People v. Kellas

• Decision Date: 02 May 1979
• Docket Number: No. 78-570,78-570
• Citation: 389 N.E.2d 1382,72 Ill.App.3d 445,28 Ill.Dec. 9
• Parties: , 28 Ill.Dec. 9 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary KELLAS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1382

389 N.E.2d 1382

72 Ill.App.3d 445, 28 Ill.Dec. 9

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary KELLAS, Defendant-Appellant.

No. 78-570.

Appellate Court of Illinois, First District, Third Division.

May 2, 1979.

Ralph Ruebner, Deputy State Appellate Defender, and Daniel A. Cummings, Randy K. Johnson, Asst. State's Appellate Defenders, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., Chicago (Lee T. Hettinger, Mary Ellen Dienes and Bruce Brandwein, Asst. State's Attys., Chicago, of counsel), for the People.

RIZZI, Justice:

Defendant Gary Kellas was charged with murder and conspiracy to murder David Wright, and with aggravated battery and attempted murder of Anthony Hernandez. He was found guilty of all charges in a bench trial and sentenced to 25-75 years for murder, 5-15 years for conspiracy to murder and 10-30 years for attempted murder. He was not sentenced on the aggravated battery conviction. The defendant contends that he was denied a fair trial by not being allowed to cross-examine a witness about a criminal charge pending against the witness. He also claims that the trial judge erred in convicting him of the conspiracy to murder and aggravated battery charges. We reverse and remand for a new trial on all charges.

Initially, the defendant argues that he was denied a fair trial by not being allowed to cross-examine an important witness, Anthony Hernandez, about a criminal charge pending against the witness. During the cross-examination, defense counsel attempted to ask the following question: "Mr. Hernandez, do you have a case pending for the delivery . . . ?" A prosecution objection, interrupting the question, was made at that point and sustained after a sidebar colloquy.

Defense counsel was attempting to question Hernandez about a pending drug charge which had taken place two years after the alleged crimes in the present case. The State argues that since the arrest of Hernandez for the drug charge took place two years After the crimes for which the defendant was charged, it was not related to the crime on trial and, therefore, too remote to be admitted into evidence. Also, during oral argument, the State urged that we cannot consider the trial court's ruling because no offer of proof was made.

In view of the State's argument and because the case must be retried, it behooves us to note the distinction between the forms of impeachment involving the admissibility of a conviction of a prior crime and the admissibility of a pending criminal charge as evidence of interest, bias or motive.

Impeachment Involving The

Admissibility Of A Conviction Of A Prior Crime

A witness, including a defendant who testifies, may be impeached by attacking his character and thus his credibility by proof of conviction of a prior crime. ¹ For this form of impeachment, Only a conviction may be proved; proof of arrests, indictments, and charges or actual commission of crimes are not admissible. (People v. Mason (1963), 28 Ill.2d 396, 400, 192 N.E.2d 835, 837.)

The types of prior convictions which may be used for this form of impeachment are: (1) crimes punishable by death or imprisonment in excess of one year, ² and (2) crimes involving dishonesty or false statement regardless of the punishment. In either case, the prior conviction is inadmissible if the judge determines that the danger of unfair prejudice substantially outweighs the probative value of the prior conviction. (People v. Montgomery (1971), 47 Ill.2d 510, 516, 519, 268 N.E.2d 695, 698, 699; People v. Ramey (1979), 70 Ill.App.3d 327, 331-332, 26 Ill.Dec. 572, 575, 388 N.E.2d 196, 199.) Factors to be considered by the judge in making the determination include: the nature of the prior crime; the extent of defendant's criminal record; the age of the defendant; the likelihood that defendant will not testify if the motion In limine is denied; the nearness or remoteness of the prior convictions; the subsequent activities of the defendant; and the similarity of the prior crimes to those for which defendant is on trial. ³ (Ramey, 70 Ill.App.3d at 331-332, 26 Ill.Dec. at 575, 388 N.E.2d at 199.) Evidence of a conviction is inadmissible if a period of time of more than ten years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date. (Montgomery, 47 Ill.2d at 516, 519, 268 N.E.2d at 698, 700.) The old rule that the prior crime must be infamous before it is admissible into evidence, however, is no longer applicable. (Knowles v. Panopoulos (1977), 66 Ill.2d 585, 588, 589, 6 Ill.Dec. 858, 860, 363 N.E.2d 805, 807.) ⁴

If the prior conviction is punishable by death or imprisonment in excess of one year, the trial judge must only determine whether the danger of unfair prejudice substantially outweighs the probative value of admitting the prior conviction into evidence ⁵; but if the prior conviction is for a lesser punishment, then the trial judge must also determine whether the prior conviction involved dishonesty or false statement. (Montgomery, 47 Ill.2d at 516, 519, 268 N.E.2d at 698, 700; Ramey, 70 Ill.App.3d at 334-335, 26 Ill.Dec. at 577, 388 N.E.2d at 201.) Only the conviction itself may be used to determine whether the prior conviction involved dishonesty or false statement; the facts surrounding the witness' prior conviction are not considered for this purpose. (Knowles, 66 Ill.2d at 590, 591, 6 Ill.Dec. at 861, 363 N.E.2d at 808.)

Presently, the appellate reviewing courts in Illinois disagree as to which crimes involve dishonesty or false statement. The differing views are fully discussed in People v. Malone, 67 Ill.App.3d 150, 153-155, 24 Ill.Dec. 245, 248, 249, 385 N.E.2d 12, 15, 16, Leave to appeal granted, March 29, 1979. In Malone, the court held that misdemeanor theft convictions are not admissible under this rule because they do not involve dishonesty or false statement. ⁶ The only supreme court case that has already been decided on this subject is Knowles, where the court held that criminal trespass to vehicles is not a crime involving dishonesty or false statement and is, therefore, not admissible to impeach a witness.

The proper method for admitting a prior conviction into evidence depends upon whether the witness is the defendant. As to a witness other than the defendant, proof of a prior conviction may be established by cross-examining the witness without the introduction of the record of conviction itself into evidence. (People v. Birdette (1961), 22 Ill.2d 577, 581, 177 N.E.2d 170, 172; People v. Baker (1956), 8 Ill.2d 522, 525, 526, 134 N.E.2d 786, 788; People v. Smith (1965), 63 Ill.App.2d 369, 380, 381, 211 N.E.2d 456, 461.) The procedure differs, however, if the witness is the defendant. (Baker, 8 Ill.2d at 525, 134 N.E.2d at 788.) Courts have held that a defendant who testifies in his own behalf may be impeached by a prior conviction Only by the record of the conviction or an authenticated copy thereof. (People v. Flynn (1956), 8 Ill.2d 116, 121, 133 N.E.2d 257, 259; People v. Kosearas (1951), 408 Ill. 179, 180, 96 N.E.2d 539, 540; People v. Preston (1978), 61 Ill.App.3d 434, 438, 18 Ill.Dec. 908, 912, 378 N.E.2d 372, 376; People v. Ring (1967), 89 Ill.App.2d 161, 165- 167, 232 N.E.2d 23, 25.) Not even the mittimus of a prior conviction is admissible to impeach a defendant. (People v. Jones (1975), 28 Ill.App.3d 896, 900, 901, 329 N.E.2d 855, 859.)

Cross-examination of the defendant as to a prior conviction has thus been held to be reversible error in cases where the record or an authenticated copy of the conviction was not introduced into evidence. (Flynn, 8 Ill.2d at 121, 133 N.E.2d at 259; Kosearas, 408 Ill. at 182, 96 N.E.2d at 540; Ring, 89 Ill.App.2d at 167, 232 N.E.2d at 26.) ⁷ In Flynn, where the prosecutor asked the defendant during cross-examination if he had ever been convicted of a felony, the supreme court reversed the conviction and held (8 Ill.2d at 120, 121, 133 N.E.2d at 259):

This court has repeatedly held that it is improper to cross-examine a defendant as to his conviction of a crime. * * * In People v. Kosearas * * * the court stated: "(T)here is no question more damaging to a defendant with a jury than one which suggests or intimates that he is a criminal or has been charged with criminal offenses. Such damage is magnified twofold when it is elicited from a defendant on cross-examination and he is compelled to testify against himself." Defendant's conviction of a prior felony may be shown to affect his credibility by offering the record of his conviction, or an authenticated copy thereof, in evidence * * * And not otherwise. (Emphasis added.)

It is also improper to cross-examine the defendant as to a prior conviction even though the record or an authenticated copy is introduced into evidence. (People v. Madison (1974), 56 Ill.2d 476, 488, 309 N.E.2d 11, 17, 18; People v. McCrimmon (1967), 37 Ill.2d 40, 45, 224 N.E.2d 822, 825.) In McCrimmon, the court stated that a procedure which permits the impeaching material to be presented against a defendant twice and in two forms, Viz., by the record and by cross-examination, is not approved. ⁸ The court reaffirmed that principle in Madison, but it held that even though cross-examination of a defendant as to a prior conviction is improper, reversal is not required unless the error has deprived the defendant of substantial justice or influenced the determination of his guilt. ⁹

Since it is improper to cross-examine the defendant as to a prior conviction, the proper way for the State to introduce a prior conviction is by offering the record or an authenticated copy into evidence when the State is putting in rebuttal evidence. (See People v. Natoli (1979), 70 Ill.App.3d 131, 135-136, 26 Ill.Dec. 266, 269, 387 N.E.2d 1096, 1099.)

The rule that it is improper to cross-examine the defendant as to prior convictions does not apply, of course, if the defendant opens the...