NO. 4-95-0597
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
DALE L. ATKINSON, ) No. 94CF101
Defendant-Appellant. )
) Honorable
) Thomas J. Fahey,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Following a jury trial, defendant Dale Atkinson was
convicted of burglary in violation of section 19-1(a) of the
Illinois Criminal Code of 1961 (720 ILCS 5/19-1(a) (West 1992)).
Defendant was sentenced to six years' imprisonment. Defendant
appeals, alleging (1) the trial court erred in failing to employ
the Montgomery balancing test before allowing the State to
impeach him with his prior convictions, (2) the trial court erred
in refusing to allow the "mere fact" approach to impeaching with
a prior conviction, and (3) that the inclusion of this evidence
was reversible error. We reverse and remand.
In March 1994, Nathan Reitsman was driving around with
three friends in a 1984 Chrysler LeBaron. When the car stalled
and Nathan could not get it started again, he and his friends
left the car to go call Nathan's mother. Upon their return 15
minutes later, they discovered that a window had been "pried
down" and the dashboard had been torn apart. The AM-FM cassette
stereo and an equalizer were missing.
On the same day, Herb Simmons was driving around with
defendant, Dale Juvinall, and Steve Robbins. They passed
Nathan's car and stopped. According to defendant, Simmons and
Juvinall thought the car may have a stereo and a "fuzz buster."
Juvinall and defendant exited Simmons' car; defendant claimed he
did so at Juvinall's request. Simmons drove away because he did
not want his car to be seen "if they did something."
Juvinall entered Nathan's car and removed the stereo
and the equalizer. According to Juvinall, he removed the AM-FM
cassette player, which he then handed to defendant. Juvinall
said he never touched the AM-FM cassette player again. Juvinall
then removed the equalizer. Defendant claimed that he stood by
the side of the road the entire time because he "wasn't going
over to the vehicle." Defendant testified that he was not acting
as a "lookout" for Juvinall. Simmons then returned and both
Juvinall and defendant got back into Simmons' car. Simmons
testified that Juvinall had both the AM-FM cassette player and
the equalizer under his coat when he got back into the car.
According to defendant, the group then returned to his
trailer. Defendant testified that the AM-FM cassette player and
the equalizer were held together with black electrical tape and
that Juvinall separated the two components at defendant's trail-
er. Although it is unclear when it happened, at some point that
evening the group tried to sell the equalizer to "JR," one of
defendant's friends. "JR" did not buy the equalizer, so Juvinall
kept it. Defendant kept the stereo.
After defendant's testimony, and over defendant's
objection, the State impeached defendant with evidence of
defendant's two prior burglary convictions. The jury found
defendant guilty and the court sentenced him to six years'
imprisonment. Defendant now appeals.
The admission of prior convictions to impeach a witness
is problematic. This is especially true where the witness is a
defendant in a criminal trial.
"If [a criminal defendant] testifies and is
impeached with prior convictions, he risks
conviction upon the current charge simply
because the jury thinks he is a bad man. ***
If the defendant, in the alternative, chooses
to remain silent, the jury may conclude that
he is guilty despite instructions that no
inference is to be drawn against him given
his failure to testify. [Citation.] On the
other hand, in support of the use of prior
convictions, it is asserted 'that it would be
misleading to permit the accused to appear as
a witness of blameless life.' McCormick,
Evidence §42 at 153 (4th ed. 1992). M. Gra-
ham, Cleary & Graham's Handbook of Illinois
Evidence §609.1, at 411 (6th ed. 1994) (here-
inafter Graham).
Addressing this problem in People v. Montgomery, 47 Ill. 2d 510,
268 N.E.2d 695 (1971), the supreme court embraced the balancing
test set forth by Rule 609 of the Federal Rules of Evidence (Fed.
R. Evid. 609).
The Montgomery court provided that, for the purposes of
attacking a witness' credibility, evidence of a prior conviction
is admissible only if (1) the crime is punishable by death or
imprisonment in excess of one year, or (2) the crime involved
dishonesty or false statement regardless of the punishment. In
either case, however, the evidence is inadmissible if the judge
determines that the probative value of the evidence of the crime
is substantially outweighed by the danger of unfair prejudice.
Additionally, the Montgomery rule prohibits admission of this
evidence if a period of more than 10 years has elapsed since the
date of conviction or release of the witness from confinement,
whichever is later. Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at
698. The supreme court has reaffirmed the Montgomery rule in two
recent cases. People v. Williams, 161 Ill. 2d 1, 641 N.E.2d 296
(1994) (expressing concern over the mechanical application of the
Montgomery rule); People v. Williams, 173 Ill. 2d 48, 670 N.E.2d
638 (1996) (reaffirming the continuing validity of the Montgomery
rule).
Defendant argues that the trial court erred in allowing
the prosecutor to inform the jury that his prior convictions were
for burglary. Defendant had asked that the trial court use the
mere fact method of impeachment. The mere fact method was not
used, and defendant argues that this was reversible error.
Under the mere fact method, the trial court informs the
jury of the felony conviction and of the date and county in which
it occurred. See People v. Kunze, 193 Ill. App. 3d 708, 731, 550
N.E.2d 284, 299 (1990) (Steigmann, J., specially concurring)
(thoroughly reviewing the cases in Illinois and in other juris-
dictions). The court does not tell the jury the nature of the
felony. After informing the jury of the defendant's prior
conviction, the trial court should orally instruct the jury in
accordance with Illinois Pattern Jury Instructions, Criminal, No.
3.13 (3d ed. 1992), unless the defendant indicates that it does
not wish that the instruction be given. Kunze, 193 Ill. App. 3d
at 731, 550 N.E.2d at 299 (Steigmann, J., specially concurring).
The decision whether to use the mere fact method is a matter of
discretion. People v. Jennings, 279 Ill. App. 3d 406, 412, 664
N.E.2d 699, 704 (1996).
The "mere fact" approach of impeaching a defendant with
a prior conviction helps balance the competing interests of the
State and the defendant, and is especially useful where the prior
convictions are similar to the crime charged. This is because
the "more similar the prior offense to the crime charged, the
stronger the natural though impermissible inference likely to be
drawn by the jury that, if the defendant did it before, he
probably did it this time." Graham §609.1, at 411. Under these
circumstances, the mere fact method avoids the danger the jury
will use the prior conviction to evaluate a defendant's propensi-
ty to commit crime. Jennings, 279 Ill. App. 3d at 412, 664
N.E.2d at 704.
In the instant case, defense counsel asked the trial
court to use the mere fact method for defendant's impeachment.
The State's Attorney argued that the impeachment should be done
as it had been done in the past: "[t]hat either the Court or
counsel would read *** the conviction, the date, the case number
into the record." The judge replied, "You may." In rebuttal,
the State impeached defendant with a 1992 burglary conviction.
The defendant objected and the court told the State to proceed.
The State then impeached defendant with a 1993 burglary convic-
tion. Defendant again objected. At a side bar, defense counsel
moved for a mistrial based upon the method of the impeachment.
The judge replied, "If they want to reverse me on that just tell
them to go right ahead. *** It makes no sense to [impeach a
defendant] any other way."
At the hearing on defendant's post-trial motion, in
discussing the use of the mere fact method, the trial judge
stated:
"[T]he rationale of Judge Steigmann in doing
something like that is absolutely beyond me.
By his rationale I would suspect defense
attorneys, if there's an innocuous felony the
next time around or a very serious case,
rather than saying felony they will be asking
that the more innocuous felony be proved up.
It is an absolute bag of worms."
This case presented an ideal situation for use of the
mere fact method. In employing the Montgomery rule, the trial
court should first apply the mechanical prongs of the rule; that
is, the trial court should determine if the prior conviction(s)
fit within the Montgomery categories and whether they meet the
timeliness requirement. If the prior conviction(s) qualify under
the mechanical prongs, the trial court should then employ the
balancing test. In determining whether the probative value of
the evidence sought to be admitted is substantially outweighed by
the danger of unfair prejudice, the court should consider eviden-
tiary alternatives. See Old Chief v. United States, ___ U.S.
___, 136 L. Ed. 2d 574, 117 S. Ct. 644 (1997). One of these
evidentiary alternatives is the mere fact method of impeachment.
The trial court was probably correct in noting that
defendants will seek to use the impeachment method that is the
least prejudicial to them: if the prior felony was for a serious
crime, defendants will seek to use the mere fact method, but if
the prior felony was not so serious, they will seek to have the
name of the conviction entered. Given that one purpose of the
balancing test is to minimize the danger of unfair prejudice to
the defendant, we fail to see how this creates a problem. It has
been noted that there are three exceptions to the mere fact
method. One exception is when "the defendant chooses to have the
jury informed of his prior conviction for impeachment purposes in
the traditional way, including the name of the offense(s) of
which he stands convicted." Kunze, 193 Ill. App. 3d at 732, 550
N.E.2d at 300 (Steigmann, J., specially concurring).
We conclude that the trial judge abused his discretion
in allowing the State to give the name of the prior offenses
when impeaching defendant. "[I]t is difficult to justify [the]
continued use of [a] *** method that *** tends to maximize the
prejudicial effect and potential error of admitting the prior
conviction to impeach the defendant." Jennings, 279 Ill. App. 3d
at 414, 664 N.E.2d at 706 (Steigmann, J., specially concurring).
We note that, although not raised by either party,
defendant's prior burglary convictions may have been admissible
as substantive evidence of defendant's intent. While evidence of
prior acts and offenses may not be introduced to show propensity
to commit crime, such evidence is admissible if it tends to prove
modus operandi, design, motive, knowledge, or intent. People v.
Oaks, 169 Ill. 2d 409, 454, 662 N.E.2d 1328, 1348 (1996). The
record is unclear as to the exact nature of defendant's prior
burglary convictions, but at sentencing defense counsel argued
for the minimum, noting that defendant "has been convicted of
what are essentially midnight auto burglaries." Nevertheless,
the issue was not raised either in the trial court or in this
court, and we decline to consider it.
The State argues that any error was harmless. Error is
harmless if it did not contribute to the conviction, if other
evidence in the case overwhelmingly supports the conviction, or
if the evidence improperly allowed merely duplicated properly
admitted evidence. People v. Durgan, 281 Ill. App. 3d 863, 868,
667 N.E.2d 730, 733-34 (1996); People v. Wilkerson, 87 Ill. 2d
151, 157, 429 N.E.2d 526, 528 (1981). As discussed above,
evidence of prior convictions has long been recognized as prob-
lematic. The erroneous evidence of other crimes evidence ordi-
narily calls for reversal unless the record affirmatively demon-
strates that no prejudice occurred. People v. Lindgren, 79 Ill.
2d 129, 140-41, 402 N.E.2d 238, 244 (1980). A number of cases
over the years have found no prejudice, even where the prior
convictions were for the identical offense being considered by
the jury, but the recent Williams cases decided by the supreme
court indicate a heightened concern for a real balancing of
probative value against unfair prejudice.
The evidence in the present case is not overwhelming.
Defendant was shown to be present at the crime scene, but such
presence, even when coupled with the knowledge that a crime is
being committed, does not render one accountable for the crime.
People v. Taylor, 164 Ill. 2d 131, 140, 646 N.E.2d 567, 571
(1995). Defendant testified that the crime was committed by Dale
Juvinall, that defendant remained at a distance while the crime
was being committed, and that defendant did not act as a lookout.
Although defendant eventually received one of the stolen items,
the evidence is not overwhelming that defendant shared a common
criminal design or criminal intent with Juvinall at the time the
crime was committed. Thus, reversal is warranted. There was
sufficient evidence presented of defendant's guilt, however, that
this case must be remanded for a new trial.
Reversed and remanded for a new trial.
STEIGMANN, P.J., concurs.
GREEN, J., dissents.
JUSTICE GREEN, dissenting:
I agree that the situation here is a perfect example of
where the balancing test of Montgomery would be best served by
use of the "mere fact" method of impeachment of a testifying
defendant. However, I am also concerned with the position of the
circuit judge that the "mere fact" method is not yet required in
this State even under the compelling circumstances of this case.
The Supreme Court of Illinois has never applied or discussed the
rule even under compelling circumstances.
In Williams (161 Ill. 2d 1, 641 N.E.2d 296), the
circumstances favoring use of the "mere fact" rule was even
stronger than here, as the court held that impeachment of a
defendant charged with murder by introduction of his conviction
for voluntary manslaughter, although error, was not reversible
error. In Williams (173 Ill. 2d 48, 670 N.E.2d 638), the argu-
ment for use of the "mere fact" rule was less compelling, but its
use would still have been helpful. There, the major thrust of
the prosecution's charges was murder and the supreme court held
the defendant was properly impeached by evidence of his prior
conviction for aggravated battery. Thus, in both Williams cases,
convictions for crimes of violence were used to impeach defen-
dants charged with murder.
Absent precedent requiring application of the "mere
fact" rule, I do not deem the conviction of defendant here was
error. He was impeached on a prior conviction of burglary, the
very offense with which he was charged, but the court did apply
the balancing test. Unlike the impeaching evidence in the
Williams cases, the impeaching evidence in this case involved
dishonesty, a factor given great significance for its probative
value in regard to the veracity of the defendant. See Montgom-
ery, 47 Ill. 2d at 516, 268 N.E.2d at 698.
Accordingly, I would affirm.