dissenting:
In People v. Patrick, 233 Ill. 2d 62 (2009), this court considered two cases that were consolidated for our review because they presented a common issue: whether a trial court abuses its discretion when it refuses to rule on a defendant’s motion in limine to determine what prior convictions may be admitted for impeachment purposes until after the defendant takes the stand and testifies. This court unanimously held that a trial court abuses its discretion and, thereby, substantially prejudices a defendant when, without good reason, it refuses to rule prior to trial on a defendant’s motion in limine to determine what prior convictions are admissible for impeachment purposes. After reaching this holding, a majority of this court then went on to treat the two consolidated cases disparately, granting relief in one, but not the other. The majority granted relief to defendant Patrick, who had testified at trial, but denied relief to defendant Phillips, finding that he failed to preserve the error for review by choosing not to testify at his trial.
I dissented in Patrick to point out inconsistencies in the majority’s reasoning. If, as the majority held with regard to defendant Patrick, a trial court’s refusal to rule on the motion in limine prejudices the defendant because it deprives him of the information necessary to make a knowing and intelligent decision about whether to testify and if, for this reason, the trial court’s error is of constitutional dimension and cannot be deemed harmless, why should it matter whether the defendant testifies? The answer is that it makes no difference whether the defendant testifies or not — the defendant is substantially prejudiced by the trial court’s refusal to rule. Patrick, 233 Ill. 2d at 88-89 (Burke, J., concurring in part and dissenting in part, joined by Freeman, J.).
After Patrick was decided, a number of petitions for leave to appeal that were held pending Patrick’s release were disposed of. Some petitions were resolved by remanding the causes to the appellate court for reconsideration in light of our opinion in Patrick; other petitions were denied. We granted the petitions for leave to appeal in the consolidated cases presently before this court and, in a subsequent per curiam order, explained that our purpose in doing so was “to consider whether relief might be available to a defendant, even if he chose not to testify, if the trial court had a ‘blanket policy’ not to rule on the motion in limine in advance of the defendant deciding not to testify.” People v. Patrick, Nos. 104077, 104445 cons. (May 27, 2009) (per curiam order on denial of motion to reconsider denial of petition for rehearing).1
Not surprisingly, a majority of this court once again finds, consistent with Patrick, that a defendant’s decision not to testify at trial makes the trial court’s error nonreviewable. Again, I must strongly disagree.
I will not repeat here all of the arguments I made in Patrick. It will suffice to say that for the same reasons set forth in Patrick I must respectfully dissent in the case at bar. I continue to maintain that the majority’s rationale is flawed. The defendant’s decision not to testify does not, as the majority contends, deprive the reviewing court of a reviewable record (see 237 Ill. 2d at 19) when it is the trial court’s error in refusing to rule which denies the defendant the information necessary to make a knowing and intelligent decision on whether to testify.
In the case at bar, the majority supports its finding that the error is unreviewable when a defendant does not testify by referencing the Patrick opinion. The majority states that, in Patrick, after determining that the trial court abused its discretion by using a blanket policy to defer rulings on motions in limine, it “review[ed] the impact of the error in light of the facts of the case [and] determined that the error was not harmless.” (Emphasis added.) 237 Ill. 2d at 14. This is emphatically not what occurred.
As I pointed out in my dissent in Patrick, the majority, after finding that the trial court abused its discretion, did not engage in typical harmless-error review. In fact, in finding prejudice, i.e., reversible error, with respect to defendant Patrick, the majority never looked at Patrick’s trial testimony or determined what impact, if any, the trial court’s deferred ruling had on the outcome of his trial. The majority never considered whether the trial court’s ultimate ruling on the admissibility of the prior convictions was correct or whether the evidence overwhelmingly supported the guilty verdict. In other words, in defining prejudice, the majority never looked beyond the trial court’s error in refusing to rule prior to trial. With respect to defendant Patrick (who testified at trial), the majority found that the very fact that the trial court did not rule prior to defendant testifying was inherently prejudicial and that this prejudice infected the entire proceeding. The majority stated:
“Patrick was unjustifiably required to make a tactical decision without the ability to evaluate the impact it would have on his defense. Patrick’s counsel was unable to inform the jury whether Patrick would testify and was anticipatorily unable to disclose Patrick’s prior convictions to lessen the prejudicial effect the convictions would have on his credibility.” Patrick, 233 Ill. 2d at 75.
The majority also held that it was “critical” for Patrick to have the court rule prior to trial because the defendant relied on a theory of self-defense and “knowing whether his prior convictions were going to be used for impeachment was a vital factor that needed to be weighed” in forming his decision about whether to testify. Patrick, 223 Ill. 2d at 75.
In the case at bar, the majority concedes that withholding ruling on motions in limine is a “serious” error in these cases (237 Ill. 2d at 13) but still finds that this error is not reviewable because “[wjithout the defendant’s actual testimony, reviewing courts would be forced to speculate on the substance of that testimony and the prosecution’s questions on cross-examination.” 237 Ill. 2d at 18, citing Patrick, 223 Ill. 2d at 78-79. Since, in Patrick, the majority never relied on the defendant’s trial testimony to find reversible error, the majority’s reasoning is impossible to reconcile.
In sum, I am unsure why this court granted leave to appeal in these cases only to perpetuate the error that was made in Patrick. It continues to elude me how the majority can recognize that it is “serious” and prejudicial error for a trial court to refuse to rule on a defendant’s motion in limine, and yet deny that defendant relief. It remains my belief that a trial court, by refusing to rule, prejudices the defendant in his ability to decide whether to testify. For this reason, I maintain that the trial court’s refusal to rule on these motions prior to trial constitutes reversible error, whether or not the defendant testifies.
JUSTICE FREEMAN joins in this dissent.
Quite frankly, I do not understand the rationale offered by the court for granting appeals in these cases. It is unclear how the fact that a trial court has a “blanket policy” of delaying ruling on these motions has any possible relevance to the issue of whether a defendant who does not testify at trial is prejudiced by the lack of a pretrial ruling. The majority does not offer any explanation.