APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Jeffries Perry was charged in two counts, with (1) knowingly carrying a revolver concealed in an automobile; and (2) with knowingly carrying a revolver concealed in an automobile within five years of his release from the Illinois Penitentiary in violation of sections 24-1(a)(4) and 24-1(b) of the Illinois Criminal Code (Ill. Rev. Stat. 1971, ch. 38, §§ 24-1(a)(4), 24-1(b)). At trial in the Circuit Court of Cook County the first count of the indictment was dropped, and the jury found him guilty of the second count, unlawful use of weapons within five years of release from the penitentiary. The court sentenced him to a term of three to ten years.
The issues presented for review are (1) whether the introduction of evidence of a prior conviction for the purpose of proving an element of the offense unconstitutionally circumvented the defendant's right to remain silent, (2) whether the prosecution's presentation of evidence of the defendant's prior conviction was so inflammatory as to deny him a fair trial, (3) whether the indictment for unlawful use of weapons within five years of release from the penitentiary is fatally defective to allege a mental state with respect to the release from the penitentiary, (4) whether the refusal of the trial judge to give an instruction with respect to limiting the use of his prior conviction constituted reversible error, and (5) whether it was error to deny the defendant's petition for substitution of judges.
The arresting officers, Michael Kill and David Kopala, testified that on November 24, 1971, at about 3:30 a.m., they were driving west on Roosevelt Road when they saw an eastbound car being illegally driven to the left of the center yellow line. Officer Kill executed a U-turn and began following the car, flashing the blue mars light and the spotlight. The car being driven by defendant continued along Roosevelt Road for about two blocks and then turned right on Homan Avenue, and stopped after a block and a half.
Two men got out of the car and Officer Kopala questioned and searched them, while Officer Kill "covered" him. Officer Kill observed the defendant, who was still in the car, reach up and place a revolver in the padding of the convertible top. He ordered him to get out of the car and asked for his driver's license. He then searched the car and found a loaded .38 revolver.
The defense presented the testimony of one of the defendant's sons, Edwin Perry, who had been a passenger in the car on the night of the incident along with his brother, Albert. Edwin stated he did not notice a police car following them or that a mars light or a spotlight was used. When they arrived at their Homan Avenue address, he and his brother got out of the car and went to the door, whereupon a police officer told them to stop and raise their hands. Officer Kopala searched them and they went back to the car, where Officer Kill attempted to open the trunk of the car with Edwin's keys. At this point the defendant got out of the car, and asked what the trouble was. He provided his own keys and the trunk was opened and searched. The interior of the car was also searched, and Officer Kopala found a weapon. Edwin had never seen it before and did not know to whom it belonged.
On December 26, 1972, the court held a hearing on the defendant's motion to quash the arrest and suppress evidence. On January 12, 1973, the hearing resumed and the motion was denied. On March 8, 1973, the defendant filed an affidavit and petition for substitution of judges, which was denied.
At trial the defendant refused to stipulate to his prior conviction, and the court asked the prospective jurors if any of them would be prejudiced by the fact the defendant had previously been convicted of murder. The court excused four jurors who responded affirmatively to the question.
The prosecution's first witness was Samuel Rosen, the Chief Clerk of the Circuit Court, Criminal Division. At the direction of the prosecution, Mr. Rosen read the entire 1954 murder indictment to the jury, including a portion reciting that the defendant murdered Robert Gottstein by shooting him with a revolver in the head and in the body. Mr. Rosen also recited the dates and orders from the half-sheet, including the defendant's plea of not guilty, the verdict of the jury that the defendant was adjudged guilty of murder and sentenced to death, the denial of the defendant's post-trial motions, the entry of judgment on the jury's verdict, the sentence of death, the affirmance of defendant's conviction by the Illinois Supreme Court, and the fixing of August 2, 1957, as the date of the defendant's execution. Finally, Mr. Rosen recited the order commuting the defendant's sentence of execution by electrocution to 99 years' imprisonment.
The prosecution's next witness was Donald Kelly, the identification supervisor at Stateville. He testified the defendant was the same person he fingerprinted in 1968 upon his release from the penitentiary.
The defendant first contends his right to remain silent was unconstitutionally circumvented because informing the jury of his prior conviction is unnecessary to achieve the legislature's purpose of enhancing punishment. The essence of the argument is that release from the penitentiary is not an element of guilt, but rather serves to enhance punishment for the guilty. Because Illinois juries have no sentencing powers, there is no purpose to be served by informing them of the prior conviction. Normally, the principal benefit conferred by the constitutional privilege against self-incrimination upon a criminal defendant with a recent felony conviction is the conviction must be concealed from the jury as long as he does not take the stand. Thus, the defendant argues, it is the destruction of this protection inherent in the right to remain silent that constitutes the circumvention of the right.
• 1 In People v. Ostrand (1966), 35 Ill.2d 520, 529, the Illinois Supreme Court expressly rejected this contention:
"Defendant argues that the question of whether he has been convicted of a prior felony is not an element of the offense, but merely relates to the severity of the sentence which may be imposed. However, violation of section 24-1(a)(4), in the absence of a prior felony conviction within 5 years is a misdemeanor, while violation of that same section after having been convicted of a felony within the previous 5 years constitutes a felony (sec. 24-1 (b)) as misdemeanor and felony are defined in the Criminal Code of 1961 (Ill. Rev. Stat. 1961, chap. 38, pars. 2-11, 2-7). Under such circumstances, it was not only proper to allow the allegation and proof of a prior felony conviction, but it was necessary in order to prove defendant's commission of the felony of carrying a concealed weapon."
(Also see People v. Dixon (1970), 46 Ill.2d 502; People v. Owens (1967), 37 Ill.2d 131.) In the case of People v. Johnson (1975), 27 Ill. App.3d 1047, the defendant argued the was being denied his right to remain silent under similar circumstances to the case at bar and the court rejected the argument, pointing out that evidence of prior crimes may be brought out at trial for purposes other ...