*1 (2) duration of the assigned spouse; the property value of the each (4) spouse; marriage; economic circumstances of each relevant health, occupation spouse; age, and of each custodial station any children; of each provision opportunity for and the reasonable assets and income. 750 ILCS acquisition capital for future spouse 5/503(d) (West 2004). discretion, an this court will not Absent abuse of Marriage Ker the trial court’s distribution of assets. In re disturb ber, 3d 248 ownership of specifically The court considered Michael’s property its award of marital nonmarital assets made substantial In 40% to Michael. addition to division of at 60% to Theresa and temporary trial court also awarded Teresa property, marital maintenance, Michael to maintain medical insurance cover required children, pay 75% of her age for her and the ordered Michael health-related expenses uncovered medical 90% of uncovered adequately The all the fac children. court considered expenses 503(d) making marital property, its distribution of tors of section assets, health, and including the value of the nonmarital Theresa’s light income. acquire capital assets and inability her relative factors, its we find that the court did abuse discretion these awarding of the marital estate. Theresa 60%
CONCLUSION is affirmed. County the circuit court of Peoria judgment Affirmed. JJ., SCHMIDT, concur.
CARTER ILLINOIS, Plaintiff-Appellee, v. THE STATE OF THE PEOPLE OF DeBERRY, Defendant-Appellant. DEMETRIO 4 - 06-0244 Fourth District No. 13, 2007.
Opinion filed *2 COOK, J., dissenting. M. Bapst, Appellate
Charles Schiedel and Lawrence both of State Office, Springfield, appellant. Defender’s of (Norbert Ahola, Attorney, Goetten, Jack State’s of Decatur J. Bi- Robert J.
derman, Mansfield, and Attorneys Appellate Charles F. all of State’s counsel), Office, People. Prosecutor’s for the JUSTICE McCULLOUGH delivered opinion the court: defendant, December a convicted Demetric (720 (West 2004)). DeBerry, robbery ILCS The trial court 5/18—1 years later him prison. sentenced to five appeals, arguing prove the State failed to him guilty beyond doubt, and the trial court erred in not limine, testimony, on his motion in to his as to whether convictions be used him. We affirm. (720 charged In October robbery the State defendant with (West 2004)), alleging August ILCS that on know- he 5/18—1 ingly property took use by from Steven McDonald of force. Prior trial, defendant filed a motion limine to bar the State from impeach- ing him with [his] “certain of convictions.” The trial court reserved on the “until or unless testifies way [the] State then to introduce by seeks the two convictions rebuttal.” 18, 2005, he August that on trial, McDonald testified
At Steven walking, house. While house to a friend’s girlfriend’s walked from only he knew as whom spoke stopped McDonald grabbed McDonald’s approached “Mi Mi.” Another individual at the individual but “swung” pocket. front McDonald lifted Mc- the other individual from behind and grabbed McDonald One of ground. to the the two men threw McDonald legs Donald’s men observed the two kicked McDonald. McDonald the individuals run from the area. robbing McDonald. pleaded guilty to testified that he
Tyrell Woods defendant “told friends because longer were no best He and defendant “basically Woods, agreed to he and defendant According to on” Woods. [McDonald].” [‘]roll[’] August that on Diskey Kara testified police
Decatur officer Dis- Street in Decatur. 143 East Marietta dispatched she was provided descriptions McDonald and McDonald key spoke with “Mi Mi.” the individuals as knew one of involved. McDonald two men August testified that on Jeremy Welker police Decatur officer lineup. photographic McDonald and conducted he met with and Woods as the “immediately” identified McDonald 18, 2005. him on individuals who robbed mo- rested, denied defendant’s and the trial court The State then limine, motion in renewed his directed verdict. Defendant tion for *3 his decision on impact would of the motion arguing the outcome to rule on the testify. The trial court refused whether premature. was stating the motion testifying, defendant advance of witness, admitting only defense then testified as the Defendant 2005, 18, stating he August but McDonald on spoke that he asked that McDonald Defendant testified McDonald. not know According to for sale.” nice cars around there were “some conversation, from out of “Woods came defendant, this during testified friends. Defendant and Woods were Defendant nowhere.” what he did not know swing at Woods because took a that McDonald after Mc- testified that him. Defendant trying to do to Woods was he because Woods, grabbed McDonald swung Donald Defendant I had knew.” anybody that try him to to harm “didn’t want “immediately” and observed Woods go he let McDonald testified that After this pocket. money from McDonald’s phone take a cell a ride home. incident, gave Woods motion in limine denied the the trial court Following arguments, for theft of defendant convictions the certified and the State offered robbery battery. convicted aggravated years prison. him to five later sentenced the court appeal This followed. first argues prove that the State’s evidence failed to guilt beyond a reasonable Specifically, doubt. he contends that he
was conflicting convicted “on the basis of unreliable and stories.” Collins, 206, 217,
In People v. 214 Ill. 2d 267-68 (2005), the supreme challenge court addressed a sufficiency to the the State’s evidence following: and wrote the challenge sufficiency “We review a to the of the evidence to 1 “whether, viewing
determine
after
light
the evidence in the
most
prosecution, any
favorable to the
rational
trier of fact could have
found the
beyond
essential elements of the crime
’
omitted.)
(Emphasis
People Cox,
378, 387[,
doubt.”
195 Ill. 2d
(2001),
172]
quoting
Virginia,
Jackson v.
443 U.S.
307, 318-19,
61 L. Ed. 2d
2788-89
We will not reverse a conviction unless the evidence
improb
is so
able, unsatisfactory, or inconclusive that
it creates a reasonable
guilt.
doubt of
reviewing
evidence,
[Citation.]
defendant’s
In
it
is not
retry
the function of the court to
nor will we
judgment
substitute our
for that of the
trier
fact.”
In People
Cunningham,
(2004),
Ill. 2d
Judged in accordance with the foregoing standards, we conclude the evidence was sufficient to sustain defendant’s conviction. (1) so concluding, we note defendant spoke admitted he with Mc- (2) Donald on nowhere,” Woods “came from out of grabbed he McDonald, restraining him, he observed Woods remove the phone cell and money pocket, from McDonald’s he *4 Thus, “walked off.” the beyond have found doubt that defendant committed the offense of robbery. argues
Defendant next the trial court in ruling erred not on limine, his in prior motion testimony, to his as prior to whether his convictions could impeach be used to him.
826 apply failed to argue not the trial court
We note defendant does (see 510, Ill. 2d People Montgomery, v. 47 proper balancing the test (1971)) discre argue not the court abused its 268 695 and does N.E.2d impeachment determining in to admit the two convictions for tion erred in not before us is whether court purposes. only issue testifying. on the motion in limine to defendant to bar typically in limine asks the trial court Because a motion evidence, “power has deemed such motions supreme certain court Reidelberger v. urged has caution in their use. weapons” ful 550, 268, Inc., 545, 416 271 Body 83 Ill. 2d N.E.2d Highland Shop, (1981). ruled that supreme reasons that the court has For the same limine, granting a motion in this trial courts have discretion before to choose possess that trial courts also the discretion court has held Ballard, People in limine all. See v. 346 to entertain a motion at (2004); Owen, 532, 543, 656, People v. 299 805 N.E.2d 665 App. Ill. 3d N.E.2d App. Ill. 3d by telling the fully justified to exercise its discretion “[A] court is reason[,] that[,] court choosesnot to moving party for whatever require instead will party’s motion in limine and entertain all, presented offered to be question, if it is to be at evidence things during The court will then make normal course of trial. evidentiary question at issue when the matter ruling upon the its Owen, App. at assuming it ever does.” 3d ripe, has become at 1178. preliminary ruling on the admis “A trial court need not make a him before convictions to sibility of a defendant’s issue, only after they they become at issue become at testified, to introduce his the State seeks defendant has impeachment purposes in its rebuttal case.” prior convictions for Owen, Ballard, citing at App. Ill. 824-25, at 1179. reasons, refusing did not err in the trial court foregoing For the testifying. his rule on defendant’s in not on argues that the trial court erred also Defendant ground on the limine to his his motion in violated. testify at trial was right defendant’s constitutional weigh “a fair chance to argues provided he was not to exercise of the decision as to whether costs and benefits right testify.” constitutional trial is a fundamental constitu testify right
A defendant’s Madej, 177 testify. People not to to choose right, as is tional Arkansas, (1997); 145-46, 908, 923 see Rock Ill. 2d 44, 51, 97 L. Ed. 483 U.S.
(“The trial has at a criminal one’s own behalf testify on *5 Constitution”). provisions sources several of the The decision testify ultimately (Madej, whether to rests with the defendant 177 Ill. 923); however, 685 N.E.2d at the defendant should make Smith, that decision with the advice trial (People of counsel (1997)). Here, the trial prior court declined to rule on the motion in limine testifying, to defendant and the defendant testified. Whether the trial court’s failure testify purely to rule bore on defendant’s decision to is speculative. agree deprived We do not defendant was information he needed to make intelligent an informed and decision testify. about whether certainly to Defendant was aware convictions and of the risk that might the State seek to testimony by introducing evidence of one or more of those convictions. testify decision of whether to under those circumstances was that not if strategy the court. Even the defense was greatly by influenced the risk that the defendant would be impeached prior convictions, with his required “the court was not to remove that People Mims, risk advance.” (1990).
1101, 1107 rule, The trial court’s failure to to testifying, deprive not defendant of testify his constitutional to because options testify still had the testify. or to choose not to Regardless ruling, of the court’s defendant chose testify. Defendant’s testify constitutional at trial was not violated.
For foregoing reasons, judgment. we affirm the trial court’s As part judgment, of our grant we statutory State its assessment $50 against defendant appeal. as costs of this
Affirmed.
KNECHT, J., concurs. COOK, dissenting:
JUSTICE I respectfully dissent and would reverse and remand for a new trial.
Imagine a case where the defendant has made firm decision testify, not to but nevertheless files a motion to bar admission of his may inject- convictions. The defendant file the in hopes ing error into the record. If the trial court rules that a is conviction admissible, the may complain then that he would have testified, but for the erroneous admission of the conviction. The Supreme ruling Court has refused to review that a conviction is admissible, States, unless the defendant testifies. Luce v. United 443, 447-49, 41-43, L. Ed. 2d 463-64
U.S. cases, course, may truly be the admission of the some conviction testify, on balance the belief has the reason the defendant does not but testify the issue. The defendant’s preserve been that defendant must ap- testify testify or to accept choice is either to peal ruling. approach, they take a similar are not
Trial courts sometimes
going
admissibility
rule on the
of a
conviction unless
difference, however,
an appel
defendant testifies. There is a
between
declining
a trial court’s
and a trial court’s
late court
to review
may
problem
be no
with the trial court’s
declining to rule. There
declining
testify,
the defendant does not
but there is a
to rule when
testify,
then
as in this case. At that
problem when the defendant
does
going
the defendant is
point
longer “speculation”
it is no
*6
prevented
in
the court
testify,
by refusing
to rule
advance
has
in
making
intelligent
doing
an
choice whether
so is
from
prevents
in
the defendant
Refusing
best interest.
to rule
also
advance
Anticipa
making
anticipatory
an
disclosure of the convictions.
from
ruling permitting
trial
tory
pretrial
disclosure in the absence of a
or
appeal.
admissibility
a waiver of the
to raise error on
constitutes
34-35,
Williams,
2d
People v.
161 Ill.
641 N.E.2d
(defendant
attempt
damage
entitled to
to minimize the
convic
himself).
by introducing it
tion evidence
ignores Montgomery’s
A
in advance
trial court’s refusal to rule
all,
consider “above
the extent to which
judges
exhortation to trial
particular
for truth in a
case for the
important
it is more
to the search
of a
conviction.”
story
to hear the defendant’s
than
know
699;
People Phillips,
Nevertheless, Phillips court declined to review testify. Phillips, App. 371 Ill. defendant did not did the approach. similar “What more Our court has taken a at 829. *** have ***? conclude the court should to know We trial court need meaningfully consider whether defendant could ruled and then Ballard, 544-45, 805 testify.” App. exercise his 346 Ill. 3d at N.E.2d at 666. testify.
We affirmed in Ballard because the defendant did not case, however, testify. justification in present What is there in for the trial court’s refusal to rule this case? As discussed above, argument hear defendant’s trial court needs to before convictions are admissible has rejected. been may effectively
“There be times when a trial court cannot conduct Montgomery balancing hearing test without the defendant’s testimony, although direct it is happening difficult to envision that any frequency. cases, case, In most as was true in this judge enough enough will have heard or been told to find the issue ripe Phillips, 952-53, decision.” at 828. special
No reasons argued for refusal to rule advance are in this case. The fact that motions in limine should be used cautiously civil justify cases does not rejection their wholesale a Montgomery when is- is sue raised. ILLINOIS,
THE PEOPLE THE Plaintiff-Appellee, OF STATE OF v. JAMIE SHIPP, Defendant-Appellant. Fourth District 4 - 06-0288 No.
Opinion September filed 2007.