People v. Atkinson

713 N.E.2d 532, 186 Ill. 2d 450, 239 Ill. Dec. 1, 1999 Ill. LEXIS 681

• Court: Illinois Supreme Court
• Decided: June 17, 1999
• Docket: 83426
• Status: Published

Opinions

JUSTICE BILANDIC

delivered the opinion of the court:

Defendant, Dale Atkinson, was charged by information in Vermilion County with one count of burglary for knowingly entering a motor vehicle, without authority, with intent to commit theft (720 ILCS 5/19 — 1(a) (West 1994)). A jury returned a verdict finding defendant guilty of burglary on the basis of accountability. The trial court sentenced defendant to six years’ imprisonment. The appellate court, with one justice dissenting, reversed defendant’s conviction and remanded for a new trial, finding reversible error in the admission of defendant’s two prior burglary convictions for impeachment purposes. 288 Ill. App. 3d 102. We allowed the State’s petition for leave to appeal (166 Ill. 2d R. 315) and now reverse the appellate court’s judgment and reinstate defendant’s conviction and sentence.

FACTS

Evidence adduced at trial showed that on March 17, 1994, around 9:30 p.m.,, Nathan Reitsma was driving his mother’s 1984 Chrysler LeBaron, when the car stalled on Oakwood Avenue in Danville, Illinois. Nathan testified that he parked and locked the car alongside the road and proceeded to a nearby store to call his mother. When he returned to the car about 15 to 20 minutes later, he discovered that a window had been “pried down” and that the dashboard had been torn apart. The AM-FM cassette stereo and an equalizer had been removed from the dashboard.

That same evening, Herb Simmons was driving his car along with three passengers, defendant, Dale Juvinall, and Steve Robbins. Simmons testified that they were in the area of Oakwood Avenue when they noticed a stalled car on the side of the road. Simmons stopped the car, and defendant and Juvinall got out of the car. Simmons left defendant and Juvinall so that his car would not be seen if “they did something.” He returned about 10 to 15 minutes later and picked up defendant and Juvinall. Juvinall had stereo equipment inside his coat when he reentered Simmons’ car. They proceeded to defendant’s trailer, where Juvinall “split up” the stereo and equalizer, which had been connected. Juvinall kept the equalizer and gave the stereo to defendant. Simmons and Juvinall left in Simmons’ car with the equalizer underneath the passenger seat. Later that same evening, the police stopped Simmons and Juvinall and confiscated the equalizer from the car.

Dale Juvinall testified for the State that on March 17, 1994, he was riding in a car with defendant, Simmons, and Robbins. Around 10 p.m., they stopped by a stalled car on Oakwood Avenue. Juvinall requested that they stop by the stalled car because he wanted to see if that car had a stereo system. Juvinall and defendant approached the stalled car, which was unlocked. Juvinall opened the door and removed the stereo and equalizer. While Juvinall removed the items from the car, defendant stood next to him. Juvinall handed defendant the stereo, which defendant thereafter kept in his possession. When Simmons returned to pick them up, Juvinall was holding the equalizer and defendant was holding the stereo. After unsuccessfully trying to sell the equalizer, they went to defendant’s house and dropped him off with the stereo. Juvinall confirmed that later that evening police arrested him and Simmons after recovering the equalizer from the car.

Mark Drollinger, an investigator with the Vermilion County sheriffs department, investigated the burglary of the Reitsma car. Drollinger interviewed defendant on March 21, 1994. According to Drollinger, defendant consented to his making an audio tape of their interview, which was later admitted into evidence and played to the jury. In that interview, defendant stated that on the evening of March 17, 1994, he was riding in Simmons’ car with Juvinall and Robbins. After approaching a stalled vehicle on Oakwood Avenue, Juvinall stated that he saw a “fuzz buster.” Juvinall exited Simmons’ car and entered the stalled vehicle, which he unlocked by reaching through an open window. Juvinall then removed the stereo and the equalizer from the dashboard. Defendant admitted getting out of Simmons’ car because of “stupidity,” and standing nearby while Juvinall removed the equipment from the stalled car. Defendant did not go into the stalled car. After Simmons picked them up, they returned to defendant’s house and left the stereo there. Defendant admitted to subsequently trading that stereo to Chris Hunt for a different stereo. Following defendant’s interview, Drollinger located Chris Hunt and recovered the stolen stereo from him.

Defendant testified at trial that, on March 17, 1994, he was in Simmons’ car with Juvinall and Robbins when Juvinall and Simmons saw a car with personalized license plates, which they thought contained a stereo. Juvinall wanted to see if the car also had a fuzz buster. Defendant admitted on cross-examination that the only reason to check for a fuzz buster was to steal it. Simmons pulled over in front of the stalled car. Juvinall exited Simmons’ car and asked defendant to accompany him. Defendant testified that he stepped out of Simmons’ car and stood by the side of the road. Juvinall climbed into the stalled car through an open window and pulled at the bottom of the dashboard. Defendant stated that he did not do anything to assist Juvinall. Defendant also denied being a lookout; however, he did notice that no one was around or was coming down the street. When Juvinall exited the stalled car, he had a stereo and an equalizer, which were taped together with black electrical tape. Simmons picked up Juvinall and defendant and drove them to defendant’s trailer, where Simmons separated the stereo and the equalizer. Defendant was given the stereo, which he “got rid of’ a few days later.

Following defendant’s testimony the State sought to present, for impeachment purposes, evidence of defendant’s two prior burglary convictions. Defense counsel objected to their publication to the jury and claimed that the probative value of the two convictions was outweighed by their prejudicial effect. In the alternative, defense counsel asserted that the jury should be informed only that defendant had two prior felony convictions, and the date of the convictions. The trial court denied defendant’s requests. Accordingly, the State impeached defendant with evidence of his two prior burglary convictions. Specifically, the State informed the jury that defendant’s two prior convictions were for burglary, and that these convictions occurred in Vermilion County on September 9, 1992, and January 11, 1993. Defendant filed a motion for a mistrial, arguing that the State should not have been allowed to publish the nature of defendant’s prior convictions to the jury. The trial court denied the motion for a mistrial. The jury found defendant guilty of burglary on an accountability theory. The trial court entered a judgment on the verdict and sentenced defendant to six years’ imprisonment. The trial court denied defendant’s post-trial motion for a new trial.

The appellate court, with one justice dissenting, reversed defendant’s conviction and remanded for a new trial. The appellate court held that the trial court erred when it permitted the State to reveal to the jury the nature of defendant’s prior convictions. 288 Ill. App. 3d at 107. The court determined that the trial court should have employed the “mere-fact” method of impeachment as part of its balancing test in deciding whether the probative value of the evidence sought to be admitted is substantially outweighed by the danger of unfair prejudice. 288 Ill. App. 3d at 107. The appellate court found that the jury in this case should have heard only the “mere fact” that defendant had twice been convicted of unidentified felonies. The appellate court concluded that the trial court’s error was prejudicial and not harmless to defendant because the evidence of defendant’s guilt was not overwhelming. 288 Ill. App. 3d at 108. The appellate court remanded the cause for a new trial. The dissenting opinion stated that, absent precedent from this court requiring application of the mere-fact approach, defendant’s conviction was not obtained in error because the trial court had applied the required balancing test. 288 Ill. App. 3d at 109 (Green, J., dissenting).

ANALYSIS

The issue before this court is whether the mere-fact method of impeachment should be adopted in Illinois.

This court’s opinion in People v. Montgomery, 47 Ill. 2d 510 (1971), generally governs the use of prior convictions to impeach a witness’ credibility. In Montgomery, this court adopted the then-proposed Federal Rule of Evidence 609 as the general rule governing the admissibility of prior convictions to impeach the credibility of a witness. Montgomery, 47 Ill. 2d at 519; see also M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §§ 609.1, 609.2 (6th ed. 1994). Under the Montgomery rule, evidence of a witness’ prior conviction is admissible to attack the witness’ credibility where: (1) the prior crime was punishable by death or imprisonment in excess of one year, or involved dishonesty or false statement regardless of the punishment, (2) less than 10 years has elapsed since the date of conviction of the prior crime or release of the witness from confinement, whichever is later, and (3) the probative value of admitting the prior conviction outweighs the danger of unfair prejudice. Montgomery, 47 Ill. 2d at 516; see also M. Graham, Cleary & Graham’s Handbook' of Illinois Evidence § 609.2 (6th ed. 1994). This last factor requires the trial judge to conduct a balancing test, weighing the prior conviction’s probative value against its potential prejudice.

In conducting this balancing test, the trial judge should consider, inter alia, the nature of the prior conviction, its recency and similarity to the present charge, other circumstances surrounding the prior conviction, and the length of the witness’ criminal record. Montgomery, 47 Ill. 2d at 518; see also 6 L. Pieczynski, Illinois Practice § 22.68 (West 1989); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 609.4 (6th ed. 1994). If the trial judge determines that the prejudice substantially outweighs the probative value of admitting the evidence, then the evidence of the prior conviction must be excluded. The determination of whether a witness’ prior conviction is admissible for impeachment purposes is within the discretion of the trial court. Montgomery, 47 Ill. 2d at 517-18.

The adoption of the mere-fact method of admitting evidence of a prior conviction for impeachment purposes was proposed in a concurring opinion in People v. Kunze, 193 Ill. App. 3d 708, 728-36 (1990) (Steigmann, J., specially concurring). The mere-fact method of impeachment informs the jury only of the “mere fact” of a witness’ prior conviction, but not the nature of that conviction. Kunze, 193 Ill. App. 3d at 731. Consequently, the jury learns only of the fact that the witness committed a past crime, not the name of the offense.

Defendant contends that the mere-fact method of admitting a prior conviction for impeachment purposes should be used by trial courts as part of the Montgomery balancing test. Defendant advocates that the trial court should consider employing the mere-fact method in determining whether the probative value of the defendant’s prior conviction is substantially outweighed by the danger of unfair prejudice. Thus, the trial court could determine that prejudice to the defendant would be alleviated if only the mere fact of the prior conviction was introduced and could decide to allow use of the prior conviction only in that fashion.

This court has not previously addressed whether the mere-fact method of impeachment has any place in the Montgomery analysis. The State contends that we implicitly refused to adopt the mere-fact approach in People v. Redd, 135 Ill. 2d 252, 324-26 (1990). In Redd, we concluded that the trial court properly denied the motion of defendant, who was on trial for rape and murder. That motion sought to bar the use of the defendant’s prior convictions for rape and attempted murder as impeachment evidence or, in the alternative, sought to delete the subject matter of the prior convictions and replace it with the word “felony.” We held that the trial judge had properly exercised the discretion envisioned under the Montgomery rule. Redd, 135 Ill. 2d at 326. We did not, however, explicitly address in Redd whether the mere-fact method could ever be an appropriate part of the Montgomery analysis.

We now decline to adopt the mere-fact method of impeachment for the following reasons. The three-prong approach adopted in Montgomery has guided our court’s analysis of this issue for many years and has recently been reaffirmed. See People v. Williams, 173 Ill. 2d 48, 82-83 (1996) (holding that the admission of a witness’ prior conviction as evidence of impeachment is governed exclusively by the three-prong test set forth in Montgomery). In adopting this test in Montgomery, this court recognized the importance of balancing a defendant’s interest against unfair prejudice with that of the State and the jury to dispose of the charge in accordance with the truth. See Montgomery, 47 Ill. 2d at 518. Our case law interpreting Montgomery suggests that it is the nature of a past conviction, not merely the fact of it, that aids the jury in assessing a witness’ credibility. See, e.g., Williams, 173 Ill. 2d at 81-83; Redd, 135 Ill. 2d at 324-26. The mere-fact approach undermines the Montgomery rule and inhibits the jury’s evaluation of a witness’ credibility by eliminating the jury’s consideration of the nature of the past crime.

For similar reasons, the Seventh Circuit Court of Appeals has declined to adopt the mere-fact approach. See Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987) (allowing an inmate’s prior conviction for rape to be disclosed for the purpose of impeaching his credibility as a witness in the civil rights case he brought against prison officials). That court made the following observations in support of disclosing the nature of a witness’ prior felony conviction:

“There is no precedent for withholding the identity of the felony from the jury when using a conviction to impeach a witness’s testimony, and we are not minded to create one. Most jurors have only an indistinct sense of the range of offenses connoted by the term ‘felony.’ *** Rule 609 and the common law tradition out of which it evolved rest on the common-sense proposition that a person who has flouted society’s most fundamental norms, as embodied in its felony statutes, is less likely than other members of society to be deterred from lying under oath in a trial by the solemnity of the oath, the (minuscule) danger of prosecution for perjury, or internalized ethical norms against lying. If so, this is something a jury should be permitted to take into account in evaluating a witness’s believability. The jury cannot do this if all it is told is that the witness was convicted of a ‘felony.’ The crime must be named. It always has been where impeachment by a prior conviction has been permitted.” Campbell, 831 F.2d at 707.

The court further found that a jury is entitled to know the name of the crime because, without that knowledge, the jury would be confused and Federal Rule of Evidence 609 would be undermined. Campbell, 831 F.2d at 707.

Potential prejudice to the defendant also supports rejection of the mere-fact approach. Under the mere-fact approach, the jury hears direct proof that the accused has been convicted of a felony, the exact nature of which is excluded from the jury. This bare announcement unavoidably invites jury speculation about the nature of the prior crime. There is a potential danger that the jury would speculate that the defendant was previously convicted of a more serious crime. Consequently, the mere-fact approach may result in unfair prejudice to the defendant arising from jury speculation as to the nature of the prior unnamed crime. Under the Montgomery rule, however, there is no potential for speculation by the jury. Moreover, the possibility of resulting prejudice to the defendant from revealing the nature of the prior conviction is controlled by the judicial balancing test set forth in the third prong of Montgomery. Under that test, if prejudice to the defendant substantially outweighs the probative value of admitting the impeachment evidence, the prior conviction must be excluded.

Defendant relies on the United States Supreme Court’s decision in Old Chief v. United States, 519 U.S. 172, 136 L. Ed. 2d 574, 117 S. Ct. 644 (1997), as support for employing the mere-fact approach in conducting the Montgomery balancing test. In Old Chief, the defendant, who was on trial for the federal offense of possession of a firearm by a felon, offered to concede the fact of his prior conviction. The defendant therefore requested that the jury be informed only that the defendant had a prior felony conviction and not the nature of the felony. The trial court denied the defendant’s request and admitted the record of the defendant’s prior conviction. In addressing whether the trial court abused its discretion, the Supreme Court considered the scope of Federal Rule of Evidence 403, which authorizes the exclusion of relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. In discussing the various methods of applying Rule 403 to weigh the probative value of evidence, the Court referred to “evidentiary alternatives” as opposed to specifically naming the defendant’s prior felony offense. Old Chief, 519 U.S. at 184-85, 136 L. Ed. 2d at 590, 117 S. Ct. at 652. The Court determined that further proof of the underlying felony was unnecessary in that case because Congress made it plain that the fact of the felony conviction alone is what matters under the statute. Old Chief, 519 U.S. at 190, 136 L. Ed. 2d at 594, 117 S. Ct. at 655. The Supreme Court therefore held that the trial court abused its discretion under Rule 403 when it refused to consider “evidentiary alternatives” and instead allowed evidence of the name of the defendant’s prior felony offense to be presented to the jury. The Court, however, limited its holding to cases involving proof of felon status with respect to a federal statute outlawing possession of a firearm by a felon. Old Chief, 519 U.S. at 183 n.7, 136 L. Ed. 2d at 589 n.7, 117 S. Ct. at 651 n.7.

The circumstances involved in Old Chief indicate that the Court’s decision has no application to this case. Old Chief involved neither the admission of a prior conviction as impeachment evidence nor a general discussion of Federal Rule of Evidence 609. See United States v. Smith, 131 F.3d 685, 687 (7th Cir. 1997) (explaining that the prior conviction in Old Chief was not used for impeachment purposes under Rule 609). Rather, the holding in Old Chief was limited to the application of Rule 403 in the context of the federal statute at issue in the case. Old Chief, therefore, does not support the adoption of the mere-fact method of introducing evidence of prior convictions for impeachment purposes.

We conclude that the Montgomery rule should not be altered by the mere-fact approach. The Montgomery rule, which balances the jury’s role in evaluating a witness’ credibility with unfair prejudice to the defendant, shall continue undisturbed as the method governing admission of evidence of a prior conviction to impeach the credibility of a witness. Thus, trial courts should not consider the mere-fact method of impeachment.

As a final matter, we find that the trial court did not abuse its discretion in holding that evidence of defendant’s prior convictions of burglary should be admitted for impeachment purposes pursuant to the Montgomery rule. Defendant’s prior burglary convictions were admissible pursuant to the first prong of the Montgomery rule because burglary is a crime punishable by more than one year of imprisonment. In addition, a period of less than 10 years has elapsed since the date of defendant’s prior convictions. The trial judge was therefore required to weigh the probative value of admitting the prior burglary convictions against the danger of unfair prejudice. Defendant’s testimony at trial made up his entire defense. Defendant’s credibility was therefore a central issue, and the prior convictions were crucial in measuring defendant’s credibility. The trial judge thus did not abuse his discretion in finding that the probative value of admitting these prior convictions was not outweighed by the danger of unfair prejudice to the defendant. See Williams, 173 Ill. 2d at 83 (holding that the trial court did not abuse its discretion in denying the defendant’s motion to bar the State from impeaching the defendant’s credibility with evidence of his prior conviction for aggravated battery where the defendant was on trial for murder and aggravated battery with a firearm); Redd, 135 Ill. 2d at 326 (holding that the trial court did not abuse its discretion in denying the defendant’s motion to bar the use of his prior convictions for rape and attempted murder as impeachment evidence in a case where the defendant was on trial for murder and rape).

Defendant nonetheless contends that the trial court erred because it failed to conduct a proper Montgomery balancing test. We disagree. Defense counsel specifically referred to the balancing test in his argument against impeaching defendant with his prior convictions. The trial judge, in discussing the admissibility of defendant’s prior convictions, recognized that he had to determine whether the probative value of the evidence outweighed its prejudice. The trial judge again referred to the Montgomery rule and its balancing test when denying defendant’s motion for a mistrial and denying defendant’s post-trial motion for a new trial. Defendant argued in both motions that the nature of his prior burglary convictions should not have been published to the jury, and that doing so resulted in prejudice to him. In denying defendant’s motion for a mistrial, the trial court indicated that it “makes no sense” to impeach a defendant any other way under “Montgomery.” In denying defendant’s motion for a new trial, the trial judge stated that “Montgomery is a well tried and well-tested rule that has been followed by the courts to determine believability of witnesses and defendants,” and the question under Montgomery is “whether the prejudice outweighs any probative value.” It is clear from the trial judge’s comments that he was aware of the Montgomery balancing test. The trial judge did not err in failing to articulate the factors he considered in his application of the Montgomery balancing test. See Williams, 173 Ill. 2d at 83 (determining that the trial judge did not disregard the Montgomery rule merely because he did not explicitly state for the record that he was balancing the opposing interests). In light of the trial judge’s comments, there is no reason to find that the trial court failed to weigh the probative value of the evidence against its possible prejudicial effect in determining the impeachment evidence to be admissible. We therefore find that the trial court conducted a proper balancing test and thereby adhered to the Montgomery rule.

In so finding, we emphasize that trial courts should be cautious in admitting prior convictions for the same crime as the crime charged. Nonetheless, similarity alone does not mandate exclusion of the prior conviction. See Redd, 135 Ill. 2d at 326. Here, the trial court strictly limited the use of the prior convictions by providing the jury with an instruction limiting their evidentiary use to impeachment. Specifically, the trial court instructed the jury to consider defendant’s prior burglary convictions only for the purpose of assessing defendant’s credibility as a witness, and not as evidence of his guilt of the offense charged. Accordingly, the trial court did not abuse its discretion in admitting defendant’s prior burglary convictions for impeachment purposes.

We therefore reverse the appellate court because it erred in concluding that the trial court committed reversible error in refusing to apply the mere-fact method of admitting evidence of defendant’s prior convictions. We reject the mere-fact approach, and we affirm the trial court’s admission of defendant’s prior convictions pursuant to the Montgomery rule.

CONCLUSION

For the reasons stated, we reverse the judgment of the appellate court and affirm defendant’s conviction and sentence.

Appellate court judgment reversed; circuit court judgment affirmed.