*1 However, as conviction for count V. therefore affirm defendant’s above, single applica- we hold that defendant’s fraudulent discussed four fraud. support telephone cannot convictions for counts of tion through VI defendant’s convictions for counts VIII. We vacate (counts IV) through vacating reversing Because are we VIII) (count V) (counts convic- through VI all but one of defendant’s counts, tions, single eight on all she received sentence because remand, circuit should resentencing. we remand On part schedule as of its order of restitution. payment determine (West 1992). 5—6(f) ILCS 5/5 — part, Affirmed vacated in cause part, part; reversed remanded.
STEIGMANN, P.J., McCULLOUGH, J., concur. ILLINOIS, Plaintiff-Appellee, DALE THE PEOPLE OF THE STATE OF ATKINSON, Defendant-Appellant. L. No.
Fourth District 4 — 95—0597 9,May Opinion filed *2 GREEN, J., dissenting. Foust, Jeffrey Appellate D. Daniel Yuhas and D. both Defender’s
Office, Springfield, appellant. (Norbert Clary, Attorney, Goetten, Michael D. State’s of Danville J. Rob- Biderman, Kathy Shepard, Attorneys Appellate ert J. and all of State’s Office, counsel), People. Prosecutor’s for the JUSTICE COOK opinion delivered the court: trial, Following a jury defendant Dale was convicted of Atkinson 1(a) burglary in violation of section of the Illinois Criminal Code 19— (West (720 1(a) 1992)). of ILCS was sentenced Defendant 5/19— (1) years’ to six imprisonment. appeals, alleging failing employ Montgomery balancing erred to test before (2) allowing him the State to with his refusing fact” approach court erred in to allow the "mere to with a the inclusion remand. was reversible error. reverse and driving was In March Nathan Reitsman around with three Chrysler in a friends LeBaron. When the car stalled and Nathan go get again, it he and his left car to call could started friends later, Upon they Nathan’s mother. their return 15 minutes discovered dashboard had been "pried that window had been down” equalizer and an apart. torn The AM-FM cassette stereo miss- ing. day, driving defen-
On the same Herb Simmons was around with Juvinall, dant, Dale car They passed and Steve Robbins. Nathan’s thought stopped. According and Juvinall Simmons may and a and defen- the car have stereo "fuzz buster.” Juvinall car; dant exited defendant claimed he did so at Juvinall’s Simmons’ away Simmons want request. because he did not his car drove something.” "if seen did
Juvinall entered Nathan’s car and removed stereo Juvinall, According he the AM-FM cassette equalizer. removed player, said he never which he then handed defendant. Juvinall again. player the AM-FM Juvinall then removed touched cassette he equalizer. Defendant claimed that stood the side he going the entire time because "wasn’t over the vehicle.” road *3 acting a "lookout” for Juvi- Defendant testified that he was not got Juvinall and defendant nall. Simmons then returned and both Simmons’ Juvinall had both the back into car. Simmons testified that got his when he player equalizer AM-FM and the under coat cassette into car. back the defendant, the then returned to his trailer.
According group to equal- player the AM-FM cassette Defendant testified that and Juvinall together tape with black electrical that izer held Although it at is components two defendant’s trailer. separated the evening group the happened, point it at some that unclear when "JR,” one of defendant’s friends. "JR” equalizer tried to sell the kept kept the buy equalizer, so it. Defendant did not the Juvinall stereo. objection, the testimony, and over defendant’s
After defendant’s prior of two impeached defendant with evidence guilty and the court burglary jury found defendant convictions. The years’ imprisonment. appeals. Defendant now him to six sentenced a witness is of The admission a defendant where the witness is problematic. especially This is true in a criminal trial.
105 with [a defendant] "If criminal testifies is convictions, charge simply upon the he risks conviction current If jury he is a bad man. in because the thinks alternative, silent, jury may chooses remain conclude despite is to guilty that he instructions that no inference be is against given testify. On [Citation.] drawn him his failure to hand, support of it other in of the use is as- misleading permit ap- 'that would serted it accused McCormick, pear as a of witness blameless life.’ Evidence § (4th 1992).” Graham, Cleary ed. M. & Graham’s Handbook of (6th 1994) (hereinafter 609.1, Illinois Evidence Graham). at 411 ed. § Addressing problem People Montgomery, in 47 Ill. 2d (1971), supreme N.E.2d 695 court embraced the test set (Fed. forth Rule 609 of the of Federal Rules Evidence R. Evid. 609). that, Montgomery provided the purposes court for of at
tacking a of a credibility, witness’ is conviction admis (1) only punishable by imprisonment sible if the crime is death or in (2) year, one dishonesty excess of involved or false state case, regardless punishment. however, ment of In either the evi dence is if inadmissible determines that the value of the substantially outweighed evidence of the crime prejudice. Additionally, prohibits Montgomery unfair rule a period admission this evidence if than years more has elapsed since the date of conviction or release witness from confinement, whichever is Montgomery, later. supreme at 698. The court has the Montgomery reaffirmed Williams, in
rule
two recent cases.
161 Ill. 2d
(1994) (expressing
application
concern over the mechanical
rule);
Williams,
People v.
This ideal rule, should the trial court employing Montgomery method. rule; is, the prongs mechanical apply first conviction(s) fit within if the determine should
107 If the categories requirement. and whether meet the timeliness conviction(s) qualify prongs, under mechanical balancing determining whether employ court should then test. sought probative be admitted is value substantially outweighed by danger the court prejudice, of unfair evidentiary should consider v. United alternatives. Old Chief (1997). States, 172, 574, L. Ed. S. Ct. One of 519 U.S. 2d 644 evidentiary impeach- these alternatives fact is the mere method ment. noting
The trial court was
correct in
that defendants
probably
prejudicial
will seek to use the
method that is
least
crime,
if
to them:
will
was for
serious
defendants
seek
prior felony
to use the mere fact
but if the
was not so
serious, they will seek
have
the name of the conviction entered.
purpose
Given that one
test
minimize
is to
prejudice
of unfair
to the
we fail to see how this
problem.
exceptions
creates a
It
been
has
noted that there are three
to the
exception
mere fact method. One
is when "the defendant
impeach
chooses
have the
informed
his prior
conviction for
purposes
way, including
ment
in the
traditional
the name
offense(s)
Kunze,
stands
App.
which he
convicted.”
193 Ill.
732,
J.,
(Steigmann,
specially concurring).
We note by not raised either party, defendant’s prior burglary may convictions have been as admissible substantive evidence of defendant’s intent. While evidence of prior acts of may crime, fenses not propensity be introduced to show to commit such prove evidence is if operandi, admissible it tends to modus motive, design, knowledge, Oaks, 409, v. 2d People intent. 169 Ill. (1996). 454, 1328, 662 N.E.2d The record is unclear as prior burglary exact nature of but at sentenc minimum, argued noting defense counsel for the that defendant burglar "has been essentially midnight convicted what are auto Nevertheless, ies.” issue was raised either in the trial court court, or in this and we it. decline to consider argues any The State error was Error is harm harmless. less if it did not if contribute other evidence conviction, or if the evidence overwhelmingly supports the duplicated admitted evidence. improperly merely properly allowed 863, 868, 667 N.E.2d 733-34 Durgan, App. 281 Ill. 3d People v. (1996); Wilkerson, People
(1981). above, long prior convictions has evidence of As discussed evidence of other recognized problematic. erroneous been af ordinarily calls for reversal unless record crimes evidence firmatively prejudice that no occurred. demonstrates 140-41, A number Lindgren, 79 prejudice, even where the years have found no of cases over being considered were for the identical offense supreme jury, Williams cases decided but recent balancing of value heightened concern for a real indicate a against prejudice. unfair *6 overwhelming. is Defen present
The evidence scene, presence, present at the crime but such dant was shown to be being knowledge commit coupled with the that a even when ted, People Taylor, for the crime. does not render one accountable Defendant testified Juvinall, Dale defendant committed that that the crime was being committed, and at a while the crime was remained distance Although a defendant eventu not act as lookout. that defendant did items, the is not overwhelm ally received one of the stolen evidence design or criminal a common criminal that defendant shared Thus, time the crime was committed. intent with Juvinall presented is warranted. There was sufficient reversal however, for a guilt, case must be remanded new trial. remanded for new trial.
Reversed and P.J., STEIGMANN, concurs. GREEN, dissenting:
JUSTICE of where the perfect example here is a agree I that the situation by use of be best served balancing test would defendant. testifying of a impeachment "mere fact” method of position of the circuit However, with the I am also concerned State even yet required in this "mere fact” method is not Supreme Court of this case. compelling circumstances under the compel- rule even under applied or discussed the Illinois has never ling circumstances. (161 296), the circumstances
In
Williams
here,
favoring
the "mere
than
stronger
use of
fact” rule were even
the court
charged
held
of a defendant
with mur
voluntary manslaughter,
der
his
al
introduction of
conviction for
(173
though error,
was not reversible
error. Williams
Ill. 2d
638),
argument
of the "mere fact” rule
use
was
There,
compelling,
less
but its use
still have
helpful.
would
been
major
prosecution’s
charges
thrust
was
murder
supreme court held
properly impeached by
the defendant was
evi
Thus,
aggravated
dence
conviction for
battery.
in both
cases,
Williams
convictions for crimes of
violence
used to
charged
defendants
with murder.
requiring
rule,
Absent precedent
application of
the "mere fact”
do not deem the conviction of defendant here was error. He was
burglary,
on
conviction of
the very offense with
charged,
which he was
but the
did apply
test.
Unlike the
cases,
evidence in the Williams
the impeach
ing evidence in
dishonesty,
this case
given great sig
involved
a factor
nificance
for its
regard
veracity
value in
to the
of the de
fendant.
Montgomery,
THE PEOPLE OF Plaintiff-Appellee, THE STATE OF *7 HANNA, STEVEN A. Defendant-Appellant.
Fourth District No. 4 — 95—0881
Opinion 2,May filed