Appeal from the Circuit Court of Brown County; the Hon. Cecil
J. Burrows, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant appeals from an order of the circuit court of Brown County which denied the prayer of his post-conviction petition. He had been tried by a jury in Brown County for the offense of murder, found guilty, and sentenced to a term of 25 to 75 years. The judgment and sentence were affirmed on direct appeal to this court. People v. Woollums (1981), 93 Ill. App.3d 144, 416 N.E.2d 725.
Thereafter, the instant petition was filed pro se by defendant. (At least one other such petition was voluntarily dismissed by defendant in this court.) The trial court ordered the petition docketed, counsel was appointed for defendant, and the State filed a motion to dismiss. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122-2.1(b).) Argument was taken on the motion and by written order the trial court allowed the motion and dismissed the petition. This appeal followed.
The gist of the petition concerned the use of a prior conviction of defendant for aggravated battery. It had been obtained in the circuit court of Adams County in 1977 but was reversed by the United States Circuit Court of Appeals for the Seventh Circuit on double jeopardy grounds. (United States ex rel. Woollums v. Greer (7th Cir. 1984), 728 F.2d 918.) The conviction was introduced at trial on direct examination of defendant, apparently in anticipation of its use by the State for purposes of impeachment. It was further considered by the trial judge in fixing defendant's sentence.
Defendant raises three issues on appeal: (1) that he was denied due process at trial by use of the reversed conviction and hence is entitled to a new trial; (2) that he is entitled to a new sentencing hearing because of the use of the reversed conviction by the trial judge in fixing sentence; and (3) that he was denied effective assistance of counsel at the post-conviction hearing because of counsel's failure to file the certificate required by Supreme Court Rule 651(c). 103 Ill.2d R. 651(c).
• 1 We do not believe that defendant is entitled to a new trial; we do believe that he is entitled to a new sentencing hearing; and our latter finding moots the third issue.
The use of a conviction obtained in violation of a constitutional right is controlled by the Supreme Court's decision in Loper v. Beto (1972), 405 U.S. 473, 31 L.Ed.2d 374, 92 S.Ct. 1014. Loper was adopted by our own supreme court in the recent decision of People v. Martin-Trigona (1986), 111 Ill.2d 295, 489 N.E.2d 1356. The core of the Loper decision is that convictions obtained in violation of a constitutional right cannot be used for impeachment purposes. Loper itself was concerned with an uncounseled conviction in violation of Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792. However, the rationale has been extended to other constitutional rights. (See Beto v. Stacks (5th Cir. 1969), 408 F.2d 313; State v. Kiser (1974), 111 Ariz. 316, 529 P.2d 215; State v. Murray (1974), 12 Wn. App. 328, 529 P.2d 1152.) In our opinion Loper and Martin-Trigona should not be read narrowly to confine the principle to sixth amendment violations. In the instant case the constitutional violation is of the fifth amendment prohibition against double jeopardy. The violation is no less real nor less forceful for that reason.
We must therefore assume that the introduction of the conviction at trial was error, but the more important question is whether it was reversible error. We think not. A reviewing court may find that the denial of a Federal constitutional right did not contribute to a defendant's conviction, provided it can determine that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824.) That is precisely the situation here.
The direct inquiry consisted of a single question. After establishing that defendant had been in the Pontiac penitentiary, counsel asked whether that was on account of his being convicted of a crime. After defendant replied in the affirmative, counsel asked for an explanation and defendant answered, "Aggravated Battery and Bail Jumping." Nothing more was said about it on direct and the prosecutor asked nothing about it on cross-examination, nor did he refer to it in closing argument.
The trial lasted five days, and the record is lengthy. It is difficult to conceive how a single question could have affected the outcome. Moreover, there was eyewitness testimony of defendant's guilt. In his direct appeal to this court defendant raised the question of reasonable doubt only in the context of an intoxication defense, which this court found to be without merit. Contrary to defendant's assertion in the instant case, his credibility was not a major issue. This distinguishes it from State v. Murray (1974), 12 Wn. App. 328, 529 P.2d 1152, relied on by him. In that case the Washington court concluded its opinion by saying:
"Where the defense rests mainly upon the defendant's credibility, we are unable to say that use of a constitutionally invalid conviction to impeach defendant's testimony was harmless error." 12 Wn. App. 328, 333-34, 529 P.2d 1152, 1155.
The State relies upon a prior opinion of this court. (People v. Miller (1975), 27 Ill. App.3d 788, 327 N.E.2d 253, cert. denied (1976), 424 U.S. 925, 47 L.Ed.2d 334, 96 S.Ct. 1136.) It was there held that where a prior conviction was not void at the time of its introduction into evidence, it was not reversible error for the State to use it for impeachment, even though it was later reversed on appeal. In our opinion Miller has been overruled sub silentio by Martin-Trigona.
We agree with the trial judge who said in his order denying the post-conviction petition, "[I]t cannot be maintained that the disclosure of the impeaching aggravated battery ...