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People v. Natoli

OPINION FILED MARCH 28, 1979.

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

v.

JOSEPH D. NATOLI, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MARVIN J. PETERS, Judge, presiding.

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

The defendant, Joseph D. Natoli, appeals from his conviction in a jury trial of possession and delivery of a controlled substance (ethchlorvynol), and his sentences of 1 to 3 years for delivery and 2 to 6 years for possession to run concurrently. He did not dispute his possession of the controlled substance, or that he delivered it to an informer, Kathy Krause, who was accompanied by an Elmwood Park police officer, Thomas Braglia, when she met with the defendant for the purchase. His defense was entrapment.

The defendant attacks his conviction on several grounds: (i) the trial court erred in permitting the prosecutor to cross-examine the defendant about a previous conviction, and even about charges on which he was never convicted; (ii) the prosecutor committed error in his closing argument when he called the defendant derogatory names, told the jury that the defendant's business was burglary and selling drugs, urged the jury to consider the defendant's prior burglary conviction for purposes other than determining his credibility, and suggested to the jury that the defendant was on parole and had violated his parole; (iii) the trial court improperly denied the defendant the opportunity to impeach an informer with evidence of her bad reputation for truth and veracity; (iv) the evidence failed to prove guilt beyond a reasonable doubt; and (v) the statutory classification of possession of ethchlorvynol as a Class 3 felony (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(b)), while its delivery is denominated a Class 4 felony, a lesser offense (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(e)), is unreasonable, and violates the defendant's equal protection rights. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2.

The State concedes that prosecutorial errors occurred; its position is that the evidence of guilt is so overwhelming that the errors were harmless. The evidence against the defendant was strong, but he still was entitled to present his defense to a jury that would judge his credibility free from prejudice created by the trial tactics of the prosecutors. The defendant's explanation for his conduct was that the State's informer, Kathy Krause, telephoned him or his home approximately a dozen times on the day he met her and during the preceding 3 days, importuning him to supply her with drugs, and he did so only because he felt sorry for her. Prosecutorial errors detracted from the defendant's credibility when he took the stand to present this defense, and thus prejudiced him. As a reviewing court, we are unable to say with reasonable certainty how the jury would have viewed the defense of entrapment absent prosecutorial conduct designed to inflame the jury against the defendant and deny him a fair trial. Had the prosecutor engaged in only one impropriety, the error might more easily be excused as not substantially affecting the outcome of the trial. But in view of the combination of errors committed, it is pure speculation to say the jury would have reached the same conclusion had the errors not occurred. (People v. Patterson (1976), 44 Ill. App.3d 894, 900, 358 N.E.2d 1164.) We believe that the defendant's conviction should be reversed, and that he should be retried on the charge of delivery. But, because of the sentencing provision for possession discussed below, the defendant cannot be retried on that charge.

Many of the errors the defendant complains of are not likely to recur at a new trial; therefore, we shall consider primarily those issues which may. These errors alone warrant granting a new trial.

• 1, 2 First, the defendant had a previous burglary conviction, which could be used to impeach him. (People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695.) The accepted way to introduce a prior conviction to impeach the credibility of a defendant who testifies in his own behalf is by offering an authenticated copy of the record of conviction during rebuttal. When direct examination has not covered that subject, it is improper to cross-examine a defendant about a previous conviction. People v. Flynn (1956), 8 Ill.2d 116, 133 N.E.2d 257; People v. Kosearas (1951), 408 Ill. 179, 96 N.E.2d 539; People v. Ring (1967), 89 Ill. App.2d 161, 232 N.E.2d 23.

The prosecutor not only violated this established rule but went on to ask the defendant about other charges preferred against him, including charges of armed robbery and possession of stolen goods. The defendant had not been convicted on any of these additional charges. Impeaching a defendant by showing that he has been arrested and charged with an offense for which he was not convicted is not permissible. People v. Bennett (1953), 413 Ill. 601, 110 N.E.2d 175.

• 3 The prosecutor compounded the prejudice to the defendant by proceeding to question the defendant on re-cross-examination about the specific facts surrounding the armed robbery charge. This interrogation only emphasized to the jury that the defendant in addition to being convicted of burglary had been charged with armed robbery. This entire examination was an erroneous and prejudicial incursion into areas where the prosecution should not tread. See Bennett.

People v. Nicholson (1978), 61 Ill. App.3d 621, 377 N.E.2d 1063, to which the State refers us, clearly differs from this case. There, a police officer on cross-examination by defense counsel referred in a non-responsive answer to a prior arrest of the defendant. The trial judge, on his own motion, immediately recessed the proceedings and offered defense counsel the opportunity to move to strike the officer's answer.

• 4 The next series of prosecutorial errors we note occurred in final argument. The prosecutor called attention to the defendant being on parole, and continued:

"That man, that parolee, and by the way, you know what parolee means. Parole, when you are released from the pen, comes from a French word which means `word of honor.' You see what Mr. Natoli's word of honor is worth. He goes out and delivers dope."

This argument was improper and prejudicial. First, the words "That man, that parolee' in effect use the defendant's prior conviction to render him a bad person instead of simply to attack his credibility. Second, the emphasis upon the defendant's having violated his "word of honor" invited the jury to convict the defendant because he was a burglar and had violated the terms of his parole, rather than because he was guilty of the charges being tried.

Further, the prosecutor referred frequently to crime being the defendant's business. ...


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