*1 (No. 88860. ILLINOIS, Appel- THE STATE OF
THE PEOPLE OF COX, A. lee, Appellant. v. DERICK Opinion April 2001. filed *2 McMORROW,J., dissenting. Yuhas, Defender, D. and Lawrence J. Deputy
Daniel Defender, Ap- of the Office of the State Essig, Assistant Defender, of for pellate Springfield, appellant. (Joel General, of Ryan, Attorney Springfield
James E. Bertocchi, General, L. Browers D. Solicitor and William General, Burns, Attorneys Beth Assistant of Mary counsel), Chicago, People. for opinion delivered the JUSTICE FITZGERALD court: County in the
Following Champaign trial defendant, Cox, Derick convicted of court, circuit and sentenced to unlawful of a stolen vehicle possession court affirmed the appellate 15 years’ imprisonment. 4—99—0122 defendant’s conviction and sentence. No. 23). Court Rule Supreme order under (unpublished appeal. for leave to granted petition the defendant’s 315(a). Ill. 2d R. *3 continuing
The central issue in this case involves a criminal impeaching “mere-fact” method for use of the after our conviction evidence prior defendant with Atkinson, Ill. 2d 450 in v. opinion People and remand for a new reverse the defendant’s conviction trial.
BACKGROUND David 23, 1998, a Nissan Pulsar owned May On Fisher, son, Zachary and loaned to their and Rose Sherer student, from a disappeared Illinois University a later, A week complex Champaign. housing student Rantoul, crashed into a construc- reappeared the car As a Rantoul near a roadside tree. sign stopped tion accident, noticed the de- approached officer police walking fendant toward the car. The defendant saw dog and ran. The officer and his police pursued officer ar- nearby into a residence where he was rested. The defendant indicted for criminal burglary, damage property, possession to and unlawful of a stolen trial, burglary vehicle. Before the State dismissed the damage and criminal to counts. A dead- property jury locked on the unlawful of a stolen vehicle possession count, and the court declared a mistrial. retry defendant,
The State chose to and another found him jury guilty possession of unlawful of a stolen years’ vehicle. The court sentenced the defendant to 15 imprisonment. appellate court affirmed the defen- dant’s conviction and appeal sentence. This followed.
ANALYSIS The defendant raises four issues in his appeal. We initially focus on the first issue: appellate whether court incorrectly sanctioned the trial court’s use of the “mere-fact” method impeach to the defendant’s cred ibility with his prior felony convictions. Under the mere- method, fact “only the ‘mere fact’ of the felony convic tion is brought jury’s attention, to be opposed as informing jury of the precise offense of which the defendant has been convicted or the circumstances sur rounding Kunze, that conviction or both.” (1990) J., 193 Ill. 3d App. (Steigmann, specially concurring). The defendant contends that this court barred mere-fact in Atkinson.
Immediately trial, before defense counsel filed a mo- tion limine to all bar evidence of the defendant’s five prior felony convictions, convictions: two 1989 theft 1990 burglary conviction, conviction, a 1994 theft and a 1996 burglary conviction. Defense counsel argued these closely convictions were related to the unlawful possession of a stolen charge. According motor vehicle counsel, defense if heard evidence of these *4 382
convictions, that the defendant had a it would believe types propensity The court to commit these of offenses. stated: weighs prejudicial impact of inform- always
“The court jury prior against ing the about the Defendant’s convictions testify, And if this Defendant wishes to probative value. jury going duty judge to be told that their be to is will And I credibility opinion of the witnesses. am of the that, only jury that the Defen- that it’s fair be aware they weigh prior felony dant does have convictions when credibility, testify. his should choose will, however, jury
I tell the of the bur- specifically not merely I glary and the theft conviction. will tell convictions felony prior the Defendant has a theft and convic- well, theft, I tions, opposed this is a stolen car. will as to— just going say I’m go say not so far as to theft. even going impeached if to be with his felony convictions he’s prior record.” defendant,
On direct examination of the defense felony couple prior “[Y]ou asked, have a counsel you?” that he convictions, don’t The defendant answered post-trial motion, that did. In a the defendant asserted allowing prior evidence of his convic- the court erred jury. mo- The trial court denied this tions to reach the tion. despite appellate that, our decision
The court held did not abuse its discretion Atkinson, the trial court prior admitting convic fact of the defendant’s the mere impeach agreed to mere-fact tions because the defendant (unpublished under order Su ment. No. 4—99—0122 23). preme however, no such We, see Court Rule contrary, agreement To the on the record. any asking to exclude in limine court
filed a motion post-trial prior motion convictions and evidence of his reiterating position. conviction issue properly preserved Enoch, for review. See Ill. 2d briefly addressing Illinois Atkinson, we review
Before
*5
through
concerning impeachment
the
of a witness
law
Montgomery,
beginning
People
prior
v.
convictions,
with
use of
(1971).
adopted
Montgomery,
In
we
ll. 2d 510
I
47
proposed
Federal Rule of Evidence 609.
the 1971
draft of
Montgomery,
rule,
this
evidence
In
2d 1
revisited
v.
161 Ill.
we
regression
Montgomery balancing
test. We found “a
ultimately
In
1 Rule 609
was enacted
a different
form.
court,
substantially
danger
prejudice
federal
of unfair
need not
outweigh
probative
See Fed. R. Evid.
value of
conviction.
609(a)(1).
rule, however,
proposed
has remained the touch
admitting
prior
stone for
evidence of the defendant’s
convictions
Elliot,
App.
907
in Illinois. See
274 Ill.
3d
allowing
toward
the State to introduce evidence of virtu
ally all
types
felony
purported
convictions for the
rea
Williams,
impeaching
son of
a
defendant.”
testifying
Ill. 2d at 38-39.
Noting
trial courts often mechani
cally applied the
test
balancing
prior-
allow more
evidence,
Montgomery
stated,
conviction
we
“The
rule
not, however,
does
allow for the admission of evidence of
Montgomery
any and all
crimes. The
focus
on crimes which
on the defendant’s
bear
truthfulness
as
Williams,
witness.”
Ill. 2d at 39. Trial courts should
tip
not
test
balancing
probative
toward
value simply
and,
because all felonies
a disrespect
society
show
for
thus,
indicate a willingness
to lie on the witness stand.
Williams,
In the wake of an court appellate panel the if trial impeachment sanctioned mere-fact method Montgomery balancing leaned to courts found test unfairly ward conviction evidence as excluding prior Taber, v. 576, 580 prejudicial. App. See 271 Ill. 3d (1995). later, from the same years Several another case district, propriety court mere-fact appellate this court. impeachment finally reached charged bur- with Atkinson, In glary defendant testified vehicle. After the of a motor sought present of his two evidence trial, the State impeachment purposes. burglary prior for convictions prejudicial objected,arguing the effect of Defense counsel outweighed probative value. convictions their these only jury learn that the should Defense counsel asserted felony prior The had convictions. that the defendant two request, and the denied defense counsel’s trial court impeached defendant with evidence of his two State burglary jury The later found the defendant convictions. guilty. appellate court reversed and remanded for new holding permitting
trial, trial court erred in the State the nature of the defendant’s convictions. reveal App. People Atkinson, 288 Ill. 3d appellate Instead, the court determined that the trial court should have factored the mere-fact method of balancing Montgomery into its test. Atkin App. jury son, 288 Ill. 3d at 107. The should have heard only prior felony that defendant had two convictions. App. Atkinson, Ill. 3d at 107. appellate
We reversed the
court and reinstated the
Atkinson,
defendant’s conviction.
“Under the mere-fact
the
proof
hears direct
that the
felony,
accused has been convicted of a
the exact
nature of which is excluded
jury.
from the
This bare an
unavoidably
jury speculation
nouncement
invites
about the
nature of
prior
potential danger
the
crime. There is a
jury
speculate
the
previously
would
that the defendant was
convicted of
Consequently,
a more serious crime.
the mere-
approach may
prejudice
fact
result in unfair
to the defen
arising
dant
speculation
from
as to the nature of the
prior
rule,
Montgomery
unnamed crime. Under the
how
ever,
potential
speculation by
jury.
there is no
for
the
More
over,
possibility
the
of resulting prejudice to the defendant
revealing
from
the
prior
nature of the
conviction is con
judicial balancing
trolled
test set forth
the third
test,
prong Montgomery.
prejudice
Under that
if
substantially outweighs
probative
defendant
value of
evidence,
admitting
impeachment
prior
conviction
Atkinson,
must be excluded.”
Atkinson, which was decided while the defendant’s appeal was pending, applies to this case. See (1999) (“As Linder, rule, 186 Ill. 2d a general this court’s decisions to all cases that are apply pending when announced, decision is this unless court directs otherwise”). limit our attempts holding State Atkinson.
The State contends Atkinson did not instruct that a trial court could not consider mere-fact as a means to lessen the effect of a defendant’s prejudicial Montgomery convictions within context Atkinson, however, In balancing test. we held that “trial courts should not consider the mere-fact method of added.) Atkinson, 186 Ill. 2d impeachment.” (Emphasis at 461. find no in this suggestion unequivocal language encompasses that a trial court’s discretion Additionally, mere-fact the State contends impeachment. a trial court only governs Atkinson cases which
387 for mere-fact request a defendant’s to consider declined limitation.2 no such we see Again, impeachment. fact of the defendant’s the mere
Admitting In to determine error. order felony convictions “a material factor error was evidentiary this whether evidence the verdict such without his conviction (Williams, 161 Ill. 2d been different” likely would have at trial and the 42), presented turn to the evidence we the State the defendant: whether issue raised second doubt. a reasonable guilty beyond him prove failed to aside unless will not be set “A criminal conviction it unsatisfactory that is or improbable the evidence so guilt.” the defendant’s doubt of creates a reasonable (1985). In Collins, 237, viewing 2d 261 106 Ill. People v. the de evidence, retry we will not sufficiency of the (1999). 532, Smith, Ill. 2d 541 People v. fendant. 185 “whether, Instead, viewing is limited to after inquiry our light prosecu in the most favorable the evidence fact could have found the es tion, rational trier of any a reasonable beyond sential elements of the crime Virginia, Jackson v. 443 (Emphasis original.) doubt.” 2781, 318-19, 560, 573, 99 Ct. 307, U.S. 61 L. Ed. 2d S. Schmalz, 75, (1979); accord v. 194 Ill. 2d People 2788-89 80-81 as first Phil-
The State called Ira Philbeck its witness. television with her watching beck testified that she was 30, 1998, when p.m. May two around 3:30 on grandsons He front door of her house. the defendant came to the defendant running. and from upset sweaty looked question a defendant can reach the of whether 2 Wedo not requests agrees to challenge or an Atkinson violation when note, however, “an accused impeachment. improper mere-fact manner and may proceed in a certain not ask the trial court to he obtained that the order which then contend a court of review 195, (1992); Lowe, accord 153 Ill. 2d 199 was in error.” v. (1983) (a or defendant who invites People Payne, Ill. 2d complain). improper evidence cannot acquiesces to the admission of fight told Philbeck that he had in a been and hurt some- though appear injured. one, he did not He asked to use telephone, pointed phone. and she toward her Before place police call, the defendant could Philbeck saw a of- driveway suggested ficer in her she and the defen- speak hallway dant with him. The defendant ran down a and asked Philbeck to hide him. When she refused and *9 him leave, told he shut himself in the bathroom. Two police police dog. officers entered the house with a Eventually, they arrested the defendant. police
Rantoul officer Sawlaw testified that he responded May to a traffic accident call on 1998. As approached Officer scene, Sawlaw the accident he walking observed the defendant sitting against toward a Nissan Pulsar wearing green defendant, a tree. The a stopped hat, in the middle of the road and looked at Of- opposite Sawlaw, ficer then turned and ran in the direc- radio, tion. On his Officer learned from another Sawlaw officer that a small back on the window car was shat- steering peeled, indicating tered and the column was help police that the car had been stolen. With from his dog, directing Dutch, and witnesses him after an African- green American man in hat, he tracked the defendant spoke Philbeck, to 'Philbeck’s house. Officer Sawlaw with who him advised that the defendant was inside house. began barking Dutch door, at the bathroom and Officer your defendant, Sawlaw told the out “Come with hands up you glass or will be bitten.” Officer heard Sawlaw breaking from inside the bathroom and another officer ordering the defendant to arms stick his out the broken window so he could be handcuffed. The Rantoul chief of police away told Officer Sawlaw to Dutch back from the emerged, bathroom door. The defendant handcuffed and crying; custody immediately. he was taken into Sergeant
Rantoul Police Glenn Williams testified pursuit he assisted Officer Sawlaw his of the defen- discovered house, Williams Sergeant dant. At Philbeck’s bathroom, breaking in the barricaded the defendant was and the house ran outside Sergeant Williams the window. He window. from the bathroom a foot protruding saw out the window his hands put the defendant ordered screamed, The defendant handcuffed. so he could be cut Dutch with back,” and threatened to dog “[G]et minutes, glass. After 10 a shard of broken custody. and taken into was handcuffed Smith testified that Rantoul officer Charles police and the that a car accident had occurred received a call At intersection Officer Smith had fled the scene. an driver sign, had driven over a construction saw a Nissan Pulsar He noticed a small back road, off the and into a tree. column steering of the car was broken and the window used to start He also found two screwdrivers peeled. Smith later the stolen car on the seat. Officer passenger house. Inside joined Officer Sawlaw Philbeck’s threatening bathroom, yelling the defendant was minutes, handcuffed Dutch. After 10 the defendant was house, by police officers outside the and Officer Smith *10 him custody. took into and the condition
Fisher Rose Sherer testified about of the car before and after it was stolen. Both testified that did to drive the permission not have car. officer James Clark testified that
Champaign police He some processed pulled he the car for evidence. car, from the including print from the a fingerprints officer Champaign police inside of the driver’s window. matched the print Charles Claudill testified Gary a forensic right print. Harvey, defendant’s thumb Police in Springfield, scientist at the Illinois State lab with Officer Claudill. agreed first Phipps
The defense called Harold as its witness. a car crash near his house testified that he heard Phipps May investigate on 1998. noise, When he went to empty sitting by po- he saw an car a tree and called the waiting police, clearly lice. While for the he never saw driveway, may car, but, the driver of the from his he have somebody leaving seen the accident scene. On cross- Phipps police examination, the asked if State he told the wearing green that he saw an African-American man a Phipps hat run from the wreck. stated that he could not giving remember such a statement. working
The defendant testified that he was at the Cup Company night Solo on the the car was stolen. On May painting 30, 1998, he was mobile homes for his dropped cousin. His him cousin off in Rantoul that socializing group afternoon. The defendant was with a people apartment building at an when he heard a noise jump stop and saw a car the curb and beside a tree. A long dark-skinned man with hair ran from car to the apartment building nearby apartment. and into a Ac- cording acquaintances defendant, to the he and a few proceeded apartment to that to ask about the accident. appeared upset The driver and stated that he had lost requested cigarette control of the car. driver pack told the defendant that he had left a in the wrecked cigarette agreed car. too, The defendant wanted a so to return to the car. any cigarettes, car,
At the the defendant could not find apartment. so he went back to the The driver said the cigarettes were under the seat. The defendant returned again pack Newports to the car and found a under the passenger According defendant, seat. to the he did not stripped steering notice the column or the screwdrivers passenger Walking apartment, on the seat. back police driving the defendant saw a officer toward him. apartment The defendant went to the to alert the driver police apartment area, that the were in the then left the outstanding police to elude the because he had an arrest *11 fight After a the for a with a friend. short walk warrant jogging police a officer defendant started when saw dog pursuing that he him. The defendant denied with a possession ever had of the car. that he to
The defendant testified went Philbeck’s in, the house. Philbeck let him and he asked to use telephone. for a ride. The defendant called his cousin and Phil- When he saw Officer Sawlaw Dutch outside police house, he beck’s told Philbeck that the were chas- ing fight. According him in connection with a to the de- stay, fendant, Philbeck told him that he could not and po- she walked to the back of the house to talk with the Dutch, lice. Officer Sawlaw entered the house and with the defendant fled to bathroom. Officer Sawlaw at- tempted door, to kick in the and the defendant kicked grabbed piece glass out the bathroom and a window protection dog. Eventually, for from the police stuck his hands out the and window allowed State, handcuff him. On cross-examination de- police fendant testified that he did not realize the were chasing regarding him the car until after his arrest.
In rebuttal, Officer Sawlaw testified that he inter- Phipps Phipps viewed after the defendant’s arrest. told green him that an African-American man in a hat ran car, from the wrecked car, walked back toward the away again. ran from the car Officer Smith also testified Phipps in rebuttal that he interviewed when he first ar- Phipps rived at the accident him scene. told an African- green American man a hat ran from the wrecked car. possession To a obtain conviction for of a stolen mo (see 103(a)(1) (West 1998)), tor vehicle 625 ILCS 5/4 — required prove, beyond the State was reasonable possessed doubt, vehicle, that the defendant that he possess vehicle, was not entitled to and that he knew vehicle was stolen. 188 Ill. 2d People Anderson, disputed 384, 389 The defendant never that he *12 Pulsar, permission did not have to drive the Nissan and at trial sufficient for the presented evidence was to that he the car and that he knew possessed conclude evidence, however, the car was The was not stolen. mere-fact overwhelming, improper impeachment and the may jury’s evidence have been a material factor Williams, 2d remand decision. 161 Ill. at 41-42. We Cf. for a new trial.3
Finally, concerning raises two issues unlikely of sentence. issues are to length his These retrial, on and decline to address them. recur we
CONCLUSION discussed, For the reasons we we reverse the have of and circuit courts and remand judgments appellate for a new trial. the cause to the circuit court and remanded.
Reversed
McMORROW, dissenting:
JUSTICE
court,
discretion,
of
The circuit
the exercise
its
impeachment
found that
the mere-fact method of
approach
presenting
the most
evidence
appropriate
jury.
prior felony
defendant’s
five
convictions
Atkinson,
In this court employ for a circuit court to always improper it is testifying defendant. impeach mere-fact method holding. I from this As the Rathje Justice dissented explained, “[historically, in Atkinson dissenting opinion discretion great the trial court with this court has vested (1979), 289, 3following People Taylor, 76 Ill. 2d 309-10 we guilt concerning which would implication the defendant’s make no only finding protect the binding Our is intended be on retrial. Holloway, 2d jeopardy. People v. 177 Ill. from double defendant 12 presented to determine what evidence should be at trial.” (Rathje, dissenting, joined Atkinson, J., 2d at 464 186 Ill. J.). holding McMorrow, In that circuit are courts prohibited considering impeachment from the mere-fact majority unwarrantedly departed method, the Atkinson jurisprudence by “remov[ing] from our traditional from the trial court the discretion to determine whether or to Atkinson, what extent evidence is 2d admissible.” Ill. J.). (Rathje, dissenting, joined by J., McMorrow, I my position continue to adhere to that the decision of whether or to what extent evidence of a may conviction purposes be admitted for is within the circuit court’s sound discretion. It is within the wide traditionally discretion afforded the circuit court to *13 permit the use of mere-fact if the court appropriate impeachment determines that it is the most method. respectfully stated,
For the reasons I dissent from the opinion majority. of the
(No. 89300. THE PEOPLE THE OF STATE OF ILLINOIS ex rel. Attorney WALLER,
MICHAEL J. State’s of Lake County, Petitioner, McKOSKI, v. RAYMOND J. Judge Circuit Circuit, al., the 19th Judicial et Respondents.
Opinion April 2001. filed