APPEAL from the Circuit Court of Fulton County; the Hon. U.S.
COLLINS, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The defendant Larry Chapin appeals from his conviction of intimidation (Ill. Rev. Stat. 1977, ch. 38, par. 12-6). After the jury verdict of guilty, the court sentenced the defendant to a term of three years in prison. On appeal, the defense raises two issues: (1) whether the court erred in refusing a defense motion for a mistrial and in allowing into evidence the victim's testimony that the defendant told him he "just got out of the pen," and (2) whether the court erred in not granting a new trial on the basis of the prosecutor's reference, in closing argument, to probation as a potential sentence.
The record discloses that on May 4, 1979, John Obery was driving from Havana to his home in Peoria when he heard a squeal behind him and saw a car swerve and hit a guard rail. Obery stopped, but the other car proceeded on past him. A mile or so down the highway, Obery observed the damaged auto stopped on the side of the road and the occupants waving to him to stop. He stopped, and the three men approached his auto and ordered him out. The defendant Larry Chapin then told Obery that he, Obery, had caused the damage to defendant's auto by applying his brakes in front of it. Obery informed Chapin that he would pay for the damages he caused. During the ensuing conversation, Obery was grabbed by the collar, at one point, by the defendant, Larry Chapin. Also, during the exchange, Obery informed the men he had some money in a checking account.
Thereafter, Obery and the oldest of three men proceeded in Obery's car toward his home, while the other two men, including the defendant, Chapin, followed in the other car. Later, at a junction stop, Larry Chapin changed places with the oldest man, Eldon Rains, and Chapin and Obery proceeded together in Obery's auto. During that ride the defendant told Obery, "No monkey business. I'll blow your fucking head off, because it don't make a bit a difference to me where I go, because I just got out of the pen." Obery testified that he noticed a bulge in Chapin's shirt which he believed to be a gun. Before arriving in Peoria, Obery and Chapin stopped at a tavern parking lot in Banner, Illinois, where the damaged auto was parked. Beer was purchased, and Obery and Chapin then continued on to Peoria, with Chapin ordering Obery to have a beer.
When they arrived at Obery's residence, all three men followed him into the house, where they met his granddaughter. The defendant and one other man followed Obery to his bedroom where he got his checkbook. Chapin told Obery to make the check payable to his brother, Ron Chapin. Obery then gave the check to the defendant. The men left, with Rains telling Obery and the granddaughter he would kill them if they went to the police. After they left, Obery picked up his wife from work and deposited money in his checking account. He testified he did this, fearful of harm to his family if he did not. Shortly thereafter, however, he decided to contact police. Three days later he identified the defendant Larry Chapin, in a lineup, as one of the men who had threatened him.
While during trial cross-examination, the defense was able to elicit from Obery the admission from him that it was possible the older man had communicated the threat, on re-direct, after calming down, Obery again expressed no doubt that it was the defendant, Larry Chapin, who had threatened him in the car. In addition to Obery's testimony, the State introduced into evidence a tape recording of a statement by the defendant, Chapin, to the police. In that statement, Larry Chapin indicated that Obery offered to pay for the damages, and they followed him to make sure. The defendant admitted switching places with the older man and riding with Obery part of the way. He admitted telling Obery that he would "knock his fucking head off," although, in the statement, he asserts that the threat was made while the cars were both stopped after the accident. The defendant stated that his brother and the other man threatened Obery with harm, with Rains threatening to kill him if he went to the police.
The first issue raised by the defense addresses comment by the prosecutor in his opening statement, on the defendant's reference to having just gotten "out of the pen" and, also, the introduction of Obery's testimony to that effect during his direct examination. In his opening statement to the jury, the prosecutor informed them that the evidence would show that while riding in Obery's car, the defendant told Obery:
"Any monkey business out of you, and I'll blow your fucking head off. It means nothing to me. I just got out of the pen."
Objection and motion for mistrial, based on the mention of prior crimes, was made by the defense. The defense argued that the statement was a reference to other crimes and was improper and prejudicial. The prosecution argued its admissibility as part of the res gestae. The court denied the motion for mistrial. Later on, it allowed into evidence Obery's testimony in which he quoted the defendant in his reference to having just gotten out of prison.
1 The general rule is firmly established that evidence of prior convictions or other crimes is inadmissible and incompetent evidence, prejudicial to the defendant. (People v. Goodwin (1979), 69 Ill. App.3d 347, 387 N.E.2d 433; People v. Hughes (1977), 51 Ill. App.3d 985, 367 N.E.2d 485.) The obvious basis for that rule of excluding such evidence is its suggestion to the jury that the defendant has criminal tendencies, which suggestion may affect their determination of his guilt or innocence in the case before them. (People v. Gregory (1961), 22 Ill.2d 601, 177 N.E.2d 120.) In Goodwin, we found reversible error where an arresting officer testified that the defendant asked to be let go, because he didn't want "to go back to prison." (See People v. Hawkins (1972), 4 Ill. App.3d 471, 281 N.E.2d 72.) Those cases, however, did not involve exceptions to the general rule of inadmissibility. The exceptions were set forth in People v. McDonald (1975), 62 Ill.2d 448, 455, 343 N.E.2d 489:
"Evidence which tends to prove a fact in issue is admissible though it may be evidence showing that the accused has committed a crime other than the one for which he is being tried, and evidence which goes to show motive, intent, identity, absence of mistake or modus operandi is admissible though it may show the commission of a separate offense."
Under the exceptions, references by a defendant to his prior prison time have been admitted into evidence as relevant to the defendant's intent (People v. Smith (1972), 6 Ill. App.3d 259, 285 N.E.2d 460) and as probative of the defendant's actions in committing the crime (People v. Allen (1975), 27 Ill. App.3d 1054, 327 N.E.2d 387). In People v. Smith the court states:
"The fact that the answer also suggested defendant's conviction of another crime did not make it inadmissible. Evidence that proves commission of an unrelated crime is admissible to show, by immediate inference, malice, deliberation, ill-will or the intent required for the offense charged. [Citation.] When evidence is admissible on other grounds, ...