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People v. Martin

OPINION FILED MAY 15, 1986.

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

v.

ALBERT MARTIN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon County; the Hon. Raymond L. Terrell, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendant was convicted in the circuit court of Sangamon County of one count of residential burglary and two counts of attempt (residential burglary). On May 9, 1983, he was sentenced to 8 years' imprisonment. On direct appeal the convictions and sentence were affirmed by this court. People v. Martin (1984), 123 Ill. App.3d 1159 (order under Supreme Court Rule 23).

Thereafter, defendant filed three post-conviction petitions (Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.). The first two were dismissed on motion of the State. The trial court ordered an evidentiary hearing on the third and, after that hearing, denied the relief sought, i.e., a new trial. This appeal followed.

The gist of all three petitions was the same: defendant claimed that his trial counsel made use of a purported conviction for misdemeanor theft in the course of trial; that the person so convicted had the same name as defendant, but that the conviction was not that of defendant; and therefore counsel was incompetent.

The evidence taken at the post-conviction hearing essentially corroborated the factual allegations of the petition. Trial counsel testified that he had been furnished with the theft conviction by the prosecutor who indicated that he intended to use it as a means of impeaching defendant if he took the stand. Counsel also stated that his own investigation revealed a number of much more serious convictions of defendant, including attempt (murder) and robbery, which might have been introduced by the State within the rule of People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695. He concluded that these were either unknown to the State or, if known, that the State had decided not to attempt to introduce them. He further concluded, as a tactical matter, to use the misdemeanor theft conviction in his case in chief by having defendant admit that the conviction was his own, and then trust that the question of impeachment had been foreclosed.

The trial record shows that at the very beginning of defendant's direct testimony defense counsel asked the following question and received the following answer:

"Q. Albert, initially to get one matter out right away, would the record of Sangamon County reflect that on March 19, 1981, you would have been convicted of theft under $300 for stealing a bicycle?

A. The records show it."

There was no cross-examination on the point.

At the hearing on the post-conviction petition defense counsel at trial was called as a witness for defendant. On direct examination the matter of prior convictions for impeachment purposes was being pursued, and the following took place:

"Q. [Counsel on post-conviction] Do you remember what ones they said they were going to use for impeachment?

A. [Trial counsel] Yes. I believe simply one item that they had Albert Martin that had been charged with stealing a bicycle.

Q. Okay. Prior to that, I assume before this, you received this exhibit prior to the time that Mr. ...


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