*1 ILLINOIS, THE PEOPLE OF THE Plaintiff-Appellee, STATE OF v. BRIAN JENNINGS, K. Defendant-Appellant.
Fourth District No. 4 — 94—0791
Opinion April filed *2 STEIGMANN, J., specially concurring. Essig, Appellate both of State Daniel D. Yuhas and Lawrence J. Office, appellant. Springfield, for
Defender’s of (Norbert Fichter, Goetten, Attorney, State’s of Decatur J. Lawrence R. Biderman, Majors, Attorneys Appellate Robert and James all of State’s J. Office, counsel), People. Prosecutor’s of for the opinion JUSTICE KNECHT delivered court: trial, defendant, jury Jennings, After a Brian of was convicted (720 (West burglary 1992)), County ILCS in Macon circuit 5/19 —1 years’ imprisonment. ap- court. He sentenced to seven peals, contending the trial court committed reversible error allow- ing his with evidence of a conviction. Defendant further reduc- upon claims the trial court failed to rule his motion for tion of sentence. affirm. We night February
On the of 23 and Austin was Wendell Cook, defendant, visiting girlfriend, Angela his with whom sister selling buying in lived. Austin was the business recently purchased parked cars and had left a 1987 Nissan at the in kept back of a briefcase with cash Cook’s house. Austin sometimes day. purchased particular his but so on that Austin cars did not do among knowledge his never locked his cars. This was common acquaintances, including defendant. midnight
Cook her after with a dead testified she locked doors key key bolt lock. Defendant had a not a to the dead bolt. house but night night On February Cook and Austin retired for the midnight. telephone about and took the off Cook locked the dead bolt it they the hook be disturbed. Cook testified because did want to very snowing night. cold and gone Defendant had out in evening February earlier Weissel, returned to the residence midnight. Stephanie around neighbor apartment whose looked out parking over the lot behind house, Cook’s parking saw two men enter lot area around midnight February on clothing they 23. She described the were wear- ing and stated one man carried tarp. what looked like a One man went to the window of Cook’s house and looked inside. The other man went over to Austin’s Nissan and made what she described as a prying motion thought with what she was a crowbar. She saw the tarp lying ground on the in the snow. The man entered the car and rummaged glove around the front seat and the box. Then the two changed men places and the first man in the car looked in the house window while the other man entered the car and inwas both the front and back seats. Weissel testified she day saw car the next parking any lot and did pry not see marks or scratches on the car. roommate,
Weissel’s Gray, Jamison also testified he saw es- sentially things the same except period Weissel for a short of time telephoned when he police. Gray stated he never or saw heard ei- ther man knock on the door or window of Cook’s house or call out to occupants of the house. pulled house,
When white car driveway into the of Cook’s Weis- Gray sel and stated the initially away two men walked from the car and then *3 police toward it. Then the arrived and arrested the men in parking lot. police
The officers pry jacket found two bars by and a the rear window on the driver’s side of Austin’s car. The rear window was damage broken and there was to the backseat. The back of the seat provide was bowed out to access to the glass trunk. There was broken on the backseat of freshly the car and on the fallen snow which indicated the freshly window was broken. Defendant and his brother were the two men at wearing arrested the scene the clothes described Gray. Weissel and
Defendant testified he had been locked out of Cook’s house before always and gain However, had knocked on a window to her attention. her, when Austin came to visit defendant was locked out and could gain Cook’s attention because she and Austin did not like to be disturbed. midnight Defendant returned to Cook’s house around when he found himself locked angry. out he became He walked to a nearby relative’s phone house and called Cook to find the was off the angry, hook. He became blaming even more Austin rather grabbed than his sister. He a tire iron and returned to Cook’s house with his damage gain brother. He wanted to Austin’s car to his atten- tion.
409 house, area behind Cook’s parking at the arrived When defendant broke while defendant window of the house went to the his brother Defendant the car. car. He then entered on Austin’s the window intending burglarize the car but denied damaging admitted a and he had nothing in the car to take car. He stated there was he knew the car was also stated money. Defendant pocketful of get in. He a window to no need to break and there was unlocked wrong act but damage the car and this intending to admitted to the admitted he went burglary charge. Defendant also denied the the car. entered of Cook’s house his brother window objection, the State introduced In rebuttal and over robbery for armed prior conviction for evidence of defendant’s sentenced to convicted and purposes impeachment. Defendant was years’ imprisonment. a term of seven failing in to conduct maintains the trial court erred effect prejudicial
balancing probative value versus test of Further, defendant admitting evidence of his conviction. before the information admitting erred in as evidence claims the trial court charged and included which him with the crime. detailed information about admitting of a
Before evidence probative balance the value versus impeachment, a trial court must Williams, 641 161 Ill. 2d People effect. v. credibility by a Impeachment of a witness’ if was for either misde prior conviction is the conviction allowed dishonesty felony or a and the involving meanor or false statement substan judge probative determines the value of evidence tially danger Montgomery, v. outweighs prejudice. People of unfair Maxwell, (1971); 510, 516, People v. 272 47 Ill. 2d 268 N.E.2d 698 This court in Maxwell Ill. 650 N.E.2d about the erosion of the noted the Williams court was concerned they in trial courts as were principles Montgomery enunciated letting felony used for any prior almost conviction be Maxwell, applying balancing test. purposes and were not conducting the importance at 3d at 301. (161 38-40, Ill. 2d at emphasized test Williams 311-12) Maxwell, reemphasized N.E.2d at Maxwell. 61-62, at App. 3d at proper conduct the the trial court did not
Defendant maintains *4 credibility by his balancing allowing impeach test before the State record robbery. A review of the using prior for armed his conviction armed rob- the offense of parties argued indicates the over whether dishon- only whether it involved bery an offense of violence or was esty. argued Defense decision, counsel the Montgomery which first made a prior distinction between convictions for crimes which dishonesty not, involved and those which did did not all allow use of convictions for but involving those dishonesty; thus, conviction for robbery armed should not be inferentially used. Counsel cited in support Williams argument. his argued The robbery State essentially armed was the and, therefore, ultimate theft definition a dishonesty crime of and admissible question. arguments without After made, these were the trial court ruled the State robbery could use the armed convic- tion impeachment purposes. for argues
Defendant the trial court findings made no and conducted balancing no required by test as Williams and urges Maxwell and this court to reverse and remand for a new trial. A trial court’s deci sion to allow evidence of a conviction should not be reversed discretion, absent an abuse of although the trial expected court is balance probative value of the against evidence impact of the jury. McKibbins, evidence before the People v. 96 Ill. 2d 187-88, argues the failure of a trial recognize court to on the record it had alternatives is fail properly ure to utilize its Foster, discretion. See People v. Thus, maintains because the trial court failed to realize it needed to conduct a balancing admitting test before evidence of a prior felony convic tion even if it dishonesty, involved the trial recognize court failed to it had discretion the matter properly and failed to exercise it.
The State maintains court conducted proper balanc- ing by denying test defendant’s motion to exclude the evidence of his robbery armed conviction. The State claims the trial court favored reasoning State’s dishonesty was a crime of credibility because defendant’s was central to the issues in the case prejudice outweighed probative value of the evidence. We have reviewed the suggestion record and find no judge recognized obligation his to conduct balancing required test by Montgomery. Montgomery, at 47 Ill. 2d 268 N.E.2d at objected 699-700. When defendant to the use of his impeachment, merely the trial court denied his motion to exclude the conviction arguments by without further comment. The the at torneys ruling before the did not include judge’s reference to the obligation to conduct the test. judge’s thoughts only slightly on the matter were more during hearing post-trial
articulated on defendant’s motion where again Again, issue was raised. both counsel for defendant and the
411 for a mere conviction was argued in terms of whether State citing Montgom- dishonesty. Despite both felony involving felony or a a need Williams, suggest to the court defense counsel did not ery and a need to judge realize balancing test nor did the trial conduct a to motion, trial court stated: post-trial denying In do so. the, uh, conviction all as to use of "First of uh, case does impeachment, [sic] Williamson purposes of by That case a court. independent determination require an think, it started brings Montgomeryback where specifically,I uh, uh, nature can be that, felony of dishonest convictions because used; whereas, nature are not used felonies of a violent dishonesty for necessarily go question doesn’t violence impeachment. indicated, is a robbery, attorney State] for the [the Armed for, uh, theft; dishonesty, proper impeach- an act of and it is that is case, so, regardless it be purposes, of the new would ment even proper.” he did not see a judge’s
It from the trial comments is obvious so. The balancing apparently test and did not do need to conduct judge apparently automatically decided a conviction it to impeachment purposes simply admissible for because he found compliance dishonesty. Montgomery, be a crime of This is not in with However, Montgomery, Williams nor Williams and Maxwell. neither balancing pro progeny precise their set forth a formula for the have specific formula either required. cess which is We do not mandate Elliot, 901, App. 3d agree People but we with the court in v. 274 Ill. (1995). 911, 636, 654 N.E.2d 644 The record should show fac and considered relevant court understood and used its discretion tors on both sides of the scale. test, to conduct a
Despite the trial court’s failure require defendant insists the evi this error does not reversal. While close, leads us to conclude dence was a review of the evidence likely any without the evidence verdict would not have been different at the testified he was of defendant’s conviction. Defendant anger toward Austin. damage scene Austin’s car due to his However, presence at the scene or explain he did not his brother’s ransacking entry apparent and the his brother’s into the vehicle the car and his brother. The evidence done both defendant appar pry the scene and there was indicated two bars were found at cooperation ent the two brothers. between improperly
Defendant next contends the damaging informa irrelevant admitted because of inclusion necessary and copy judgment tion. A order was all that was 412
the inclusion of the concerning detailed information how the crime was committed found in charging the information the offense was surplusage and should not have been People admitted. v. Dudley, App. 230, 232, Ill. 217 3d 576 N.E.2d 1112 However, because object defendant did not to the records on this ground or seek deletion of portions the irrelevant they at the time evidence, were admitted any into Davis, error was waived. People v. 54 App. 3d (1977); People Spe v. nard, 892, 897-98, 46 Ill. 3d
One means which to improper reduce the prejudicial effect of any felony conviction used for is to use the "mere fact” Bramlett, method. See People v. (1995) (Steigmann, J., specially concurring). This approach would particularly appropriate have been here because it would have avoided damaging the inclusion of and irrelevant infor *6 regarding mation prior defendant’s robbery. for armed approach mere fact requires judge the to first conduct the Montgomery balancing Then, test. if the conviction tois be used for impeachment, jury the is advised the defendant has been felony convicted of a on a certain place. date a certain It is not told the felony name of the obviously and is exposed not to detailed information about the crime jury as was the in this case.
The use of impeach convictions to a defendant is a difficult issue, and it has not been made easier the Williams decision or the decisions that have tried meaning to discern the of Williams. No matter how the Montgomery applied, test is and no matter what Wil- mean, liams is taken approach to the mere fact minimizes both the effect of a potential conviction and the for error. If the conviction is for behavior similar to that for which the de- trial, fendant is on the mere danger fact method the jury avoids the will use the conviction to evaluate propensity to commit crime. The use of approach the mere fact is left to the discre- tion of the trial court.
Finally, argues defendant the trial court in failing erred to rule on his motion for sentencing reduction of sentence. The hearing was 5, held in August this case on Following 1994. sentencing, per request counsel, of defense the circuit clerk was ap- directed to file a notice of peal. 1, The notice September However, was filed on August on 29, 1994, timely defendant pro mailed a se motion for reduction of sentence. The motion also included a filing proof notice of of ser- vice, counsel, a appointment motion for of support an affidavit in of the supporting motion for reduction and documentation. The circuit file-stamped 2, clerk September defendant’s motion on 1994. No ac- tion was taken on defendant’s motion.
413 timely argues, correctly, a is filed pleading considered system by incarcerated placed prison in the mail an day on it is the 276, 882, 884, Johnson, N.E.2d App. v. 232 Ill. 3d 598 People inmate. (1992); Easley, App. 199 3d 556 People 277 v. (1990). a Further, appeal filed after mo 802, a of is where notice filed, jurisdiction to is the trial court retains tion to reduce sentence Giles, App. v. 230 Ill. People motion to reduce sentence. consider the 730, 733, 53, 3d 596 N.E.2d timely motion reduction of
Although filed his defendant court, effort the defendant made no to sentence with clerk of arranging for a to attention of trial court bring his motion 8—1(c) hearing of the Unified Code Cor on motion. Section 5— 1992)) (Code) (730 (West 8—1(c) requires that ILCS rections 5/5 — proponent of a to reduce "shall exercise due dili motion sentence seeking a motion” motion is determination on the and the gence "together timely not filed unless filed with a notice of considered it is motion, which motion notice of shall set motion on court’s a date date calendar on certain within a reasonable time after the brought the court filing.” Unless motion is to the attention of requested it, effectively on motion the court to rule is not Merely not filing made. a motion with the office of clerk does con 3d application. Taggart, stitute a sufficient v. 268 Ill. People argues defendant failed rule on his mo While court tion, complied nothing there is in the to indicate defendant record 8—1(c) requirements with the of section Code or 5— pro comply court A with was aware the motion. se must procedure required represented by rules of counsel and a those apply pro court should more lenient standards se defendant. DeRossett, v. People
(1992). Therefore, by there was no the trial court as defendant error bring to of did not his motion to reduce sentence the attention the obligated and the trial not to consider a motion of court court was made, effectively not it Since the which was unaware. motion it notice authority the trial court was to consider once the of without appeal was filed. reasons, is judgment the of trial court af- foregoing
For the the firmed.
Affirmed.
GREEN, J., concurs. STEIGMANN, specially concurring: JUSTICE Although agree decision, I with majority specially the I write to emphasize that trial ways the court erred three in its different handling First, of prior by defendant’s conviction. court the erred stating permits that impeachment by prior Williams conviction prior dishonesty statement, when conviction involves or false prong” so-called "second of Montgomery. supreme Since the court’s Williams, in repeatedly prong” decision this court held that "first has Montgomery involving punishable convictions under crimes —those by year death or of imprisonment in excess one still admissible —are impeach testifying within the trial court’s discretion engages it the required Montgomery balancing after in test. This (276 holding most decision court’s recent so Ill. Bramlett 515). Thus, rejected at at this court has the trial interpretation barring court’s of as prong” Williams such "first convictions.
Second, out, majority properly as points decision the trial performing court erred Montgomery not test before permitting of to impeach the use conviction him. convictions, prong” admissibility with for impeach- Even "second automatic, Williams, especially light ment affirmatively the record should that court show determined probative substantially that value of the evidence is not outweighed danger prejudice. of unfair
Third, Bramlett, again inas the trial court could have —and concerning should have —avoided issue defendant raises improper damaging regard inclusion and irrelevant information ing robbery. his court armed could have if it avoided this issue had utilized the “mere fact” method of (See Bramlett, impeachment by prior conviction. 3d at 208-09, (Steigmann, J., at specially concurring).) impeach After decades of use "mere fact” method of successful by prior especially throughout ment Central Illinois—it conviction— justify that, is difficult to here, continued use of an method alternative potential
tends to maximize the effect and error of admitting impeach conviction to an the defendant. As us, example, very properly objected case before had defendant portions at to the inclusion of the irrelevant of his conviction, might this court well his have reversed convic on that alone out of a that he was denied a fair tion basis concern wholly unnecessary. trial. Such a reversal would have been I point, emphasize As a last the trial court can —and sponte "mere fact” sua should —utilize the method suggest or the it. prosecution not wait for either the defense *8 are left by prior conviction subject impeachment aspects All discretion, way limited no and the court trial court’s to the parties. suggested by the fashion handling such Estates, al., Plaintiffs-Appellees, Northwood Mobile JERRY FYKE et d/b/a MELTON, Defendant-Appellant. v. DEBBIE District No. 4 — 95—0233 Fourth April Opinion filed