APPEAL from the Circuit Court of La Salle County; the Hon. C.
HOWARD WAMPLER, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
On June 2, 1971, defendant Elson Boose was indicted for the murder of Robert Jefferson, a guard at the Illinois Industrial School for Boys where the then 15-year-old defendant was incarcerated for a juvenile offense. On February 22, 1972, defendant pleaded guilty to one count of murder and was sentenced to a term of 20 to 40 years in the Department of Corrections. On November 10, 1975, the conviction was reversed and remanded for entry of a new plea as the trial court had abused its discretion in requiring defendant to be shackled during a competency hearing. (People v. Boose (1975), 33 Ill. App.3d 250, 337 N.E.2d 338.) On April 5, 1977, that decision was affirmed. People v. Boose (1977), 66 Ill.2d 261, 362 N.E.2d 303.
Upon remand, defendant entered a new plea of not guilty and was tried by jury in the circuit court of La Salle County. Defendant was found guilty of murder and again was sentenced to a term of 20 to 40 years in the Department of Corrections. Defendant now appeals this conviction, contending that the trial court erred in not declaring a mistrial when a defense witness disclosed a conversation with defendant at Stateville Penitentiary concerning defendant's prior appeal and abused its discretion in ordering an excessive sentence considering his rehabilitative success.
At defendant's trial, an important defense witness was Bennie Singleton. Singleton had been an inmate at the Illinois Industrial School for Boys at the time of the homicide and was later incarcerated at Stateville Penitentiary for an adult conviction. The thrust of Singleton's testimony was that defendant had not committed the charged offense by stabbing the victim or by plotting with other inmates to do so. During cross-examination, the following exchange transpired:
"Q: Where are you at now?
Q: Did you ever see Elson Boose at Stateville?
Q: Did you ever have a conversation with him?
Q: Did you ever talk about this incident with him?
A: When I first seen him, you know, it was about the Appellate Court, something about his appeal or something. * * *"
At this point, defense counsel asked to be heard out of the presence of the jury and moved for mistrial on the ground that defendant was irreparably prejudiced by the jury's awareness of his incarceration at Stateville and participation in an appeal. The People responded that they were attempting to impeach Singleton's credibility by demonstrating that he and defendant discussed the case at Stateville and that Singleton had completely reviewed the case file. The trial court considered "probative value against the prejudicial value," denied the motion, and instructed the People to avoid the line of questioning. The jury was then recalled and no further reference to the testimony was made at any point during the trial.
The situation at bar differs from more familiar contexts in which indicia of prior criminality are assigned as the basis of prejudicial error. The People made no attempt to introduce evidence of criminality indicating motive, intent, identity, absence of mistake, Modus operandi, or false alibi (see, e.g., People v. Romero (1977), 66 Ill.2d 325, 362 N.E.2d 288), or to impeach defendant's credibility (e.g., People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695). Second, the prior criminality involved was not that of a prior conviction but stemmed rather from defendant's initial conviction in this cause. Third, the People's attempt to ...