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People v. Plair





APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.


The defendant was indicted for unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(7)), and, under an enhanced penalty provision, for committing that same offense within five years of his release from the penitentiary on a felony conviction. (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(b)). *fn1 A jury in the Circuit Court of Cook County found him guilty on both counts. He was sentenced to a term of imprisonment of from three to nine years. On appeal, it is argued (1) that the trial court erred (a) in refusing to bar substantive proof before the jury of his prior conviction of armed robbery, *fn2 (b) in admitting certain hearsay statements, and (c) in permitting improper rebuttal testimony, (2) that the prosecutor exceeded the bounds of proper argument, and (3) that the defendant's conviction for simple unlawful use of weapons must be vacated as a lesser included offense.

Before trial, the defendant moved to bar substantive use of his 1969 conviction of armed robbery. The court denied the motion on the basis of People v. Ostrand (1966), 35 Ill.2d 520, 221 N.E.2d 499. The defendant now urges that by virtue of allegations in the indictment and substantive proof presented to the jury concerning his prior armed robbery conviction he was denied a fair trial. We disagree.

In People v. Ostrand, the defendant was convicted under section 24-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1961, ch. 38, par. 24-1(b)), a statute which made the misdemeanor of carrying a concealed weapon (Ill. Rev. Stat. 1961, ch. 38, par. 24-1(a)(4)) a felony if committed within 5 years of a prior felony conviction. The defendant argued that the conviction of a prior felony was not an element of the offense, but rather merely related to the severity of the appropriate punishment. Hence, he contended that it was improper to permit allegations in the indictment and substantive proof regarding his prior conviction of burglary. In rejecting this contention, the court stated:

"* * * [I]t 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." 35 Ill.2d 520, 529, 221 N.E.2d 499, 505.

The defendant, however, seeks to distinguish Ostrand on the basis that while in Ostrand proof of the prior felony served to elevate the weapons offense from a misdemeanor to a felony, in the present case such proof would only raise a Class 4 felony to a Class 3 felony. *fn3 He argues that this distinction is supported by People v. De Groot (1968), 108 Ill. App.2d 1, 247 N.E.2d 177. In De Groot, the State alleged the defendant's prior conviction for driving while intoxicated in an effort to obtain more serious punishment for the commission of that offense on a second occasion, pursuant to section 47(c) of the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat. 1965, ch. 95 1/2, par. 144). The offense of driving while intoxicated, however, remained a misdemeanor, whether on the first offense or a subsequent one, and regardless of the interval between offenses. In reversing the conviction, the court distinguished Ostrand, saying:

"The present case differs from Ostrand in that the increased penalty involves no transition from a misdemeanor to a felony and an indictment is not required to obtain the increased penalty. See Ill. Rev. Stat. 1965, ch. 38, par. 111-2(a)." (Emphasis added). 108 Ill. App.2d 1, 9, 247 N.E.2d 177, 181.

• 1, 2 We think it very clear that the operative point of distinction is that in De Groot there was no requirement that the prior offense be alleged in the indictment in order to obtain the more serious penalty on conviction. Ostrand established quite clearly that in the case of unlawful use of weapons it was "necessary" for the prior felony to be alleged and proven. Moreover, this point has been recently reiterated by the Illinois Supreme Court in People v. Edwards (1976), 63 Ill.2d 134, 345 N.E.2d 496, wherein it was said:

"It is settled that the State must allege and prove a prior conviction to establish the commission of felonious unlawful use of a weapon." 63 Ill.2d 134, 138, 345 N.E.2d 496, 498, citing People v. Ostrand.

In view of the difference between Ostrand and the present case on one hand and De Groot on the other in terms of the need for allegation and proof of the prior conviction, the similarity between De Groot and the present case as far as a lack of the transition from the technical classification of "misdemeanor" to that of "felony" is no more than superficial. As the court noted in People v. Long (1955), 4 Ill.2d 598, 123 N.E.2d 718, in an analagous situation:

"The prosecution has no alternative under the law as it now exists in this State but to present to the same jury the record of the defendant's previous conviction as well as proof to sustain the recent charge." 4 Ill.2d 598, 604, 123 N.E.2d 718 (cited in People v. De Groot, 108 Ill. App.2d 1, 8.)

We thus find appellant's argument to be without merit.

At trial the State produced the testimony of Chicago Police Officers Monahan and Palenik. Officer Monahan testified that on January 24, 1974, at about 7:30 p.m., he and Officer Palenik were in an unmarked police car stopped at the intersection of 55th Street and Racine Avenue in Chicago. A woman approached and asked if they were police officers. When they replied, she told them that two male Negroes had just passed her walking east on 55th Street and that one of the two, wearing a long brown coat and a checkered hat, had what appeared to be a weapon in his coat. Palenik asked the woman whether two men at that time walking east on 55th Street about one-half block away were the ones she had seen. She replied "Yes, they are." Monahan's statements as to what the woman had said were admitted into evidence over the objections of defense counsel that such testimony would be hearsay.

Monahan and Palenik then drove east on 55th Street until they reached two suspects. Monahan noticed that one of the two, whom he identified as the defendant, Scott Plair, was wearing a long brown coat and a checkered hat. The man walking with the defendant was Jerome Brown. Both officers got out of the car. Palenik, approaching the suspects from the front, identified himself as a police officer. Suddenly, the defendant turned toward Palenik and began to pull his right hand out of his coat pocket. Monahan, who had come up from behind the suspects, saw in the defendant's hand the barrel of a gun. He struck the defendant on the head, knocking him to the ground. A ...

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