{ "id": 221443, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFRED ROBERTS, Defendant-Appellant", "name_abbreviation": "People v. Roberts", "decision_date": "1998-10-13", "docket_number": "No. 1-97-1074", "first_page": "926", "last_page": "934", "citations": [ { "type": "official", "cite": "299 Ill. App. 3d 926" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "365 N.E.2d 164", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 1002", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5634591 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/1002-01" ] }, { "cite": "628 N.E.2d 456", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "simple possession instruction required where narcotics were recovered from defendant's person" } ], "opinion_index": 0 }, { "cite": "256 Ill. App. 3d 844", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5382208 ], "year": 1993, "pin_cites": [ { "parenthetical": "simple possession instruction required where narcotics were recovered from defendant's person" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0844-01" ] }, { "cite": "643 N.E.2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "163 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477642 ], "year": 1994, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0093-01" ] }, { "cite": "641 N.E.2d 296", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "recognizing the chilling effect evidence of prior similar convictions will have on defendant's decision to testify" } ], "opinion_index": 0 }, { "cite": "161 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783181 ], "year": 1994, "pin_cites": [ { "parenthetical": "recognizing the chilling effect evidence of prior similar convictions will have on defendant's decision to testify" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0001-01" ] }, { "cite": "654 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "642" } ], "opinion_index": 0 }, { "cite": "274 Ill. 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App. 3d", "case_ids": [ 150240 ], "year": 1996, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0339-01" ] }, { "cite": "664 N.E.2d 699", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "702-04" } ], "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75375 ], "year": 1996, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0406-01" ] }, { "cite": "679 N.E.2d 1266", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 102", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1597006 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0102-01" ] }, { "cite": "449 N.E.2d 821", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "96 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3115107 ], "year": 1983, "pin_cites": [ { "page": "187-89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0176-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "651 N.E.2d 1120", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "166 Ill. 2d 144", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198921 ], "year": 1995, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0144-01" ] }, { "cite": "484 N.E.2d 1136", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "137 Ill. 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App. 3d", "case_ids": [ 5140134 ], "year": 1992, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0151-01" ] }, { "cite": "469 U.S. 38", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11958370 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "42-43" }, { "page": "463-64" }, { "page": "463-64" } ], "opinion_index": 0, "case_paths": [ "/us/469/0038-01" ] }, { "cite": "530 N.E.2d 1351", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "125 Ill. 2d 182", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5555073 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/125/0182-01" ] }, { "cite": "265 N.E.2d 189", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "165 Ill. 2d 259", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483566 ], "year": 1995, "pin_cites": [ { "page": "275-76" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0259-01" ] }, { "cite": "500 U.S. 352", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6223686 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "369" }, { "page": "412" }, { "page": "1871" } ], "opinion_index": 0, "case_paths": [ "/us/500/0352-01" ] }, { "cite": "677 N.E.2d 1340", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1344" } ], "opinion_index": 0 }, { "cite": "287 Ill. 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Ct.", "weight": 2, "year": 1986, "pin_cites": [ { "page": "1719" }, { "page": "1719" } ], "opinion_index": 0 }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "89" }, { "page": "82-83" }, { "page": "89" }, { "page": "82-83" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] } ], "analysis": { "cardinality": 817, "char_count": 16233, "ocr_confidence": 0.778, "pagerank": { "raw": 7.616041590423226e-08, "percentile": 0.45047143675171797 }, "sha256": "5c035e3241c57c8891766504bdd429babfd5abfe6dcb1983e5e38ed4445bf878", "simhash": "1:8aebf55e7fcaadb5", "word_count": 2648 }, "last_updated": "2023-07-14T17:02:33.989314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BUCKLEY and O\u2019HARA FROSSARD, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFRED ROBERTS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019BRIEN\ndelivered the opinion of the court:\nDefendant, Alfred Roberts, appeals his conviction for possession of a controlled substance with intent to deliver and his sentence of 12 years\u2019 imprisonment. On appeal, defendant contends the trial court erred in: (1) denying defendant\u2019s pretrial motion in limine to preclude reference to his prior convictions for the identical offense charged, (2) allowing the State to exercise racially motivated peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 82-83, 106 S. Ct. 1716, 1719 (1986); (3) failing to instruct the jury on the lesser included offense of simple possession, and (4) sentencing the defendant to 12 years\u2019 imprisonment. We reverse and remand for a new trial.\nPretrial, defendant requested an order in limine restricting the use of his prior convictions for possession with intent to deliver a controlled substance because of their prejudicial nature. The trial court denied the motion, stating that defendant\u2019s prior convictions could be used by the jury to assess defendant\u2019s credibility. Alternatively, defendant requested the use of the \u201cmere fact\u201d of defendant\u2019s prior felony convictions, without reference to their specific nature. The trial court denied the motion and jury selection began.\nDuring jury selection, defendant made a motion, pursuant to Bat-son, alleging the State was using its peremptory challenges to exclude black members of the venire. The State asserted unemployment and residence with his parents for excluding a particular potential black juror. The defendant countered that the State had accepted a young white male juror who was also unemployed and living with his family.\nThen, the following ensued:\n\u201cTHE COURT: Does the State wish to respond further?\nPROSECUTOR: No.\nTHE COURT: All right. I find they have made a preliminary challenge as far as the last \u2014 preliminary showing as to the last juror, Mr. McClendon.\nNow, Mr. State\u2019s Attorney, would you like to respond? There has been a valid reason as to everybody else, but not as to the last juror, Mr. McClendon.\nPROSECUTOR: If you can give me one moment? Judge, I have nothing further to add other than\u2014\nTHE COURT: You have nothing further to add when I said they have made a preliminary \u2014 you cannot give me another reason?\nPROSECUTOR: Judge, may I see the card?\nTHE COURT: Let\u2019s have the cards, please.\nPROSECUTOR: I believe I handed it to Your Honor. Judge, I would just note that on his juror information card he gave no information as to any type of occupation.\nTHE COURT: Please indicate the reason why that person was excused.\nPROSECUTOR: The reason why that person was excused, Judge, is because of being unemployed.\nTHE COURT: He has indicated he is employed.\nPROSECUTOR: Well, I don\u2019t think he is truthful in filling out his application on the juror information form in which he did not note any employer or occupation.\nTHE COURT: That is the reason you are fisting, for him not being truthful on the application?\nPROSECUTOR: Correct.\nTHE COURT: Would you like to respond?\nDEFENSE COUNSEL: I don\u2019t think that\u2019s a valid explanation, Judge. At the time he filled out this card he wasn\u2019t being paid by an employer, and he indicated that on his card. That indicates he is being truthful.\nTHE COURT: The Court finds that is a racially neutral reason. The card is lacking in all kinds of information, including that information that was volunteered. I can see that as a reason. Let\u2019s get on with it.\u201d\nAt trial, the State\u2019s only witnesses were Officers Hladik and Darlin. Hladik testified he suspected defendant of drug trafficking and positioned himself on a rooftop across from defendant\u2019s location. Hladik observed a number of anonymous persons approach defendant and hand him currency. Defendant would then retrieve a small, unknown object from a nearby bush and hand it to the person. After observing several such transactions, Hladik radioed Darlin to detain defendant. Hladik joined Darlin and defendant and then proceeded to the bush and retrieved a ziplock bag containing a single white rock-like substance. Hladik searched defendant and recovered $80 in currency.\nThe parties stipulated to the chain of custody and chemical analysis of the substance recovered from defendant as 0.15 grams of cocaine.\nThe defendant presented no evidence and rested.\nDuring the jury instruction conference, defendant requested a jury instruction for simple possession of a controlled substance, a lesser included offense. The trial court denied the request.\nThe jury found defendant guilty of possession with intent to deliver 0.15 grams of a controlled substance.\nAt sentencing, a representative from TASC, a drug treatment program, advised the trial court that defendant was an appropriate TASC candidate. The defendant, in allocution, said he wanted to be rehabilitated and do the \u201cright things\u201d upon his release from custody. The trial court declined the TASC request, noted the defendant\u2019s prior felony drug trafficking convictions, found defendant should be sentenced as a Class X offender and sentenced defendant to 12 years\u2019 imprisonment. Defendant appealed.\nBecause we find defendant\u2019s contention of error pursuant to Bat-son to be dispositive, we address it first.\nThe equal protection clause of the fourteenth amendment does not allow prosecutors to consider race as a factor when choosing jurors. Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 82-83, 106 S. Ct. 1716, 1719 (1986). Defendant has the initial burden to prove a prima facie case that the prosecutor used peremptory challenges to remove potential jurors based on their race. People v. Andrews, 146 Ill. 2d 412, 424, 588 N.E.2d 1126 (1991). After the defendant makes his prima facie case, the burden shifts to the prosecution to come forward with race-neutral reasons for striking the particular potential juror. People v. Williams, 147 Ill. 2d 173, 220, 588 N.E.2d 983 (1991). If a race-neutral explanation is tendered, the trial court then decides whether the reason is a pretext for racial discrimination. People v. Davis, 287 Ill. App. 3d 46, 51, 677 N.E.2d 1340, 1344 (1997). A trial court\u2019s decision on the matter will be upheld unless it is clearly erroneous. Hernandez v. New York, 500 U.S. 352, 369, 114 L. Ed. 2d 395, 412, 111 S. Ct. 1859, 1871 (1991).\nAlthough giving untruthful answers on a jury card is a legitimate race-neutral reason for striking a potential juror (People v. Wiley, 165 Ill. 2d 259, 275-76, 265 N.E.2d 189 (1995)), as it was proffered here, that explanation was pretextual and a violation of Batson.\nInitially, the chronology of events is troubling. When the trial court said the State\u2019s justification was insufficient and asked if the State had anything further, the State responded \u201cNo.\u201d However, after the State learned the trial court would grant the Batson motion unless it offered another reason, the State suddenly asked to see the juror\u2019s card. Only after reviewing the card did the State offer \u201cuntruthfulness\u201d as its reason, stating that the juror\u2019s jury card answers varied from his voir dire answers. This chronology of events reveals the State was unaware of the juror\u2019s alleged \u201cuntruthfulness\u201d when it made its peremptory challenge.\nNext, the State\u2019s claim the juror was untruthful is not supported by the record. The jury card asks whether the potential juror is employed. There are two answer options: check the \u201cyes\u201d box or check the \u201cno\u201d box. The juror checked the \u201cno\u201d box. During voir dire, the court asked the juror, \u201c[Your juror card] indicates you are presently unemployed, is that correct?\u201d to which the juror responded, \u201cActually I do on and off work in studios. I am a studio production engineer.\u201d Despite the juror\u2019s candid explanation of his answer, the State claims the juror was \u201cuntruthful.\u201d The State reasons, in essence, that the juror lied because he answered \u201cno\u201d though he worked in some capacity, if only \u201con and off.\u201d The State\u2019s reasoning is flawed. Because the juror card answers could only be given in a \u201cyes\u201d or \u201cno\u201d fashion, neither of which was entirely accurate, under the State\u2019s reasoning, the juror would have been \u201cuntruthful\u201d no matter what his answer had been: here because he answered \u201cno\u201d but worked in some capacity, if only \u201con and off,\u201d and in the opposite, but equally plausible, scenario because he answered \u201cyes\u201d but worked only \u201con and off\u2019 and not at present. Accordingly, the State\u2019s claim is not well taken.\nFinally, the State\u2019s proffered explanations are factually at odds. Initially, the State challenged the juror because his voir dire answers revealed he was unemployed and lived with his family. In its substituted explanation, the State challenged him because he was employed but had not disclosed this on his juror card. The inherent conflict of these two proffered explanations suggests that neither was genuine.\nBecause the State failed to provide a race-neutral explanation for excluding McClendon that was nonpretextual, the trial court\u2019s denial of defendant\u2019s Batson motion was clearly erroneous. Further, because it is a denial of equal protection to exclude a single prospective juror on the basis of race (People v. McDonald, 125 Ill. 2d 182, 530 N.E.2d 1351 (1988)), we reverse and remand for a new trial.\nDefendant\u2019s first (admissibility of prior convictions) and third (entitlement to lesser included offense instruction) contentions of error may arise on retrial and we address them.\nFirst, the admissibility of defendant\u2019s prior convictions. The State contends defendant has waived this issue by failing to testify at trial. Although the issue may be waived (see Luce v. United States, 469 U.S. 38, 42-43, 83 L. Ed. 2d 443, 463-64, 105 S. Ct. 460, 463-64 (1984); People v. Gil, 240 Ill. App. 3d 151, 163, 608 N.E.2d 197 (1992); People v. Hartfield, 137 Ill. App. 3d 679, 684, 484 N.E.2d 1136 (1985)), waiver is a bar upon the parties and not upon the court (Wagner v. City of Chicago, 166 Ill. 2d 144, 149, 651 N.E.2d 1120 (1995)). Accordingly, we address the issue.\nEvidence of prior convictions is admissible for purposes of attacking a witness\u2019s credibility only if the crime was a felony or involved dishonesty or a false statement, it has been less than 10 years since the date of conviction or release, and the probative value of the evidence outweighs the danger of unfair prejudice. People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971). A trial court\u2019s decision to admit evidence of a previous conviction under Montgomery will not be reversed absent an abuse of discretion. People v. McKibbins, 96 Ill. 2d 176, 187-89, 449 N.E.2d 821 (1983).\nAfter the trial court learned the defendant had seven prior convictions (five for possession of a controlled substance, one for delivery of a controlled substance, and one for unlawful use of a weapon by a felon), the following ensued:\n\u201cTHE COURT: Mr. State\u2019s Attorney, accordingly, all are within the ten-year limitation?\nPROSECUTOR: That\u2019s correct.\nTHE COURT: Counsel, would you like to be heard?\nDEFENSE COUNSEL: Well, Judge, it looks like several of these he was convicted of all on the same day. We would just be asking if he takes the stand in this case that the jury not be told of his prior convictions.\nPROSECUTOR: Your Honor\u2014\nTHE COURT: Excuse me. The Court will allow each of these convictions to be entered into evidence only for impeachment purposes except for the conviction for Unlawful Use of a Weapon by a felon. Each of these convictions are within the time, in the ten-year limitation.\nAlso, each of these other convictions for the Possession of a Controlled Substance with Intent to Deliver, as well as Delivery of a Controlled Substance go to the Defendant\u2019s credibility for testifying, since being convicted of this offense, if he were convicted of his offense, he would incur a greater penalty because of that. Therefore, it goes to the credibility issue.\nDEFENSE COUNSEL: Will they be hearing, Judge, then what the convictions are for or just that he has had prior convictions?\nTHE COURT: They will hear what the convictions are for.\nDEFENSE COUNSEL: I will ask that the Court consider allowing only that he had been convicted and when this occurred rather than what they are for, since that would be, obviously, prejudicial in this case.\nTHE COURT: The Court believes the prejudicial value is outweighed by the probative effect. They will hear them all except for the Unlawful Use of a Weapon.\u201d\nDefendant contends the trial court abused its discretion by focusing on collateral sentencing consequences rather than on how the prior convictions would impact defendant\u2019s testimonial credibility. We disagree. Under the first prong of the Montgomery analysis, evidence of prior convictions is admissible for purposes of attacking a witness\u2019s credibility either if the crime was a felony or it involved dishonesty or a false statement. Defendant admits that the prior convictions involved were felonies. The first prong of Montgomery is satisfied and the trial court\u2019s comment about sentencing consequences is irrelevant.\nDefendant next contends the trial court abused its discretion by not limiting the State to the \u201cmere fact\u201d of his prior convictions. Under the facts and the specific nature of the prior convictions, we agree. This case presented an ideal situation for use of the \u201cmere fact\u201d method of impeachment: The State easily could have discredited defendant\u2019s testimony without divulging the nature of his prior convictions (People v. Atkinson, 288 Ill. App. 3d 102, 679 N.E.2d 1266 (1997); People v. Jennings, 279 Ill. App. 3d 406, 410, 664 N.E.2d 699, 702-04 (1996)), whereas the jury\u2019s natural inclination would be to infer guilt from such evidence (M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 609.1 (6th ed. 1994)). Here, the prejudicial nature of defendant\u2019s prior convictions for the exact same offense far outweighed any probative value of defendant\u2019s credibility. People v. Adams, 281 Ill. App. 3d 339, 345, 666 N.E.2d 769, 772-73 (1996); People v. McKay, 279 Ill. App. 3d 195, 203-04, 664 N.E.2d 222, 227-29 (1996); People v. Elliot, 274 Ill. App. 3d 901, 911-12, 654 N.E.2d 636, 642 (1995). See also People v. Williams, 161 Ill. 2d 1, 641 N.E.2d 296 (1994) (recognizing the chilling effect evidence of prior similar convictions will have on defendant\u2019s decision to testify).\nFinally, we consider whether the trial court erred in refusing to instruct the jury on the lesser included offense of simple possession. A defendant is entitled to a lesser included offense instruction only where he has presented some evidence, even if only slight, which would permit a jury to acquit him of the greater offense but find him guilty of the lesser included offense. People v. Novak, 163 Ill. 2d 93, 108, 643 N.E.2d 762 (1994). Here, there was no evidence to support a verdict of simple possession of a controlled substance. Hladik testified that he saw defendant take money in exchange for unknown objects retrieved from a bush and that he recovered currency from defendant\u2019s person and a small packet of cocaine from the bush. Cf. People v. Scott, 256 Ill. App. 3d 844, 628 N.E.2d 456 (1993) (simple possession instruction required where narcotics were recovered from defendant\u2019s person). The defendant did not dispute or impeach Hladik\u2019s testimony nor did defendant present evidence of possession strictly for personal use. Accordingly, the trial court did not err in refusing to instruct the jury on the lesser included offense. People v. Dunn, 49 Ill. App. 3d 1002, 365 N.E.2d 164 (1977).\nFinally, defendant contends the trial court abused its discretion in sentencing him to 12 years. Because of the remand for a new trial, this issue is moot.\nReversed and remanded.\nBUCKLEY and O\u2019HARA FROSSARD, JJ., concur.", "type": "majority", "author": "JUSTICE O\u2019BRIEN" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and James Beligratis, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFRED ROBERTS, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201497\u20141074\nOpinion filed October 13, 1998.\nRita A. Fry, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and James Beligratis, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0926-01", "first_page_order": 944, "last_page_order": 952 }