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People v. Garnes

MAY 25, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GERALD GARNES, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS WEXLER, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Defendant was found guilty after a jury trial of the crimes of burglary in violation of Ill. Rev. Stat. 1969, ch. 38, § 19-1, *fn1 and for possession of burglary tools in violation of Ill. Rev. Stat. 1969, ch. 38, § 19-2. *fn2 The following issues are raised by defendant in this appeal: whether the refusal of the trial court to grant a mistrial was reversible error, whether the admission into evidence of defendant's prior conviction was reversible error, and whether the conviction for possession of burglary tools must be reversed since both it and the conviction for burglary arose out of the same conduct.

In the early hours of the morning of August 1, 1969, Louis Seghers heard a noise in the basement of his apartment that sounded like splintering wood and after investigation discovered defendant in the basement. Seghers restrained defendant with a gun while Seghers' wife called the police. Upon examining the premises, it was discovered that Seghers' personal locker had been broken into. While searching defendant, police officer Lawrence Traub found a small, bent screwdriver, a table knife, and a small spoon in defendant's pocket.

Defendant was tried before a jury on January 21, 1970. During direct examination of police officer Traub, the following conversation occurred:

"PROSECUTOR: After you recovered these particular implements and placed the defendant under arrest what, if anything, did you next do?

OFFICER TRAUB: He was then transported to the 20th District Station where he was informed of his rights. He refused to make any statement and we processed him.

PUBLIC DEFENDER: Object, Judge, to that.

THE COURT: Sustained.

PROSECUTOR: He made no statement?

OFFICER TRAUB: That's right.

PUBLIC DEFENDER: Object to that.

THE COURT: Disregard it.

PROSECUTOR: The State will join in the motion."

The defense then moved for a mistrial which was denied. Defendant then took the stand and testified that he entered the apartment basement for the sole purpose of looking for toilet facilities. The State, for the purpose of impeaching defendant's credibility as a witness, introduced into evidence a certified copy of defendant's eight-year-old conviction for burglary. Defense counsel had previously objected to the admission of the prior conviction, ...


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