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People v. Davis

OPINION FILED FEBRUARY 19, 1982.

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

v.

CURTIS DAVIS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN A. McELLIGOTT, Judge, presiding.

JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

In a previous opinion relating to this appeal (79 Ill. App.3d 784, 398 N.E.2d 1129), we reversed the judgment of the trial court holding that defendant's acts did not constitute the offense of disorderly conduct, as a matter of law. On appeal from our decision, the Illinois Supreme Court, in its opinion (82 Ill.2d 534, 538, 413 N.E.2d 413), held:

"We think the defendant's conduct falls squarely within the type of conduct intended to be proscribed by section 26-1(a)(1). Ill. Rev. Stat. 1977, ch. 38, par. 26-1(a)(1).

A collateral contention raised by the defendant is that, in order to provoke a breach of the peace, an act must be performed in public view. We find this contention devoid of merit. A breach of the peace may as easily occur between two persons fighting in a deserted alleyway as it can on a crowded public street."

Consequently, our supreme court reversed and remanded this matter for consideration of the other issues raised on appeal that: (1) defendant's cross-examination regarding his prior felony conviction resulted in substantial prejudice; (2) the prosecutor's opening and closing arguments deprived defendant of a fair trial; and (3) the trial court erred in instructing the jury. Accordingly, we have restudied the remaining issues and affirm the trial court. The essential facts follow.

The complainant, Mrs. Pearl Robinson, testified that on January 3, 1978, at approximately 2 p.m., she was at home sleeping because she was ill; her granddaughter was with her. At the time, she was 81 years old and had lived across the street from the defendant for several years. She stated that the defendant, who was uninvited, entered her home carrying a complaint involving his brother, Donald. She had signed the complaint in 1977, and Donald was subsequently arrested. Defendant stated that his brother was not going to court, nor was he going to jail. Defendant pointed his hand in her face from a distance of about 18 inches and stated, "If you do, Miss Pearl, you know me" and left.

Chicago Police Officer Daniel Alesi testified that on January 10, 1978, he had a conversation with the complainant and arrested defendant several days later pursuant to a warrant obtained by the complainant. Between 8 and 9 p.m. that evening, after Alesi advised defendant of his Miranda rights, defendant stated that he was at the complainant's house on the day in question. Upon arriving there, he knocked on the door and after hearing no response, he walked in and saw her on the couch. He then sat down and informed her that his brother was going to trial on a charge she had instituted, and he asked her not to testify against his brother.

Defendant testified that the complainant's granddaughter admitted him into the house and conducted him into the living room where he spoke with the complainant for several minutes in an attempt to settle the dispute peaceably. He denied ever having threatened her. During cross-examination he was asked if his residency in the complainant's neighborhood since 1969 had been "uninterrupted" and responded that he had been "in and out" of the penitentiary and the county jail. He was then asked if he had ever been convicted of a felony with no objection by defense counsel. He replied that he had been convicted of either aggravated assault or battery, but was not certain. A certified copy of defendant's 1975 conviction for aggravated battery was then admitted into evidence over defense counsel's objection.

During the instructions conference, Illinois Pattern Instructions, Criminal, No. 3.06 (1968) (hereinafter IPI), concerning the weight to be given an admission, was admitted over the objection of defense counsel. Thereafter, the jury found defendant guilty of disorderly conduct and he was fined $500 and sentenced to 30 days in the House of Correction and a one-year probation.

OPINION

Defendant contends that the cross-examination eliciting information about his prior conviction resulted in substantial prejudice because the evidence did not conclusively show him to be guilty. He asserts that unless the evidence clearly showed him to be guilty, so that a court could say he was not substantially prejudiced, such improper questioning necessitates reversal.

• 1 Our supreme court has determined that defendant's conduct falls squarely within the statute's proscription. (82 Ill.2d 534, 538.) Moreover, no objections were made by defendant to this cross-examination, nor was it properly preserved in defendant's motion for a new trial. It is fundamental to our adversarial system that counsel object at trial to alleged errors, and failure to object to the admission of evidence operates as a waiver of the right to consider the question on appeal. (People v. Carlson (1980), 79 Ill.2d 564, 404 N.E.2d 233.) Thus, defendant has waived any error which might have arisen from the admission of this testimony. Nor is this an appropriate case to invoke the plain error exception to the general waiver principle (Ill. Rev. Stat. 1979, ch. 110A, par. 615(a)). In light of the determination regarding defendant's guilt, there is no necessity to correct any alleged injustices which may have been done to defendant from this questioning.

Defendant next argues that the State's opening statement of facts purported to recite evidence but was not followed by proof at trial and the misstatement of evidence during closing argument amounted to prejudicial error, resulting in depriving him of a fair trial. We disagree.

During the opening statement the assistant State's Attorney made the following remarks which defendant ...


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