People v. Phillips

• Decision Date: 06 March 2007
• Docket Number: No. 1-04-2655.,1-04-2655.
• Citation: 864 N.E.2d 823
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ezekiel PHILLIPS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

864 N.E.2d 823

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ezekiel PHILLIPS, Defendant-Appellant.

No. 1-04-2655.

Appellate Court of Illinois, First District, Second Division.

March 6, 2007.

Michael J. Pelletier, Deputy Defender, J. Michael True, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, Cook County, Chicago (James E. Fitzgerald, Douglas Harvath, Albert J. Kim, of counsel), for Appellee.

Presiding Justice WOLFSON delivered the opinion of the court:

Ezekiel Phillips was charged with attempt first degree murder, armed violence, and aggravated battery. This wasn't the first time the defendant had been charged with armed violence and aggravated battery. He had been convicted of those offenses on earlier occasions. Before and during his jury trial, he moved to bar use of the prior convictions to attack his believability when he testified. The trial court refused to rule, saying it wanted to hear the defendant's direct examination before deciding. The defendant did not testify.

The question before us is whether the trial court abused its discretion when it refused to rule and, if so, whether the error will affect the defendant's convictions for armed violence and aggravated battery.

For reasons that follow, we hold the trial court abused its discretion when it refused to rule on the defendant's motion, but that the great weight of authority compels us to decline to consider whether the error supports a change in outcome. We affirm the defendant's convictions; we vacate his sentences and remand the cause for a new sentencing hearing.

FACTS

We briefly summarize the state of the record at the point where the defense again moved to bar use of defendant's prior convictions.

At trial, the State presented evidence that on June 26, 2000, the defendant stabbed Daryl Willis. Willis testified that defendant approached him outside a liquor store near Roosevelt and Loomis streets in Chicago. Defendant told Willis he did not appreciate how Willis had disrespected him the other day. Defendant said, "This is what I do to tough niggers," and stabbed Willis in the stomach. While Willis was on his back, defendant attempted to stab him again and cut Willis' leg. According to Willis, defendant grabbed Willis' head and put a knife under his throat. A woman grabbed the defendant's hand and begged him not to kill Willis. Defendant then left the scene. Laboratory and medical reports showed Willis was heavily intoxicated when he was treated for stab wounds.

In her opening statement, defense counsel told the jury the evidence would show defendant was acting in self-defense because Willis hit the defendant with a two-by-four. Defense witness Cynthia Traylor testified that prior to the confrontation, Willis was intoxicated and acting very violently. She heard Willis tell defendant to "suck [his] French Dick" and saw Willis pick up a two-by-four and swing it at the defendant. He struck defendant with the two-by-four. She then saw defendant stab Willis.

Witness Bridget Godfrey said she saw defendant and Willis arguing loudly on the sidewalk. The defendant told Willis to go away and said he did not want to argue. Willis then picked up a two-by-four and began swinging it at defendant. Godfrey said defendant was struck more than once by the two-by-four. The next thing she saw was Willis falling to the sidewalk. She did not see the defendant holding a knife.

After its eyewitness testimony, the defense renewed its motion in limine and asked the court to determine whether defendant's prior convictions would be admissible if he were to testify. The prior convictions were for armed violence, aggravated battery, domestic battery, and manufacture or delivery of a controlled substance. The court said one conviction, domestic battery, would not come in because it was older than ten years. As to the remaining convictions, the judge said:

"* * * The other three convictions I was told about were three felony convictions and they are all within ten years of today, given the length of the sentences of those two previous cases, so they do meet the first two prongs. The third prong is whether the court must conduct an analysis as to whether or not this evidence of the prior convictions which would only be contracted [sic] as to the defendant's credibility is more probative than prejudicial, and it is my feeling that in order to conduct such an analysis I would have to hear all the evidence in the case, and until I have heard the defendant testify I can't determine whether it's more probative than prejudicial. For that reason I would rule; but to rule now would be premature, which is this court's opinion, which I know the defense disagrees with."

The defendant then chose not to testify. The jury returned a verdict of not guilty of attempt first degree murder, but guilty of armed violence and aggravated battery. The trial court denied defendant's motion for a new trial and sentenced the defendant to life imprisonment for the armed violence conviction and five years' imprisonment for each of the aggravated battery convictions, to merge and run concurrently. The defendant was absent at the time the jury returned its verdict and during the sentencing hearing. There is nothing in the record to indicate the trial court admonished defendant that he could be sentenced in absentia.

DECISION

I. Refusal to Rule

In People v. Montgomery, 47 Ill.2d 510, 519, 268 N.E.2d 695 (1971), the court adopted the 1971 proposed draft of Federal Rule of Evidence 609. In Illinois, with age limitations inapplicable to this case, a prior conviction may be used to impeach a defendant where: (1) the prior conviction was for a crime punishable by death or imprisonment in excess of one year, or a crime involving dishonesty or false statement; and (2) 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; People v. Cox, 195 Ill.2d 378, 383, 254 Ill.Dec. 720, 748 N.E.2d 166 (2001). In performing the balancing test, courts consider:

"`the nature of the prior crimes, * * * the length of the criminal record, the age and circumstances of the defendant, 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 Fed.R.Evid. 609 advisory committee notes.

The trial court uses its discretion when conducting the balancing test to determine whether a witness's prior conviction is admissible for impeachment. Cox, 195 Ill.2d at 383, 254 Ill.Dec. 720, 748 N.E.2d 166. Convictions for the same violent crime defendant is on trial for should be admitted "sparingly." People v. Williams, 161 Ill.2d 1, 38, 204 Ill.Dec. 72, 641 N.E.2d 296 (1994). Failure to conduct a "meaningful" balancing test violates Montgomery. People v. McGee, 286 Ill. App.3d 786, 793, 222 Ill.Dec. 137, 676 N.E.2d 1341 (1997).

We do not reach the question of whether defendant's prior convictions could be used to attack his character for truthtelling. Nor are we called on to decide whether the defendant's failure to testify waives review of a trial court's decision to allow use of the defendant's prior convictions to attack his believability. See Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); People v. Steward, 295 Ill.App.3d 735, 748-49, 230 Ill.Dec. 307, 693 N.E.2d 436 (1998). Those are not matters for this appeal. The only issues before us are whether the trial court's refusal to rule until it heard the defendant's direct examination was an abuse of discretion, and, if it was, how do we determine what to do about it when he does not testify?

While a criminal defendant's trial lawyer has the right to make ultimate decisions about matters of tactics and strategy, the decision about whether to testify "ultimately belongs to the defendant," not his lawyer. People v. Medina, 221 Ill.2d 394, 403, 303 Ill.Dec. 795, 851 N.E.2d 1220 (2006). The defendant's right to testify "is fundamental," not a matter of strategy or tactical decision best left to trial counsel. Steward, 295 Ill.App.3d at 743, 230 Ill.Dec. 307, 693 N.E.2d 436; People v. Daniels, 230 Ill.App.3d 527, 535, 172 Ill.Dec. 20, 595 N.E.2d 83 (1992). The defendant's right to testify is grounded in the Fifth and Sixth amendments to the United States Constitution. Rock v. Arkansas, 483 U.S. 44, 52-54, 107 S.Ct. 2704, 2709-11, 97 L.Ed.2d 37, 46-48 (1987).

It necessarily follows that a decision of such grave import should be made intelligently, based on relevant and available information. See United States v. Oakes, 565 F.2d 170, 171 (1st Cir.1977). In this case, potential use of the defendant's prior convictions, violent in nature and identical to the charges against him, had to be a factor that would weigh heavily on the decision to testify.

When the prior convictions are similar to or identical with the charges at trial, the risk of unfair prejudice weighs heavily. Williams, 161 Ill.2d at 37-38, 204 Ill.Dec. 72, 641 N.E.2d 296; see R. Wissler and M. Saks, On the Inefficacy of Limiting Instructions, 9 Law and Human Behavior 37, 37-48 (1985). That is, the defendant in this case faced the kind of unfair prejudice that "speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574, 588 (1997). The risk, obviously recognized by the defendant's lawyer, is that the jury would use the prior convictions as proof of the defendant's violent character, an improper purpose. By taking the stand this defendant would have been engaging in a high-stakes gamble.

By the time defense counsel renewed his ...