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People v. Kitchen

OPINION FILED SEPTEMBER 14, 1977.

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

v.

ISIAH KITCHEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EARL A. STRAYHORN, Judge, presiding.

MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Defendant, Isiah Kitchen, was convicted by a jury of the murder of Riley Parker and the attempt murder of Charles Morgan, and sentenced to not less than 15 nor more than 25 years for murder and not less than 4 nor more than 12 years for attempt murder, the sentences to run concurrently. His appeal raises three issues: whether (i) the trial court abused its discretion in denying defendant's motion in limine to preclude the State from introducing his two previous convictions for aggravated battery, (ii) improper statements by the prosecutor in his closing argument denied defendant a fair trial, and (iii) the prosecutor's effort to portray him as a violent person with a propensity for criminal conduct also denied him a fair trial.

Riley Parker was shot outside an apartment building where he was the janitor. Charles Morgan occupied an apartment in the building with Dolly Robertson. They were married after the shooting and prior to the trial. James Morgan is the brother of Charles. Loretta Adams, a co-defendant, lived in the building on the floor above Morgan and Robertson. *fn1 Robert Wilson was Adams' friend.

Charles Morgan and Robertson engaged in charges and countercharges with Adams, involving theft of property from their respective apartments. Charles Morgan and Parker filed a complaint with the police against Wilson, charging him with possession of property stolen from Morgan; Adams, in turn, complained to the police that her apartment had been burglarized. Later that evening, as Adams, carrying her infant son, and defendant were leaving the apartment building, they encountered the Morgan brothers and Parker on the stairway outside the Morgan apartment.

Defendant contended that as he and Adams descended the stairs below the Morgan apartment, the Morgans threw a radio at them, and defendant turned back towards the Morgans. Charles Morgan then fired one shot at defendant, missing him, and dropped the gun. Defendant picked it up, fired twice, threw the gun at the Morgans and ran out of the building. Immediately before the shooting took place, Adams and Parker ran down the stairs and out of the building.

According to the Morgans, as defendant and Adams were descending the stairs, they and Parker were leaving the Morgan apartment. The Morgans testified that defendant pulled out a pistol and fired three shots at them which hit no one. Charles Morgan told Robertson, his brother and Parker that defendant must have been firing a cap gun since no one was struck by bullets. He and his brother, according to their testimony, left the building with Parker, crossed the street and saw defendant standing with a gun behind a car in which Adams was sitting in the back seat. Charles Morgan testified that as Parker approached the defendant to talk with him, defendant fired several shots at Parker, and he saw Parker fall to the ground. At that point, the front door of the car flew open and the driver started shooting. Charles Morgan was wounded in the side and back.

Defendant claims that after he ran out of the building, he saw Parker coming toward him with a weapon in his hand, and Parker fired three or four shots in his direction. According to defendant, when Parker stopped shooting, defendant grabbed him and upon hearing more shooting, used Parker as a shield. Defendant testified that when the shooting stopped, he pushed Parker in the direction of the shooting, got into the car and was driven away by a friend, Chico, who had driven Adams and defendant to Adams' apartment. He testified that neither he nor Chico had a gun on the date of the shooting.

Adams testified that while in the back seat of the car she heard approximately four shots followed by a quiet interlude during which she looked out of the window and saw Parker grab defendant. She then heard a couple of additional shots, and the car pulled away. She also testified that she did not see defendant or Chico with a gun any time during the evening.

Defendant complains that by allowing his two prior convictions for aggravated battery into evidence, the trial court permitted the State to emphasize his propensity for violent conduct, instead of impeaching his credibility. The prior convictions satisfied the time requirements set forth in People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, with respect to both the period since release from confinement and the length of imprisonment. The only question for this court to decide is whether the trial judge abused his discretion in permitting the use of defendant's two prior convictions for aggravated battery.

Illinois courts> have not hesitated to approve the use of multiple convictions where they involve dishonesty or false statements. (People v. Dee (1975), 26 Ill. App.3d 691, 325 N.E.2d 336, and cases cited therein. See also People v. Austin (1976), 37 Ill. App.3d 569, 346 N.E.2d 166.) Prior convictions for crimes other than for an offense based on dishonesty or false statements have been held admissible on the theory that they establish a disposition on the part of the defendant to place the advancement of his individual self-interest ahead of the interest of society, and such proof may suggest a willingness to do so again on the witness stand. People v. Nelson (1975), 31 Ill. App.3d 934, 938, 335 N.E.2d 79.

Multiple convictions for violent crimes of a different nature than the crime charged have been admitted even though they did not involve dishonesty. (People v. Sanders (1976), 37 Ill. App.3d 236, 238, 345 N.E.2d 757 (two prior rape convictions admitted in trial for armed robbery).) Admission of multiple convictions has also been upheld in the case of violent crimes similar to the crime charged where dishonesty was not an element of the offenses. People v. Barksdale (1974), 24 Ill. App.3d 489, 321 N.E.2d 489; People v. Blythe (1974), 17 Ill. App.3d 768, 308 N.E.2d 675.

• 1 The prejudicial impact, if any, created by the introduction of the defendant's two prior convictions for aggravated battery is not any more harmful than in Barksdale, where two prior rape convictions were introduced in a trial for rape, deviate sexual assault and aggravated kidnapping. In Blythe, where previous convictions for manslaughter and assault with the intent to commit robbery with a dangerous weapon were admitted in a murder case, the court characterized the assault conviction as one for a crime of violence. The court stated in Blythe, "In our judgment, the two Tennessee convictions, being crimes of violence, do have a bearing directly upon the credibility of the defendant's contention that he killed in self-defense and the credibility of his evidence supporting that defense." (Blythe, at 771.) Kitchen's theory that he used Parker as a shield after Parker fired several shots at him is similarly subject to impeachment through the introduction of his two previous convictions for similar violent crimes. Admitting these convictions was not an abuse of discretion.

In regard to his two remaining contentions, although Kitchen was not afforded a perfect trial, a review of the record does not reveal conduct which was so prejudicial to Kitchen that it requires reversal. People v. Castillo (1976), 40 Ill. App.3d 413, 352 N.E.2d 340.

• 2 Defendant contends a series of comments made by the prosecutor during closing argument were inflammatory and prejudicial. In determining whether closing arguments are so prejudicial or inflammatory that a conviction must be reversed, the reviewing court must consider the arguments in their entirety. (People v. Nemke (1970), 46 Ill.2d 49, 263 N.E.2d 97.) Only when the remarks result in substantial prejudice to the defendant is reversal required. (People v. Nilsson (1970), 44 Ill.2d 244, 255 N.E.2d 432, cert. denied (1970), 398 U.S. 954, 26 L.Ed. 2d 296, 90 S.Ct. 1881.) Moreover, the record as a whole must be considered to determine if the prosecutorial comments were so prejudicial as to require a reversal. People v. Burnett (1963), 27 Ill.2d 510, 190 N.E.2d 338.

Defendant claims that the errors in the State's closing argument fall into three categories: (i) those designed to show defendant's propensity to crime, (ii) those which distorted the evidence and referred to matters not in evidence, and (iii) those designed to imply that defense counsel colluded with defendant in producing perjured testimony.

Specifically, defendant alleges the following comments prejudiced him by showing that he had a propensity to crime:

"State's Attorney: Mr. Kling [defense counsel] said how Ike didn't have to testify. It's the only way that you became aware of a very, very significant background of Ike Kitchen, and the two aggravated batteries — two shootings of other people.

You heard Ike Kitchen. You saw his demeanor on the stand. You heard about his aggravated battery convictions. He was out on parole four months when he killed Riley Parker.

Talk about credibility, talk about a type of person you are going to believe?

And Ike says that man, after he shot at me, when he pulled that gun down and shot, he kind of ...


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