well being, at that time.\nMR. PATEL [Defense Attorney]: Objection, Judge.\nTHE COURT: He may answer yes or no.\nA. Yes.\u201d\n(4) During closing arguments:\n\u201cMR. MORICI [Assistant State\u2019s Attorney]: On February 14, 1985, Nathaniel Johnson, a sixty-five year old man who had three heart attacks \u2014 was just walking down the street.\nMR. NORA [Assistant State\u2019s Attorney]: A man (Johnson) who was scared and upset and who probably thinks about heart attacks every time his heart races a little bit fast.\u201d\nDefendant asserts that the only purpose served in questioning Mr. Johnson about his health or his war record was to arouse the passions of the jury, which resulted in substantial prejudice to him. The State contends that evidence elicited from Mr. Johnson regarding his physical health and age at at the time of the armed robbery was material and was not elicited solely to incite the passions of the jury. The State claims that the case at bar is distinguishable from People v. Bernette and People v. Hope, because in those cases the objectionable comments and testimony which were elicited concerned members of the deceased victim\u2019s family. The State maintains that testimony of the victim\u2019s physical state (1) at the time of the robbery was relevant to the issue of the victim\u2019s credibility and state of mind and (2) immediately after the armed robbery was relevant to establish the element of force.\nAlthough the State\u2019s argument is persuasive and the defendant\u2019s assertions that evidence of this nature has no relationship to the guilt or innocence of the defendant are more plausible in light of the overwhelming proof of defendant\u2019s guilt, we find that any error which may have occurred from the prosecution\u2019s conduct is harmless and does not warrant reversal. People v. Neumann (1986), 148 Ill. App. 3d 362, 375, 499 N.E.2d 487.\nV\nDefendant maintains that the mandatory life sentence provision in section 5 \u2014 8\u20141(a)(2) of the Unified Code of Corrections, which prohibits the sentencing judge from considering mitigating factors in a defendant\u2019s background, violates due process of law and the eighth amendment of the United States Constitution. He asserts that the eighth amendment requires that relevant facts and circumstances in aggravation and mitigation be considered before a defendant is permanently removed from society. (Lockett v. Ohio (1978), 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954; Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978.) He also cites Solem v. Helm (1983), 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001, in which the United States Supreme Court held that a South Dakota recidivist statute violated the eighth amendment where Helm was sentenced to life sentence without parole after numerous nonviolent felony convictions. The defendant argues that the imposition of a life sentence is as severe a punishment as a death penalty; and when viewed in that light, the Illinois statute is unconstitutional since the defendant\u2019s individual circumstances are not considered.\nThe State maintains that, contrary to the defendant\u2019s assertions, People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059, is dispositive of this claim. In People v. Taylor, our supreme court rejected the analogy the defendant draws between the death penalty and natural life in prison. In addition, the Lockett v. Ohio and Woodson v. North Carolina cases are distinguished, because they involve construction of death penalty statutes and cases construing death penalty statutes are of little assistance in determining the constitutionality of habitual offender statutes. See Rummel v. Estelle (1980), 445 U.S. 263, 272, 63 L. Ed. 2d 382, 389, 100 S. Ct. 1133, 1138.\nIn People v. Withers (1983), 115 Ill. App. 3d 1077, 1090, 450 N.E.2d 1323, 1332, this court held that the habitual offender act did not violate the eighth and fourteenth amendments because the two previous adjudications afforded the defendant an opportunity to present mitigating factors. Additionally, the Solem v. Helm decision, as noted above, involved the issue of whether the imposition of a mandatory term of life imprisonment resulted in a sentence disproportionate to the crime where the defendant\u2019s prior offenses were six nonviolent felony convictions. Therefore, consistent with our prior decisions and in accord with our supreme court\u2019s pronouncement in People v. Taylor, we reject the defendant\u2019s attempt to rely on Solem v. Helm.\nVI\nDefendant finally argues that his life sentence must be reversed because the statute under which he was sentenced, the Habitual Criminal Act (Ill. Rev. Stat. 1981, ch. 38, par. 33B\u20141), was not amended in accordance with article IV, section 8(d) of the Illinois Constitution, which sets forth the procedural prerequisites for the passage of bills.\nThe State maintains that the defendant\u2019s claim is without merit and posits that this court has continually rejected this identical argument.\nThe general rule, pursuant to the Illinois Constitution, provides that all bills submitted for approval must be read by title on three different days. In People v. Cannady (1987), 159 Ill. App. 3d 1086, 513 N.E.2d 118, the defendant raised the exact issue presented here, i.e., that the passage of the amendment to section 33B \u2014 1 of the Habitual Criminal Act in 1980 was unconstitutional. However, the People v. Cannady court found that the three-day reading requirement was suspended by a majority of the members of the House of Representatives pursuant to its rules and therefore no violation occurred. Furthermore, the legislature and the courts have recognized that an additional exception to the rule requiring three title readings exists wherein the amendment is germane to the original bill submitted for passage. (Cannady, 159 Ill. App. 3d at 1090. See also People v. Poole (1988), 167 Ill. App. 3d 7, 520 N.E.2d 1017.) Based upon this precedent, we conclude that the aforementioned amendment was properly passed in accordance with the Illinois Constitution.\nFor the foregoing reasons, we conclude the defendant\u2019s claims must fall, and we affirm the decision of the circuit court.\nJudgment affirmed.\nBUCKLEY and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE MANNING" } ], "attorneys": [ "Joshua Sachs, of Chicago, for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Judith M. Pietrucha, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARREN GRAY, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201486\u20141213\nOpinion filed December 26, 1989.\nJoshua Sachs, of Chicago, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Judith M. Pietrucha, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0907-01", "first_page_order": 929, "last_page_order": 942 }