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People v. Berlin

OPINION FILED MARCH 23, 1978.

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

v.

JOHN BERLIN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK B. MACHALA, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal of a jury verdict and judgment by the circuit court of Cook County convicting the defendant, John Berlin, of the crime of theft. The defendant was sentenced to no less than three nor more than nine years imprisonment.

The issue presented for review is whether the defendant was denied a fair trial when the trial court permitted the prosecution to impeach the defendant with evidence of his use of an assumed name and barred the defense from attempting to rebut that impeaching testimony.

The prosecution presented three police officers as witnesses at trial. They testified that at about 1 a.m. on June 26, 1975, Officer Charles Ford, working in plainclothes, arrived at a subway station at Chicago and State Streets. Seven other officers were positioned in different locations around the intersection. Pretending to be drunk, Ford staggered up the subway stairs, walked about 20 feet to the entrance of a snack shop and leaned against the building. He was approached by Berlin and Ardell Rivers. He was shaken by Berlin, who asked if he was all right, but he did not respond. Meanwhile, Rivers unsuccessfully attempted to remove the officer's wedding band. As a marked police car approached the intersection, the two men walked to the subway entrance, about 25 feet away from Ford, who continued pretending to be drunk. Ford testified the two men appeared to be talking to each other for about three or four minutes, before approaching him again. This time Berlin took Ford by the right arm and upper shoulder and pushed Ford back inside the doorway of the snack shop, again shaking him and asking if he was all right. Ford did not respond. As Berlin raised Ford's right arm, Rivers grabbed his wrist and removed his watch. Berlin said, "Let's go." Rivers walked back toward the subway entrance and began talking to a woman later identified as Mary Cherry. Rivers handed the watch to Cherry and she entered a nearby tavern. The defendant, Rivers and Mary Cherry were then arrested on the spot.

The defendant testified in his own behalf, admitting his presence but generally denying his participation in the theft.

During cross-examination, the assistant state's attorney asked Berlin:

"Q: Now, sir, is your name Otis Sanders?

A: Yes, it is.

Q: Your name is not Johnny Berlin?

A: No, it's not.

Q: When the police arrested you, you told them your name was Johnny Berlin, didn't you, sir?

A: Yes, I did."

Defense counsel, Clare Hillyard, earlier had made a motion to prevent such impeachment, which was denied by the trial court. On redirect examination, Hillyard asked Berlin if he had any creditors or owed anybody money. Before the defendant answered, the prosecutor objected on the grounds the question was beyond the scope of the cross-examination, and the trial court sustained the objection.

After both sides rested the jury began its deliberations, which resulted in a guilty verdict against the defendant. The court sentenced him to three to nine years in prison. ...


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