People v. Harris

No. 3--05--0724
______________________________________________________________________________
Filed August 15, 2007.
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois
Plaintiff-Appellee, )
) No. 04-CF-897
v. )
)
MARTEZ HARRIS, ) Honorable
) James E. Shadid,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE CARTER delivered the opinion of the court:
______________________________________________________________________________
After a jury trial, defendant, Martez Harris, was found guilty of armed robbery (720 ILCS
5/18-2(a)(2) (West 2004)) and was sentenced to 24 years’ imprisonment. Defendant appeals his
conviction and sentence and argues that: (1) he was denied a fair trial when the State improperly
impeached him in rebuttal with a certified copy of one of his prior juvenile adjudications; and (2)
the trial judge erred in sentencing by considering unreliable hearsay testimony regarding defendant’s
involvement in other criminal activity. We affirm.
FACTS
Defendant was charged with the August 23, 2004, armed robberies of Steve Johnson (count
one) and Mary Helms (counts two and three). The indictment alleged that the defendant committed
the offenses while armed with a handgun. The case proceeded to jury trial three times. The first two
times ended in a mistrial after the jury was unable to reach a unanimous verdict.
The evidence presented in the third trial, relevant to this appeal, can be summarized as
follows. On August 23, 2004, at about 1:00 a.m., Sparky’s Ringside Tap in Peoria was robbed. At
the time of the robbery, Steve Johnson was working in the bar as the bartender. The lights were on
and Johnson had just closed the bar for the evening. Mary Helms was inside the bar visiting with
Johnson and was the only other person in the bar. A short, stocky male black subject with frizzy hair
and wearing a puffy black winter coat came into the bar. The subject appeared to be about 20 years
old. Johnson went up to the subject to tell him that the bar was closed. A second subject came into
the bar behind the first. The second subject had a mask on his face and a gun in his hand. Johnson
yelled to Helms that the bar was being robbed and told her to duck and run. Johnson and Helms ran
out of the back door of the bar and away from the area and called the police.
On the witness stand, both Johnson and Helms identified defendant as the first subject who
had entered the bar. Helms testified further that after she ran out of the bar, she saw defendant, the
subject wearing the mask, and a third subject running away from the bar. Defendant was carrying
Helms’s purse and the subject wearing the mask was carrying the cash register from the bar.
Defendant denied committing the armed robbery. During his direct testimony, defendant was
specifically asked by his attorney if he committed the crime. Defendant responded:
“No sir. There is no possible way that I could have committed this
crime. I mean people who commit robberies, things like that, have a
motive, have a reason for doing things like that. But I am a
professional man. I work. I go to college. I went to Robert Morris,
2
ICC, Midstate. I mean, it’s no reason--I mean I live a productive life.
I live just like any of the 12 jurors, like you live. I don’t commit
crimes.”
In rebuttal, the prosecutor sought to introduce evidence of defendant’s prior juvenile
adjudications for aggravated battery with a firearm, aggravated discharge of a firearm, theft, and
possession of a controlled substance. The aggravated battery and aggravated discharge were
committed in August of 2000, about one month before defendant’s 16th birthday. Sentence was
entered in February of 2001 and was upheld by the appellate court. The theft adjudication occurred
in 1997 and the unlawful possession of a controlled substance adjudication occurred in 1998 and
again in 2000. All five offenses were felonies. The prosecutor argued that defendant had made a
false statement and had presented a false portrayal of himself when he told the jury that he does not
commit crimes.
The trial judge initially denied the prosecutor’s request. However, upon reconsideration, the
trial judge granted the prosecutor’s request, in part, and decided to allow the prosecutor to impeach
defendant’s testimony with his prior juvenile adjudication for aggravated battery with a firearm and
aggravated discharge of a firearm finding that the admission was “necessary for a fair determination
on the issue of guilt or innocence in this case”. Defense counsel objected and argued that under the
test set forth in People v. Montgomery, 47 Ill. 2d 510, 516-519, 268 N.E.2d 695, 698-700 (1971),
the prior adjudications were too prejudicial to be admitted because of their similarity to the current
offense in that the prior offenses and the current offense each involved the use of a gun. The trial
judge overruled defense counsel’s objection, and in doing so, made the following comments:
“Well, Montgomery requires me to determine that the probative value
3
is not outweighed by the danger of unfair prejudice, and certainly
there is some prejudice here. Certainly there is prejudice anytime a
prior conviction is brought in as to a witness or a Defendant. In this
case I understand your point, [defense counsel], that there is a gun
case, that aggravated discharge of a firearm is a gun charge, armed
robbery is completely different elements and circumstances, but the
Court also cannot overlook the Defendant’s testimony that I don’t
commit crimes as being factored in here. This came up during direct
examination. So when weighing the whole, when given the weight
and weighing all the factors that I need to weigh, I am going to allow
the most recent, the 2000 case ***.”
A certified copy of the 2000 adjudication was admitted into evidence and the trial judge
informed the jury that the exhibit indicated that defendant had been adjudicated a delinquent for
aggravated battery with a firearm and aggravated discharge of a firearm in a juvenile case in
February of 2001. Immediately after admitting the prior juvenile adjudication, the trial judge
instructed the members of the jury that “evidence of Defendant’s previous juvenile adjudication 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 for which he is charged.”
During the instruction phase of the trial, the jury was given a modified version of IPI 3.13
(Illinois Pattern Jury Instruction, Criminal, No. 3.13 (4th ed. 2000)), which read as follows:
“Evidence of a defendant’s previous juvenile adjudication(s) may be
considered by you only as it may affect his believability as a witness
4
and must not be considered by you as evidence of his guilt of the
offense with which he is charged.”
After deliberation, the jury found defendant guilty of all three counts of armed robbery. The
matter was set for sentencing and a presentence investigation report (PSI) was ordered. The PSI
provided further detail on defendant’s juvenile record. Only the major offenses are described below.
In June of 1997, defendant was adjudicated delinquent for theft, a Class 3 Felony. The
offense occurred in October of 1996. Defendant was sentenced to two years probation in July of
1997. In March of 1998, a petition was filed alleging that defendant had violated his sentence by
failing to report to probation. During the pendency of the petition, defendant was placed on
electronic monitoring. A warrant was issued for defendant’s arrest for violation of home detention.
Probation was revoked, and in July of 1998, defendant was sentenced to a new term of probation and
to a 30 day period of home detention.
In December of 1998, defendant was adjudicated delinquent for unlawful possession of a
controlled substance, a Class 4 Felony. The offense occurred in November of 1998. Defendant was
sentenced to three years in the juvenile Department of Corrections. In May of 1999, defendant was
put on parole. In June of 1999, defendant was returned to the Department of Corrections on a parole
violation and a new offense.
In May of 2000, defendant was adjudicated delinquent for unlawful possession of a
controlled substance, a Class 4 Felony. The offense occurred in October of 1999. Defendant was
sentenced to three years in the juvenile Department of Corrections in May of 2000. He was paroled
in June of 2000. In August of 2000, defendant was returned to the Department of Corrections on a
parole violation. Defendant’s sentence was later discharged while he was serving a term in juvenile
5
Department of Corrections on another case.
In January of 2001, defendant was adjudicated delinquent for aggravated battery with a
firearm, a Class X Felony, and for unlawful discharge of a firearm, a Class 1 Felony. The offenses
occurred in August of 2000. In February of 2001, defendant was sentenced to an indeterminate term
in the juvenile Department of Corrections. He was paroled in January of 2002. In October of 2002,
defendant was returned to the Department of Corrections on a parole violation. Defendant was again
paroled later that same month. Defendant was returned to the Department of Corrections in July of
2003 on a parole violation. In September of 2003, defendant was again paroled. Defendant was
discharged from his sentence in May of 2004.
Other notable offenses listed in the PSI are as follows. In June of 1998, defendant pled guilty
to fleeing and attempting to elude a police officer and was ordered to pay fines and costs. The
defendant’s driver’s license was subsequently suspended. In April of 2004, defendant pled guilty
to driving on a suspended license and was sentenced to court supervision. His supervision was later
revoked for subsequent offenses, and a conviction was entered. In September of 2004, defendant
was convicted of two separate incidents of driving on a suspended license. He was ordered to pay
costs and sentenced to 30 days in jail.
At the sentencing hearing, the prosecutor and defense counsel agreed that sentence should
only be imposed on one of the three counts of armed robbery. In aggravation, the prosecutor called
Detective Shannon Walden to the stand. Walden was assigned to investigate three other armed
robberies that occurred in Peoria at about the same time as the one in the current case. All of the
robberies, including the one in the current case, occurred within approximately one week during the
early morning hours and involved subjects wearing masks and carrying handguns.
6
One of the other robberies that Walden investigated occurred on August 23, 2004, at 4:00
a.m. at the King’s Inn Hotel. The attendant working the hotel at the time of the robbery stated that
two black male subjects came into the hotel wearing masks. The attendant described one of the
subjects as being shorter and wearing a black puffy winter coat, similar to the description that was
given of the defendant in the present case. The subjects forced the attendant to lay on the floor while
they ransacked the office. The attendant thought he recognized the short male’s voice as someone
who had rented a room at the hotel on several prior occasions and thought that the subject’s name
was Martez or Martinez. The attendant checked the hotel records and found that defendant had
rented from him several times and that defendant was the person of whom he was thinking. The
attendant identified a picture of defendant as the person who had rented from him several times
whose voice he thought he recognized.
Walden testified further that he interviewed Andre Bowie regarding his involvement in the
robberies and Bowie gave a statement implicating defendant in the King’s Inn robbery. Bowie stated
that defendant told him that he had committed the robbery with Antwoin Harris and that he was a
little bit worried because he thought that the attendant at the hotel might have recognized his voice
since he had rented a room there several times in the past.
Walden also was involved in the investigation of the Best Western armed robbery that
occurred on August 24, 2004, at about 6:00 a.m. In that case, the attendant stated that two male
subjects came into the hotel wearing masks and forced her into a back room where they tied her up.
One of the subjects was taller and one was shorter. The subjects appeared to be in their late teens
or early twenties. The two subjects ransacked the office area, put a safe up on a chair, and wheeled
it out. A maintenance person and customers who happened upon the robbery as it was in progress
7
were also forced to the back room at gunpoint. At one point during the robbery, the shorter subject
ripped a key box off of the wall and threw it over to the taller subject.
Bowie’s fingerprints were found on the key box. Bowie admitted to Walden that he was the
person that the key box was thrown to and told Walden that defendant was the other person involved
in the robbery. Bowie’s statement to Walden was consistent with what the victims of the Best
Western robbery had also told Walden.
Walden was also involved in the investigation of the Clark Gas Station armed robbery that
occurred on August 29, 2004, at about 3:00 a.m. In that case, the clerk stated that two male subjects
came into the gas station and that one of the subjects was wearing a mask. A short while later, a
third subject came in. All three subjects were brandishing guns. They forced the clerk down on the
ground and stole cigarettes, lottery tickets, and the surveillance video recorder, and then ran out of
the station and left in a car. The clerk called the police and gave a description of the car. The police
located the car and gave chase. A license plate check revealed that the vehicle belonged to Debra
Smullen. The officers giving chase stated that a white female was driving the car and that there were
three black males inside the vehicle. The chase was eventually called off for safety reasons. The
vehicle was later found abandoned with the video recorder and some of the other proceeds of the
robbery and a ski mask still inside. A canine officer was able to track from the vehicle and found
two handguns that had been dropped. Fingerprints found on the video recorder and on the trunk area
were identified as Bowie’s. Defendant’s fingerprints were found on the rear driver’s side door. The
clerk later identified Antwoin Harris as one of the subjects that was involved in the robbery, the one
that wasn’t wearing a mask. Smullen and Bowie both gave videotaped statements in which they
implicated themselves and the defendant. The videotapes were played during the sentencing hearing.
8
Bowie and Smullen’s statements were consistent with how the clerk described the robbery and
consistent with the video captured by a second surveillance recorder that was located in the gas
station.
On cross examination, Walden testified that defendant was arrested for the three other
robberies, but that no charges had been filed. Walden admitted that he was not present when
Smullen was interviewed and that he had only reviewed the videotape.
The defense presented no evidence in mitigation. The prosecutor recommended that
defendant be sentenced to 24 years’ imprisonment, largely because of the nature of the current
offense, the number and nature of his previous offenses, and the need to protect the public. Defense
counsel recommended a range of sentence more towards the minimum of six years’ imprisonment.
In determining the length of imprisonment to impose, the trial judge found that none of the
factors in mitigation applied. As for the statutory factors in aggravation, the trial judge found that
defendant had a history of prior delinquency or criminal activity and that the sentence was necessary
to deter others from committing the same crime. The trial judge noted that although defendant was
young, he had accumulated quite a record for himself in such a short period of time. In regards to
the evidence presented that defendant was involved in other robberies, the trial judge stated:
“[Defense counsel] points out *** you shouldn’t be sentenced for
four armed robberies, which the Court is not sentencing him for,
[defense counsel], but it is relevant to determine the character and
extent of punishment. The Court is not limited to considering only
information which would be admissible under adversarial
circumstances of a trial, but I will exercise care to ensure that the
9
information was reliable, and I believe that the information was
reliable based upon the testimony of Detective Walden, and it is
permissible to look for facts in addition to the facts of the crime,
search anywhere within reasonable bounds for other facts which tend
to aggravate or mitigate the offense and may indicate the defendant’s
general moral character, habits, social environment, aversion or
inclination to commit crime. Motivations, for example, would be
admissible, would be relevant inquiry, and that’s what the Court will
base some of the information presented on under the--under that
relevant inquiry.”
The trial judge subsequently sentenced defendant to 24 years’ imprisonment. In imposing
sentence, the trial judge commented:
“Your actions and your criminal activity disrupt people’s lives from
going about their daily business which they should be able to go
about freely and without looking over their shoulder, and without the
thought or the fear of someone sticking them up, and it just comes
down to that.”
This appeal followed.
ANALYSIS
As his first contention on appeal, defendant argues that he was denied a fair trial when the
State improperly impeached him in rebuttal with a certified copy of one of his prior juvenile
10
adjudications. The State argues that defendant opened up the door to the subsequent impeachment
by testifying in direct examination that he does not commit crimes. We will not disturb a trial
judge’s decision to allow impeachment with a prior conviction absent an abuse of discretion. People
v. Flowers, 306 Ill. App. 3d 259, 264, 714 N.E.2d 577, 581 (1999).
A juvenile adjudication is generally not admissible to impeach a defendant’s credibility.
People v. Montgomery, 47 Ill. 2d 510, 517, 268 N.E.2d 695, 699 (1971). This general principle
regarding the inadmissibility of juvenile adjudications protects individuals from the indiscretions of
youth. See G. O’Reilly, Illinois Lifts the Veil On Juvenile Conviction Records, 83 Ill. B.J. 402, 403
(1995). However, when an adult defendant takes the stand and testifies falsely or inconsistently or
presents a false or misleading portrayal of himself to the jury, the juvenile adjudication may become
admissible, in the trial judge’s discretion, for the limited purpose of impeaching that testimony. This
is so, not simply because of the notion of curative admissibility or because the defendant “opened
up the door” to the subsequent impeachment, but rather, because the integrity of the entire judicial
process depends upon it. A defendant who takes the stand has an obligation to speak truthfully and
accurately. Harris v. New York, 401 U.S. 222, 225, 28 L. Ed. 2d 1, 4, 91 S. Ct. 643, 645-646 (1971).
There is no right to testify falsely. See Harris, 401 U.S. at 225-226, 28 L. Ed. 2d at 4-5, 91 S. Ct.
at 645-646. A defendant cannot be allowed to use the policy-based prohibition against the admission
of a juvenile adjudication as a license to provide false testimony to the jury. See Harris, 401 U.S.
at 225-226, 28 L. Ed. 2d at 4-5, 91 S. Ct. at 645-646. In fact, even where a much stronger
prohibition exists, a constitutional one, the United States Supreme Court has recognized that the
State may have a right to admit prohibited evidence to impeach a defendant’s false or inconsistent
testimony. See Harris, 401 U.S. at 225-226, 28 L. Ed. 2d at 4-5, 91 S. Ct. at 645-646 (statement
11
taken in violation of Miranda allowed to be used in cross examination to impeach defendant’s
testimony); Oregon v. Hass, 420 U.S. 714, 722-724, 43 L. Ed. 2d 570, 577-578, 95 S. Ct. 1215, 1221
(1975) (statement taken in violation of Miranda allowed to be used in rebuttal to impeach
defendant’s testimony) United States v. Havens, 446 U.S. 620, 627-629, 64 L. Ed. 2d 559, 566-567,
100 S. Ct. 1912, 1916-1917 (1980) (evidence obtained in violation of Fourth Amendment allowed
to be admitted in rebuttal to impeach defendant’s testimony); Michigan v. Harvey, 494 U.S. 344,
345-346, 108 L. Ed. 2d 293, 299, 110 S. Ct. 1176, 1177-1178 (1990) (statement taken in violation
of Sixth Amendment allowed to be used in cross examination to impeach defendant’s testimony).
Our supreme court has adopted and applied the rule set forth in Harris v. New York. See
People v. Sturgis, 58 Ill. 2d 211, 216, 317 N.E.2d 545, 548 (1974); People v. Rosenberg, 213 Ill.
2d 69, 80, 820 N.E.2d 440, 447-448 (2004). Thus, it can be concluded on the facts of the present
case that defendant’s prior juvenile adjudication was properly admitted as an exercise of judicial
discretion. See Harris, 401 U.S. at 225, 28 L. Ed. 2d at 4-5, 91 S. Ct. at 645-646; Hass, 420 U.S. at
722-724, 43 L. Ed. 2d at 577-578, 95 S. Ct. at 1221; Havens, 446 U.S. at 627-629, 64 L. Ed. 2d at
566-567, 100 S. Ct. at 1916-1917; Harvey, 494 U.S. at 345-346, 108 L. Ed. 2d at 299, 110 S. Ct. at
1177-1178; Sturgis, 58 Ill. 2d at 216, 317 N.E. 2d at 548; Rosenberg, 213 Ill. 2d at 80, 820 N.E.2d
at 447-448. Defendant took the stand and made false statements on direct examination, arguably
attempting to portray himself and his character in a false manner. Had defendant not done so, the
prior juvenile adjudication would not have been admissible. See Montgomery, 47 Ill. 2d at 517, 268
N.E. 2d at 699.
We are not persuaded by defendant’s alternative argument that the prior juvenile adjudication
12
should not have been admitted because its probative value was outweighed by its prejudicial effect.
It’s clear from the record that the trial judge weighed the probative value and the prejudicial effect
in determining the admissibility of the prior adjudication. As a result of that balancing test, the trial
judge ruled that only the most recent adjudication would be admissible and prohibited the State from
introducing defendant’s other prior juvenile adjudications. In making that ruling, the trial judge
considered the general prohibition against admitting a juvenile adjudication to impeach a defendant’s
testimony and also considered the harm that would result from allowing defendant’s false portrayal
to stand. The trial judge’s ruling struck a careful balance between the two competing concerns. The
admission of the juvenile record as rebuttal evidence was not prejudicial error where the defendant
himself raised the issue of his character and past behavior. See People v. Williams, 192 Ill. 2d 548,
571, 736 N.E.2d 1001, 1014 (2000) (a criminal defendant cannot complain on appeal of the
introduction of evidence which he procures or invites).
Nor are we persuaded by defendant’s contention that the proper recourse was to allow the
State to question defendant in cross examination about his prior juvenile record, rather than to allow
the State to introduce a certified a copy of the prior adjudication. The recourse suggested by
defendant here on appeal is far more prejudicial than the course of action chosen by the trial judge
and would have possibly subjected defendant to a broad inquiry regarding his prior juvenile history.
The trial judge properly exercised his discretion.
It need not be determined whether in this context, the Montgomery test must be followed or
whether the Harris v. New York rule and the Montgomery test should be combined into a single rule.
It is clear from the record before us that the trial judge followed Montgomery and the parties do not
argue that issue here. Further examination of that issue is better left to be resolved when the facts
13
give rise to the issue and the parties have briefed and argued the issue. For the purposes of this case,
defendant’s affirmative resort to false or misleading testimony allows for exposure by impeachment.
Thus, we decline to exclude that impeachment under Montgomery.
It is recognized that this decision on the first issue is directly contrary to that of other districts
of the appellate court, which have held that a defendant’s prior juvenile adjudications may never be
admitted under Montgomery. See People v. Kerns, 229 Ill. App. 3d 938, 940-941, 595 N.E.2d 207,
208-209 (1992); People v. Sneed, 274 Ill. App. 3d 287, 295, 653 N.E.2d 1349, 1355 (1995); People
v. Massie, 137 Ill. App. 3d 723, 731, 484 N.E.2d 1213, 1218-1219 (1985). Such a rule, however,
cannot be reconciled with Harris v. New York. It is also recognized that the rationale that is applied
in this opinion differs from the rule applied in the appellate districts that allow a prior juvenile
adjudication to be admitted. See People v. Bunch, 159 Ill. App. 3d 494, 513, 512 N.E.2d 748, 761
(1987) (prior juvenile adjudication admitted as impeachment evidence where defendant “opened up
the door” to the subsequent impeachment by testifying in direct examination about some aspect of
his criminal record). The Harris v. New York rule provides much stronger support for a trial court’s
decision to allow the impeachment of a defendant with his prior juvenile adjudication and has been
adopted by our supreme court. See Sturgis, 58 Ill. 2d at 216, 317 N.E. 2d at 548; Rosenberg, 213
Ill. 2d at 80, 820 N.E.2d at 447-448.
As his second contention on appeal, defendant argues that the trial judge committed an abuse
of discretion in determining the appropriate sentence by placing significant weight on the unreliable
hearsay testimony of Detective Walden regarding defendant’s involvement in other criminal activity.
Defendant asserts that the proper method of proving those matters up at sentencing is to have the
witnesses who have personal knowledge of the events testify, rather than to have the investigating
14
officer testify about what the witnesses told him.
It is well settled that the ordinary rules of evidence which govern at trial are relaxed at the
sentencing hearing. People v. Jett, 294 Ill. App. 3d 822, 830, 691 N.E.2d 145, 152 (1998). Instead,
a sentencing court is given broad discretionary power to consider various sources and types of
information so that it can make a sentencing determination within the parameters outlined by the
legislature. People v. Williams, 149 Ill. 2d 467, 490, 599 N.E.2d 913, 924 (1992). The court may
search anywhere within reasonable bounds for other facts which may serve to aggravate or mitigate
the offense. People v. Moore, 250 Ill. App. 3d 906, 919, 620 N.E.2d 583, 592 (1993). It may
inquire into a defendant’s general moral character, habits, social environment, abnormal tendencies,
age, natural inclination or aversion to commit crime, and stimuli motivating his conduct, in addition
to his family life, occupation, and criminal record. Moore, 250 Ill. App. 3d at 919, 620 N.E. 2d at
592. Thus, criminal conduct not resulting in prosecution or conviction may be considered. People
v. Hudson, 157 Ill. 2d 401, 452, 626 N.E.2d 161, 183 (1993). Even conduct for which defendant
has been acquitted may be considered. People v. Robinson, 286 Ill. App. 3d 903, 910, 676 N.E.2d
1368, 1373 (1997).
The only requirement for admission of evidence in a sentencing hearing is that the evidence
must be reliable and relevant as determined by the trial court within its sound discretion. Jett, 294
Ill. App. 3d at 830, 691 N.E.2d at 152. Thus the mere fact that the testimony presented contains
hearsay does not make it per se inadmissible nor does it deny the defendant his right to confront
witnesses. People v. Perez, 108 Ill. 2d 70, 86, 483 N.E.2d 250, 258 (1985). A hearsay objection
affects the weight rather than the admissibility of the evidence. Jett, 294 Ill. App. 3d at 830, 691
N.E.2d at 152. Hearsay evidence may be found to be relevant, reliable, and admissible when it is
15
corroborated by other evidence. Jett, 294 Ill. App. 3d at 830, 691 N.E.2d at 152. A sentencing court,
however, must exercise care to insure the accuracy of information considered and to shield itself
from what might be the prejudicial effect of improper materials. Williams, 149 Ill. 2d at 490, 599
N.E. 2d at 924. If it is shown that the defendant has been prejudiced by the procedure adopted or
by the material considered by the trial court in conducting its inquiry, the resultant penalty will not
be allowed to stand. People v. Crews, 38 Ill. 2d 331, 337-338, 231 N.E.2d 451, 454 (1967).
The instant defendant would have this Court adopt a rule which would require the State to
call all of its witnesses to defendant’s other criminal activity to prove up the other crime at
sentencing, essentially holding a mini-trial on the other crime at the sentencing hearing. However,
our supreme court has consistently upheld the method used by the State in the present case. See
Perez, 108 Ill. 2d at 85-88, 483 N.E. 2d at 257-259 (allowing correctional officer’s testimony that
his superior told him that another inmate had told superior that something could possibly happen to
officer if defendant was brought back into officer’s unit); People v. Morgan, 112 Ill. 2d 111, 142-
144, 492 N.E.2d 1303, 1316-1317 (1986) (allowing officer’s testimony that he investigated an
armed robbery and shooting and discovered that defendant had shot two women in his apartment);
Hudson, 157 Ill. 2d at 448-453, 626 N.E. 2d at 181-183 (allowing correctional investigator’s
testimony that another inmate had told him about an escape plan that defendant was involved in and
that further investigation corroborated inmate’s statement; also allowing other officer’s testimony
that he investigated three robberies and an aggravated assault and that his investigation resulted in
defendant’s arrest). Other courts have followed this approach as well. See People v. Aleman, 355
Ill. App. 3d 619, 627, 823 N.E.2d 1136, 1143 (2005) (allowing hearsay testimony of investigating
officer regarding defendant’s involvement in armed robbery); Moore, 250 Ill. App. 3d at 918-921,
16
620 N.E.2d at 592-594 (allowing hearsay testimony of social worker regarding defendant’s sexual
contact with child). Thus we conclude that the State may prove up defendant’s other criminal
activity at sentencing by having the investigating officer testify about what the witnesses told him
and about what he learned during his investigation of the other crime. See Perez, 108 Ill. 2d at 85-
88, 483 N.E.2d at 257-259; Morgan, 112 Ill. 2d at 142-144, 492 N.E. 2d at 1316-1317; Hudson, 157
Ill. 2d at 448-453, 626 N.E. 2d at 181-183; Aleman, 355 Ill. App. 3d at 627, 823 N.E. 2d at 1143;
Moore, 250 Ill. App. 3d at 918-921, 620 N.E. 2d at 592-594. Any objection to the hearsay nature
of that testimony goes to the weight the testimony is to be given, not to admissibility. Jett, 294 Ill.
App. 3d at 830, 691 N.E.2d at 152. It is for the trial court, in its sound discretion, to ultimately
determine if that testimony is reliable. Jett, 294 Ill. App. 3d at 830, 691 N.E.2d at 152.
In the present case, Detective Walden took the stand and testified regarding his investigation
of the three other armed robberies. Walden described the evidence that had been acquired and
specifically identified the sources of that evidence, whether it was the statements of the victims, the
statements of accomplices, the statements of other officers, or physical evidence that was recovered
or processed. As Walden’s testimony indicated, the three other robberies all took place around the
same time as the instant offense and were similar in circumstance. Walden obtained statements from
the victims involved and from one of the subjects who allegedly committed some of the crimes.
Walden noted that the statement of the accomplice was consistent with the statements given by the
victims. Walden also noted that certain physical evidence, fingerprints, implicated defendant in one
of the robberies and that another piece of physical evidence, a surveillance tape, corroborated the
victim and accomplice accounts of what had occurred. Walden’s testimony was subject to cross
examination and the videotaped statements of the accomplice and of another subject involved in one
17
of the robberies were played for the trial judge to consider. Under these circumstances, the trial
judge was well within his discretion in determining that the evidence was reliable. See Perez, 108
Ill. 2d at 85-88, 483 N.E. 2d at 257-259; Morgan, 112 Ill. 2d at 142-144, 492 N.E. 2d at 1316-1317;
Hudson, 157 Ill. 2d at 448-453, 626 N.E. 2d at 181-183; Aleman, 355 Ill. App. 3d at 627, 823 N.E.
2d at 1143; Moore, 250 Ill. App. 3d at 918-921, 620 N.E. 2d at 592-594. Furthermore, it’s clear
from the trial judge’s comments at sentencing that he did not place undue weight upon Walden’s
testimony. The trial judge made it clear on the record that he was only sentencing defendant for one
armed robbery and that he was only considering Walden’s testimony as evidence of defendant’s
character and motivations.
Defendant’s reliance upon our previous case of People v. Kirk, 62 Ill. App. 3d 49, 378 N.E.
2d 795 (1978), is misplaced. Our decision in Kirk stands for the principle that such evidence should
be presented in the form of live testimony, rather than from hearsay allegations contained in the
presentence report where the information may be vague and the source of the information may be
unknown. Kirk, 62 Ill. App. 3d at 54, 378 N.E. 2d at 799. This is a principle which our supreme
court has espoused and to which we still adhere. See People v. Jackson, 149 Ill. 2d 540, 548, 599
N.E.2d 926, 930 (1992); People v. English, 353 Ill. App. 3d 337, 339, 818 N.E.2d 857, 859 (2004).
It is not a principle, however, which compels that the sentence in the present case be vacated.
For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County.
Affirmed.
JUSTICE HOLDRIDGE, specially concurring:
I concur with the result reached in Justice Carter's opinion. In the spirit of Ockham's razor,
however, I write separately to articulate a simpler analysis. Under People v. Bunch, 159 Ill. App.
18
3d 494 (1987), a prosecutor may cross-examine a witness regarding prior juvenile convictions where
the witness has opened the proverbial door by giving testimony about some aspect of his criminal
record. That is what happened here. Although the policy underlying Harris v. New York , 401 U.S.
222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971), is instructive by way of comparison, I do not agree with
establishing a new Harris-based rule governing impeachment with prior juvenile convictions. In my
view, any error that could rightly be remedied under such a rule would also be remediable through
Bunch. There is consequently no reason to go beyond the existing law and apply Harris out of its
factual context. I would simply affirm the judge's evidentiary ruling under Bunch.
JUSTICE O’BRIEN, dissenting:
Because I do not believe, as the majority apparently does, that in response to this appeal,
we should adopt a position “directly contrary to that of other districts of the [Illinois] [A]ppellate
[C]ourt” (slip op. at 14), I respectfully dissent from the majority. Applying Illinois law to the
instant case, I believe Harris’s juvenile record was inadmissable pursuant to the rule adopted in
People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971), and I do not believe his
statements on the witness stand were sufficient to “open the door” to the State’s use of his
juvenile record for impeachment purposes.
As the majority notes, it is well settled in Illinois that a defendant’s juvenile criminal
history is not admissible in another proceeding against that same defendant. People v.
Montgomery, 47 Ill. 2d 510, 517-19, 268 N.E.2d 695, 699-700 (1971). This is true even when
the prosecution seeks to use evidence of the defendant’s previous juvenile criminal history to
impeach the defendant. People v. Kerns, 229 Ill. App. 3d 938, 940, 595 N.E.2d 207, 208 (1992).
Moreover, the trial court has no discretion to admit juvenile adjudications for impeachment
19
purposes when the witness is the accused in a criminal case. Kerns, 229 Ill. App. 3d at 940, 595
N.E.2d at 208.
I am not persuaded by the majority’s attempt to deviate from this general rule based on
the pronouncements of the United State’s Supreme Court in Harris v. New York, 401 U.S. 222,
225-26, 28 L. Ed. 2d 1, 4-5, 91 S. Ct. 643, 645-46 (1971), where the Supreme Court held that a
defendant may be impeached at trial by the introduction of prior statements that were obtained in
violation of Miranda. Significantly, the evidence the State sought to use in Harris was not
evidence of juvenile adjudications and the evidence was used by the State to directly contradict
the defendant’s in-court statements. The court in People v. Sturgis, 58 Ill. 2d 211, 216, 317
N.E.2d 545, 548 (1974), in adopting the rational of Harris, narrowly tailored its own holding.
The Sturgis court held “the testimony of a defendant or documents voluntarily attested to by him
in conjunction with his motion to suppress evidence *** may be used for purposes of
impeachment should the defendant choose to testify at trial.” Sturgis, 58 Ill. 2d at 216, 317
N.E.2d at 548. Again, the evidence introduced in Sturgis was not of juvenile adjudications.
Sturgis, 58 Ill. 2d at 216, 317 N.E.2d at 548.
The law in Illinois does allow an exception to the general rule that evidence of a
defendant’s juvenile criminal history is not admissible for the purposes of impeachment. The trial
court may admit evidence of a defendant’s juvenile criminal record if the defendant “opens the
door” by testifying on direct examination to some aspect of his criminal record. People v.
Bunch, 159 Ill. App. 3d 494, 513, 512 N.E.2d 748, 761 (1987). An exception is recognized
where “the witness admits convictions of both admissible and inadmissible kinds under the
general rule and affirmatively states that this list of convictions is complete,” or the witness
20
affirmatively states on direct examination that he has never been arrested. People v. Brown, 61
Ill. App. 3d 180, 184, 377 N.E.2d 1201, 1203 (1978). Under these circumstances, the prosecutor
may then cross-examine the witness regarding any prior arrests or convictions. Brown, 61 Ill.
App. 3d at 184, 377 N.E.2d at 1203 .
In the instant case, the State asserts Harris sufficiently opened the door for the admission
of his juvenile record by testifying as follows:
“No Sir. There is no possible way that I could have committed this
crime. I mean people who commit robberies, things like that, have
a motive, have a reason for doing things like that. But I am a
professional man. I work. I go to college. I went to Robert Morris,
ICC, Midstate. I mean, it’s no reason–I mean I live a productive life.
I live just the way any of the 12 jurors, like you live. I don’t commit
crimes.”
The trial court found Harris’s statement opened the door to the admission of his adjudication for
an offense which occurred in August 2000.
I believe the trial court erred in admitting Harris’s juvenile record. I do not believe the
trial court was correct in construing Harris’s testimony as a discussion of his criminal history.
Harris was not making an affirmative reference to his criminal record, nor was he misstating or
falsifying his criminal record. His statement “I don’t commit crimes,” was not in response to any
inquiry about his criminal history and as such was not a sufficient statement to “open the door.”
Harris made only generic, present tense statements regarding living like the jurors, going to
school, not committing crimes. This is important to emphasize, especially in light of the fact that
21
the evidence the State sought to use was the record of Harris’s last criminal conviction, a
conviction that occurred four years prior to the offense at issue here.
Because this was Harris’s third trial on the same charge and the first two trials ended in
mistrials, the error committed by the trial court in admitting his juvenile court record cannot be
deemed harmless error. See People v. Stechly, 225 Ill. 2d 246, 310, N.E.2d __ ( 2007) (stating
that a mistrial based on the jury’s failure to agree on a verdict was illustrative of the closeness of
the evidence). This was plain error and it was presumptively prejudicial to Harris since his
previous two trials, conducted without the use of his juvenile record (but in all other respects
substantially identical), ended in mistrial.
Therefore, I respectfully dissent. I believe Harris’s conviction should be reversed and this
matter remanded to the trial court for further proceedings.
Because I believe the trial court should be reversed, I do not believe we should reach the
argument of whether Harris’s sentence was excessive.
22