SECOND DIVISION
March 6, 2007
No. 1-04-2655
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
EZEKIEL PHILLIPS, ) Honorable
) William G. Lacy,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
Ezekiel Phillips was charged with attempt first degree
murder, armed violence, and aggravated battery. This wasn’t the
first time the defendant had been charged with armed violence and
aggravated battery. He had been convicted of those offenses on
earlier occasions. Before and during his jury trial, he moved to
bar use of the prior convictions to attack his believability when
he testified. The trial court refused to rule, saying it wanted
to hear the defendant’s direct examination before deciding. The
defendant did not testify.
The question before us is whether the trial court abused its
discretion when it refused to rule and, if so, whether the error
will affect the defendant’s convictions for armed violence and
aggravated battery.
For reasons that follow, we hold the trial court abused its
1-04-2655
discretion when it refused to rule on the defendant’s motion, but
that the great weight of authority compels us to decline to
consider whether the error supports a change in outcome. We
affirm the defendant’s convictions; we vacate his sentences and
remand the cause for a new sentencing hearing.
FACTS
We briefly summarize the state of the record at the point
where the defense again moved to bar use of defendant’s prior
convictions.
At trial, the State presented evidence that on June 26,
2000, the defendant stabbed Daryl Willis. Willis testified that
defendant approached him outside a liquor store near Roosevelt
and Loomis streets in Chicago. Defendant told Willis he did not
appreciate how Willis had disrespected him the other day.
Defendant said, "This is what I do to tough niggers," and stabbed
Willis in the stomach. While Willis was on his back, defendant
attempted to stab him again and cut Willis’ leg. According to
Willis, defendant grabbed Willis’ head and put a knife under his
throat. A woman grabbed the defendant’s hand and begged him not
to kill Willis. Defendant then left the scene. Laboratory and
medical reports showed Willis was heavily intoxicated when he was
treated for stab wounds.
In her opening statement, defense counsel told the jury the
2
1-04-2655
evidence would show defendant was acting in self-defense because
Willis hit the defendant with a two-by-four. Defense witness
Cynthia Traylor testified that prior to the confrontation, Willis
was intoxicated and acting very violently. She heard Willis tell
defendant to "suck [his] French Dick" and saw Willis pick up a
two-by-four and swing it at the defendant. He struck defendant
with the two-by-four. She then saw defendant stab Willis.
Witness Bridget Godfrey said she saw defendant and Willis
arguing loudly on the sidewalk. The defendant told Willis to go
away and said he did not want to argue. Willis then picked up a
two-by-four and began swinging it at defendant. Godfrey said
defendant was struck more than once by the two-by-four. The next
thing she saw was Willis falling to the sidewalk. She did not
see the defendant holding a knife.
After its eyewitness testimony, the defense renewed its
motion in limine and asked the court to determine whether
defendant’s prior convictions would be admissible if he were to
testify. The prior convictions were for armed violence,
aggravated battery, domestic battery, and manufacture or delivery
of a controlled substance. The court said one conviction,
domestic battery, would not come in because it was older than ten
years. As to the remaining convictions, the judge said:
"*** The other three convictions I was told
3
1-04-2655
about were three felony convictions and they
are all within ten years of today, given the
length of the sentences of those two previous
cases, so they do meet the first two prongs.
The third prong is whether the court must
conduct an analysis as to whether or not this
evidence of the prior convictions which would
only be contracted [sic] as to the
defendant’s credibility is more probative
than prejudicial, and it is my feeling that
in order to conduct such an analysis I would
have to hear all the evidence in the case,
and until I have heard the defendant testify
I can’t determine whether it’s more probative
than prejudicial. For that reason I would
rule; but to rule now would be premature,
which is this court’s opinion, which I know
the defense disagrees with."
The defendant then chose not to testify. The jury returned
a verdict of not guilty of attempt first degree murder, but
guilty of armed violence and aggravated battery. The trial court
denied defendant’s motion for a new trial and sentenced the
defendant to life imprisonment for the armed violence conviction
4
1-04-2655
and five years’ imprisonment for each of the aggravated battery
convictions, to merge and run concurrently. The defendant was
absent at the time the jury returned its verdict and during the
sentencing hearing. There is nothing in the record to indicate
the trial court admonished defendant that he could be sentenced
in absentia.
DECISION
I. Refusal to Rule
In People v. Montgomery, 47 Ill. 2d 510, 519, 268 N.E.2d 695
(1971), the court adopted the 1971 proposed draft of Federal Rule
of Evidence 609. In Illinois, with age limitations inapplicable
to this case, a prior conviction may be used to impeach a
defendant where: (1) the prior conviction was for a crime
punishable by death or imprisonment in excess of one year, or a
crime involving dishonesty or false statement; and (2) the danger
of unfair prejudice does not substantially outweigh the probative
value of the conviction. Montgomery, 47 Ill. 2d at 516; People
v. Cox, 195 Ill. 2d 378, 383, 748 N.E.2d 166 (2001). In
performing the balancing test, courts consider:
" ‘the nature of the prior crimes, ***the
length of the criminal record, the age and
circumstances of the defendant, and, above
all, the extent to which it is more important
5
1-04-2655
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, quoting Fed.
R. Evid. 609 advisory committee notes.
The trial court uses its discretion when conducting the
balancing test to determine whether a witness’s prior conviction
is admissible for impeachment. Cox, 195 Ill. 2d at 383.
Convictions for the same violent crime defendant is on trial for
should be admitted "sparingly." People v. Williams, 161 Ill. 2d
1, 38, 641 N.E.2d 296 (1994). Failure to conduct a "meaningful"
balancing test violates Montgomery. People v. McGee, 286 Ill.
App. 3d 786, 793, 676 N.E.2d 1341 (1997).
We do not reach the question of whether defendant’s prior
convictions could be used to attack his character for
truthtelling. Nor are we called on to decide whether the
defendant’s failure to testify waives review of a trial court’s
decision to allow use of the defendant’s prior convictions to
attack his believability. See Luce v. United States, 469 U.S.
38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984); People v. Steward,
295 Ill. App. 3d 735, 748-49, 693 N.E.2d 436 (1998). Those are
not matters for this appeal. The only issues before us are
whether the trial court’s refusal to rule until it heard the
6
1-04-2655
defendant’s direct examination was an abuse of discretion, and,
if it was, how do we determine what to do about it when he does
not testify?
While a criminal defendant’s trial lawyer has the right to
make ultimate decisions about matters of tactics and strategy,
the decision about whether to testify "ultimately belongs to the
defendant," not his lawyer. People v. Medina, 221 Ill. 2d 394,
403, 851 N.E.2d 1220 (2006). The defendant’s right to testify
"is fundamental," not a matter of strategy or tactical decision
best left to trial counsel. Steward, 295 Ill. App. 3d at 743;
People v. Daniels, 230 Ill. App. 3d 527, 535, 595 N.E.2d 83
(1992). The defendant’s right to testify is grounded in the
Fifth and Sixth amendments to the United States Constitution.
Rock v. Arkansas, 483 U.S. 44, 52-54, 97 L. Ed. 2d 37, 46-48, 107
S. Ct. 2704, 2709-11 (1987).
It necessarily follows that a decision of such grave import
should be made intelligently, based on relevant and available
information. See United States v. Oakes, 565 F.2d 170, 171 (1st
Cir. 1977). In this case, potential use of the defendant’s prior
convictions, violent in nature and identical to the charges
against him, had to be a factor that would weigh heavily on the
decision to testify.
When the prior convictions are similar to or identical with
7
1-04-2655
the charges at trial, the risk of unfair prejudice weighs
heavily. Williams, 161 Ill. 2d at 37-38; see R. Wissler and M.
Saks, On the Inefficacy of Limiting Instructions, 9 Law and Human
Behavior 37, 37-48 (1985). That is, the defendant in this case
faced the kind of unfair prejudice that "speaks to the capacity
of some concededly relevant evidence to lure the factfinder into
declaring guilt on a ground different from proof specific to the
offense charged." Old Chief v. United States, 519 U.S. 172, 180,
136 L. Ed. 2d 574, 588, 117 S. Ct. 644, 650 (1997). The risk,
obviously recognized by the defendant’s lawyer, is that the jury
would use the prior convictions as proof of the defendant’s
violent character, an improper purpose. By taking the stand this
defendant would have been engaging in a high-stakes gamble.
By the time defense counsel renewed his motion to bar the
prior convictions the issues to be decided by the jury were
clearly drawn. The court had heard opening statements, cross-
examination of the State’s witnesses, and the testimony of two
defense eyewitnesses. There was no question about it: the
defendant was not denying he stabbed Willis; he was claiming he
acted in self-defense because an intoxicated man was striking him
with a two-by-four. The court eventually held the evidence
without defendant’s testimony was sufficient to support self-
defense instructions.
8
1-04-2655
We cannot fathom what more the judge needed in order to
conduct the balancing test and rule on the admissibility of the
prior convictions. The defendant was deprived of the information
he needed to make an informed and intelligent decision about
whether to testify. Few defense attorneys on the plus side of
Strickland would advise a client to testify without knowing
whether prior convictions for violent crimes identical to the
charges in the case would be allowed to attack the defendant’s
character for truthfulness. See Strickland v. Washington, 466
U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The
defendant’s state of mind was a material issue for his
affirmative defense of self-defense. People v. Parker, 194 Ill.
App. 3d 1048, 1058, 551 N.E.2d 1012 (1990). Only the defendant
could provide direct evidence of his reasons for stabbing Willis.
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," went unheeded. Montgomery,
47 Ill. 2d at 518, quoting Fed. R. Evid. 609 advisory committee
notes. We find the trial court abused its discretion when it
refused to rule without first hearing the defendant’s direct
examination.
Our decision is based on the particular facts of this case.
9
1-04-2655
We do not suggest a per se rule. There may be times when a trial
court cannot effectively conduct the Montgomery balancing test
without hearing the defendant’s direct testimony, although it is
difficult to envision 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.
Once having found the trial court abused its discretion by
refusing to rule, we should determine our next step. But the
great weight of authority in this State requires us to say there
is no next step. At least, not one that can be taken without
engaging in speculation and guesswork.
Our supreme court has never addressed the question of how to
proceed on review when the trial court refuses to rule on
admissibility of prior convictions and the defendant then
declines to testify. But our appellate courts have. Six times.
On each of those six occasions the court has held the defendant’s
failure to testify eliminates the trial court’s refusal to rule
as a reviewable issue. Those cases are:
(1) People v. Ballard, 346 Ill. App. 3d 532, 543, 805 N.E.2d
656 (2004) (The harm caused by refusal to rule is speculative);
(2) People v. Owen, 299 Ill. App. 3d 818, 824-25, 701 N.E.2d
1174 (1998) (Court’s refusal to rule becomes an issue only after
defendant has testified and State seeks to offer his prior
10
1-04-2655
convictions for impeachment purposes);
(3) People v. Mims, 204 Ill. App. 3d 87, 96, 561 N.E.2d 1101
(1990) (Defendant’s failure to testify makes the no-ruling issue
"academic");
(4) People v. Rose, 75 Ill. App. 3d 45, 53, 393 N.E.2d 698
(1979) (The trial court was not required to rule on the motion
until defendant testified);
(5) People v. Hunter, 61 Ill. App. 3d 588, 597-98, 376
N.E.2d 1065 (1978) (The court may withhold its ruling on
admissibility of defendant’s prior convictions until after the
defendant has testified);
(6) People v. Barksdale, 24 Ill. App. 3d 489, 496, 321
N.E.2d 489 (1974) (The trial court should have discretion to
withhold ruling on motion to bar prior convictions until the
defendant has testified).
The federal courts, too, have adhered to the notion that a
refusal to rule on admissibility of prior convictions until the
defendant testifies is within the trial court’s discretion and
nonreviewable on appeal when the defendant does not testify. See
United States v. Martinez, 76 F.3d 1145, 1151-52 (10th Cir.
1996); United States v. Doyle, 771 F.2d 250, 254-55 (7th Cir.
1985).
Some courts in other states have expressed a strong
11
1-04-2655
preference for trial court rulings on prior conviction use before
the defendant decides whether to take the stand. See Settles v.
State, 584 So. 2d 1260, 1263-64 (Miss. 1991); Apodaca v. People,
712 P.2d 467, 473-74 (Colo. 1986); State v. McClure, 692 P.2d
579, 583-84 (Or. 1984); State v. Porter, 674 P.2d 694, 695 (Wash.
App. 1984); State v. Ritchie, 473 A.2d 1164, 1165 (Vt. 1984);
People v. Sangster, 333 N.W.2d 180, 183 (Mich. App. 1983); and
People v. Sandoval, 314 N.E.2d 413, 416-17 (N.Y. 1974).
At times, a court, when declining to review a trial judge’s
nonruling where the defendant does not testify, will express
disapproval of the failure to rule. While the court in Ballard,
346 Ill. App. 3d at 544-45, found the refusal to rule was not
error, it questioned that refusal:
"What more did the trial court need to know,
particularly after defense witnesses
testified? *** We conclude the court should
have ruled and then defendant could
meaningfully consider whether to exercise his
right to testify."
Still, encumbered as we are by precedent in this State, we
decline to further review the trial court’s erroneous refusal to
rule on defendant’s motion to bar use of his prior convictions
until he testified on direct examination. See People v. Sharpe,
12
1-04-2655
216 Ill. 2d 481, 519-20, 839 N.E.2d 492 (2005) ("The doctrine of
stare decisis expresses the policy of the courts to stand by
precedents and not to disturb settled points"). Since this is
the only issue the defendant raises to attack his convictions, we
affirm the convictions and move on to other issues in this
appeal.
II. Sentencing Hearing
Defendant contends the trial court erred in sentencing him
in absentia after failing to admonish him of that possibility.
Section 113-4(e) of the Code of Criminal Procedure requires the
trial court to admonish the defendant of the possibility of trial
and sentencing in absentia, even in the case of a defendant who
flees before trial. 725 ILCS 5/113-4(e) (West 2002); People v.
Partee, 125 Ill. 2d 24, 40, 530 N.E.2d 460 (1988); People v.
Thomas, 216 Ill. App. 3d 405, 408, 576 N.E.2d 352 (1991). In the
absence of an admonishment, sentencing in absentia constitutes
error. Thomas, 216 Ill. App. 3d at 408.
The record does not reflect that a section 113-4(e)
admonition was given to the defendant. We vacate defendant’s
sentences and remand the cause for a new sentencing hearing.
III. Mittimus
Defendant contends, and the State agrees, the mittimus is
incorrect because it states defendant was convicted of three
separate counts of aggravated battery. At sentencing, the trial
court ordered the three aggravated battery sentences to merge and
13
1-04-2655
to run concurrently with the natural life sentence. The mittimus
also reflects incorrectly that defendant was convicted of
unlawful use of a weapon by a felon. Because we are vacating
defendant’s sentences and remanding for a new sentencing hearing,
there is no need for us to correct the mittimus. It should be
corrected in the trial court.
CONCLUSION
We affirm the defendant’s convictions. We vacate
defendant’s sentences and remand for a new sentencing hearing.
Affirmed and remanded for resentencing.
SOUTH, J., concurs.
JUSTICE HOFFMAN, specially concurring:
I concur in the result reached by the majority in this case.
I write separately to articulate my reasons for so concurring.
The majority takes the position that we are not called upon to
decide whether the defendant’s failure to testify waives review of
a trial court’s decision to allow use of the defendant’s prior
convictions to attack his believability. Strictly speaking the
majority is correct. The trial court never ruled on the
defendant’s motion to bar the State’s use of his prior convictions
for impeachment purposes. To my mind, however, "[t]he effect of
the court’s action was the same as if the court had in fact denied
the motion without prejudice to renewing it after [the] defendant
testified." People v. Rose, 75 Ill. App. 3d 45, 52, 393 N.E.2d 698
(1979).
14
1-04-2655
The Supreme Court has taken the position that a trial court’s
denial of a defendant’s motion in limine seeking to bar the use of
prior convictions for impeachment purposes is not preserved for
review unless the defendant testifies. Luce v. United States, 469
U.S. 38, 41-43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). I am at a
loss to understand why the result should be any different when a
trial court declines to rule on such a motion and the defendant
elects not to testify.
The Luce Court held that any possible harm flowing from a
trial court’s denial of a motion in limine to bar impeachment by a
prior conviction is wholly speculative absent the defendant having
testified and the prosecution having been allowed to use the
defendant’s prior convictions to impeach him. As the Court noted,
the trial judge might, in the exercise of discretion, alter the
previous ruling and bar the use of the defendant’s prior
convictions for impeachment purposes, or the prosecution might
elect not to use an arguably inadmissible prior conviction. Luce,
469 U.S. at 41-42. The circumstance is no different when a trial
court declines to rule on such a motion and the defendant does not
testify. Whether the State would have attempted to use an
inadmissible prior conviction to impeach the defendant or whether
the trial court would have allowed impeachment by prior conviction
are matters of pure speculation.
The majority correctly holds that a defendant has a
constitutional right to testify, but comes short of declaring that
15
1-04-2655
the trial court denied him that right in this case. Instead, the
majority concludes that "[t]he defendant was deprived of the
information he needed to make an informed and intelligent decision
about whether to testify." I disagree. The defendant was
certainly aware of his prior convictions and of the risk that the
State might seek to impeach his testimony 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
(1990). In this case, the question of whether the defendant’s
prior convictions would be admissible for purposes of impeachment
never became an issue which the trial court was obligated to
resolve because the defendant never testified and the State never
attempted to introduce the convictions. People v. Ballard, 346
Ill. App. 3d 532, 543, 805 N.E.2d 656 (2004); People v. Owen, 299
Ill. App. 3d 818, 824-25, 701 N.E.2d 1174 (1998); see also Rose, 75
Ill. App. 3d at 52-53. Further, the assumption that the trial
court’s refusal to rule on the defendant’s motion in limine
motivated his decision not to testify is unsupported speculation.
See Luce, 469 U.S. at 42.
Unlike the majority, I do not feel "encumbered" by precedent
in this area; rather I completely agree with the earlier decisions
16
1-04-2655
of this court holding that a trial court’s refusal to rule on a
motion in limine to bar impeachment by evidence of a prior
conviction is not reviewable. It is only when the defendant
testifies and the State introduces evidence of a prior conviction
for purposes of impeachment that a claim of error in admitting such
evidence can be presented to a reviewing court in a concrete
factual context. See Luce, 469 U.S. at 43-44. If this court were
to review a trial court’s refusal to rule on such a motion in
limine in cases where the defendant elects not to testify, we would
necessarily be required to engage in pure speculation as to the
reasons why the defendant did not testify.
For these reasons, I concur in the affirmance of the
defendant’s conviction. Additionally, for the reasons stated by
the majority, I concur in the vacation of the defendant’s sentence
and remand of this case to the circuit court for a new sentencing
hearing.
17