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United States v. Pate

April 23, 1963

UNITED STATES OF AMERICA EX REL. ROBERT L. BURAGE, PETITIONER-APPELLANT,
v.
FRANK J. PATE, WARDEN, ILLINOIS STATE PENITENTIARY, JOLIET, ILLINOIS, RESPONDENT-APPELLEE.



Author: Schnackenberg

Before HASTINGS, Chief Judge, and SCHNACKENBERG and SWYGERT, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Robert L. Burage, petitioner, has appealed from an order of the district court dismissing his petition for a writ of habeas corpus directed to Frank J. Pate, Warden, Illinois State Penitentiary, Joliet, Illinois.

The facts upon which petitioner relies, and as set forth in his verified, petition, are essentially as follows:

In the Criminal Court of Cook County, Illinois, on an indictment charging him with unlawful possession and sale of narcotics, he was tried before a jury, found guilty and sentenced to the state penitentiary.

1. Witnesses against him were policewoman Inez Anderson and two federal narcotics agents. Petitioner did not testify.

On cross-examination most of Anderson's answers were short and of the "yes", "no" and "I don't remember" type. Defendant's attorney then propounded a general question, to which the witness answered:

"I remember him stating that he had a nice girl friend now and he was going to go straight since he was out of the pen and he wasn't going to dirty her up."

The defense attorney moved for a mistrial, which was denied by the court.*fn1

It is alleged by petitioner that he "did not testify in his own behalf for fear the state would bring up his previous criminal record and present it to the jury. However, the state was able to get the past record over to the jury anyway because its witness informed the jury about the record." (Italics supplied for emphasis.)

On writ of error the Illinois Supreme Court, in People v. Burage, 23 Ill.2d 280. 282, 178 N.E.2d 389, 391, said:

"While it may be agreed that the reference to defendant's prior incarceration in the penitentiary was completely incompetent and irrelevant, the State is not responsible for questions asked by the attorney for the accused, and neither is it responsible for the answers to such questions by the State's witnesses. (People v. Henry, 3 Ill.2d 609, 122 N.E.2d 159; People v. Maciejewski, 294 Ill. 390, 128 N.E. 489; People v. Singer, 288 Ill. 113, 123 N.E. 327.) If a defendant procures, invites or acquiesces in the admission of evidence, even though it be improper, he cannot complain. (People v. Singer, 288 Ill. 113, 123 N.E. 327; People v. Maciejewski, 294 Ill. 390, 128 N.E. 489; People v. Kissane, 347 Ill. 385, 179 N.E. 850; People v. Garafola, 369 Ill. 232, 16 N.E.2d 741.) Furthermore, a trial court is not obligated to exclude improper evidence where a defendant makes no objection, does not move to exclude it or does not disclaim the answers. People v. Henry, 3 Ill.2d 609, 122 N.E.2d 159; People v. Kissane, 347 Ill. 385, 179 N.E. 850.

"In the instant case defendant's counsel, by a process of sharp questioning, was obviously exploring for some basis to discredit the testimony of the policewoman. It was he who insisted on bringing out the details of any conversation between defendant and the informer and thus invited and induced the answer of the witness. That the answer contained improper matter afforded no grounds for a mistrial, nor was its admission reversible error, particularly ...


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