NO. 4-06-0244 Filed 8/13/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
DEMETRIC L. DeBERRY, ) No. 05CF1371
Defendant-Appellant. )
) Honorable
) Timothy J. Steadman,
) Judge Presiding.
________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
In December 2005, a jury convicted defendant, Demetric
L. DeBerry, of robbery (720 ILCS 5/18-1 (West 2004)). The trial
court later sentenced him to five years in prison.
Defendant appeals, arguing that (1) the State failed to
prove him guilty beyond a reasonable doubt, and (2) the trial
court erred in not ruling on his motion in limine, prior to his
testimony, as to whether his prior convictions could be used to
impeach him. We affirm.
In October 2005, the State charged defendant with
robbery (720 ILCS 5/18-1 (West 2004)), alleging that on August
18, 2005, he knowingly took property from Steven McDonald by use
of force. Prior to trial, defendant filed a motion in limine to
bar the State from impeaching him with "certain of [his] prior
convictions." The trial court reserved ruling on the motion
"until or unless the defendant testifies and [the] State then
seeks to introduce the two convictions by way of rebuttal."
At trial, Steven McDonald testified that on August 18,
2005, he walked from his girlfriend's house to a friend's house.
While walking, McDonald stopped and spoke with defendant, whom he
knew only as "Mi Mi." Another individual approached and grabbed
McDonald's front pocket. McDonald "swung" at the individual but
defendant grabbed McDonald from behind and the other individual
lifted McDonald's legs and the two men threw McDonald to the
ground. One of the individuals kicked McDonald. McDonald
observed the two men run from the area.
Tyrell Woods testified that he pleaded guilty to
robbing McDonald. He and defendant were no longer best friends
because defendant "told on" Woods. According to Woods, he and
defendant agreed to "basically [']roll['] [McDonald]."
Decatur police officer Kara Diskey testified that on
August 18, 2005, she was dispatched to 143 East Marietta Street
in Decatur. Diskey spoke with McDonald and McDonald provided
descriptions of the two men involved. McDonald knew one of the
individuals as "Mi Mi."
Decatur police officer Jeremy Welker testified that on
August 23, 2005, he met with McDonald and conducted a photo-
graphic lineup. McDonald "immediately" identified defendant and
Woods as the individuals who robbed him on August 18, 2005.
The State then rested, and the trial court denied
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defendant's motion for directed verdict. Defendant renewed his
motion in limine, arguing the outcome of the motion would impact
his decision on whether to testify. The trial court refused to
rule on the motion in advance of defendant testifying, stating
the motion was premature.
Defendant then testified as the only defense witness,
admitting that he spoke with McDonald on August 18, 2005, but
stating he did not know McDonald. Defendant testified that
McDonald asked whether there were "some nice cars around for
sale." According to defendant, during this conversation, "Woods
came from out of nowhere." Defendant and Woods were friends.
Defendant testified that McDonald took a swing at Woods because
he did not know what Woods was trying to do to him. Defendant
testified that after McDonald swung at Woods, defendant grabbed
McDonald because he "didn't want him to try to harm anybody that
I had knew." Defendant testified that he let McDonald go "imme-
diately" and observed Woods take a cell phone and money from
McDonald's pocket. After this incident, defendant gave Woods a
ride home.
Following arguments, the trial court denied the motion
in limine and the State offered the certified convictions of
defendant for theft and aggravated battery. The jury convicted
defendant of robbery and the court later sentenced him to five
years in prison.
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This appeal followed.
Defendant first argues that the State's evidence failed
to prove his guilt beyond a reasonable doubt. Specifically, he
contends that he was convicted "on the basis of unreliable and
conflicting stories."
In People v. Collins, 214 Ill. 2d 206, 217, 824 N.E.2d
262, 267-68 (2005), the supreme court addressed a challenge to
the sufficiency of the State's evidence and wrote the following:
"We review a challenge to the sufficiency of
the evidence to determine '"whether, after
viewing the evidence in the light most favor-
able to the prosecution, any rational trier
of fact could have found the essential ele-
ments of the crime beyond a reasonable
doubt."' (Emphasis omitted.) People v. Cox,
195 Ill. 2d 378, 387[, 748 N.E.2d 166, 172]
(2001), quoting Jackson v. Virginia, 443 U.S.
307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct.
2781, 2788-89 (1979). We will not reverse a
conviction unless the evidence is so improba-
ble, unsatisfactory, or inconclusive that it
creates a reasonable doubt of defendant's
guilt. [Citation.] In reviewing the evi-
dence, it is not the function of the court to
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retry the defendant, nor will we substitute
our judgment for that of the trier of fact."
In People v. Cunningham, 212 Ill. 2d 274, 818 N.E.2d
304 (2004), the supreme court addressed a defendant's attack on
the sufficiency of the State's evidence based on his claim that
the testimony of a particular witness was not worthy of belief.
In so doing, the court discussed the reviewing court's role as
follows:
"The reviewing court must carefully examine
the record evidence while bearing in mind
that it was the fact finder who saw and heard
the witness. [People v.] Smith, 185 Ill. 2d
[532,] 541[, 708 N.E.2d 365, 369 (1999)].
Testimony may be found insufficient under the
Jackson standard, but only where the record
evidence compels the conclusion that no rea-
sonable person could accept it beyond a rea-
sonable doubt. See, e.g., Smith, 185 Ill. 2d
at 545[, 708 N.E.2d at 371] (holding that no
reasonable person could find the witness'
testimony credible) *** ." Cunningham, 212
Ill. 2d at 280, 818 N.E.2d at 308.
Judged in accordance with the foregoing standards, we
conclude that the evidence was sufficient to sustain defendant's
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conviction. In so concluding, we note defendant admitted (1) he
spoke with McDonald on August 18, 2005, (2) Woods "came from out
of nowhere," (3) he grabbed McDonald restraining him, (4) he
observed Woods remove the cell phone and money from McDonald's
pocket, and (5) he "walked off." Thus, the jury could have found
beyond a reasonable doubt that defendant committed the offense of
robbery.
Defendant next argues that the trial court erred in not
ruling on his motion in limine, prior to his testimony, as to
whether his prior convictions could be used to impeach him.
We note defendant does not argue the trial court failed
to apply the proper balancing test (see People v. Montgomery, 47
Ill. 2d 510, 268 N.E.2d 695 (1971)) and does not argue the court
abused its discretion in determining to admit the two convictions
for impeachment purposes. The only issue before us is whether
the court erred in not ruling on the motion in limine prior to
defendant testifying.
Because a motion in limine typically asks the trial
court to bar certain evidence, the supreme court has deemed such
motions "powerful weapons" and has urged caution in their use.
Reidelberger v. Highland Body Shop, Inc., 83 Ill. 2d 545, 550,
416 N.E.2d 268, 271 (1981). For the same reasons that the
supreme court has ruled that trial courts have discretion before
granting a motion in limine, this court has held that trial
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courts also possess the discretion to choose not to entertain a
motion in limine at all. See People v. Ballard, 346 Ill. App. 3d
532, 543, 805 N.E.2d 656, 665 (2004); People v. Owen, 299 Ill.
App. 3d 818, 823, 701 N.E.2d 1174, 1178 (1998).
"[A] court is fully justified to exercise its
discretion by telling the moving party
that[,] for whatever reason[,] the court
chooses not to entertain the party's motion
in limine and instead will require the evi-
dence in question, if it is to be offered at
all, to be presented in the normal course of
things during trial. The court will then
make its ruling upon the evidentiary question
at issue when the matter has become ripe,
assuming it ever does." Owen, 299 Ill. App.
3d at 823, 701 N.E.2d at 1178.
"A trial court need not make a preliminary
ruling on the admissibility of a defendant's
prior convictions to impeach him before they
become at issue, and they become at issue
only after (1) a defendant has testified, and
(2) the State seeks to introduce his prior
convictions for impeachment purposes in its
rebuttal case." Ballard, 346 Ill. App. 3d at
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543, 805 N.E.2d at 665, citing Owen, 299 Ill.
App. 3d at 824-25, 701 N.E.2d at 1179.
For the foregoing reasons, the trial court did not err in refus-
ing to rule on defendant's motion prior to his testifying.
Defendant also argues that the trial court erred in not
ruling on his motion in limine prior to his testimony on the
ground that defendant's constitutional right to testify at trial
was violated. Defendant argues he was not provided "a fair
chance to weigh the costs and benefits of the decision as to
whether to exercise his constitutional right to testify."
A defendant's right to testify at trial is a fundamen-
tal constitutional right, as is his right to choose not to
testify. People v. Madej, 177 Ill. 2d 116, 145-46, 685 N.E.2d
908, 923 (1997); see Rock v. Arkansas, 483 U.S. 44, 51, 97 L. Ed.
2d 37, 46, 107 S. Ct. 2704, 2708 (1987) ("The right to testify on
one's own behalf at a criminal trial has sources in several
provisions of the Constitution"). The decision whether to
testify ultimately rests with the defendant (Madej, 177 Ill. 2d
at 146, 685 N.E.2d at 923); however, the defendant should make
that decision with the advice of trial counsel (People v. Smith,
176 Ill. 2d 217, 235, 680 N.E.2d 291, 303 (1997)).
Here, the trial court declined to rule on the motion in
limine prior to defendant testifying, and the defendant testi-
fied. Whether the trial court's failure to rule bore on defen-
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dant's decision to testify is purely speculative. We do not
agree that defendant was deprived of the information he needed to
make an informed and intelligent decision about whether to
testify. Defendant was certainly aware of his prior convictions
and of the risk that the State might seek to impeach his testi-
mony by introducing evidence of one or more of those convictions.
The decision of whether to testify under those circumstances was
that of the defendant, not the court. Even if the defense
strategy was greatly influenced by the risk that the defendant
would be impeached with his prior convictions, "the court was not
required to remove that risk in advance." People v. Mims, 204
Ill. App. 3d 87, 96, 561 N.E.2d 1101, 1107 (1990).
The trial court's failure to rule, prior to defendant
testifying, did not deprive defendant of his constitutional right
to testify because defendant still had the options to testify or
to choose not to testify. Regardless of the court's ruling,
defendant chose to testify. Defendant's constitutional right to
testify at trial was not violated.
For the foregoing reasons, we affirm the trial court's
judgment. As part of our judgment, we grant the State its
statutory $50 assessment against defendant as costs of this
appeal.
Affirmed.
KNECHT, J., concurs.
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COOK, J., dissents.
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JUSTICE COOK, dissenting:
I respectfully dissent and would reverse and remand for
a new trial.
Imagine a case where the defendant has made the firm
decision not to testify, but nevertheless files a motion to bar
admission of his prior convictions. The defendant may file the
motion in hopes of injecting error into the record. If the trial
court rules that a conviction is admissible, the defendant may
then complain that he would have testified, but for the erroneous
admission of the conviction. The Supreme Court has refused to
review a ruling that a conviction is admissible, unless the
defendant testifies. Luce v. United States, 469 U.S. 38, 41-43,
83 L. Ed. 2d 443, 447-49, 105 S. Ct. 460, 463-64 (1984). In some
cases, of course, the admission of the conviction may truly be
the reason the defendant does not testify, but on balance the
belief has been that defendant must testify to preserve the
issue. The defendant's choice is either to accept the ruling and
not testify or to testify and appeal the ruling.
Trial courts sometimes take a similar approach, that
they are not going to rule on the admissibility of a prior
conviction unless the defendant testifies. There is a differ-
ence, however, between an appellate court declining to review a
trial court's ruling and a trial court's declining to rule.
There may be no problem with the trial court's declining to rule
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when the defendant does not testify, but there is a problem when
the defendant then does testify, as in this case. At that point
it is no longer "speculation" whether the defendant is going to
testify, and by refusing to rule in advance the court has pre-
vented the defendant from making an intelligent choice whether
doing so is in his best interest. Refusing to rule in advance
also prevents the defendant from making an anticipatory disclo-
sure of the convictions. Anticipatory disclosure in the absence
of a pretrial or trial ruling permitting admissibility consti-
tutes a waiver of the right to raise error on appeal. People v.
Williams, 161 Ill. 2d 1, 34-35, 641 N.E.2d 296, 310 (1994)
(defendant entitled to attempt to minimize the damage of prior
conviction evidence by introducing it himself).
A trial court's refusal to rule in advance ignores
Montgomery's exhortation to trial judges to consider "above all,
the extent to which it is more important to the search for truth
in a particular case for the jury to hear the defendant's story
than to know of a prior conviction." Montgomery, 47 Ill. 2d at
518, 268 N.E.2d at 699; People v. Phillips, 371 Ill. App. 3d 948,
952, 864 N.E.2d 823, 828 (2007).
Phillips found that the trial court abused its discre-
tion when it refused to rule prior to the defendant's direct
examination. Phillips, 371 Ill. App. 3d at 952-53, 864 N.E.2d at
828.
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"We cannot fathom what more the judge needed
in order to conduct the balancing test and
rule on the admissibility of the prior con-
victions. The defendant was deprived of the
information he needed to make an informed and
intelligent decision about whether to tes-
tify." Phillips, 371 Ill. App. 3d at 952,
864 N.E.2d at 828.
Nevertheless, the Phillips court declined to review the issue
because defendant did not testify. Phillips, 371 Ill. App. 3d at
954, 864 N.E.2d at 829. Our court has taken a similar approach.
"What more did the trial court need to know ***? *** We conclude
the court should have ruled and then defendant could meaningfully
consider whether to exercise his right to testify." Ballard, 346
Ill. App. 3d at 544-45, 805 N.E.2d at 666.
We affirmed in Ballard because the defendant did not
testify. The defendant in the present case, however, did tes-
tify. What justification is there for the trial court's refusal
to rule in this case? As discussed above, the argument that a
trial court needs to hear the defendant's testimony before ruling
whether prior convictions are admissible has been rejected.
"There may be times when a trial court cannot
effectively conduct the Montgomery balancing
test without hearing the defendant's direct
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testimony, although it is difficult to envi-
sion that happening with any frequency. In
most cases, as was true in this case, the
judge will have heard enough or been told
enough to find the issue ripe for decision."
Phillips, 371 Ill. App. 3d at 952-53, 864
N.E.2d at 828.
No special reasons for refusal to rule in advance are argued in
this case. The fact that motions in limine should be used
cautiously in civil cases does not justify their wholesale
rejection when a Montgomery issue is raised.
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People v. DeBerry
Combined Opinion