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09/22/88 the People of the State of v. James Thurman Johnson

September 22, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JAMES THURMAN JOHNSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

528 N.E.2d 1356, 174 Ill. App. 3d 726, 124 Ill. Dec. 248 1988.IL.1428

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

On October 22, 1987, defendant James Thurman Johnson was charged by information in the circuit court of Macon County with the offense of "unlawful possession of hypodermic syringe or needle with a prior unlawful possession of hypodermic syringe or needle conviction" (Ill. Rev. Stat. 1987, ch. 38, par. 22-50).

Defendant was tried in absentia by a jury on January 25, 1988. Prior to trial, defense counsel made a motion in limine to bar evidence of the defendant's prior conviction for unlawful possession of a hypodermic syringe. A hearing was held and the defense argued that the prior conviction was not an element of the offense but only a factor in sentencing. After hearing argument, the trial court denied the motion and the trial commenced. In reading the statement of the nature of the case and the allegations contained in the information to the jury, the trial court twice mentioned the defendant's prior conviction. Then during opening statements, the State asserted that it would present a certified copy of the defendant's 1982 conviction for unlawful possession of a hypodermic syringe.

In its case in chief, the State called Yvonne Stuart, an emergency room orthopedic technician at St Mary's Hospital in Decatur, Illinois. Stuart testified that the defendant was admitted to the emergency room on August 29, 1987, with a large laceration on his neck and a small laceration behind his ear. The defendant was bleeding "profusely," was crying, and was very upset, confused, and hostile toward the nurses and doctors. It became necessary for the emergency room staff to remove the defendant's clothing in order to prepare him for emergency surgery. As Stuart removed the defendant's pants, she observed the top of a hypodermic syringe "sticking out" of his pants pocket. Stuart removed the syringe and gave it to another emergency room nurse. Stuart identified the defendant from a photograph and identified the syringe and needle in court.

Over defense counsel's objection on grounds of relevance, Stuart was allowed to testify that she observed several scarred areas on the defendant's arms which she referred to as "track marks." Also over defense counsel's objection to Stuart's competence to render an opinion, Stuart was permitted to state what she meant by the term "track mark." She indicated that "track marks is a slang term used which means that the patient has been . . . a user." When asked by the prosecutor if she meant a user of a hypodermic syringe or needle, Stuart responded: "Yes." Stuart also testified that she had seen the defendant on prior occasions during her employment at the hospital and that to her knowledge he did not have diabetes or any other medical condition that would require the lawful use of a hypodermic syringe.

The chain of evidence allowing the admission of the hypodermic syringe was established by two nurses and a police officer. Over defense counsel's objection, a certified copy of the judgment of conviction of a James T. Johnson, convicted in 1982 of the offense of unlawful possession of a hypodermic syringe (People's exhibit No. 3), was admitted into evidence. Prior to the closing of the State's case, the trial court informed the jury of the contents of this exhibit as follows:

"Exhibit No. 3 is a matter of a record that was presented in Cause No. 82 -- CF -- 474, People versus James T. Johnson, wherein the defendant, James T. Johnson, on December 9, 1982, in the Circuit Court of Macon County, was convicted . . . of the offense of unlawful possession of a hypodermic syringe or needle. On October 20, 1982, James T. Johnson stated in open court that his age was twenty-seven years at that time. That means we have completed the People's evidence."

In the State's closing argument, the prosecutor argued over defense objection that the defendant had track marks on his arms. The prosecutor further argued that "track marks" are made by injecting one's self with a hypodermic syringe and needle and stated, "obviously you can draw the inferences from that that he knowingly possessed the hypodermic syringe that was found in his pocket." The prosecution also argued over defense objection:

"The question is, whether he possessed that hypodermic syringe or needle or did he not possess it. I submit to you the evidence is uncontradicted, undisputed that, in fact, he did, and that he has a prior conviction for a like offense, unlawful possession of a hypodermic syringe or needle. So, I'd ask you, please, to use your common sense."

During the jury instruction conference, defense counsel objected to any instructions which mentioned the defendant's prior conviction. This objection was overruled, and the trial court instructed the jury that an element of the offense was that the defendant had been previously convicted of unlawful possession of a hypodermic syringe or needle. Following deliberations, the jury found the defendant guilty of unlawful possession of hypodermic syringe or needle with a prior ...


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