APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
KRAUSE, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
After a jury trial, the defendant was convicted of burglary and theft of property valued at less than $150, and sentenced to 1 to 3 years in the penitentiary. He appeals, contending that the prosecutor improperly cross-examined him regarding a prior felony conviction, and that a reversal of the trial court's judgment and sentence is therefore mandated.
Immediately prior to trial, the defendant moved in limine for an order prohibiting the State from introducing certified copies of the defendant's prior convictions. This motion was granted in part, the trial court holding that the State would be limited to introducing only one of the defendant's four prior robbery convictions, in the event that the defendant took the stand. However, although the prosecutor then had a certified copy of one of the convictions marked for identification, through apparent inadvertence, it was never offered into evidence at trial.
Instead, the defendant's prior conviction was presented to the jury during the prosecutor's cross-examination of the defendant, as follows:
"Q. Okay. Have you ever been convicted of a felony?
Q. What have you been convicted of?
MR. MORELLI [defense counsel]: Your Honor, I'm going to object to going into the circumstances of the previous conviction.
THE COURT: He admitted he's been convicted. That's sufficient. Objection sustained."
• 1 The State, implicitly conceding that the question was improper, contends that any error was waived by defense counsel's failure to make an immediate objection after the question was asked, prior to the defendant's answer. However, in view of our holding in People v. Cassman (1973), 10 Ill. App.3d 301, this contention must be rejected. In Cassman, we held that it is improper to cross-examine a defendant as to his prior conviction of a crime, and that the error is of such magnitude that it constitutes plain error which may be considered by a court of review even where no objection to the offending question has been made at trial.
• 2 Nonetheless, it does not follow that a reversal of the defendant's conviction is mandated in this case. "Where the competent evidence shows, beyond all reasonable doubt, that the defendant is guilty in a case where the jury are not the judge of the penalty to be inflicted upon the defendant, error will not ordinarily require reversal of the judgment of conviction." (People v. Tranowski (1960), 20 Ill.2d 11, 17, cert. denied, 364 U.S. 923.) It has been stated that it is not the policy of courts of review in Illinois to reverse a judgment of conviction merely because error has been committed, unless it appears that real justice has been denied or that the verdict of the jury resulted from the error. (E.g., People v. Dudley (1974), 58 Ill.2d 57, 61.) Thus, where the evidence against the defendant is such that the jury could scarcely have arrived at any other verdict, a conviction will be affirmed, notwithstanding the fact that the defendant was subjected to improper cross-examination regarding a prior conviction. (People v. Madison (1974), 56 Ill.2d 476, 488-89.) A review of the evidence adduced at trial is therefore necessary to the disposition of this appeal.
The complaining witness, David Michaels, testified that on May 12, 1975, he arrived at a tavern called the Romania Club, parked his car in the parking lot, leaving his keys in the ignition, and went inside. Michaels observed six patrons in the tavern, one of whom was the defendant, Beltran. In order to gain entrance to the tavern, it is necessary for a patron to operate a "buzzer" at the door; whenever Michaels was in the tavern and the buzzer sounded, he would look up and observe the person who was entering. While in the tavern on this occasion, he observed an individual enter, purchase a six-pack of beer, and immediately leave. The only other person to leave the tavern while Michaels was there was the defendant, who left by himself and then returned and went into the men's room. Michaels remained in the tavern for what was apparently another 15 minutes to one-half hour, and then went outside, where he discovered that his car was gone. He returned to the tavern, and the police were called. On direct examination, Michaels testified that while he was waiting for the police to arrive, the defendant emerged from the men's room, holding Michaels' car keys in his hands, and asked Michaels "if these were what [he] was looking for." Michaels replied that they certainly were, since they were his car keys. On cross-examination, Michaels evidently became confused on this point, since he seemed to indicate that the defendant gave Michaels the keys before Michaels went outside. However, on redirect, Michaels reiterated that defendant had given him the keys after Michaels had returned to the tavern in order to call the police. In any event, the defendant told Michaels that he had found the keys in the urinal in the men's room; however, Michaels observed that the keys were not wet. The defendant then asked Michaels if Michaels wanted him "to stay around in case the police asked any question."
After two police officers arrived, Michaels rode with them, looking for his car. They found it one block from the Romania Club. When Michaels and the officers returned to the tavern, they observed the defendant standing by his car with the hood up, working on the engine. Michaels returned to his car and discovered that two spare tires, a set of golf clubs, a pair of golf shoes, a motorcycle rack and a bumper jack were missing from the trunk, although the trunk opened normally after Michaels inserted the key, and there was no sign of a forced entry. Michaels then returned to the tavern parking lot, where he and the two officers observed a spare tire in the back seat of the defendant's car. Michaels identified the tire as the one which had been taken from his trunk, and the officers then checked the trunk of the defendant's car where they found the balance of the items which had been taken from Michaels' car trunk.
Both of the officers also testified at trial. One of the officers testified that the defendant told him that the golf clubs, shoes, spare tires and other items belonged to the defendant. The other officer stated that when he asked the defendant how the items in the defendant's car came to be found there, the defendant replied that he didn't know. The ...