People v. Milligan

JUSTICE COOK,

dissenting:

I respectfully dissent. I would reverse and remand because of the trial court’s failure to conduct a proper Montgomery balancing test. See Atkinson, 186 Ill. 2d at 459, 713 N.E.2d at 536-37 (rejecting mere-fact method as a halfway measure which admits all convictions without the required balancing test). “Under that test, if prejudice to the defendant substantially outweighs the probative value of admitting the impeachment evidence, the prior conviction must be excluded.” Atkinson, 186 Ill. 2d at 459, 713 N.E.2d at 537.

I disagree with the majority’s conclusion that defendant waived any objection by not waiting until the State offered evidence of the prior convictions, i.e., “The evidence was not offered by the State to impeach defendant, but by the defense” (327 Ill. App. 3d at 269). It is not inconsistent for a defendant to request the exclusion of evidence and, after the court’s denial of that request, to disclose the evidence himself in the hope of lessening its impact upon the jury. People v. Williams, 161 Ill. 2d 1, 34, 641 N.E.2d 296, 310 (1994) (challenge on appeal not thereby precluded); cf. Williams, 317 Ill. App. 3d at 950, 742 N.E.2d at 779 (evidence not offered by State to impeach but by defense to explain why defendant lied to police). The majority has not suggested any reason why defendant would introduce his prior convictions other than in anticipation of the State’s impeachment. There is no waiver in this case.

I have previously suggested that a defendant’s request that the mere-fact method be used, after the court has conducted a balancing test, waives any Atkinson error. People v. Sparks, 314 Ill. App. 3d 268, 272, 731 N.E.2d 987, 990-91 (2000). That is not the situation here. A defendant may logically request use of the mere-fact method and still insist that the court apply the balancing test. It is difficult to understand why a defendant would ever fail to insist on a balancing test. People v. Moore, 279 Ill. App. 3d 152, 158, 663 N.E.2d 490, 496 (1996) (irrelevant that trial was conducted before 1994 Williams decision (Williams, 161 Ill. 2d 1, 641 N.E.2d 296), when judicial trend “was to allow impeachment with virtually all prior felony convictions”).

Although Atkinson rejected the use of the mere-fact method, it affirmed in the case before it, because of the clear indications that a balancing test had been performed. The Atkinson court stressed that defense counsel specifically referred to the balancing test, the trial judge recognized that he had to determine whether the probative value of the evidence outweighed its prejudice, and “[i]t is clear from the trial judge’s comments that he was aware of the Montgomery balancing test.” Atkinson, 186 Ill. 2d at 463, 713 N.E.2d at 538. That is not true in the case before us. In fact, all indications are to the contrary. A fair reading of the colloquy here is that the trial court and counsel were unaware of any issue concerning impeachment by prior convictions other than the mere-fact issue. There was no discussion that introduction of evidence of similar crimes could be prejudicial to defendant or that the admission of more than one burglary conviction was likely to lead the jury to convict defendant simply because of his propensity to commit crime, simply because he was a “bad man.” There was no motion in limine, no reference by defense counsel to the balancing test, and no mention by the court of the balancing test.

Recent decisions of the supreme court have reasserted the need for performance of the balancing test. “It is a fundamental tenet of our criminal justice system *** that the introduction of evidence of other crimes to show or suggest a propensity to commit crime is an improper purpose and is prohibited.” Williams, 161 Ill. 2d at 39, 641 N.E.2d at 312. “[TJrial courts should not admit prior-conviction evidence as probative of guilt, rather than credibility.” People v. Cox, 195 Ill. 2d 378, 384, 748 N.E.2d 166, 170 (2001). “Convictions for the same crime for which the defendant is on trial should be admitted sparingly.” Cox, 195 Ill. 2d at 384, 748 N.E.2d at 170. It must also be recognized that admission of a number of prior convictions may suggest only a propensity to commit crime.

In People v. McKibbins, 96 Ill. 2d 176, 449 N.E.2d 821 (1983), the supreme court upheld the admission of 20 prior convictions. In that case, however, the failure to limit the number of convictions did not “indicate! ] a failure to balance the probative value of this evidence against its prejudicial impact,” because defense counsel had filed a motion in limine, had argued the balancing test must be applied, and the court had stated it understood the balancing test. McKibbins, 96 Ill. 2d at 187, 449 N.E.2d at 826.

In McKibbins, the defendant was charged with murder, and the 20 prior convictions admitted were theft misdemeanors, demonstrating “a consistent pattern of dishonesty.” McKibbins, 96 Ill. 2d at 188, 449 N.E.2d at 827. None of the 20 “priors” “were crimes of violence from which the jury might infer that the defendant had a propensity for committing such crimes.” McKibbins, 96 Ill. 2d at 188, 449 N.E.2d at 827. Again, the present case is different. Defendant was charged with home invasion and aggravated battery, and the prior convictions were for burglary and attempt (burglary). One of the factors in determining prejudice is “ ‘whether the crime was similar to the one charged.’ ” McKibbins, 96 Ill. 2d at 188, 449 N.E.2d at 826-27, quoting Montgomery, 47 Ill. 2d at 518, 268 N.E.2d at 700.

It may be easier to admit a number of convictions based on untruthfulness, to show the defendant’s “consistent pattern of dishonesty,” and harder to admit other convictions. “ ‘The focus oí Montgomery was on crimes which bear !up]on the defendant’s truthfulness as a witness.’ ” Cox, 195 Ill. 2d at 384, 748 N.E.2d at 170, quoting Williams, 161 Ill. 2d at 39, 641 N.E.2d at 312; see also State v. Ashley, 160 Vt. 125, 127-28, 623 A.2d 984, 986 (1993) (error to admit 16 convictions even though most involved untruthfulness); State v. Bohe, 447 N.W.2d 277, 283 (N.D. 1989) (Levine, J., dissenting) (same-crime evidence should be sparingly used); State v. Walker, 29 S.W3d 885, 891 (Tenn. Grim. App. 1999) (error, in prosecution for sale of cocaine, to admit five priors for sale of cocaine). Some jurisdictions, such as New York, which allow high numbers of prior convictions into evidence, also allow or even require mere-fact impeachment, and are not persuasive authority in Illinois, which does not allow mere-fact impeachment.

Whether we address this case in terms of plain error or ineffective assistance of counsel, there is no indication that the required balancing test has been performed, despite concerns about the number of convictions admitted and their similarity to the offense with which defendant was charged.