APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of deviate sexual assault and unlawful restraint (Ill. Rev. Stat. 1975, ch. 38, pars. 11-3 and 10-3) and was sentenced to a term of 10 to 30 years.
On appeal, he contends that: (1) prosecutorial misconduct deprived him of a fair trial; (2) the presentation of a police officer's opinion evidence on ultimate facts denied him a fair trial; (3) he was denied his constitutional right of counsel when he was prevented from consulting with his counsel during a recess; (4) the out-of-court identification and subsequent in-court identification of defendant were illegal products of defendant's arrest in violation of his fourth amendment rights; (5) he was denied his constitutional right of confrontation when the court excluded a police report; and (6) the eyewitness identification was not so strong as to make the alleged errors harmless. We affirm.
On November 11, 1976, at 8:30 p.m., the victim was near the train station at Ashland and Armitage Avenues. She was grabbed by a man who placed a handcuff on her left hand, pushed her into a car and then forced her to commit a deviate sexual act. Following the act she was unhand-cuffed and released. After her assailant drove away, the victim stopped a police car. Because she spoke only Spanish and the police officers she stopped did not, the officers walked with her for a half block where they met Officer Rosa who was fluent in Spanish. The victim related the details of the incident to Officer Rosa, describing her assailant as a white male, 30 to 34 years old, 5'7" tall, 180 pounds, with "Castona" hair. She indicated that her assailant had a knife and that she was handcuffed. She also stated that he drove a yellow four-door car with the partial license plate number 9565. She later identified defendant as her assailant.
Although the police report forms provide a space to indicate the use of weapons, the police report prepared after conferring with the victim did not indicate that a weapon was used, nor did the report make reference to the use of handcuffs.
Five days later on November 16, 1976, Officer Harte observed a two-door car with a yellow body, black roof and a license plate number WM 9065, make an illegal U-turn on North Avenue just east of Ashland Avenue. After the car made the turn, it pulled up to a bus stop on North Avenue. The driver leaned over, as if he were talking out of the passenger door window to a woman who was standing at the bus stop. The woman looked for a second and then turned her back to the car. The officer ultimately curbed the vehicle and approached defendant, the driver. Harte explained to defendant that he had been stopped for a traffic violation and that his car resembled one which had been used in a crime a few days earlier. Upon defendant's agreement to accompany him to the police station, Harte searched defendant's car and recovered a pair of chrome handcuffs, a knife and a can of dog repellent. Defendant was taken to the police station and later released.
The following evening defendant was arrested and taken to the police station where he was placed in a lineup and identified by the victim. Defendant was 5' 11" tall, 210-220 pounds with dark brown hair. He told the police that on the night in question he was at a bar with two friends.
At trial, defendant testified that he was at a bar with friends between 8 and 11:30 p.m. on November 11, 1976, and that he did not have any contact with the victim on that day. The night defendant was arrested, a police officer called one of his friends, Robert Domcyk, who stated that defendant had been at a bar on the night of November 11, 1976. At trial, Domcyk testified that he saw defendant at the bar around 8:30 p.m.
Nicolette Mavronas, another friend, testified on direct examination that she met defendant pursuant to a prior arrangement at 8:05 p.m. on the night of November 11, 1976. However, on cross-examination she indicated that it was close to 8:30 p.m. when defendant arrived.
Thereafter, defendant was found guilty of deviate sexual assault and unlawful restraint and sentenced to a term of 10 to 30 years. Defendant appeals.
Defendant first contends that the State's cross-examination of defendant was improper, prejudicial and denied him a fair trial in that the State: (a) cross-examined defendant in minute detail as to the facts and circumstances surrounding an 8-year-old prior burglary conviction to which defendant pleaded guilty; (b) inferred defendant improperly invoked constitutional rights and delayed in advising the police of his alibi; (c) inferred defendant was involved in disreputable activity as part of his employment; and (d) presented innuendoes that defendant lied concerning his residence. The State maintains that the questions asked during defendant's cross-examination were entirely proper and within the scope of defendant's direct examination.
Defendant maintains that it is prejudicial and reversible error for the State to cross-examine a defendant concerning the details of a prior conviction. Defendant submits that his brief statement that in 1970 he pleaded guilty to a charge of burglary which involved the breaking into a restaurant and juke box because he needed money could not excuse the State's lengthy cross-examination concerning his plea of guilty. The State responds that the questions posed were entirely proper in that they addressed matters about which defendant had testified during direct examination.
• 1-5 While a defendant who testifies in his own behalf may be impeached by proof of a prior conviction, such impeachment is limited to the introduction into evidence of the record of conviction or an authenticated copy thereof. (People v. Flynn (1956), 8 Ill.2d 116, 133 N.E.2d 257; People v. White (1980), 84 Ill. App.3d 1044, 406 N.E.2d 7.) The purpose for excluding evidence of other crimes in criminal cases is that a jury may infer defendant's guilt from such other crimes. (People v. Belvedere (1979), 72 Ill. App.3d 998, 390 N.E.2d 1239; People v. Coleman (1972), 9 Ill. App.3d 402, 292 N.E.2d 483.) This exclusionary rule — that it is improper to cross-examine a defendant as to a prior conviction — does not apply where defendant opens the door to the conviction on direct examination. (People v. Kellas (1979), 72 Ill. App.3d 445, 389 N.E.2d 1382; People v. Harlan (1979), 75 Ill. App.3d 168, 393 N.E.2d 1203; People v. Snell (1966), 74 Ill. App.2d 12, 219 N.E.2d 554; see also People v. Nastasio (1963), 30 Ill.2d 51, 195 N.E.2d 144; People v. Bey (1969), 42 Ill.2d 139, 246 N.E.2d 287.) The rationale behind this exception is that a defendant cannot complain when, on cross-examination, the prosecution pursues a line of inquiry which defendant initiates. (People v. Clark (1973), 9 Ill. App.3d 998, 293 N.E.2d 666; People v. Owens (1977), 46 Ill. App.3d 978, 361 N.E.2d 644; People v. Saulsbury (1977), 55 Ill. App.3d 663, 371 N.E.2d 165.) Accordingly, the State may inquire into otherwise inadmissible and prejudicial evidence when defendant himself testified to such evidence on direct examination. (People v. Saulsbury; People v. Jackson (1974), 24 Ill. App.3d 700, 321 N.E.2d 420.) In any event even where cross-examination of a defendant as to a prior conviction is improper, such error does not mandate a reversal unless it deprived defendant of substantial justice or influenced the determination of his guilt. People v. Madison (1974), 56 Ill.2d 476, 309 N.E.2d 11; People v. White (1980), 84 Ill. App.3d 1044, 406 N.E.2d 7.
At trial, defendant himself first called the jury's attention to his earlier conviction when, during direct examination, he testified that in 1970 he was charged with burglary and that he pleaded guilty to the offense because he did it. He further testified that he broke into the restaurant and juke box because he needed some money. He stated that there was a trial and that he received a sentence of five years' probation.
On cross-examination the State made further inquiry into the facts surrounding the burglary. The State inquired into the nature of the offense, the location of the restaurant and juke box, the method used to break into each, and the circumstances surrounding defendant's arrest.
• 6 While defendant only objected to five of the 28 questions (one of which was sustained) posed by the State concerning his prior conviction, he now asserts that the entire line of questioning was clearly immaterial and irrelevant to the issue of defendant's credibility. An examination of the record indicates that the issue was sufficiently preserved and that a more strenuous objection would have been equally unavailing. Accordingly, we will address the merits of defendant's contention.
Initially, it should be noted that defendant not only testified as to the fact of his prior conviction but also to the details and circumstances surrounding that conviction. Defense counsel's inquiries and defendant's answers were plainly intended to infer that defendant had pleaded guilty when he was guilty, and since he told the truth and admitted his guilt at a previous time, he was more likely to be telling the truth in the instant case. (Compare People v. Perry (1980), 81 Ill. App.3d 422, 401 N.E.2d 1263.) As such, further inquiry by the State into defendant's prior conviction in order to dispel the impression created by defendant that his plea of guilty was motivated by his desire to tell the truth irrespective of the consequences was proper and well within the scope of the direct examination. There is no indication that the State was taking unfair advantage of tactical errors made by defense counsel. The questions posed by the State were designed, in part, to show that defendant had been arrested by uniformed Chicago police officers inside the restaurant between one and two in the morning and that defendant had pleaded guilty because there was absolutely no question as to his guilt. While the question relating to the location of the restaurant may not have been necessary, considering that defendant, for tactical reasons, previously initiated this line of inquiry, it can hardly be said that this additional information could have influenced the determination of his guilt.
Furthermore, the record shows that the court, in order to protect defendant against possible prejudice, suggested and gave the following instruction:
"Evidence of the defendant's previous conviction of a crime is to be considered by you insofar as it may affect his credibility as a witness, and must not be considered by you as evidence of his guilt of the crime with which he is charged." (See Illinois Pattern Jury Instructions, Criminal, No. 3.13 (2d ed. 1977).)
While this instruction may not have cured error had the defendant not initiated the inquiry into his prior conviction, it certainly minimized the possibility that the jury would infer defendant's guilt due to his previous conviction.
• 7 Under these circumstances the cross-examination was not improper because it was invited by defendant in direct examination. See People v. Saulsbury (1977), 55 Ill. App.3d 663, 371 N.E.2d 165; People v. Owens (1977), 46 Ill. App.3d 978, 361 N.E.2d 644; People v. Snell (1966), 74 Ill. App.2d 12, 219 N.E.2d 554.
Defendant next argues that it was improper for the prosecutor to interrogate him concerning whether he had been given Miranda type warnings including the right to remain silent. The State responds that the questions posed were entirely proper where defendant testified on direct about the warnings he received and where there was absolutely no suggestion by the prosecutor that defendant remained silent after receiving the warnings.
• 8, 9 It is an established principle that the use of an accused's silence at the time of his arrest and after he has received his Miranda warnings for impeachment purposes violates the self-incrimination clause of the fifth amendment and the due process clause of the fourteenth amendment of the United States Constitution. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240; United States v. Hale (1975), 422 U.S. 171, 45 L.Ed.2d 99, 95 S.Ct. 2133; People v. Hairston (1980), 86 Ill. App.3d 295, 408 N.E.2d 382.) Such inquiry is prohibited because after being apprised of one's Miranda rights, a defendant's failure to offer an explanation during custodial interrogation can as easily be taken to indicate reliance on the right to remain silent as to suggest an inference that the explanatory testimony was a later fabrication. (In re S.L.C. (1979), 75 Ill. App.3d 473, 394 N.E.2d 687.) Nevertheless, a Doyle violation does not automatically require reversal. (People v. Johnson (1979), 74 Ill. App.3d 1037, 393 N.E.2d 40; People v. Rush (1978), 65 Ill. App.3d 596, 382 N.E.2d 630.) Where such inquiry does not contribute significantly to defendant's conviction, it has been held to be harmless beyond a reasonable doubt. (People v. Johnson; People v. Rush.) It is also well settled that a defendant cannot complain where the prosecutor pursues a line of inquiry which the defendant initiates or invites. (People v. Saulsbury (1977), 55 Ill. App.3d 663, 371 N.E.2d 165; see also People v. Bridgeforth (1972), ...