APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, Jerome Edwards, otherwise known as Charles Murphy, was charged in a three-count indictment with having committed on July 27, 1972, the offenses of (1) armed robbery, (2) unlawful use of weapons, a misdemeanor, and (3) unlawful use of weapons, a felony (Ill. Rev. Stat. 1971, ch. 38, pars. 18-2, 24-1(a-2), 24-1(2-4)). After a trial by jury, verdicts were returned finding defendant guilty of armed robbery, robbery, and unlawful use of weapons. He was sentenced only as to the armed robbery and the felonious unlawful use of a weapon, to respective terms of 5 to 15 years and 5 to 10 years, to be served concurrently. Defendant appeals both convictions.
The sentence here imposed for unlawful use of a weapon was pursuant to the enhanced penalty in section 24-1(b) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(b)), which in pertinent part provides:
"A person convicted of a violation of Subsection 24-1(a)(1) through (6), * * * shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both; * * * A person convicted of a felony under the laws of this or any other jurisdiction, who, within 5 years of release from penitentiary or within 5 years of conviction if penitentiary sentence has not been imposed, violates any Subsection of this Section shall be imprisoned in the penitentiary from one to 10 years."
In the instant appeal, defendant does not challenge the sufficiency of the evidence. Instead, he contends that he was denied a fair trial by the disclosure of his prior conviction in the reading by the court of the indictment to the prospective jurors on voir dire and again by the State at the close of the State's case in chief. He further contends that the joint trial of the enhanced penalty charge and the other offenses alleged in the indictment unfairly tended to contribute to guilty verdicts as to those other offenses. We hold that the inherent prejudice resulting from the disclosure of defendant's previous burglary conviction at a joint trial of a separate primary offense requires that the judgment be reversed and the cause remanded for new and separate trials. For this reason, defendant's final contention that he was improperly convicted and sentenced for two offenses arising out of the same criminal conduct need not be reached. The facts relevant to the disclosure of defendant's prior felony conviction are here set forth.
Before trial, defendant moved that the felony charge of unlawful use of a weapon, contained in the third count of the indictment, be adjudicated in a proceeding separate from his jury trial on the other charges. Arguing that the enhanced penalty charge would involve proof of his prior burglary conviction and thereby prejudice his trial on the other counts, defendant offered to stipulate to the prior conviction and waive a jury trial on the enhanced penalty charge. In the alternative, defendant requested that the trial court refrain from reading the enhanced penalty count to the jury, permit the jury to first proceed to verdicts on the first and second counts, and only then to read the enhanced penalty count to the jury and permit them to proceed to a verdict. The trial court denied defendant's motion.
Selection of the jury was commenced by the trial court's reading to the veniremen, over defendant's objection, all three counts of the indictment. Each count referred to defendant as "Jerome Edwards otherwise called Charles Murphy." The third count, after repeating the unlawful use of a weapon charge contained in the second count, further alleged that the defendant had been convicted of burglary in 1968 under the name of Charles Murphy, imprisoned in the State penitentiary, and released from custody on September 7, 1971.
At the end of the State's case in chief the prosecutor read into the record, in the presence of the jury, a stipulation of the parties which stated that defendant Jerome Edwards and one Charles Murphy were one and the same person, and that under the name of Charles Murphy defendant pleaded and was found guilty of burglary in 1968, sentenced to the State penitentiary for not less than 1 year nor more than 10 years, and released from custody on September 7, 1971. After several witnesses had testified for the defense the defendant took the stand. On cross-examination the prosecutor questioned defendant concerning his prior burglary conviction.
The trial court instructed the jury as to the offenses of armed robbery, robbery, and unlawful use of a weapon, under section 24-1(a)(2) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a)(2)). No instruction was submitted concerning felonious unlawful use of a weapon under section 24-1(b) of the Code (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(b)). However, the jury was instructed that the indictment against the defendant was merely a formal accusation; was not evidence, nor did it create an inference of guilt; and that the evidence of defendant's prior conviction was to be considered only in determining his credibility as a witness, not as evidence of his guilt of the offenses charged. Verdicts were returned finding defendant guilty of armed robbery, robbery, and unlawful use of a weapon, under section 24-1(a)(2) of the Code (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a) (2)). After a hearing in aggravation and mitigation, the trial court sentenced defendant to 5 to 15 years for armed robbery, and 5 to 10 years for felonious unlawful use of a weapon under section 24-1(b) (Ill. Rev. Stat. 1971, ch. 38, par. 24-1 (b)).
By way of justification for the disclosure and substantive introduction of defendant's prior felony conviction, the State argues that in the prosecution of an enhanced penalty offense such disclosure and proof are not only constitutional but procedurally necessary. In support of that argument the State cites, among other cases, Spencer v. Texas (1967), 385 U.S. 554, 17 L.Ed.2d 606, 87 S.Ct. 648, and People v. Ostrand (1966), 35 Ill.2d 520, 221 N.E.2d 499.
Spencer involved a consolidated appeal by three defendants who were separately tried and convicted under a Texas habitual-criminal statute. Each defendant had been indicted for one primary offense, which indictments also alleged that each defendant had previously been convicted of a felony. At their trials, over the objection of each defendant, the indictments were read to the juries and documentary proof of the prior convictions was introduced. Prior to the deliberations of the juries the trial court in each case instructed them not to consider the prior convictions in determining the guilt of the defendants as to the primary charge alleged against each. On appeal, defendants contended that the reference in the indictments to their prior convictions and the introduction of substantive evidence were so prejudicial to their trials on the primary charges that they were denied fair trials in violation of the Due Process Clause of the Fourteenth Amendment. In affirming the convictions, Mr. Justice Harlan, writing for the majority of the court, stated:
"It is contended nonetheless that in this instance the Due Process Clause of the Fourteenth Amendment requires the exclusion of prejudicial evidence of prior convictions even though limiting instructions are given and even though a valid state purpose enforcement of the habitual-offender statute is served. We recognize that the use of prior-crime evidence in a one-stage recidivist trial may be thought to represent a less cogent state interest than does its use for other purposes, in that other procedures for applying enhancement-of-sentence statutes may be available to the State that are not suited in the other situations in which such evidence is introduced. We do not think that this distinction should lead to a different constitutional result.
Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial. [Citations.] But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure. And none of the specific provisions of the Constitution ordains this Court with such authority. In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in our past cases. As Mr. Justice Cardozo had occasion to remark, a state rule of law `does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.'" 385 U.S. 563, 564.
Dissenting from the majority opinion, Chief Justice Warren wrote that the procedure challenged by the defendant was fundamentally at odds with the Due Process Clause, not in that it balanced conflicting interests of the State and an accused in the State's favor, but because it needlessly prejudiced an accused without advancing any legitimate interest of the State. The Chief Justice stated that the only legitimate interest the State had in substantively introducing prior-crime evidence at a one-stage trial was the convenience of avoiding a bifurcated proceeding. However, observing that at least one of the defendants had unsuccessfully attempted to stipulate to his prior conviction and that the then existing Texas law did not require that such a stipulation be accepted by the State, he reasoned that the rejected stipulation of the one defendant and the denial of that same opportunity to the other defendants under the State law effectively destroyed any legitimate State interest in the substantive introduction ...