Appeal from the Circuit Court of Lake County; the Hon.
Lawrence D. Inglis, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After trial by jury defendant, Lyonel L. Harman, was found guilty of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-1(a)) and was sentenced to three years' imprisonment. He appeals, contending the trial court erred: (1) in excluding defendant's exculpatory statement made after his arrest; (2) in refusing to instruct the jury on the lesser offense of criminal trespass to land; and (3) in ruling that it did not have discretion to sentence defendant to probation under section 5-5-3(c)(2)(F) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3(c)(2)(F)).
Robert Pushee, superintendent of parks of the Zion Park District, testified that on June 2, 1983, no one had permission to enter the clubhouse of the Zion Golf Course or take anything out of it. He inspected the clubhouse after the police had arrived and saw that nothing had been taken, but that the back window had been broken. He also described a fence which ran around the entire golf course and a sign which said "Do not climb fence" located further down from the gate which led to the clubhouse.
The arresting officers, Patrick Lowery and John Samuelian, testified they had responded to a burglary alarm at the clubhouse of the Zion Golf Course at 3 a.m. on June 2 and found defendant inside the building with a set of keys to the golf carts in his possession. They observed that a back window had been broken and a large piece of concrete was lying on the floor. Outside, they found a 55-gallon drum directly under the broken window. Defendant was placed under arrest and advised of his Miranda rights, and when the officers inquired what he was doing in the building, he responded that he had entered to make a telephone call.
On cross-examination Officer Lowery stated that he was present at another conversation with the defendant later at the police station in which the defendant gave a statement to Officer Dayton. At this point, the State objected on the grounds that the statement made would be self-serving hearsay and beyond the scope of the direct examination. The court sustained the objection, and suggested that if the defense wished to question Lowery regarding defendant's statement at the police station, it should call him as a defense witness.
Officer Samuelian testified that he had a conversation with defendant in the squad car on the way to the police station in which the defendant told him he intended to take the golf cart for a joy ride. When asked whether he had any further conversation with defendant on the way to the station, Samuelian replied that he had no further conversations with the defendant until after they had arrived at the station, where Officer Dayton took a statement from him. On cross-examination, defense counsel asked Samuelian about the defendant's statement to Officer Dayton. Samuelian testified he did not recall what defendant told Officer Dayton and only knew that defendant had talked to him, as he was in and out of the room in which Officer Dayton and defendant were conversing.
Defense counsel inquired further whether Samuelian saw defendant make a written statement during the times he was in the room with him and Samuelian responded he had not. Counsel then inquired whether the officer recalled if defendant had told him he was going to bring the cart back and the officer responded he did not remember defendant saying he was going to bring it back. Counsel then sought to refresh his recollection with earlier testimony by Officer Samuelian at a preliminary hearing and the officer responded that he did not recall testifying at that time. The State objected, and in a side bar discussion the court was advised that Officer Samuelian had testified at the preliminary hearing that he was present along with Dayton and Lowery when the defendant gave a written statement at the police station, and that he then recalled that the substance of the statement defendant made was that he was going to take the golf cart, ride over the park, and then bring it back. The trial court sustained the State's objection to this line of inquiry, but directed that Samuelian stand by to be available for recall as a defense witness as he had earlier directed Officer Lowery. The State thereupon rested.
The State made a motion in limine to exclude as hearsay any testimony by Officer Dayton concerning statements made by defendant to him at the station. Defendant's counsel advised the court that the defendant's written statement to Dayton, which had not been offered in evidence, was to the effect that defendant planned to break into the clubhouse, find keys to the golf carts so he could take a cart to Beula Park and then return it, just to see if he could do it. The trial court granted the State's motion in limine, and defendant rested without presenting evidence.
At the conference on instructions defense counsel also offered instructions on criminal trespass to land (Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 16.05, 16.06 (2d ed. 1981)), arguing that while criminal trespass to land is not a lesser-included offense of burglary, the instruction should be given where the evidence produced at trial supports a conviction for that offense. The instructions were refused.
At the sentencing hearing, the trial judge remarked that he was precluded from sentencing defendant to probation because he had been convicted of burglary in Pennsylvania in 1982. After a sentencing hearing, the trial court found that probation should be denied and a sentence of imprisonment imposed for the reason that imprisonment was necessary for the protection of the public. The trial court thereupon imposed a three-year term of imprisonment, and this appeal followed.
• 1 Defendant contends first that the trial court erred in excluding his exculpatory statement made after his arrest at the police station as hearsay. Defendant concedes that under the hearsay rule a party is ordinarily excluded from proving his own out-of-court self-serving statements. (People v. Colletti (1968), 101 Ill. App.2d 51, 242 N.E.2d 63, cert. denied (1969), 396 U.S. 927, 24 L.Ed.2d 225, 90 S.Ct. 259.) He argues, however, his statement was admissible here because the State opened the door to its admission when on direct examination it brought out the fact that defendant had made statements to Officer Dayton at the police station, and because the State failed to object on cross-examination to references that defendant had made statements to Dayton. Defendant argues that by allowing the jury to hear this testimony it may have been misled into thinking defendant had made no statement to Dayton that he intended to bring the cart back and, as the State made first reference to this conversation, defendant should be permitted to clarify what he did say to Dayton.
It is true that where a portion of a conversation is related by a witness the opposing party has the right to bring out all of the conversation. (People v. Weaver (1982), 92 Ill.2d 545, 556-57, 442 N.E.2d 255; People v. Futia (1983), 116 Ill. App.3d 68, 71, 452 N.E.2d 109; Johnson v. Cunningham (1969), 104 Ill. App.2d 406, 414, 244 N.E.2d 205; Dispenza v. Picha (1968), 98 Ill. App.2d 110, 113, 240 N.E.2d 325.) It is also true, however, that this hearsay exception does not apply if the testimony to which reference was made was not a part of the conversation the opposing party is attempting to introduce on cross-examination. Here, the single reference Samuelian made on direct examination, that defendant made a statement at the police station, and Samuelian's later reference to the conversation on cross-examination, does not open the door to its admission or waive the State's objection to defendant's hearsay self-serving statement.
In context, Samuelian stated on cross-examination that while in the squad car defendant told him that he had intended to use the cart for a joy ride and he did not recall if defendant stated he was going to return it. Defense counsel then posed several questions regarding defendant's conversation with Dayton in the station, to which Samuelian responded that he was in and out of the interrogation room, but did not recall what ...