APPEAL from the Circuit Court of Cook County; the Hon. MARK E.
JONES, Judge, presiding.
MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
Defendant-appellant Perry Brown was charged by indictment with the April 29, 1975, armed robberies of Cheryl Ward and Raymond Morgan and the April 30, 1975, intimidation of Cheryl Ward. Following a jury trial, Brown was found guilty of the armed robbery of Morgan and acquitted of the other two charges. On July 7, 1976, he was sentenced to imprisonment for four years to four years and a day.
Brown appeals this conviction, alleging prejudicial error in his impeachment as a witness by cross-examination regarding his prior arrests, facts surrounding his prior convictions and the sentences he had previously received. He also assigns error to the prosecutor's failure to introduce into evidence certified copies of these convictions, admission of hearsay testimony by police officers regarding statements of complaining witnesses and refusal of the trial court to tender an instruction to the jury on simple robbery as a lesser included offense.
1 For the reasons stated below, the first of these contentions is meritorious, and therefore the conviction is reversed and the cause remanded for a new trial.
The exchanges which are the subject of the defendant's first argument were based on Brown's testimony on direct examination, in which defense counsel asked him if he had ever been arrested. Brown said he had, whereupon defense counsel elicited admissions from Brown that he had been convicted twice of petty theft, once in 1966 and once in 1971. However, apparently because Brown did not know whether his having been placed on probation meant that he had been convicted, Brown's responses included an admission that he had been placed on probation for the first offense. The defense closed this segment of the direct examination by asking Brown if he had "been in any trouble, or arrested, in the last five years." Brown replied that he had not.
On cross-examination, the prosecutor asked Brown how many times he had been arrested, to which Brown eventually responded that he could not remember, but it was not more than 10 times. The prosecutor next asked what the arrests were for, but before Brown could answer, defense counsel objected, and a conference was held out of hearing of the jury.
Thereafter, the prosecutor examined Brown regarding his being placed on probation for petty theft and the facts surrounding his 1966 conviction. He then asked if Brown had ever been convicted and placed on probation for possession of a hypodermic needle. At this point, defense counsel objected and the succeeding exchanges featured objections and argument by the defense, argument and questions to Brown by the prosecution, rulings and questions to Brown by the trial judge and responses by Brown to questions.
In the course of these exchanges in the presence of the jury, it was the trial judge who examined Brown regarding the conviction and probation for possession of a hypodermic needle, and when the prosecutor later asked Brown whether he had been arrested on still other occasions, the trial judge repeated Brown's affirmative answer. The prosecutor then asked whether those arrests were other than traffic-related, and over defense counsel's objection an affirmative response was elicited. There was no indication whether any of the arrests or the conviction for possession of a hypodermic needle occurred during the five-year period in which Brown said he had been in no trouble.
The issue raised by these exchanges is to what extent a prosecutor may, in impeaching an accused who has admitted certain facts in his criminal record, cross-examine him regarding additional prior criminal conduct.
2 The general rule regarding impeachment of witnesses with evidence of their prior criminal conduct is that only convictions of crimes punishable by sentences of more than one year or involving dishonesty or false statement may be admitted, and these only if the trial court determines that their probative value outweighs their potential for causing unfair prejudice and further only if the conviction or release of such witnesses, whichever occurred later, was less than 10 years prior to their testimony. (People v. Montgomery (1971), 47 Ill.2d 510, 516, 268 N.E.2d 695, 698-99.) Montgomery indicates that this rule sets only the outer limits of trial court discretion to admit such evidence and that the trial judge is still to assess the probative value of such convictions in relation to their potential for prejudice. See People v. Wilson (1976), 43 Ill. App.3d 583, 357 N.E.2d 81.
3, 4 Before and after the formulation of this general rule in Montgomery, it was held that only convictions were admissible, and not arrests (see People v. Norwood (1973), 54 Ill.2d 253, 296 N.E.2d 852; People v. Roche (1945), 389 Ill. 361, 59 N.E.2d 866), nor facts surrounding such convictions (People v. DeHoyos (1976), 64 Ill.2d 128, 355 N.E.2d 19; People v. Lane (1948), 400 Ill. 170, 79 N.E.2d 65). Likewise, it was and is clearly recognized that only convictions bearing on a witness' credibility may be admitted. (People v. Rudolph (1977), 50 Ill. App.3d 559, 365 N.E.2d 930; Werdell v. Turzynski (1970), 128 Ill. App.2d 139, 262 N.E.2d 833.) The major change effected by Montgomery is to narrow by imposing a time limitation, the scope of convictions to be admitted. Cf. People v. Clark (1966), 78 Ill. App.2d 336, 223 N.E.2d 272.
5 The rules relating to impeachment of witnesses are the same where it is the accused who testifies (People v. Gilmore (1969), 118 Ill. App.2d 100, 254 N.E.2d 590, cert. denied (1970), 400 U.S. 845, 27 L.Ed.2d 81, 91 S.Ct. 89), although, of course, the danger of unfair prejudice increases where the conviction relates more closely to the accused (see, e.g., People v. DeHoyos (1966), 64 Ill.2d 128, 355 N.E.2d 19). Accordingly, the general rule formulated in Montgomery is applicable where it is the accused who is impeached.
There is authority, however, that some deviation from this general rule is permitted where the witness testifies on direct examination regarding some aspects of his criminal record, a practice referred to as opening the door. (See People v. DeHoyos (1966), 64 Ill.2d 128, 355 N.E.2d 19.) One exception is where the witness admits convictions of both admissible and inadmissible kinds under the general rule and affirmatively states that this list of convictions is complete. In such a case the prosecutor may cross-examine regarding any other convictions, regardless of whether they would have been admissible under the general rule. (People v. Nastisio (1963), 30 Ill.2d 51, 58-59, 195 N.E.2d 144, 148.) Similarly, where a witness on direct examination affirmatively states that he has never been arrested, there is authority that the prosecutor may then cross-examine regarding any prior arrests. People v. Johnson (1976), 42 Ill. App.3d 194, 198, 355 N.E.2d 577, 579; cf. People v. Decker (1923), 310 Ill. 234, 141 N.E. 710.
In the present case, however, Brown's only affirmative representation regarding completeness of his testimony concerning his criminal record was that he had been in no trouble for the past five years. Because the impeachment complained of dealt with matters not established as falling within that period, the two aforementioned exceptions are inapplicable, so ...