APPEAL from the Circuit Court of Cook County; the Hon. SIDNEY
A. JONES, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Opinion filed January 25, 1971. Modified on denial of rehearing,
In March of 1968 a jury in the circuit court of Cook County found the defendant, Ellis Montgomery, guilty of the unlawful sale of a narcotic drug, and he was sentenced to imprisonment for not less than 10 years nor more than 10 years and a day. On this direct appeal, the defendant argues: that the use of a prior conviction to impeach his credibility violated his sixth amendment right to counsel because the record of the conviction did not show that he was represented by counsel; that he was denied his right to a fair trial by the admission into evidence of a prior conviction not relevant to his credibility; and that the prosecutor's closing argument to the jury was prejudicial.
We find it unnecessary to consider all the issues raised by the defendant, for we are of the opinion that the 21-year-old prior conviction admitted into evidence bore no rational relationship to the defendant's present credibility, and should not have been admitted.
On November 14, 1966, Officer Kenneth Burt of the Chicago Police Department telephoned Ruth Bennett, who was then on probation by reason of a 1965 conviction for the unlawful possession of marijuana, and told her that certain charges filed against her in 1966, also for the unlawful possession of marijuana, would be dropped if she agreed to cooperate in arranging the arrest of her supplier. She agreed, and testified that she telephoned the defendant, whom she had known for one or two years, and asked him to sell her some marijuana. She said the defendant agreed to make the sale at 10 P.M. that same day, November 14, at his place of employment, the Melody Lane Tavern located at 42nd Place and Drexel Avenue in Chicago.
At approximately 9:20 P.M., Officer Burt, accompanied by Officer Leonard Lawrence, picked up Ruth Bennett and drove her to the Melody Lane Tavern. The officers searched her and gave her $20 in recorded money. She entered the tavern and returned to the officers' car a short time later, handing them two envelopes containing marijuana. She testified that the envelopes were given to her by the defendant, whom she described, in return for the $20.
The officers testified that they entered the tavern, and immediately recognized the defendant from the description. They asked him to empty his pockets, and when he did so they found the recorded money. The defendant was then placed under arrest.
The defendant testified that he was the night manager of the tavern, and that when Ruth Bennett entered the tavern she did not talk to him, but to the bartender. The defendant also testified that after the bartender talked to Ruth Bennett he gave the defendant $135 in cash, which included the $20 in recorded money, so that he could purchase some whiskey for the tavern. He also said that he had a list of the whiskey he was to purchase in his pocket along with the $135. The officers who arrested the defendant testified, on the other hand, that they could not recall the defendant having in his possession any money in addition to the $20, or any whiskey list. The bartender did not testify.
In order to impeach the defendant's credibility, the prosecution read into evidence a certified copy of a prior conviction of the defendant. The document read to the jury recited that the defendant had been convicted of robbery in 1947, which was 21 years before the trial of this case, when the defendant was 18 years of age. The defendant did not object when this evidence was offered, but in his motion for a new trial he contended that the conviction used to impeach his credibility was for an offense unrelated to credibility, and in any event was too remote in time to support an inference as to his present credibility. The trial judge regarded the absence of objection as unimportant, for he denied the post-trial motion on the ground that under the statute he had no discretion to exclude a prior conviction offered by the prosecution, saying: "As unfair as it is, in my opinion, to present a record against a man twenty years ago when he was a kid, I have to follow the law."
The applicable statute provides: "No person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility * * *." (Emphasis supplied.) (Ill. Rev. Stat. 1967, ch. 38, par. 155-1.) Relying primarily on People v. Buford (1947), 396 Ill. 158, the prosecution argues that the statute contains "no limitation as to the time of a prior conviction," and requires the trial judge to admit evidence of a prior conviction to impeach the credibility of a defendant whenever the prosecutor sees fit to offer it.
Our analysis of the correctness of this construction of the statute begins with a fundamental proposition of the law of evidence. "There is a principle not so much a rule of evidence as a presupposition involved in the very conception of a rational system of evidence, as contrasted with the old formal and mechanical systems which forbids receiving anything irrelevant, not logically probative." (1 Thayer, Preliminary Treatise on Evidence, 264 (1898).) In discussing the basic axiom, "None but facts having rational probative value are admissible", Wigmore says that "Among its innumerable indirect effects are to be noted the rules directed to prevent the jury from substituting passion and prejudice, instead of reasoning, as the foundation of their conclusion; and the doctrine that even the Legislature cannot establish a rule of decision which will deprive the Judiciary of its power to investigate the facts by rational methods." 1 Wigmore on Evidence, sec. 9, (3rd Ed. 1940), p. 290.
In this case the prior conviction which was put before the jury had no tendency to show identity, motive or plan; it was not admissible to show the defendant's guilt. It came into this case only because the defendant took the witness stand to testify in his own defense. And its relevance must depend upon the assumption that one who was convicted of robbery more than 20 years before is for that reason more likely than one who was not so convicted to testify falsely today. We are aware of no factual or psychological support for such an inference.
On the other hand, the prejudicial effect of this evidence is unmistakable. As the trial judge in this case put it, "The defendant is a dead duck once he is on trial before a jury and you present a record that he was convicted * * * twenty-five years ago * * *. If it's any way close, the jury is going to hang him on that record, not on the evidence."
The customary safeguard against this danger is an instruction to the jury that the defendant's criminal record may be considered only as it bears upon the weight to be given to the defendant's testimony. The unstudied remarks of the trial judge reflect his disbelief in the effectiveness of that safeguard. That same disbelief was expressed in more scholarly terms by Dean Griswold: "We accept much self-deception on this. We say that the evidence of the prior conviction is admissible only to impeach the defendant's testimony, and not as evidence of the prior crimes themselves. Juries are solemnly instructed to this effect. Is there anyone who doubts what the effect of this evidence in fact is on the jury? If we know so clearly what we are actually doing, why do we pretend that we are not doing what we clearly are doing?" Griswold, The Long View (1965), 51 A.B.A.J. 1017, 1021. See also H. Kalven & H. Zeisel, The American Jury (1966), 124, 126-130, 144-146; McCormick, Some High Lights of the Uniform Evidence Rules (1955), 33 Tex. L. Rev. 559, 568; Note, Procedural Protections of the ...