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People v. Tennin





Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 31, 1984.

Defendant, Kevin Tennin, appeals from his conviction, after a jury trial, for the offense of attempt (burglary) (Ill. Rev. Stat. 1981, ch. 38, par. 8-4(a)). He was sentenced to a five-year term of imprisonment.

Defendant raises the following issues on appeal: (1) whether he was denied a fair trial because of the introduction into evidence of a plea-related discussion, and (2) whether the trial court erred in permitting defendant's impeachment with a prior burglary conviction.

Defendant and another person were found on the second-floor landing of an outside staircase at the rear of Rosales' Bar in Waukegan, Illinois, at approximately 1 a.m. on January 21, 1983, by police who were dispatched to a possible burglary. The arresting officer observed that insulation had been pulled from the housing around two vents on the outside of the rear portion of the building. The vents led into the bar. A hammer was found on the ground near these vents. The owner of the bar testified that the appearance of the vents with the insulation pulled out was different from their appearance prior to the date of defendant's arrest.

Detective Steven Anderson interviewed defendant after defendant had been read the Miranda warnings. Anderson testified that defendant initially told Anderson that defendant was behind the bar "to meet some lady" at the time of his arrest. Anderson testified that after he told defendant that that was not true, defendant gave an oral and a written statement admitting he had taken the insulation from around the vents with the intention of getting inside the bar and taking some money.

Defendant testified at trial that he was behind the building at the time because he went to that vicinity to get into a fight with the brother of a woman who lived next to the bar, and that he told Anderson this. He testified that Detective Anderson told him he did not believe him, and Anderson threw a chair, struck, kicked and choked him, and that he gave the inculpatory statement so Anderson would not continue to hit him. Anderson denied these allegations on rebuttal.

Defendant first contends that certain testimony given by Anderson on rebuttal concerned an inadmissible plea-related statement made by defendant. He maintains that the admission of this testimony was in violation of Supreme Court Rule 402(f) (87 Ill.2d R. 402(f)), and that it denied him a fair trial. The challenged testimony occurred in response to the prosecutor's question concerning when Anderson had talked with defendant about a person named "Pena Boy," who was suspected of an unrelated crime. Anderson answered the question by saying:

"After I gave him the statement and we were bringing him back to the cell, he stated did I know Pena Boy and I said yes. I said, `Where is he at?' He said, `I want to make a deal.' I said, `I don't make deals.'"

Defendant moved for a mistrial at this point. The trial court denied this motion.

The State on appeal has chosen not to argue that this statement of defendant's to Anderson was not plea-related. It contends instead that assuming, pursuant to People v. Friedman (1980), 79 Ill.2d 341, 403 N.E.2d 229, the statement "was an offer to bargain and, therefore, was an inadmissible plea-related statement," the admission of the statement was harmless error.

Supreme Court Rule 402(f) provides:

"If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding." (87 Ill.2d R. 402(f).)

The purpose of the rule is to encourage the negotiated disposition of criminal cases through elimination of the risk that the accused enter plea discussion at his peril. (People v. Friedman (1980), 79 Ill.2d 341, 351, 403 N.E.2d 229.) The test for determining whether a statement is plea-related is whether the accused exhibited a subjective expectation to negotiate a plea and whether this expectation was reasonable under the totality of the objective circumstances. (People v. Friedman (1980), 79 Ill.2d 341, 351, 403 N.E.2d 229.) This determination must be made from the particular facts of each case. (People v. Friedman (1980), 79 Ill.2d 341, 352, 403 N.E.2d 229.) In Friedman our supreme court held that defendant's inquiry about "making a deal" and his stating generally the terms upon which he would be willing to bargain, was a plea-related statement and, therefore, was inadmissible. 79 Ill.2d 341, 403 N.E.2d 229.

The troublesome question before us, which we must first address even though not argued by the State, is whether defendant's nonspecific statement that "I want to make a deal," which Detective Anderson rejected, can be characterized as plea-related and therefore inadmissible under Rule 402(f). In contrast to the statements by the defendant in Friedman where the terms upon which defendant would be willing to bargain were generally ...

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