People v. Cox

• Decision Date: 19 April 2001
• Docket Number: No. 88860.,88860.
• Citation: 195 Ill.2d 378,748 N.E.2d 166,254 Ill.Dec. 720
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Derick A. COX, Appellant.
• Court: Illinois Supreme Court

748 N.E.2d 166

195 Ill.2d 378

254 Ill.Dec. 720

The PEOPLE of the State of Illinois, Appellee, v. Derick A. COX, Appellant.

No. 88860.

Supreme Court of Illinois.

April 19, 2001.

Daniel D. Yuhas, Deputy Defender, and Lawrence J. Essig, Assistant Defender, of the Office of the State Appellate Defender, Springfield, for appellant.

James E. Ryan, Attorney General, Springfield (Joel D. Bertocchi, Solicitor General, and William L. Browers and

Mary Beth Burns, Assistant Attorneys General, Chicago, of counsel), for the People.

Justice FITZGERALD delivered the opinion of the court:

Following a jury trial in the Champaign County circuit court, the defendant, Derick Cox, was convicted of unlawful possession of a stolen vehicle and sentenced to 15 years' imprisonment. The appellate court affirmed the defendant's conviction and sentence. No. 4-99-0122 (unpublished order under Supreme Court Rule 23). We granted the defendant's petition for leave to appeal. 177 Ill. 2d R. 315(a).

The central issue in this case involves the continuing use of the "mere-fact" method for impeaching a criminal defendant with prior conviction evidence after our opinion in People v. Atkinson, 186 Ill.2d 450, 239 Ill.Dec. 1, 713 N.E.2d 532 (1999). We reverse the defendant's conviction and remand for a new trial.

BACKGROUND

On May 23, 1998, a Nissan Pulsar owned by David and Rose Sherer and loaned to their son, Zachary Fisher, a University of Illinois student, disappeared from a student housing complex in Champaign. A week later, the car reappeared in Rantoul, crashed into a construction sign and stopped near a roadside tree. As a Rantoul police officer approached the accident, he noticed the defendant walking toward the car. The defendant saw the officer and ran. The officer and his police dog pursued the defendant into a nearby residence where he was arrested. The defendant was indicted for burglary, criminal damage to property, and unlawful possession of a stolen vehicle. Before trial, the State dismissed the burglary and criminal damage to property counts. A jury deadlocked on the unlawful possession of a stolen vehicle count, and the court declared a mistrial.

The State chose to retry the defendant, and another jury found him guilty of unlawful possession of a stolen vehicle. The court sentenced the defendant to 15 years' imprisonment. The appellate court affirmed the defendant's conviction and sentence. This appeal followed.

ANALYSIS

The defendant raises four issues in his appeal. We focus initially on the first issue: whether the appellate court incorrectly sanctioned the trial court's use of the "mere-fact" method to impeach the defendant's credibility with his prior felony convictions. Under the mere-fact method, "only the `mere fact' of the felony conviction is to be brought to the jury's attention, as opposed to informing the jury of the precise offense of which the defendant has been convicted or the circumstances surrounding that prior conviction or both." People v. Kunze, 193 Ill.App.3d 708, 733, 140 Ill.Dec. 648, 550 N.E.2d 284 (1990) (Steigmann, J., specially concurring). The defendant contends that this court barred mere-fact impeachment in Atkinson.

Immediately before trial, defense counsel filed a motion in limine to bar all evidence of the defendant's five prior felony convictions: two 1989 theft convictions, a 1990 burglary conviction, a 1994 theft conviction, and a 1996 burglary conviction. Defense counsel argued that these convictions were closely related to the unlawful possession of a stolen motor vehicle charge. According to defense counsel, if the jury heard evidence of these convictions, it would believe that the defendant had a propensity to commit these types of offenses. The court stated:

"The court always weighs the prejudicial impact of informing the jury about the Defendant's prior convictions against the probative value. And if this Defendant wishes to testify, the jury is going to be told that their duty will be to judge the credibility of the witnesses. And I am of the opinion that it's only fair that the jury be aware that the Defendant does have prior felony convictions when they weigh his credibility, should he choose to testify.

I will, however, not specifically tell the jury of the burglary convictions and the theft conviction. I will merely tell the jury the Defendant has a prior theft and felony convictions, as opposed to—well, theft, this is a stolen car. I will not even go so far as to say theft. I'm just going to say felony convictions if he's going to be impeached with his prior record."

On direct examination of the defendant, defense counsel asked, "[Y]ou have a couple of prior felony convictions, don't you?" The defendant answered that he did. In a post-trial motion, the defendant asserted that the court erred in allowing evidence of his prior convictions to reach the jury. The trial court denied this motion.

The appellate court held that, despite our decision in Atkinson, the trial court did not abuse its discretion in admitting the mere fact of the defendant's prior convictions because the defendant agreed to mere-fact impeachment. No. 4-99-0122 (unpublished order under Supreme Court Rule 23). We, however, see no such agreement on the record. To the contrary, the defendant filed a motion in limine asking the court to exclude any evidence of his prior convictions and a post-trial motion reiterating that position. The prior conviction issue was properly preserved for review. See People v. Enoch, 122 Ill.2d 176, 187, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988).

Before addressing Atkinson, we review briefly Illinois law concerning impeachment of a witness through the use of prior convictions, beginning with People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971). In Montgomery, we adopted the 1971 proposed draft of Federal Rule of Evidence 609. Montgomery, 47 Ill.2d at 519,268 N.E.2d 695. Under this rule, evidence of a prior conviction is admissible for impeachment purposes if (1) the witness' crime was punishable by death or imprisonment for more than one year, or the crime involved dishonesty or false statement regardless of the punishment; (2) the witness' conviction or release from confinement, whichever date is later, occurred less than 10 years from the date of trial; and (3) the danger of unfair prejudice does not substantially outweigh the probative value of the conviction. Montgomery, 47 Ill.2d at 516,268 N.E.2d 695.¹ This final factor involves a balancing test: probative value versus prejudicial effect. In performing this test, trial courts should consider "`the nature of the prior crimes, * * * the length of the criminal record, the age and circumstances of the [witness], and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than to know of a prior conviction.'" Montgomery, 47 Ill.2d at 518,268 N.E.2d 695, quoting Luck v. United States, 348 F.2d 763, 769 (D.C.Cir.1965). We concluded that the trial court has discretion in conducting this balancing test and determining whether a witness' prior conviction is admissible. Montgomery, 47 Ill.2d at 517-18,268 N.E.2d 695.

In People v. Williams, 161 Ill.2d 1, 204 Ill.Dec. 72, 641 N.E.2d 296 (1994), we revisited the Montgomery balancing test. We found "a regression toward allowing the State to introduce evidence of virtually all types of felony convictions for the purported reason of impeaching a testifying defendant." Williams, 161 Ill.2d at 38-39, 204 Ill.Dec. 72, 641 N.E.2d 296. Noting that trial courts often mechanically applied the balancing test to allow more prior-conviction evidence, we stated, "The Montgomery rule does not, however, allow for the admission of evidence of any and all prior crimes. The focus of Montgomery was on crimes which bear on the defendant's truthfulness as a witness." Williams, 161 Ill.2d at 39, 204 Ill.Dec. 72, 641 N.E.2d 296. Trial courts should not tip the balancing test toward probative value simply because all felonies show a disrespect for society and, thus, indicate a willingness to lie on the witness stand. Williams, 161 Ill.2d at 39, 204 Ill.Dec. 72, 641 N.E.2d 296. More importantly, trial courts should not admit prior-conviction evidence as probative of guilt, rather than credibility. Williams, 161 Ill.2d at 40, 204 Ill.Dec. 72, 641 N.E.2d 296. We reaffirmed that trial courts, in exercising their discretion to admit evidence of a defendant's prior convictions, should consider the nature of the prior crime, its recency and similarity to the current charge, and the length of the defendant's criminal record. Williams, 161 Ill.2d at 38, 204 Ill. Dec. 72, 641 N.E.2d 296; accord People v. Redd, 135 Ill.2d 252, 325, 142 Ill.Dec. 802, 553 N.E.2d 316 (1990). Convictions for the same crime for which the defendant is on trial should be admitted sparingly. Williams, 161 Ill.2d at 38, 204 Ill.Dec. 72, 641 N.E.2d 296; quoting Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967). Williams, however, did not modify Montgomery. People v. Williams, 173 Ill.2d 48, 82, 218 Ill.Dec. 916, 670 N.E.2d 638 (1996).

In the wake of Williams, an appellate court panel sanctioned the mere-fact impeachment method if trial courts found the Montgomery balancing test leaned toward excluding the prior conviction evidence as unfairly prejudicial. See People v. Taber, 271 Ill.App.3d 576, 580, 207 Ill.Dec. 886, 648 N.E.2d 342 (1995). Several years later, in another case from the same appellate court district, the propriety of mere-fact impeachment finally reached this court.

In Atkinson, the defendant was charged with burglary of a motor vehicle. After the defendant testified at trial, the State sought to present evidence of his two prior burglary convictions for impeachment purposes. Defense counsel objected, arguing the prejudicial effect of these convictions outweighed their probative value. Defense counsel asserted that the jury...