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People v. Johnson

OPINION FILED NOVEMBER 29, 1982.

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

v.

WILLIE JOHNSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Robert J. Sulski, Judge, presiding.

JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant Willie Johnson was convicted of burglary and sentenced to four years in the Illinois Department of Corrections. On appeal, defendant contends (1) the trial court erred in denying his motion to bar use of a prior conviction; (2) a voluntary intoxication instruction tendered by the State was improperly given; (3) the voluntary intoxication instructions as given were incomplete and misleading; (4) a police report was improperly admitted as substantive evidence; and (5) prejudicial comments during the State's closing argument deprived him of a fair trial.

We affirm.

At trial, Richard Hujar, a police officer assigned to the canine unit, testified that at 3:20 a.m. on April 8, 1980, he received a call to assist other officers at Bethune School. When he and his partner Officer Delaney arrived, Hujar observed that a window had been removed. Hujar, Delaney and their dogs entered the school. Hujar released his dog on the first floor. Delaney went to the second floor. When Hujar released his dog, the dog went around a corner and shortly thereafter Hujar heard yelling. He found defendant in a hallway. His dog was biting defendant's arm. Hujar took defendant out of the school and placed defendant in Officer Tabor's custody.

Officer Tabor and his partner were the first officers to arrive at the school. Tabor testified that he noticed an open window and when he approached it, found that the glass had been removed. He radioed for assistance. Tabor then crawled through the window into the classroom, where he found books and papers scattered on the floor. Drawers in the teacher's desk and storage closet doors were open. Tabor left the classroom when the canine unit arrived. Other officers entered the school with dogs and soon thereafter exited the school with defendant whom they placed in Tabor's custody. Tabor further testified that he did not detect the odor of alcohol on defendant's breath. Defendant was able to walk without assistance and did not stagger or stumble. On cross-examination Tabor testified that no burglary tools were found after defendant was searched, nor were any tools found on the school premises. When defendant was placed in Tabor's custody, Tabor was told defendant was apprehended in the washroom.

Defendant called his sister, aunt, and mother to testify on his behalf. Defendant's sister, Lucinda Logan, lived with her mother and defendant. She testified she had a party at home on April 7, 1980. The party began about 1 p.m. Defendant had been drinking at the party and was "high," but he was able to walk and speak coherently.

Queenola Starling, defendant's aunt, testified that on April 7, 1980, between 8 and 10:30 p.m., she played cards with defendant. While playing, she and defendant drank 12 cans of beer and one-half pint of whiskey. Defendant became drunk and Starling asked him to take a nap. Defendant refused and left Starling's home.

Ollie Adams, defendant's mother, testified that when she returned home at 1:30 a.m. on April 8, 1980, defendant and a few of his friends were drinking. She smelled alcohol on his breath and knew he was drunk. She also testified that Bethune School was across the street from her home.

• 1 First, defendant contends the trial court erred in denying his motion in limine to bar use of his prior burglary conviction as impeachment evidence in the event he testified. He maintains the trial court did not consider the prejudicial impact of the prior conviction and therefore did not properly balance the factors relevant to deciding the motion. Defendant further maintains he chose not to testify because of the trial court's ruling, was thereby prohibited from explaining his reasons for entering the school and was prejudiced in this manner.

Prejudice which might occur from evidence of a witness' prior conviction is one of three factors to be considered in determining the admission of such evidence. (People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695; People v. Singletary (1979), 73 Ill. App.3d 239, 391 N.E.2d 440.) The evidence of crime is inadmissible if its probative value is outweighed by the prejudice. (Montgomery; Singletary.) However, in People v. Thibudeaux (1981), 98 Ill. App.3d 1105, 1114, 424 N.E.2d 1178, 1187-88, the court stated:

"[I]t is normally assumed that the trial court gives appropriate consideration to relevant factors without being required to articulate these in open court (People v. Washington (1973), 55 Ill.2d 521, 304 N.E.2d 276), and a trial court is not required to specify and evaluate such factors when ruling on a motion to exclude use of prior convictions for impeachment (People v. Fought (1980), 85 Ill. App.3d 732, 407 N.E.2d 231; People v. Bassett (1980), 84 Ill. App.3d 133, 404 N.E.2d 1125; People v. Cornes (1980), 80 Ill. App.3d 166, 399 N.E.2d 1346)."

In the case at bar, it is clear from the record that the trial court was advised of the prejudice which might have resulted if the prior conviction had been introduced. Thus, we will assume the trial court considered this factor and exercised its discretion properly. Defendant's decision not to testify is not a proper basis for excluding such evidence. (Thibudeaux.) We therefore conclude the trial court did not err or abuse its discretion in denying defendant's motion in limine.

• 2 Second, defendant contends the trial court erred in giving, at the State's request and over defendant's objection, the following instruction:

"An intoxicated person is criminally responsible for his conduct unless his intoxication renders him ...


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