People v. Mullins

Docket No. 108909.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
IRA MULLINS, Appellee.
Opinion filed April 21, 2011.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Justice Burke concurred in the judgment and opinion.
Chief Justice Kilbride specially concurred, with opinion.
Justice Garman specially concurred, with opinion, joined by
Justices Thomas, Karmeier, and Theis.
OPINION
After a jury trial, defendant, Ira Mullins, was convicted of
possession of a controlled substance with intent to deliver (720 ILCS
570/401(d) (West 2004)), and sentenced to nine years in prison. The
appellate court reversed and remanded for a new trial. We granted the
State’s petition for leave to appeal and now reverse the judgment of
the appellate court.
BACKGROUND
Defendant was charged with possession of a controlled substance
with intent to deliver (720 ILCS 570/401(d) (West 2005)). Prior to
trial, defense counsel moved in limine to bar the State from using
defendant’s three prior felony narcotics convictions1 as impeachment
should he testify. In response, the State asked that the court “withhold
judgment as to whether [the convictions are] more prejudicial than
probative if and when the defendant does actually testify.” The court
agreed, ruling it would reserve its decision.
At trial, Chicago police officer Matt McGrory testified that at
about 11 p.m. on February 1, 2005, he and his partner, Jeffrey Zwit,
were part of a narcotics surveillance operation near the 4500 block of
West Washington Boulevard, an area known for narcotics
transactions. McGrory was stationed on the rooftop of a three-flat
residence at 4451 West Washington Boulevard, while the other
officers waited in two marked squad cars about a block away. Using
binoculars, McGrory observed defendant standing alone on the
sidewalk in front of 4506 West Washington Boulevard, a residence
with a wire fence encircling the front of the property. The area in
which defendant was standing was “well-lit” by street lights, and he
was approximately 10 feet away from one of these lights.
McGrory observed a man approach defendant and engage him in
brief conversation. The man then handed defendant an item which
defendant shoved into his pants pocket. Based upon the size and tint
of the paper, McGrory believed defendant had accepted money, but
he could not discern the denomination of the bills. Defendant walked
over to a nearby metal fence post and retrieved an unknown object
from inside that post. Defendant then gave the object to the man who
had given him the money. Although McGrory could not exactly
determine what the item was, he saw it was the size of a coin. The
other person then left on foot. This same series of events occurred
twice more, within the span of a few minutes. Based upon his
experience and training, McGrory believed he was observing illegal
narcotics transactions.
McGrory conducted this surveillance for approximately 30
minutes, during which time he was in contact with Zwit and the
1
Defendant’s most recent conviction occurred in 2001, with the two other
convictions occurring in 1997.
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backup officers by two-way radio. After witnessing the third
transaction, McGrory gave his colleagues a description of defendant
and asked that they approach and detain him. McGrory maintained his
surveillance as the other officers drove to defendant’s location. While
the two backup officers detained defendant, McGrory directed Zwit
via the police radio to the fence post from which defendant had
retrieved the objects. After he observed Zwit recover items from the
post, McGrory joined the others at the scene, where defendant was
arrested. McGrory testified that during the surveillance period,
defendant had no bags or suitcases with him. In addition, McGrory
never saw defendant walk into 4506 West Washington Boulevard and
never saw anyone come out of that house.
McGrory and Zwit transported defendant to the police station,
where Zwit showed McGrory the plastic bag he had retrieved from the
fence post. The bag contained three tinfoil packets of white powder.
McGrory then processed defendant and asked for his address.
Defendant stated that he resided at 210 North Central in Chicago.
On cross-examination, McGrory was asked why his written arrest
report failed to include several facts to which he testified during direct
examination: that he used binoculars during the surveillance operation;
that the fence post had no cap; that defendant stood 10 feet away from
the street light; and that defendant placed something in his pocket
after every transaction. McGrory acknowledged that he did not
include these specific facts, but explained that the purpose of the
written report is to summarize the incident and, therefore, not every
fact is included.
Officer Zwit’s testimony largely mirrored that of McGrory
regarding the initiation and execution of the surveillance operation.
Zwit additionally testified that he and the two backup officers did not
personally witness the three transactions, because they were stationed
around the corner waiting for McGrory to give the signal to move to
the scene. When they did, McGrory directed him to look inside the
fence post, which was hollow. Zwit found a plastic bag inside the post
that contained three tinfoil packets of white powder suspected to be
heroin. The plastic bag was held up inside the post by “random
garbage,” including chip bags and other debris. From his experience
with narcotics investigations, Zwit recognized the tinfoil packets as
those commonly used in the individual sale of heroin. The packets
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resembled items commonly referred to as “nickel” bags worth $5, in
contrast to larger packets typically sold for $10. Zwit transported the
three packets back to the station, where he inventoried them. Zwit
also inventoried $18 in United States currency given to him by one of
the backup surveillance officers who had recovered the money from
defendant’s pockets. The currency consisted of three $5 bills and three
$1 bills. No narcotics were recovered from defendant’s person.
Officer Almanza also took part in the surveillance operation, and
his testimony corroborated that of McGrory and Zwit. Almanza
additionally stated that, at the scene, he conducted a protective
patdown of defendant and found nothing illegal. He did notice,
however, that defendant had money in his pockets, which was
retrieved during the later custodial search of defendant at the station.
Almanza recovered $18 from defendant, consisting of three $5 bills
and three $1 bills. Each individual bill was crumpled up and stuffed in
defendant’s pockets. According to Almanza, “[u]sually what happens
in narcotics when we *** arrest people, they just grab money from the
buyer and they just shove it into their pocket immediately.”
Dr. Monica Kinslow, a forensic chemist employed by the Illinois
State Police, testified that she tested the substance in the foil packets
retrieved from the fence post and determined it was heroin. She
further determined that the weight for one packet was 0.1 grams, and,
therefore, that the total weight of the three packets was 0.3 grams.
The State then rested.
After the trial court denied defendant’s motion for a directed
verdict, defendant called Trenton Grayer to testify on his behalf.
Grayer was 15 years old at the time of trial, and 14 at the time of this
incident. Grayer was a “good friend” of defendant and knew him for
approximately three years as a result of working together at a Chicago
car wash. Grayer sometimes saw defendant socially on the weekends,
but they had not been to each other’s homes. Grayer did not have
defendant’s phone number, but defendant had his.
Grayer stated that on February 1, 2005, defendant called Chiquita
Chambers–another coworker from the car wash–and said he was
returning to Chicago from Detroit. Grayer could not recall if February
1 was a weekday or weekend, nor whether he had attended school
that day. Grayer accompanied Chambers in her car to pick defendant
up at a bus station in downtown Chicago at around 8:15 p.m.
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Defendant got in the back of Chambers’ car with his bags, and the trio
returned to Chicago’s west side, where they “just drove around” and
talked for about two to three hours. According to Grayer, the group
had no specific destination and they made no stops during that period.
Eventually, Chambers became tired, and defendant asked to be
driven to a hotel. Grayer could not remember the hotel’s name, but
recalled that it was on West Washington Boulevard. When they
arrived, defendant asked Chambers for money, and she gave defendant
$12, in the form of one $10 bill and two $1 bills. Defendant got out of
the car with his bags, and Grayer and Chambers drove away. Grayer
stated they dropped defendant off at the hotel at 11:15 p.m., and that
he knew the exact time because he looked at a cell phone. Grayer did
not see defendant enter the hotel and did not know where defendant
went after he left the car. Chambers and Grayer were a few blocks
away from the hotel when defendant called Chambers to tell her he did
not have enough money to rent a room. Chambers and Grayer drove
back to the hotel, but they did not see defendant or anyone else on the
street. When asked how long it was after they dropped defendant off
that they returned to the hotel, Grayer responded “ten, fifteen, maybe
five [minutes], I really don’t know.” The pair neither went into the
hotel to look for defendant, nor called him on his phone. Instead, they
left.
Defendant testified that he was 27 years old and worked at a
Chicago car wash with both Grayer and Chambers for between three
and four years. On February 1, he returned to Chicago from Detroit,
where he had lived for nearly one year with his fiancée and son. When
Grayer and Chambers picked him up at the bus station, he had
between $25 and $30 in cash, and offered to buy something to drink
at a liquor store. Defendant spent $20 on a pint of liquor, and he and
Chambers “drank a little bit” while the trio “rode around” for between
2 and 2½ hours. During this period, the group stopped at various
times so that defendant could visit several people, including his god
brother and a few other friends.
At about 11:10 p.m., Chambers told defendant she was tired of
driving, and he asked her to drop him off at a hotel near the 4500
block of West Washington Boulevard. He also asked her for money,
and she gave him $12, after which he had a total of $18 cash.
Defendant stated he did not know the denomination of the bills
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Chambers gave him. He then went into the hotel and asked to rent a
room for four hours. Defendant decided to stay for only that short
period because “it was already late that night,” even though he was
“not sure” where he would have gone after leaving the hotel.
Defendant was told the room cost $24, plus an additional $3 deposit
for the room key. Because he was short of money, he called Chambers
to ask for more. She agreed and stated she would drive back to meet
him.
Defendant left the hotel at 11:20 p.m.; he stated he knew the
precise time because he had looked at his watch. As he stood on the
sidewalk, he saw his friend “West” come out of 4506 West
Washington, which was across the street. Defendant knew this person
only as “West” and was not aware of his full name. Defendant was
surprised to see West, whom he last saw in 1999. West beckoned
defendant across the street, and then asked him what he was doing
because he saw him with his luggage. Defendant told West he was
trying to rent a room at the hotel, and West invited him to stay at his
house. West then asked defendant if he was too intoxicated to drink,
and defendant said no. Defendant and West spoke outside for three to
five minutes before West took defendant’s luggage into the house, and
told him he would return with money to go to the liquor store.
While defendant was waiting for West in the yard in front of 4506
West Washington, the police pulled up in two cars, told him to “come
here,” and, when he did, they searched him and asked “where the guns
and drugs were.” Defendant was then handcuffed, placed in a squad
car, and taken to the police station. Defendant denied selling drugs.
Defendant stated that he had tried to find West so that he could
testify for him at trial, but West was “locked up” and defendant could
not locate him. Defendant also stated that Chambers was unable to
testify on his behalf because she had missed work to come to court the
prior day, and could not miss work again.
On cross-examination, defendant stated for the first time that West
came out on the porch of his house while defendant was being
arrested, and that police “told him to get back into the house.”
Defendant also offered on cross-examination that he “started to get
smart” with the officers when they repeatedly asked him the same
questions. Defendant then rested.
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At the conclusion of testimony, a side bar was held outside the
presence of the jury regarding the court’s deferred ruling on
defendant’s motion in limine to bar use for impeachment purposes of
his three prior felony convictions for possession of a controlled
substance with intent to deliver. After both parties presented
arguments regarding the probative value and prejudicial effects of the
prior convictions, the court admitted defendant’s 2001 conviction for
possession of a controlled substance with intent to deliver and barred
introduction of defendant’s two earlier convictions. The parties agreed
to present this information to the jury by stipulation during the State’s
rebuttal case. Immediately after the side bar, the prosecutor read the
following stipulation to the jury: “It is hereby stipulated by and
between the parties that [defendant] has been convicted of possession
of a controlled substance with intent to deliver under Case Number 01
CR 12360.”
The State then recalled Officer Almanza. He testified that at the
time defendant was placed under arrest, no one came out of 4506
West Washington.
After argument, the court instructed the jury, inter alia, that
“[a]ny evidence that was received for a limited purpose should not be
considered by you for any other purpose.” The jury also received
Illinois Pattern Jury Instruction (IPI) 3.13, which states that
“[e]vidence of a defendant’s previous conviction of an offense may be
considered by you only as it may affect his believability as a witness,
and must not be considered by you as evidence of his guilt of the
offense with which he is charged.”
The jury began its deliberations at 5:36 p.m. At 6:42 p.m., the jury
sent a note to the court, requesting a copy of the police report and of
“the testimony read by [the] prosecuting attorney before closing
arguments.” By agreement of the parties, the court answered the first
question by noting that because the police report was not entered into
evidence, the jury could not have it during deliberations. As to the
jury’s second question, the court and the parties sent a return note
asking for clarification. The jury sent a response at 6:58 p.m., stating:
“We would like a copy of the testimony that was read by the
prosecuting attorney after they came back from the sidebar and before
Officer Almanza was recalled to the stand. It pertains to a prior
conviction.” The jury was brought back into the courtroom for the
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court reporter to read the stipulation, and then continued
deliberations. At 7:15 p.m., the jury returned a guilty verdict against
defendant.
The appellate court affirmed. No. 1–06–1326 (unpublished order
under Supreme Court Rule 23). The panel held that the trial court
properly exercised its discretion in delaying its ruling on defendant’s
motion in limine because it did not have sufficient information to
make a ruling before he testified. In addition, the court rejected
defendant’s argument that the trial court failed to perform the
balancing test required under People v. Montgomery, 47 Ill. 2d 510
(1971), prior to admitting defendant’s previous conviction for
possession of a controlled substance with intent to deliver. The
appellate court found that the trial court “conducted a thoughtful
balancing under Montgomery” and properly admitted defendant’s
prior conviction for impeachment purposes.
Thereafter, defendant filed a petition for leave to appeal to this
court. Although we denied defendant’s petition, pursuant to our
supervisory authority we directed the appellate court to reconsider its
ruling in light of People v. Patrick, 233 Ill. 2d 62 (2009), filed during
the pendency of this appeal. The appellate court vacated its original
order, reversed defendant’s conviction and remanded for a new trial.
No. 1–06–1326 (unpublished order under Supreme Court Rule 23).
The panel held that, like in Patrick, the trial court in the instant cause
erred in delaying its ruling on the motion in limine until after
defendant testified. Further, the panel determined that this error was
not harmless “for the same reasons” stated in Patrick. The panel
expressed no opinion regarding defendant’s Montgomery argument.
We granted the State’s petition for leave to appeal. Ill. S. Ct. R.
315(a) (eff. Feb. 26, 2010).
ANALYSIS
The State acknowledges that under our decision in People v.
Patrick, 233 Ill. 2d 62 (2009), the trial court committed error in
delaying its ruling on defendant’s motion in limine to exclude his prior
convictions from use as impeachment until after he testified.
Accordingly, the State does not challenge that portion of the appellate
court judgment holding that the trial court abused its discretion in
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deferring its ruling on defendant’s motion.
The narrow issue presented by this appeal is whether the error
committed by the trial court was harmless or reversible. The State
contends that the appellate court misconstrued Patrick and failed to
conduct an appropriate harmless-error analysis. In the State’s view,
the appellate court improperly treated the trial court’s error as a de
facto structural error which affected the integrity of the trial and
required automatic reversal of defendant’s conviction without any
showing of prejudice. The State posits that if the appellate panel had
engaged in the correct analysis, it would have concluded that, under
the facts presented, the trial court’s error was harmless and did not
require reversal.
Defendant counters that Patrick established that the proper
analysis is whether the trial court’s error in delaying the ruling on
defendant’s motion in limine was harmless beyond a reasonable
doubt. Applying this test, defendant maintains that the error here was
not harmless, and, therefore, the judgment of the appellate court
should be affirmed. In addition, defendant also requests cross-relief,
arguing that the trial court erred in admitting his prior conviction for
purposes of impeachment. We reject defendant’s contentions.
A. Admission of Defendant’s Conviction
Our inquiry necessarily begins with an examination of whether
defendant’s prior conviction was properly admitted for purposes of
impeachment. In his request for cross-relief, defendant challenges the
admission of his prior conviction for impeachment purposes,
contending that the trial court erred in failing to conduct the required
analysis under People v. Montgomery, 47 Ill. 2d 510 (1971), and that
the appellate court erred when it rejected this argument in its initial
order in this case. Because our inquiry need proceed no further if the
trial court improperly admitted defendant’s prior conviction, we
address defendant’s cross-relief request as a threshold matter.
In Montgomery, this court held that 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
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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. This last factor requires a
trial judge to conduct a balancing test, weighing the prior conviction’s
probative value against its potential prejudice.
Montgomery further explained that in performing this balancing
test, the trial court should consider, inter alia, the nature of the prior
conviction, the nearness or remoteness of that crime to the present
charge, the subsequent career of the person, the length of the witness’
criminal record, and whether the crime was similar to the one charged.
Montgomery, 47 Ill. 2d at 518. If the trial court determines that the
prejudice substantially outweighs the probative value of admitting the
evidence, then the evidence of the prior conviction must be excluded.
Montgomery, 47 Ill. 2d at 518. The determination of whether a
witness’ prior conviction is admissible for purposes of impeachment
is within the sound discretion of the trial court. Montgomery, 47 Ill.
2d at 517-18.
In his request for cross-relief, defendant contends that the trial
court abused its discretion in failing to perform the Montgomery
balancing test, instead treating defendant’s prior conviction of
possession of a controlled substance with intent to deliver as
“automatically admissible” for purposes of impeachment, despite the
probative value of that evidence being outweighed by its prejudicial
effect. Defendant asserts that there is “no connection” between
defendant’s credibility as a witness and his prior conviction, and
allowing the State to impeach him with a prior conviction for the same
offense for which he was on trial “created an inevitable pressure on
the jurors” to believe that defendant had a propensity to commit this
same crime, thus tipping the scales in what defendant contends was a
closely balanced case. We reject defendant’s argument.
We find guidance in People v. Atkinson, 186 Ill. 2d 450, 458
(1999), in which we held that the trial court did not abuse its
discretion in holding that evidence of the defendant’s two prior
convictions for burglary could be admitted for purposes of
impeachment during the defendant’s burglary trial. We explained that
in adopting the three-prong analysis in Montgomery, we “recognized
the importance of balancing a defendant’s interest against unfair
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prejudice with that of the State and the jury to dispose of the charge
in accordance with the truth.” Atkinson, 186 Ill. 2d at 458.
Accordingly, we held that “it is the nature of a past conviction, not
merely the fact of it, that aids the jury in assessing a witness’
credibility.” Atkinson, 186 Ill. 2d at 458.
In holding that the trial court had properly conducted this
balancing, we noted that the defendant’s testimony made up his entire
defense, and, therefore, his credibility was “a central issue.” Atkinson,
186 Ill. 2d at 462. Accordingly, his prior convictions “were crucial in
measuring defendant’s credibility.” Atkinson, 186 Ill. 2d at 462.
Although “trial courts should be cautious in admitting prior
convictions for the same crime as the crime charged,” Atkinson
stressed that “similarity alone does not mandate exclusion of the prior
conviction.” Atkinson, 186 Ill. 2d at 463. This is especially so when
the jury is instructed to consider the evidence of the defendant’s prior
convictions for the limited purpose of impeachment, which ensures
that the jurors understood the narrow reason for which the
convictions were admitted. Atkinson, 186 Ill. 2d at 463.
Atkinson further rejected any notion that the Montgomery
balancing test is not properly performed unless the trial court explicitly
states that it is doing so on the record. Defense counsel in Atkinson
“specifically referred to the balancing test in his argument against
impeaching defendant with his prior convictions.” Atkinson, 186 Ill.
2d at 462. In addition, in discussing admissibility, the trial court
“recognized that [it] had to determine whether the probative value of
the evidence outweighed its prejudice,” and, therefore, it was “clear
from the trial judge’s comments that he was aware of the Montgomery
balancing test.” Atkinson, 186 Ill. 2d at 462-63; see also People v.
Williams, 173 Ill. 2d 48, 83 (1996) (trial court did not disregard the
Montgomery rule simply because it did not explicitly state for the
record that it was balancing the opposing interests). We thus
concluded that “[i]n 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,” and, accordingly, found that
“the trial court conducted a proper balancing test and thereby adhered
to the Montgomery rule.” Atkinson, 186 Ill. 2d at 463.
Like defendant Atkinson, defendant here argues in his request for
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cross-relief that the trial court abused its discretion in failing to
perform the Montgomery balancing test and by allowing the State to
impeach defendant with a prior conviction for the same offense for
which he was on trial. Pursuant to Atkinson, we similarly reject the
arguments advanced by defendant.
The record establishes that the hallmark concepts of the third
prong of the Montgomery balancing test 2 were argued and applied
throughout these proceedings. In response to defendant’s filing of his
motion in limine, the State asked the court to defer ruling on whether
the convictions were “more prejudicial than probative” until after
defendant’s testimony. When the issue was later revisited during a
sidebar conference after defendant testified, defense counsel argued
that the probative value of the introduction of defendant’s three prior
narcotics convictions was outweighed by their prejudicial effect. The
State countered by citing to People v. Tribett, 98 Ill. App. 3d 663
(1981), in which the defendant argued that the trial court erred in
introducing for purposes of impeachment his prior conviction for
possession of a controlled substance–the identical charge for which he
was on trial. Tribett, 98 Ill. App. 3d at 675. Tribett set forth and
applied Montgomery’s balancing test in rejecting the defendant’s
argument that the probative value of his prior conviction was
outweighed by its prejudicial effect. Tribett, 98 Ill. App. 3d at 675.
The appellate panel noted that Illinois courts had repeatedly held that
a conviction for the unlawful possession or delivery of controlled
substances is the type of conviction which is probative of credibility
and affords a basis for impeachment. Tribett, 98 Ill. App. 3d at 675-
76. In addition, Tribett held that a prior conviction which is similar to
a crime for which the defendant is on trial is not automatically barred
(Tribett, 98 Ill. App. 3d at 676), and favorably observed that the trial
court gave the jury an instruction limiting the use of the defendant’s
prior conviction (Tribett, 98 Ill. App. 3d at 676).
During the sidebar, the trial court inquired of defense counsel
whether he had any authority to counter Tribett in support of his
assertion that admission of defendant’s conviction would be more
2
There is no dispute that the first two prongs of the Montgomery test were
satisfied, and, therefore, they are not at issue in this appeal.
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prejudicial than probative, to which defense counsel answered in the
negative. The trial court then ruled that only defendant’s most recent
conviction would be admitted. Although defendant notes that the trial
court never specifically stated that it was balancing the factors
pursuant to Montgomery, we have declined to find error under similar
circumstances when the transcript makes it clear that the court was
applying the Montgomery standard, even though it was not expressly
articulated. See People v. Williams, 173 Ill. 2d 48, 83 (1996)
(although trial court did not explicitly state it was balancing interests
pursuant to Montgomery, the trial transcript established the court was
aware of Montgomery and the analysis it requires); People v. Redd,
135 Ill. 2d 252, 325-26 (1990) (although trial court did not
specifically articulate the Montgomery test, the record indicated that
it understood and properly exercised its discretion under
Montgomery). Contrary to defendant’s argument, the record does not
demonstrate that the trial court failed to weigh the probative value of
the impeachment against its possible prejudicial effect. Rather, the
record reflects that the trial court was aware of the Montgomery
standard and gave proper consideration to the relevant factors as part
of its balancing process. Indeed, the fact that the trial court barred
introduction of defendant’s two earlier convictions clearly shows that
it was exercising its discretion and attempted to minimize the potential
prejudice to defendant by allowing admission of only the most recent
conviction and by also providing the jury with limiting instructions
regarding the narrow use of that evidence.
In sum, the record establishes that the trial court understood the
Montgomery balancing test and properly applied that analysis in
admitting defendant’s conviction. Thus, the trial court’s decision to
admit defendant’s conviction was not error.
B. Averett/Patrick
Having determined that the trial court did not err by admitting
defendant’s prior conviction for impeachment, we now turn to the
issue of the trial court’s delay in ruling on defendant’s motion in
limine to exclude his prior convictions. Our most recent
pronouncement regarding the proper analysis for determining whether
reversal is required after a trial court delays in ruling on a motion in
limine to exclude a defendant’s prior convictions from use as
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impeachment is People v. Averett, 237 Ill. 2d 1 (2010).3 In Averett, we
engaged in a detailed discussion of our decision in Patrick,4 clarifying
certain aspects of that ruling.
Defendant Patrick was on trial for first degree murder. Averett
noted that the trial court had refused to rule on Patrick’s motion in
limine seeking to exclude evidence of his past convictions for use as
impeachment prior to his testimony, adhering to a “blanket policy” of
deferring decisions on such motions until after a defendant testified.
After Patrick testified, the trial court allowed the State to impeach him
with his three prior convictions for possession of a controlled
substance. Patrick was thereafter convicted by the jury of second
degree murder, and the appellate court affirmed. Averett, 237 Ill. 2d
at 9 (citing Patrick, 233 Ill. 2d at 66-67).
On appeal to this court, Patrick argued that the trial court erred in
deferring ruling on his motion in limine until after he testified. We
noted that a trial court’s ruling on a motion in limine will not be
disturbed on review absent an abuse of discretion. Thus, our inquiry
in Patrick focused on whether the trial court abused its discretion by
delaying ruling until after hearing the defendant’s testimony. Averett,
237 Ill. 2d at 9 (citing Patrick, 233 Ill. 2d at 68-69).
In analyzing whether the actions of the trial court amounted to an
abuse of discretion, we noted in Averett that Patrick “discussed the
defendant’s constitutional right to testify and the importance of the
[trial court’s] decision [on the motion in limine] on whether to
testify.” Averett, 237 Ill. 2d at 9-10 (citing Patrick, 233 Ill. 2d at 69-
70). The court explained:
3
Averett was filed subsequent to the appellate court’s decision in this
case. Accordingly, the appellate panel did not have the benefit of Averett at
the time of its ruling.
4
In Patrick, we consolidated Patrick’s appeal with that of another
defendant, Ezekiel Phillips. Phillips’ case, however, was factually
distinguishable: unlike Patrick, Phillips did not testify at trial. In Averett, we
discussed both cases consolidated in Patrick, as well as their different factual
scenarios. Because the instant cause concerns only the situation in which a
defendant has testified at trial, we strictly limit our review of Patrick and
Averett to that specific factual situation.
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“Defendants clearly benefit if a ruling on the admissibility of
prior convictions is made before deciding whether to testify.
An early ruling provides a defendant with information
necessary to make the critical decision on testifying and to
ascertain the strength of their testimony. An early ruling also
allows a defendant to make reasoned tactical decisions in
planning the defense.” Averett, 237 Ill. 2d at 10 (citing
Patrick, 233 Ill. 2d at 69-70).
Based upon these concerns, this court in Patrick recognized a
“defendant’s need for an early ruling on a motion to exclude prior
convictions for impeachment purposes.” Accordingly, absent “rare
cases,” a “trial court will have the information necessary to make a
decision before trial.” Averett, 237 Ill. 2d at 10 (citing Patrick, 233 Ill.
2d at 70-73). Averett thus reaffirmed the holding in Patrick that “a
trial court abuses its discretion if it fails to rule on a motion in limine
to bar evidence of prior convictions for impeachment purposes when
it has sufficient information to make the ruling.” Averett, 237 Ill. 2d
at 10 (citing Patrick, 233 Ill. 2d at 70-73).
Having recognized that an abuse of discretion occurs when the
court deferred ruling on the defendant’s motion in limine seeking to
exclude prior convictions for impeachment until after the defendant
testified, the court turned to the question of whether this error could
be considered harmless. Averett, 237 Ill. 2d at 10 (citing Patrick, 233
Ill. 2d at 74-75). Averett cited Patrick’s application of the harmless-
error standard for constitutional errors, meaning that the harmlessness
of the error must be established beyond a reasonable doubt. Averett,
237 Ill. 2d at 10-11 (citing Patrick, 237 Ill. 2d at 75-76, citing
Chapman v. California, 386 U.S. 18, 24 (1967)). Indeed, Patrick’s
analysis was described in Averett in terms of harmlessness: “[a]fter
reviewing the impact of the error in light of the facts of the case, we
determined [in Patrick] that the error was not harmless.” Averett, 237
Ill. 2d at 14 (citing Patrick, 233 Ill. 2d at 75-76).5
5
Even the dissenting justices in Patrick agreed that the harmless beyond
a reasonable doubt standard is appropriate for review of a trial court’s error
in delaying ruling on a defendant’s motion in limine where that defendant
testifies at trial. Patrick, 233 Ill. 2d at 83 (Burke, J., concurring in part and
dissenting in part, joined by Freeman, J.).
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Averett observed that as part of the harmless-error review in
Patrick, it was noted that Patrick relied upon a theory of self-defense.
Although Patrick’s testimony was not absolutely necessary to establish
his claim, it was nevertheless important that he know before testifying
whether his prior convictions could be used for impeachment.
Depending upon the ruling, Patrick could have decided not to testify
or could have informed the jury himself of the prior convictions to
lessen their impact. Averett, 237 Ill. 2d at 10-11 (citing Patrick, 233
Ill. 2d at 75-76). Indeed, the impact of the impeachment of defendant
with his prior convictions was evinced by the State’s repeated
argument that the jury should not believe a “three-time convicted
felon.” Averett, 237 Ill. 2d at 11 (citing Patrick, 233 Ill. 2d at 75-76).
In addition, by returning a guilty verdict of second degree murder,
rather than first degree murder, the jury indicated it believed that
Patrick was justified to some degree in the use of force. Averett, 233
Ill. 2d at 11 (citing Patrick, 233 Ill. 2d at 75-76). It is clear, then, that
the court’s decision in Patrick, i.e., to award Patrick a new trial, was
predicated on the conclusion that the error was not harmless beyond
a reasonable doubt in light of the specific facts in the record. Averett,
237 Ill. 2d at 11 (citing Patrick, 233 Ill. 2d at 75-76).
Averett clarified that the “application of harmless-error review in
Patrick demonstrates that we did not treat the error as structural.
Structural errors are not subject to harmless-error review.” Averett,
237 Ill. 2d at 14 (citing Patrick, 233 Ill. 2d at 75-76). Averett
reaffirmed that while the reserved-ruling error in Patrick is “serious,”
it is “not comparable to the errors recognized by the Supreme Court
as structural,” such as a complete denial of counsel or trial by a biased
adjudicator. Averett, 237 Ill. 2d at 13. Therefore, because this type of
error is not structural, such error does not require an automatic
reversal of a defendant’s conviction. Averett, 237 Ill. 2d at 14.
Thus, Averett teaches that when a trial court errs by delaying a
ruling on a defendant’s motion in limine to exclude prior convictions
for impeachment until after the defendant testifies, and that the
defendant does in fact testify, that error does not automatically
warrant reversal. Rather, courts of review must determine whether the
trial court’s error was harmless beyond a reasonable doubt. Harmless-
error analysis is “based on the notion that a defendant’s interest in an
error-free trial must be balanced against societal interests in finality
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and judicial economy.” People v. Simms, 121 Ill. 2d 259, 275-76
(1988). Because a “defendant’s interests are heightened where
constitutional error is at issue” (Simms, 121 Ill. 2d at 276), the
“burden of proof is on the State to show beyond a reasonable doubt
that the constitutional error did not affect the outcome of the
proceeding” (People v. McClanahan, 191 Ill. 2d 127, 139 (2000)). In
other words, the inquiry is “whether the defendant would have been
convicted regardless of the error.” People v. Dean, 175 Ill. 2d 244,
259 (1997). In determining whether, in the absence of the error, the
outcome of the trial would have been different, review is made of the
proceedings as a whole, based upon examination of the entire record.
People v. Howard, 147 Ill. 2d 103, 148 (1991). Accordingly, we
review the record of the proceedings below, just as in Patrick, to
determine whether defendant would have been convicted in the
absence of the error committed by the trial court.
C. Harmless-Error Analysis
In reviewing whether the trial court’s error in reserving ruling on
defendant’s motion in limine was harmless beyond a reasonable
doubt, we consider defendant’s need to testify in order to present a
defense as part of that inquiry. Averett, 237 Ill. 2d at 10-11 (citing
Patrick, 233 Ill. 2d at 75-76). Our careful review of the facts in this
case–as set forth in detail at the outset of this opinion–reveals that
there existed significant gaps in defendant’s theory of the case which
required that he testify. In addition, we reject defendant’s contention
that he did not need to testify because Grayer provided him with an
“alibi”6 defense. To the contrary, Grayer placed defendant at the scene
of the offense during the relevant time period, and only defendant
could provide information regarding his actions after he was dropped
off by Grayer and Chambers. Moreover, Grayer’s testimony that
Chambers gave defendant one $10 bill and two $1 bills was in conflict
with the officers’ testimony regarding the denomination of the
6
An alibi is “[a] defense based on the physical impossibility of a
defendant’s guilt by placing the defendant in a location other than the scene
of the crime at the relevant time.” Black’s Law Dictionary 84 (9th ed. 2009).
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currency found in defendant’s possession at the time of his arrest.
Only defendant could explain why he was in possession of bills in
denominations different from those testified to by his own witness. As
defendant had no other occurrence witnesses to testify on his behalf
as to these points, his testimony denying any wrongdoing at that time
and at that location was his only means to present a defense.
Defendant’s need to testify, however, is only one factor in
determining whether harmless error exists. We also examine whether
the parties mentioned defendant’s prior conviction in argument.
Averett, 237 Ill. 2d at 11 (citing Patrick, 233 Ill. 2d at 75-76). We
reject defendant’s assertion that any argument made by the State
regarding a defendant’s credibility renders the error reversible, and
hold that this case is factually distinguishable from Patrick. There, we
held “[t]he impact of the convictions on Patrick’s credibility is clear
from the State’s focused and repeated argument urging the jury not to
believe a three-time convicted felon.” (Emphasis added.) Patrick, 233
Ill. 2d at 75-76. In contrast, here the State at no time pointed to
defendant’s prior conviction to argue that because of that conviction
he had a propensity to commit the crime charged or that he was
unbelievable simply because he had been convicted on a prior
occasion.
We also consider the strength of the evidence against defendant.
See, e.g., People v. Rivera, 227 Ill. 2d 1, 26-27 (2007) (determination
of whether the improper denial of defendant’s peremptory challenge
and violation of Apprendi were harmless beyond a reasonable doubt
premised on analysis of whether the defendant’s guilt was
overwhelming); People v. Hart, 214 Ill. 2d 490, 520 (2005)
(determined that a Doyle violation was harmless beyond a reasonable
doubt when, among other things, there was strong evidence of
defendant’s guilt); People v. Cortes, 181 Ill. 2d 249, 285-86 (1998)
(whether improper admission of defendant’s prior conviction to
explain his relationship to a rebuttal witness was harmless beyond a
reasonable doubt depended upon whether other evidence clearly
established defendant’s guilt). After carefully reviewing the record, we
agree with the State that its case was strong, especially when viewed
against the inconsistent theory of the defense.
As previously noted, the State presented the unimpeached
testimony of three officers that defendant was standing in front of
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4506 West Washington Boulevard between 11 and 11:30 p.m.,
making three separate sales of prepackaged heroin packets, after
which he placed cash in his pants pockets. Defendant was found with
$18 crumpled in his pants pockets, consisting of three $5 bills and
three $1 bills. These denominations are consistent with the State’s
theory that during the period of surveillance, defendant had made
three sales of small-sized heroin packets, which usually sold for
around $5 each.
Although defendant admitted that during part of this surveillance
period he was present in front of 4506 West Washington Boulevard,
he attempted to explain his presence at that location by linking
together a long series of improbable coincidences and contradictory
statements, while also leaving substantial gaps in his theory of the
case. Defendant testified that he had just arrived in Chicago from
Detroit, but no evidence of luggage was found. Defendant’s testimony
that he Chambers and Grayer drove around visiting defendant’s
friends conflicted with that of Grayer, who stated that the trio drove
aimlessly without making any stops. Defendant stated that he wanted
to rent a hotel room for only four hours, but admitted that he would
have had to vacate the hotel in the early hours of a winter morning,
with no money and no place to go. Defendant then claimed that a
friend, known only to him as “West,” just happened to live across the
street from the hotel, just happened to be outside his home at precisely
the same time defendant exited the hotel, just happened to beckon
defendant to that location, and just happened to take defendant’s
luggage inside the house immediately before the police arrived on the
scene. Yet, defendant presented no evidence to support this purported
chain of events.
Defendant’s theory of the case was further undermined by
Grayer’s testimony that he saw Chambers give defendant one $10 bill
and two $1 bills. At the time of defendant’s arrest, however, the
officers recovered three $5 bills and three $1 bills from defendant’s
pockets. Defendant provided no explanation for the difference in
currency. Moreover, although Grayer stated that he and Chambers
returned to the hotel where they dropped defendant off and saw
neither defendant nor any police officers, if events had occurred as he
testified, Grayer would have likely seen at least police cars at the
scene, if not defendant. Moreover, even though Grayer stated he was
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a good friend to defendant, when he and Chambers returned to the
hotel and did not see defendant, they did not go look for him or try to
call him–they simply left.
Taking all of the above factors into consideration, we hold that
any error in delaying the ruling was harmless beyond a reasonable
doubt. If the court’s error were removed, we are convinced that a
retrial would end with the same result.
As a final point, defendant contends that the trial court’s error was
harmful because the record shows that “the jurors considered
[defendant’s] prior [conviction] during their deliberations” when they
asked for a copy of the stipulation regarding his prior conviction. We
disagree.
In People v. Patterson, 217 Ill. 2d 407 (2005), a jury found the
defendant guilty of first degree murder, arson, and concealment of a
homicidal death. During deliberations, the jury sent a note to the judge
asking for a copy of the grand jury testimony of defendant’s girlfriend,
who declined to testify at trial. After conferring with the parties, the
trial court sent a response to the jury denying this request. On appeal,
the defendant argued, inter alia, that the trial court erred in admitting
this grand jury testimony, as his confrontation rights under Crawford
v. Washington, 541 U.S. 36 (2004), were violated. Defendant pointed
to the jury’s note during deliberations asking for a copy of Rivera’s
grand jury testimony, and argued that the fact that the jury requested
this testimony created more than a reasonable probability that it
contributed to the guilty verdict. Patterson, 217 Ill. 2d at 435. We
disagreed. Although we found a Crawford violation, we concluded
that it was harmless beyond a reasonable doubt. We acknowledged
that the jury’s request for the contested evidence could suggest that
it was curious about the testimony or that it had questions about it.
“However, the mere fact that the jury asked for a copy of the
testimony does not create a reasonable probability, or even a
reasonable possibility, that the jury relied on this testimony in reaching
its verdict. To contend that it does is, in our view, speculative.”
Patterson, 217 Ill. 2d at 435.
Likewise, in the instant appeal, the mere fact that the jury
requested that the stipulation regarding defendant’s prior testimony be
read back to it is not dispositive of whether the trial court’s error in
delaying its ruling on defendant’s motion to bar that evidence is
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harmless, because any conclusion based on the jury’s question is
necessarily speculative. Although the State acknowledges that an
argument may be raised that the jury’s question could show that the
stipulated testimony may have played “some role” in defendant’s
conviction, we decline to speculate concerning the extent of that role
or about why the jury requested this information.
CONCLUSION
For the foregoing reasons, the judgment of the appellate court is
reversed.
Appellate court judgment reversed.
CHIEF JUSTICE KILBRIDE, specially concurring:
I agree with the opinion’s analysis in this appeal. As the author of
People v. Patrick, 233 Ill. 2d 62 (2009), I write separately to voice my
disagreement with Justice Garman’s special concurrence. Respectfully,
the special concurrence has, regrettably, misconstrued Patrick’s
harmless-error analysis.
In conducting the harmless-error analysis in Patrick, we pointed
out that the State has the burden of proving that the error was
harmless beyond a reasonable doubt. Patrick, 233 Ill. 2d at 75 (citing
Chapman v. California, 386 U.S. 18, 24 (1967)). Chapman focused
on whether there is a reasonable possibility that the evidence might
have contributed to the conviction or affected a party’s substantial
rights.
This court’s focus in Patrick was on how a delay in the trial
court’s ruling on a defendant’s motion in limine would affect the
defendant’s decision whether to testify and the impact of the trial
court’s delayed ruling. We determined that, as a result of the trial
court’s unjustified delay in ruling on Patrick’s motion in limine,
Patrick was required to make a tactical decision without the ability to
evaluate the impact it would have on his defense and was, therefore,
“substantially prejudiced.” Patrick, 233 Ill. 2d at 75. We then
examined the impact of the use of the convictions on Patrick’s
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testimony and, applying the Chapman standard, held that the trial
court’s error was not harmless beyond a reasonable doubt. Patrick,
233 Ill. 2d at 76.
The special concurrence presents two problems. First, the special
concurrence turns the harmless-error analysis into a balancing test of
harmless versus not harmless error when it criticizes the opinion for
not stating “whether [defendant’s need to testify] weighs for or
against a finding of harmless error.” Slip op. at 23 (Garman, J.,
specially concurring, joined by Thomas, Karmeier and Theis, JJ.). This
is not the proper test. Rather, the State bears the burden of proving
that the error was “not harmless beyond a reasonable doubt” under
Chapman.
Second, the special concurrence concludes that under Patrick, the
more important it is to the defense theory of the case to have the
defendant testify, the more harm is done by improperly deferring the
ruling. Slip op. at 22 (Garman, J., specially concurring, joined by
Thomas, Karmeier and Theis, JJ.). This is exactly the opposite of
Patrick’s analysis. In Patrick, the defendant’s need to know whether
the convictions would be used was a vital factor in his decision
whether to testify. Patrick’s testimony was not “absolutely necessary”
to his defense. Nevertheless, his decision whether to testify was still
“critical.” Patrick, 233 Ill. 2d at 75. Patrick “was unjustifiably required
to make a tactical decision [whether to testify] without the ability to
evaluate the impact it would have on his defense.” Patrick, 233 Ill. 2d
at 75. The focus was on Patrick’s need to know whether the prior
convictions would be used to impeach his testimony because his ability
to make an informed decision whether to testify was especially
important when his defense did not require his testimony. It is the
right to make an informed decision whether to testify that is vital in
this analysis.
The importance of the defendant’s testimony affects how critical
it is for the defendant to know whether his prior convictions can be
used to impeach him. When the defendant’s testimony is absolutely
necessary, his need to know whether the convictions can be used to
impeach him is likely to have little, if any, effect on his decision to
testify. When this knowledge would not have affected his decision
whether to testify, the defendant would not have been prejudiced by
the error and, accordingly, the error would be harmless beyond a
-22-
reasonable doubt. In my view, the special concurrence has focused on
a narrow aspect of the Patrick analysis and has unfortunately
misapplied it in this case.
Moreover, any analysis on the actual impact of the trial court’s
delayed ruling in this case is unnecessary. The State proved the error
was harmless beyond a reasonable doubt since defendant’s need to
know if the prior convictions were going to be admissible was not a
vital factor in his decision to testify.
In sum, the focus of our harmless-error inquiry under Patrick is
not on the defendant’s need to testify but, rather, on the defendant’s
ability to make an informed decision about whether to testify.
Accordingly, I specially concur.
JUSTICE GARMAN, specially concurring:
I have no reservations about the result reached by the court. I
write separately only to identify and clarify a point that may lead to
misunderstanding of this court’s precedents, specifically, People v.
Patrick, 233 Ill. 2d 62 (2009), and People v. Averett, 237 Ill. 2d 1
(2010).
In Patrick, after concluding that it was error for the trial court to
defer ruling on the defendant’s motion in limine, we considered
whether the error was harmless. The first factor we discussed was
whether it had been necessary for Patrick to take the stand in his own
defense. Our discussion of this factor was brief:
“We cannot say that the trial court’s error in Patrick’s case
was harmless beyond a reasonable doubt. Here, Patrick was
unjustifiably required to make a tactical decision without the
ability to evaluate the impact it would have on his defense.
Patrick’s counsel was unable to inform the jury whether
Patrick would testify and was anticipatorily unable to disclose
Patrick’s prior convictions to lessen the prejudicial effect the
convictions would have on his credibility. As a result, Patrick
was substantially prejudiced.
Patrick’s decision whether to testify was critical because
he relied on a theory of self-defense. While his testimony was
not absolutely necessary because other testimony corroborated
-23-
his theory of self-defense, knowing whether his prior
convictions were going to be used for impeachment was a
vital factor that needed to be weighed. If Patrick had known
before testifying that his prior convictions were going to be
admitted, he may have decided not to testify, or at least he
could have informed the jury earlier of the prior convictions to
lessen the negative impact.
The impact of the convictions on Patrick’s credibility is
clear from the State’s focused and repeated argument urging
the jury not to believe a three-time convicted felon. The jury’s
verdict of guilty of second degree murder indicates that, to
some degree, the jury believed Patrick was justified in his use
of force. Applying the Chapman standard, we have no doubt
that the error in this case was not harmless to Patrick.
Accordingly, we believe a new trial is warranted, and we
reverse the judgments of the appellate and circuit courts and
remand the cause to the trial court.” People v. Patrick, 233 Ill.
2d at 75-76.
The clear import of these few paragraphs is that the more
important it is to the defense theory of the case to have the defendant
testify, the more harm is done by improperly deferring the ruling. A
defendant who has the urge to tell his story to the jury, but whose
testimony is not essential, could choose not to testify. However, a
defendant, like Patrick, who must testify if he is to have any chance of
having the jury accept his version of events, is placed in a lose-lose-
lose situation. First, he may well be convicted if he sits silent. Second,
if he testifies and tells the jury about his prior conviction, he may
undermine his own testimony and he will never know how the trial
court would have ruled, because he will have mooted the question.
Third, if he testifies but does not tell the jury about his prior
conviction when he has the opportunity, he runs the risk that the court
will deny his motion after he has testified and the State will impeach
him with his prior conviction. This was our concern in Patrick.
We reiterated this concern in Averett, 237 Ill. 2d at 10-11, saying:
“[W]e noted that Patrick relied on a theory of self-defense.
Although his testimony was not absolutely necessary to
establish his claim, it was still important for Patrick to know
before testifying whether his prior convictions could be used
-24-
for impeachment. Patrick may have decided not to testify if he
had known he would be impeached with his prior convictions.
Alternatively, he could have informed the jury of the prior
convictions to lessen their impact. We noted that the impact
of the impeachment with Patrick’s prior convictions was
established by the State’s repeated argument that the jury
should not believe a three-time convicted felon. Further, the
guilty verdict of second degree murder, rather than first
degree murder, indicated that the jury believed Patrick was
justified to some degree in his use of force. Accordingly, we
concluded that Patrick was entitled to a new trial because the
error was not harmless beyond a reasonable doubt.”
The defendant in the present case misread Patrick and Averett and,
thus, argued in his brief to this court that his testimony was not
essential to his defense, thinking that this would work in his favor.
The opinion correctly notes that his testimony was essential
because “there existed significant gaps in defendant’s theory of the
case which required that he testify.” Further, the testimony of his so-
called “alibi” witness did not eliminate the need for defendant to
“provide information regarding his actions” after the alibi witness left
the scene. The opinion concludes that “[a]s defendant had no other
occurrence witnesses to testify on his behalf as to these points, his
testimony denying any wrongdoing at that time and at that location
was his only means to present a defense.” Slip op. at 18. We then note
that his need to testify is “only one factor in determining whether
harmless error exists.” Id.
The opinion, however, does not state whether this factor weighs
for or against a finding of harmless error. Indeed, one could
reasonably glean from our opinion that when a defendant’s testimony
is essential to his defense, this factor weighs in favor of our finding a
Patrick error to have been harmless. This is in direct conflict with
Patrick and Averett, which established that the more crucial the
defendant’s testimony is to presenting his theory of the case, the more
harm results from an improperly delayed ruling on his motion in
limine.
In the present case, defendant’s argument that his testimony was
not absolutely necessary is not only mistaken, it misses the point of
Patrick and Averett. To remain consistent with what we have said in
-25-
these cases, we should acknowledge that despite defendant’s inartful
argument, the fact that his testimony was vitally important to his
defense, weighs slightly in favor of finding that the error was not
harmless. In Patrick, we found reversible error where the defendant’s
testimony, while not absolutely necessary, would have been quite
important in establishing his theory of self-defense. In the present
case, however, given the police testimony and the weakness in
defendant’s own explanation of the events, it is clear that even if the
jury had never been informed of his criminal record, he would have
been convicted. Thus, the error was harmless.
JUSTICES THOMAS, KARMEIER, and THEIS join in this
special concurrence.
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