APPEAL from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Will County;
the Hon. HERMAN W. SNOW, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
We allowed the petition of the State's Attorney of Will County for leave to appeal from the appellate court's reversal of the judgment of conviction against the defendant, Harold Ray, on the charge of having unlawfully possessed burglary tools. (3 Ill. App.3d 517.) The only question presented on the appeal is whether the appellate court was correct in holding there was error in the trial court's denial of the defendant's pretrial motion that the State's Attorney be prohibited from attempting to impeach the defendant's testimony, should he take the stand, by the use of a prior 27-year-old conviction of robbery and armed robbery.
On July 29, 1969, at about 10:15 P.M., the defendant was arrested when he was found in an alley located behind a photography studio in Joliet. The defendant was wearing gloves, carrying a pry bar, and also had a flashlight. The police found gouge marks on the outside of two windows in the studio building. The marks appeared to have been recently made, but the windows were nailed shut and no entry into the building had been made.
Following a jury trial, at which he did not testify, the defendant was convicted on December 1, 1969, of attempted burglary and possession of burglary tools and was sentenced to two to five years for attempted burglary and to one to two years for possession of burglary tools.
The appellate court reversed the attempted-burglary conviction on the ground that the trial court had erroneously denied the defendant's motion for a directed verdict, because, the appellate court said, the People "* * * failed to prove that the pry bar was used by the defendant." The court reversed the conviction for possession of burglary tools, holding that the trial court had erred in denying the defendant's motion to prohibit the anticipated impeachment should the defendant testify. The cause was remanded for a new trial.
The record shows that on November 25, 1969, prior to trial and prior to our decision in People v. Montgomery, 47 Ill.2d 510, the defendant moved to prohibit the People from using the defendant's robbery and armed-robbery convictions in 1942 to impeach his testimony should he choose to testify. The defendant argued that the convictions were so old that their negligible value for impeachment was overridden by the danger of the jury's prejudicially misusing them as substantive evidence of his guilt on the pending charges.
The People successfully argued, in opposition to the motion, that under our law there was no cutoff time in determining whether a prior conviction for an infamous crime could be introduced for purposes of impeachment.
In holding that there was error in the denial of the defendant's motion the appellate court said: "The trial court apparently concluded that the prosecutor had a right to put on the evidence and that the question was not one of judicial discretion. It is true that the Montgomery opinion was filed after the trial of the defendant in the case before us and therefore the trial court did not have the benefit of the law as set forth by our Supreme Court in that case. However, the trial court did possess discretionary powers in regard to the defendant's motion and we believe that the motion should have been granted and proof of the 27-year-old conviction barred. We are cognizant of the fact that in Montgomery our Supreme Court stated that the opinion was to be followed in future cases but we fail to see why the provisions of the Montgomery case should be denied to the defendant in the case before us * * *."
In Montgomery we reversed the defendant's conviction for the sale of narcotic drugs, believing there was error in the introduction for impeachment purposes of the defendant's 21-year-old conviction for a robbery committed when he was 18 years old.
In its argument in Montgomery, the People, relying on our 1947 decision in People v. Buford, 396 Ill. 158, took the position that the concerned statute (Ill. Rev. Stat. 1967, ch. 38, par. 155-1) "requires the trial judge to admit evidence of a prior conviction to impeach the credibility of a defendant whenever the prosecution sees fit to offer it." 47 Ill.2d at 513.
The statute in Montgomery, which is concerned here too, provided: "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 of 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 * * *." (Ill. Rev. Stat. 1967, ch. 38, par. 155-1.) Considering the statutory language "* * * may be shown for the purpose of affecting his credibility," we judged that a discretion to determine whether a conviction may be shown must be conferred "either upon the prosecutor or upon the trial judge." (47 Ill.2d at 515.) We then rejected the State's argument that the prosecutor had the discretion with the observation: "[T]o hold that the statute gives a prosecutor the absolute right to determine what evidence a court must admit against a defendant in a criminal case, regardless of its relevance, is to create unnecessary constitutional problems. The question is inherently judicial, and we believe that view is correct which places the discretion as to the admissibility of this kind of evidence in the judge rather than in the prosecutor. [Citation.]"
We then continued with a discussion of factors to be considered by a trial court in deciding whether to allow impeachment by a prior conviction. We cited Rule 609 of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (since adopted with changes by the Supreme Court of the United States, Federal Rules of Evidence, 34 L.Ed.2d 7, 69, 93 S.Ct. 1, 82-83), which sets out a number of criteria for deciding whether prior convictions may be used to attack a witness' credibility. We concluded our opinion in Montgomery by declaring that "* * * the provisions of this Rule
should be followed in future cases." 47 Ill.2d at 519.
Other courts have correctly concluded that the holding in Montgomery was to be prospective only. (People v. Clark, 3 Ill. App.3d 196; People v. Jackson, 132 Ill. App.2d 464; People v. McClain, 132 Ill. App.2d 669; and People v. Beck, 133 Ill. App.2d 356.) We, also, have stated that Montgomery was ...