People v. Valentine , 299 Ill. App. 3d 1 ( 1998 )

JUSTICE O’BRIEN

delivered the opinion of the court:

Defendant, Gladstone Valentine, appeals his convictions for aggravated battery and unlawful restraint and his sentence of an extended term of 10 years’ imprisonment. On appeal, defendant contends: (1) he was deprived of a fair trial when the State cross-examined him about four prior unrelated battery arrests in front of the jury; (2) he was deprived of effective assistance of counsel when his counsel introduced evidence of his prior arrests and “opened the door” to which the State responded; (3) he was sentenced improperly to an extended term of imprisonment without the trial court specifically finding that defendant was eligible for an extended term; and (4) his maximum extended-term sentence was excessive. We reverse and remand.

Defendant was charged with the aggravated battery and unlawful restraint of complainant. At trial, it was uncontroverted that complainant shot defendant during an altercation and that they were personally involved. There were no eyewitnesses to the incident. Complainant testified defendant started beating her so she shot at him to stop him. Defendant testified complainant started shooting at him so he started beating her to stop her. Both sides presented very limited corroborating evidence. Complainant’s corroborating evidence suggested defendant attacked because complainant refused to see him. Defendant’s corroborating evidence suggested complainant attacked because she was jealous of another woman. The credibility of complainant and defendant was essential to the jury’s verdict.

Defendant had a prior retail theft conviction in 1993 and the State, over defendant’s objection, was allowed to use it to impeach defendant should defendant take the witness stand. Additionally, defendant had four prior battery arrests.

During defense counsel’s direct examination of defendant, the following occurred:

“DEFENSE COUNSEL: You’ve been in trouble with the police growing up in Chicago and you’ve had a couple of arrests in ’94 and ’93 is that correct?

DEFENDANT: Yes, sir.

DEFENSE COUNSEL: Were you ever arrested in ’94 or ’93 for anything involving violence?

DEFENDANT: No.

DEFENSE COUNSEL: Anything involving possession of a weapon?

DEFENDANT: No, sir.

DEFENSE COUNSEL: Was it a misdemeanor theft charge?

DEFENDANT: Yes, sir.”

Following a sidebar, the court ruled that defense counsel had “open[ed] the door” for the State to correct the portrayal of defendant “in a nonviolent light” pursuant to “the doctrine of completeness.” The State then cross-examined defendant about his arrest record:

“ASSISTANT STATE’S ATTORNEY: Mr. Valentine, you stated that you had never been arrested for a crime of violence?

DEFENDANT: No, ma’am.

ASSISTANT STATE’S ATTORNEY: Is that correct?

DEFENDANT: No, ma’am.”

The State then questioned defendant about his arrests for battery on July 18, 1986; February 13, 1987; May 9, 1987; and July 25, 1988, for impeachment purposes.

First, the ineffective assistance of counsel claim. Defendant claims defense counsel “opened the door” for the State to cross-examine him regarding his four prior unrelated battery arrests, and, thus, he was deprived of effective assistance of counsel. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), and People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246 (1984). Defendant must prove that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s substandard representation so prejudiced defendant as to deny him a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To prove actual prejudice, a defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Albanese, 104 Ill. 2d at 525. Judicial scrutiny of an attorney’s performance must be highly deferential, and a reviewing court will not inquire into areas involving the exercise of discretion, judgment or trial strategy. People v. Flewellen, 273 Ill. App. 3d 1044, 1048, 652 N.E.2d 1316 (1995).

The general rule regarding impeachment of witnesses with evidence of their prior criminal conduct is that only convictions of crimes punishable by sentences of more than one year or involving dishonesty or false statement may be admitted, and these only if the trial court determines that their probative value outweighs their potential for causing unfair prejudice and only if the conviction or release of such witnesses, whichever occurred later, was less than 10 years prior to their testimony. People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971); People v. Williams, 161 Ill. 2d 1, 641 N.E.2d 296 (1994). This rule gives parameters to the discretion of the trial court to admit such evidence.

There is authority, however, that some deviation from this general rule is permitted where the witness testifies on direct examination regarding some aspects of his criminal record, a practice referred to as “opening the door.” People v. DeHoyos, 64 Ill. 2d 128, 355 N.E.2d 19 (1976). Where a witness on direct examination affirmatively states that he has never been arrested, there is authority that the prosecutor may then cross-examine regarding any prior arrests. People v. Johnson, 42 Ill. App. 3d 194, 198, 355 N.E.2d 577, 579 (1976).

Montgomery and Williams mandate that the State could not have independently used defendant’s prior battery arrests to impeach defendant. A reasonably effective lawyer would have challenged the State’s use of such evidence before calling defendant to the witness stand. People v. Moore, 279 Ill. App. 3d 152, 157, 663 N.E.2d 490, 495 (1996). Here, defense counsel not only failed to challenge the use of defendant’s prior battery arrests, counsel “opened the door” to that line of questioning by eliciting testimony that gave a false impression of defendant’s criminal history. People v. Johnson, 42 Ill. App. 3d 194, 198, 355 N.E.2d 577, 579 (1976). Without these questions on direct examination, the jury never would have learned of defendant’s prior arrests for battery during this trial for aggravated battery. Accordingly, defense counsel’s questioning satisfied the first prong of Strickland. We therefore address the second prong of Strickland.

Under the second prong of Strickland, a defendant must demonstrate prejudice. People v. Caballero, 152 Ill. 2d 346, 365, 604 N.E.2d 913 (1992). In making this assessment, the court must consider the totality of evidence before the jury. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069; Caballero, 152 Ill. 2d at 366. Here, the evidence was essentially “he said/she said.” There were no eyewitnesses to the incident and both sides presented only limited corroborating evidence. Given the closeness of the conflicting evidence and the facts of this case, the jury’s verdict was based upon its determination of the credibility of the witnesses. Because the outcome of the case depended upon the jury’s credibility determinations, and because the introduction of inadmissible evidence of defendant’s prior unrelated battery arrests undermined his credibility, there is a reasonable probability that this error affected the outcome of the trial. Accordingly, we reverse and remand for a new trial.

In the alternative, one could deduce that defense counsel’s actions were trial tactics to mitigate the effect of defendant’s impeachment by his prior theft conviction. It is not implausible that, in the heat of battle, defense counsel decided to question defendant regarding his arrests in 1993 and 1994 to soften the negative impact of that conviction. The State intended to use defendant’s one prior conviction for retail theft in 1993, admissible under Montgomery, to impeach defendant’s credibility. Even if one assumes that defense counsel’s actions were well-intentioned trial tactics, the admission of prior arrests for battery in this trial for aggravated battery would still be unduly prejudicial, determinative of the jury verdict and error. The law will not permit a prosecutor to take unfair advantage of tactical errors by defense counsel that open the door to prejudicial evidence and it was error to allow the jury to hear such evidence. People v. Brown, 61 Ill. App. 3d 180, 185, 377 N.E.2d 1201, 1204 (1978).

Accordingly, we reverse and remand for a new trial. Thus, it is unnecessary to consider the other contentions of error.

Reversed and remanded.

BUCKLEY, EJ., concurs.